Minister for Education and Training v Tanner [2003] NSWCA 164 | Case summary

Wednesday 25 June 2003 MINISTER FOR EDUCATION AND TRAINING v SCOTT TANNER Judgment 1 BEAZLEY JA: I agree with Brownie AJA. 2 SANTOW JA: I agree with Brownie AJA. 3 BROWNIE AJA: The respondent was the owner of some land at Balmain, which adjoined a public road known as School Street. By compulsory process, the appellant acquired the land upon which School Street ran, but did not acquire any of the land that the respondent owned. The effect of the compulsory acquisition of the School Street land was that the road ceased to be a public road: Roads Act 1993 s.41; so that there was extinguished the right which the respondent had formerly enjoyed, as the owner of land adjoining the road, to access from his land to the road and from the road to his land. He made a claim for compensation under s.37 of the Land Acquisition (Just Terms Compensation) Act 1991 ("The Just Terms Act") and, in proceedings in the Land and Environment Court, Bignold J determined questions of law raised by the parties. Some of those questions so determined are no longer in issue. The sole question now is whether under the legislation compensation is payable in respect of the loss of the right of access to the road, in circumstances where the land over which the road ran was acquired, but no land owned by the respondent was acquired. 4 Section 37 of the Just Terms Act provides: - "37. An owner of an interest in land which is divested, extinguished or diminished by an acquisition notice is entitled to be paid compensation in accordance with this Part by the authority of the State which acquired the land." 5 Section 4 defines various expressions used in the Act including "interest" in land to mean: - "(a) a legal or equitable estate or interest in the land; or (b) an easement, right, charge, power of privilege over, or in connection with, the land". 6 "Land" is also defined as including any interest in land. The Roads Act contains the following relevant provisions:- "5 (1) A member of the public is entitled, as of right, to pass along a public road (whether on foot, in a vehicle or otherwise) and to drive stock or other animals along the public road…. (2) The right conferred by this section does not derogate from any right of passage that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law…

6 (1) The owner of land adjoining a public road is entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road. (2) The right conferred by this section does not derogate from any right of access that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law." 7 It was not suggested that there was any restriction or derogation that is presently relevant. 8 In Hornsby Council v Roads and Traffic Authority of New South Wales (1997) 41 NSWLR 151, the question arose whether the council was entitled to compensation when certain land, part of a Crown Reserve, was compulsorily acquired. The council contended that it had the care, control and management of the land acquired and that this amounted to a "right" within limb (b) of the definition of "interest" in the Just Terms Act. When dealing with this submission Meagher JA rejected a submission that these words were extraordinarily wide and should be interpreted literally. At 155, he said:- "However, this could not possibly be correct. In a sense every member of the public has a "right" over the land in question: he can go on it and have a picnic. But it was hardly intended that he could claim compensation on a resumption. If it were, the machinery of notifying holders of "interests" would extend to infinity. Some limitation must be placed on the words. Whilst the rights which fall within par (b) must be wider than the rights which fall within par (a), I feel that they must be limited to jura in re aliena, proprietary or quasi-proprietary rights less than a fully-fledged estate, that is, easements, charges, profit à prendre, profits à rendre, licences coupled with interests, etc." 9 Mason P and Powell JA generally agreed. In this case Bignold J naturally considered how he should apply the passage quoted to the facts under consideration, and he treated the respondent's right of access as being in the nature of an easement. To state the matter shortly, the appellant points to difficulties said to arise from the use of this analogy. 10 I do not see any need to analyse the submissions made concerning these suggested difficulties. s.37 of the Just Terms Act provides for the payment of compensation to the "owner of an interest in land which is … extinguished" by a relevant procedure, so that the question becomes whether, within the meaning of the definition of "interest", the respondent had a "right…over or in connection with, the land" compulsorily acquired, that is, the School Street land. 11 What Meagher JA said in Hornsby was apt to resolve the issue posed in that case, but of course His Honour's words ought not to be treated as a substitute for or a restatement of the words of the legislation, and they need to be read in their context. It may be that on some future occasion it will seem appropriate to refine those words, if they are to be used for guidance in the resolution of other cases, but that is not necessary or appropriate now. 12 In Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104 at 108-109 Clarke JA said:- "It is an established principle of the common law that the owner of land adjoining a highway has a right of access to the highway from any part of his premises. The statement by Lord Atkin in his speech in Marshall v Blackpool Corporation [1935] AC 16 at 22, is generally accepted as expressing this common law principle. His Lordship said: '…The owner of land adjoining a highway has a right of access to the highway from any part of his premises… The rights of the public to pass along the highway are subject to this right of access; just as the right of access is subject to the rights of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway.' It is important to emphasise that the right is one of access to the highway. It is a private right enjoyed by the owner of the land which adjoins the highway. It is, however, to be distinguished from the public right which every member of the public enjoys to pass, subject to any special statutory provisions, along the highway. This distinction, which may be difficult to grasp, was expressed in terms which are now regards as authoritative by Page Wood V-C in Attorney-General v Thames Conservators (1862) 1 H & M 1 at 32-33; 71 ER at 15: 'Independently of the authorities, it appears to me quite clear, that the right of a man to step from his own land on to a highway is something quite different from the public right of using the highway. The public have no right to step on to the land of a private proprietor adjoining the road. And though it is easy to suggest metaphysical difficulties when an attempt is made to define the right as distinguished from the public right, or to explain how the one could be infringed without at the same time interfering with the other, this does not alter the character of the right.' At a later point in the judgement the Vice-Chancellor, who was dealing with a case involving access to a wharf, proceeded (at 33; 15): '… But, in truth, the access is not blocked up. The wharf will not be as readily and easily approached, and perhaps not at all by the same route; but that is a mere interruption to the navigation of the river which they enjoy in common with the public, and not as part of their special right of access.' As Buckley J commented in W H Chaplin & Co Ltd v Westminster Corporation [1901] 2 Ch 329 at 334-335: '… There you have to two things contrasted - the right of stepping from the private property onto the highway, or from the highway on to the private property and the right of use of the highway in proximately to the private property.' The general principle and this distinction between the two rights are discussed in detail in [authorities referred to]." 13 In Lyon v Fishmongers' Company [1876] 1 App Cas 662 a question arose concerning an obstruction to the use of the appellant's wharf, situated on the bank of a navigable river. At 671-672 Cairns LC said:- :"Unquestionably the owner of a wharf on the river bank has, like every other subject of the realm, the right of navigating the river as one of the public. This, however, is not a right coming to him quà owner or occupier of any lands on the bank, nor is it a right which, per se, he enjoys in a manner different from any other member of the public. But when this right of navigation is connected with an exclusive access to and from a particular wharf, it assumes a very different character. It ceases to be a right held in common with the rest of the public, for other members of the public have no access to or from the river at the particular place; and it becomes a form of enjoyment of the land, and of the river in connection with the land, the disturbance of which may be vindicated in damages by an action, or restrained by an injunction… The taking away of the river frontage of the wharf, or the raising of an impediment along the frontage, interrupting the access between the wharf and the river, may be an injury to the public right of navigation; but it is not the less an injury to the owner of the wharf, which, in the absence of any Parliamentary authority, would be compensated by damages, or altogether prevented." 14 This passage can be equated to the position to the owner of the land adjoining a public highway: Walsh v Ervin [1952] VLR 361 at 362-363. 15 That is, the common law treated the owner of land adjoining a highway as having rights over or in connection with that highway, and s.6 of the Just Terms Act effectively restates this right. When one turns back to s.37 and to the definition of "interest" in s.4 of the Just Terms Act, it seems natural to say that such a land owner has a right over or in connection with the public road adjoining his or her land. 16 In this context it is apt to recall the words of s.3 (1) (b) of the Just Terms Act (providing that the objects of the act include ensuring compensation under the Just Terms Act for the owners of land that is acquired by authority of the State) and the words of Heydon JA in Roads and Traffic Authority of New South Wales v Heawood (2002) 54 NSWLR 289 at [20]:- "The respondent pointed out that in Marshall v Director-General, Department of Transport (201) 75 ALJR 1218 at 1229 [37]-[38]; 180 ALR 351 at 364-365 [37]-[38], Gaudron J said, after expressing agreement with the majority: '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. 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. 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 nature and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to be 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.'" (Footnotes omitted). 17 I propose that the appeal be dismissed with costs. **********

Minister for Education and Training v Tanner

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