Pine Rivers SC v Doolan Properties P/L

**[1] McMURDO P: I have read and agree with the joint reasons for judgment of Pincus and Davies JJA and wish only to add the following by way of emphasis.

[2] It is possible that the claimant may have been required to complete some road works as a condition of the rezoning, regardless of the land resumption for which it is entitled to compensation. If so, the finding as to the cost of road works directly related to the land resumption may have been less favourable to the claimant. It is not submitted that this was an issue before the Land Court; I note it is not dealt with in the detailed and careful reasons for judgment of that Court.

[3] The Land Appeal Court noted that no challenge was made there to the determination of the cost of the external road works at $89,700[1] and concluded that the cost of the road works was directly related to the land resumption scheme; the claimant was therefore entitled to compensation in respect of that cost.[2] In doing so, the Land Appeal Court made no error or mistake in law.

[4] I agree that the appeal should be dismissed with costs.

[5] PINCUS and DAVIES JJA: This is a case concerning the proper amount of compensation for land taken compulsorily under the Acquisition of Land Act 1967. The company which is the respondent in the proceedings in this Court was and will be called in these reasons "the claimant". The appellant council which resumed the land in question will be called "the council". This case is the third in which the claim has been considered; the Land Court awarded compensation at a figure which was increased on an appeal by the claimant to the Land Appeal Court and now we have before us an appeal by the council against the Land Appeal Court's decision.

[6] By its appeal the council raises two questions. The first is whether the Land Appeal Court had jurisdiction to determine the proceedings before it. The council contends that it did not, on the ground that what purported to be a notice of appeal to the Land Appeal Court from the Land Court was not one, since the person named as appellant in that document was not the claimant, a company, but a person called William Doolan. The second issue raised is whether the Land Appeal Court was right in deciding, as it did, that a sum of $89,700 being the cost of certain roadworks should not be deducted from the award of compensation.

[7] By a solicitor's error, the notice of appeal filed in the registry of the Land Appeal Court named William Doolan, not the claimant company, as the appellant. The notice of appeal to the Land Appeal Court plainly enough identified the decision of the Land Court sought to be impugned by reference to its date and to the amount awarded. No submission was or could be made that its form was such as to leave any doubt as to the subject matter of the appeal.

[8] But Mr Hughes, for the council, argued that it was relevant that William Doolan, who is it appears the person in control of the claimant, had sold the land in question to the claimant not long before it was resumed; this implied that the claimant's position was worsened, so far as the validity of the notice of appeal to the Land Appeal Court was concerned, by the fact that William Doolan is not only an existing person, but one who might have been thought, wrongly, to have standing to appeal against the Land Court's decision awarding compensation to the claimant company.

[9] There are two provisions relevant to the jurisdictional issue. The first in order of date is s 44(11)(d)(ii) of the Land Act 1962 and the second is s 26(2) of the Acquisition of Land Act 1967. Although the Land Act 1962 was repealed by s 524 of the Land Act 1994, s 521 of the Land Act 1994 continues certain provisions of the earlier Act, including s 44, in effect. Section 44(11)(d) reads in part:**

(ii) the notice of appeal or the copy lodged with the Registrar is defective in any particular but that either -

(A) the defect is not of such a nature as to result in a detriment to another party on whom it is required to be served or to mislead the Registrar in a material way; or

the appeal shall lie notwithstanding any Act, law or practice and, where the Land Appeal Court determines that the appeal so lies, such determination is final and not subject to appeal".

[10] In the Land Appeal Court it was argued that the notice of appeal was defective in that the name of the appellant was "incorrectly described". The court held that the appeal was properly constituted and that the court had power to allow an amendment to the notice of appeal to change the name of the appellant from "William Doolan" to that of the claimant company. Mr Hughes' principal ground of attack on the Land Appeal Court's treatment of this issue was that, he argued, the notice of appeal in the name of William Doolan was null and void. The basis of his contention, as it appears to us, is that the meaning of "notice of appeal" is to be extracted from the second relevant provision, which is s 26(2) of the Acquisition of Land Act 1967:

"The Crown or any party aggrieved by a decision of the Land Court constituted by a single member may appeal to the Land Appeal Court in the manner provided in the Land Act 1962".

Mr Hughes contended that William Doolan, named as the appellant in the notice of appeal to the Land Appeal Court, was not a party aggrieved by the Land Court's decision and therefore had no right to appeal. He argued that in such a case the notice of appeal is null and it is not a "notice of appeal" within the exculpatory provision in s 44 of the Land Act 1962.

**[11] Acceptance of the principle underlying this argument would narrow the operation of the exculpatory provision in the Land Act unduly. Its result would be that, if a person or company other than the claimant in the Land Court is named as the appellant in the notice of appeal to the Land Appeal Court, then the purported proceeding is simply void and nothing can be done about it, however obvious it may be that the wrong name has been inserted by a slip. The proper construction of s 44(11)(d)(ii) of the Land Act 1962 is that any defect, of whatever character, enlivens the Land Appeal Court's jurisdiction to determine that the appeal lies notwithstanding the defect. Possessing that jurisdiction, the Land Appeal Court may, however, properly overlook the defect only if it is not of such a nature as is mentioned in the exculpatory provision, i.e. if it is "not of such a nature as to result in a detriment to another party on whom it is required to be served or to mislead the Registrar in a material way". The test should not be read as if it were intended to introduce distinctions of the kind discussed in Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231. The statutory test we have quoted must be applied in accordance with its terms, whatever the law applicable in other proceedings might be. Here the test was held to have been satisfied and that conclusion is not contested.

[12] As to the relationship between the two statutory provisions we have discussed, it should be noted that the exculpatory provision says an appeal lies in the circumstances there mentioned "notwithstanding any Act". That expression is apt to apply to any statute of the Queensland Parliament: see s 6 of the Acts Interpretation Act 1954. Of course a subsequent statute could be in such terms as to indicate an intention to repeal, wholly or in part, the exculpatory provision. But s 26(2) of the Acquisition of Land Act 1967 is unlikely to have been intended to restrict the relevant powers of the Land Appeal Court, given by the 1962 Act, particularly having regard to the statement in the 1962 Act that the exculpatory provision applies notwithstanding any Act, which means any Act earlier or later than the 1962 Act.

"It was not suggested by Mr O'Regan QC, quite properly, that the respondent had suffered any prejudice through the appellant's error".

Mr O'Regan QC appeared for the council in the Land Appeal Court. In view of that concession, there being no reason to think the registrar was misled, the statutory test was satisfied and the Land Appeal Court was right so to hold.

**[14] Even if that had not been so, the council would face the difficulty that the Land Appeal Court's determination is "final and not subject to appeal". We have, in deference to the arguments advanced, considered the council's point; but it is unclear to us that there is any good answer to the argument that determination of the question is appeal-proof.

[15] It follows, in our opinion, that this basis of appeal fails.

[16] The second point raised by the council is that, according to Mr Hughes' argument the Land Appeal Court misapplied the Pointe Gourde principle in augmenting in favour of the claimant the sum awarded by the Land Court. There is a question whether the error which the Land Appeal Court is alleged to have made was, if made, a legal or a factual one. But if it appears that the foundation of the decision under appeal was an "error or mistake in law" (see s 45 of the Land Act 1962) then, although the error or mistake is implicit rather than explicit, the appeal must be allowed.

[17] Shortly before the land in question was resumed (by proclamation dated 17 August 1995), the council approved its rezoning, an application for which had been made with a view to commercial development of the site. One of the rezoning conditions required certain roadworks which we shall call simply the "rezoning roadworks" to be done, and the Land Court assessed their cost at $89,700. In the Land Court that sum was taken off the award which would otherwise have been made, on the basis that it would have been necessary for a prospective purchaser of land in its unresumed state to spend that sum, in order to develop it in accordance with the council's approval. In the Land Appeal Court the deduction of the $89,700 was reversed, because the Land Appeal Court was of the view that:**

" ... the evidence demonstrates a direct relationship between the road widening requirement imposed by the Council and the [resumption] scheme".

**[18] One criticism of the Land Appeal Court's approach, made on behalf of the council in this Court was that, so it was said, even development in the unresumed state would have involved a certain amount of roadworks; so the assumption the Land Appeal Court made, that acceptance of the claimant's argument involved an adjustment in its favour of $89,700 was factually inaccurate. As an answer to this contention, Mr Gore QC argued on behalf of the claimant, in this Court, that the method of valuation adopted by the Land Court required the attribution of a value, both before and after resumption, in dollars per square metre of land. Mr Gore said that the expenditure of $89,700 was not, nor was any other expenditure in developing the land, directly reflected in the values per square metre adopted in the competing valuations, or in the values fixed on by the court. This view of the matter appears to be correct, but it is unnecessary to use it as a basis for determining the appeal.

[19] Mr Hughes argued, in effect, that the $89,700 was not the correct figure and that there was no precise evidence enabling the correct figure to be fixed, because it was not proved, by the claimant, what corresponding roadworks would have cost, if there had been no resumption. There was in fact a dispute, before the Land Court, as to the cost of the roadworks; it is dealt with at pages 62 to 67 of the Court's reasons. It appears that no contention was raised there, or in the Land Appeal Court, that the cost of the roadworks should be reduced by the figure which would have been expended if the condition imposed had been appropriate to a development which ignored the pending resumption. Of course, it was not in the interests of the council, defending the $89,700 deduction made, to urge the Land Appeal Court to reduce it. It seems clear that the council cannot now succeed, on an appeal based on error or mistake in law, by alleging an error with respect to a factual point not in issue before the Land Appeal Court.

[20] Another factual question which was agitated was that, according to Mr Gore's argument, the Land Court made a mistake in thinking that the $89,700 was a figure for roadworks properly applicable to the pre-resumption, as opposed to post-resumption, condition. Mr Gore said that the evidence relating to it had to do with a development which anticipated the resumption. It is not necessary to discuss this, as a separate point, because it is connected with the question of principle in the case. This is whether, where an approval for development is given before but in anticipation of a resumption, costs necessitated by conditions dictated by the pending resumption should be taken into account, against the claimant.

[21] The notion of justice underlying Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565 is that compensation should be assessed for resumed land ignoring effects of the resumption. If those effects are thought to be beneficial, causing a general rise in values, the resumed owners do not share in that benefit. If, on the other hand, the effects of resumption are to reduce value the resumed owners are entitled to compensation ignoring those effects; this is what some refer to as the reverse Pointe Gourde principle. The Land Court's decision in the present case was made on the basis that the expenditure of $89,700 for roadworks was not so connected with the resumption as to bring the Pointe Gourde principle into operation. The Land Appeal Court took the view that "the evidence demonstrates a direct relationship between the road widening requirement imposed by the council and the scheme". What was meant was that the $89,700 had to be spent because of a condition of approval, mentioned above, which was sufficiently connected with the scheme of resumption to make the principle apply.

[22] A reason for questioning the validity of this conclusion is simply that, on the findings made by the Land Court, the $89,700 had to be spent if the land was to be developed, before resumption, on the conditions approved by the council. But the Land Appeal Court has found on the evidence the "direct relationship" just referred to and nothing has been placed before us to suggest that there is any error, let alone error of law, in that conclusion. The expression "direct relationship" comes from The Crown v Murphy [1990] HCA 42; (1990) 64 ALJR 593 at 595. In that case an appeal was brought against a decision (by majority) of the Full Court of the Supreme Court of Queensland, reported in (1989) 68 LGRA 286. The land there in question was resumed in 1983. In 1981 or earlier the owners applied to have it converted from rural zoning to residential and the local authority refused to do that, in February 1981; it was argued that the Pointe Gourde principle applied. The reason for refusal was that the proposed subdivision would have a detrimental effect on a turtle rookery of world-wide significance.

[23] In the Full Court, the majority took the view that the owners were entitled to have their compensation assessed on the basis that the prospect of rezoning should be considered "free ... of the pressures of the National Parks and Wildlife Service on the local authority ... ". The reference to those pressures was:**

" ... to the submission made to the Council by the National Parks and Wildlife Service that a subdivision of the land in question would effectively render the land unavailable for acquisition by the Government and to the Council's subsequent statement that, in refusing the application for the rezoning of the land, it was 'protecting the interests of the State Government Departments' ".

(see 64 ALJR 594, 595)

**The Full Court drew the inference that the resuming authority influenced the council not to agree to the rezoning and used the Pointe Gourde principle in favour of the claimants.

[24] The High Court reversed the Full Court's decision, but only on the basis that the adjoining turtle rookery would have prevented rezoning even if there had never been a "scheme of positive action of which the resumption was an integral part" (595). But apart from that difference, the decision is well applicable in favour of the claimant here. There, as here, the council acted in such a way as to depreciate the value of the land in anticipation of the resumption and, but for the factual difference to which we have referred, the High Court would it appears have accepted that the Pointe Gourde principle was applicable, despite the substantial gap in time between the refusal of the rezoning and the date of resumption.

[25] In this area, questions of fact and degree will necessarily be involved, in determining the sufficiency of the connection between the depreciating factor, e.g. imposition of conditions or refusal of rezoning, and the scheme of resumption. Where the relationship between, for example, a planning restriction and the resumption scheme is merely indirect, Pointe Gourde will only apply if "the planning restriction can properly be regarded as a step in the process of resumption": Murphy at 595. Here the relationship was held to be direct, on the evidence, and there is no ground for thinking that that conclusion was reached by way of legal error.

[26] (i) Although the notice of appeal to the Land Appeal Court named the wrong appellant, it was in that respect "defective", within the meaning of s 44(11)(d)(ii) of the Land Act 1962 and so the Land Court's jurisdiction under that provision was enlivened; the notice of appeal was not a nullity.

(ii) No legal error infected the Land Appeal Court's decision that the cost of certain roadwork made necessary by a pre-resumption zoning approval was directly related to the resumption scheme and therefore within the Pointe Gourde principle; indeed, that view appears to us a correct one.

[2] See Pointe Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565, 572-573; Melwood Units Ltd v Main Roads Commissioner [1979] AC 426, 434; The Crown v Murphy [1990] HCA 42; (1990) 64 ALJR 593, 595.