Scevola v Minister Administering National Parks and Wildlife

Land and Environment Court (NSW)|2017-07-19|Before: Pain J

New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 11 April 1991, 1974 Category: Procedural and other rulings Parties: Salvatore Scevola (Applicant) Minister Administering National Parks and Wildlife (First Respondent) Foundation for National Parks and Wildlife (Second Respondent) Shoalhaven City Council (Third Respondent) Minister for Planning (Fourth Respondent) Representation: COUNSEL: S Scevola, in person (Applicant) C Lenehan (First & Fourth Respondents) S Duggan (Second Respondent) H El-Hage (Third Respondent)

SOLICITORS: Crown Solicitor's Office (First & Fourth Respondents) Bartier Perry (Second Respondent) Bradley Allen Love (Third Respondent) File Number(s): 17/104195

Notices of motion to summarily dismiss proceedings

The First, Second and Third Respondents each filed a notice of motion on 2 June 2017 seeking an order that the Applicant's summons filed on 5 April 2017 be dismissed. The Respondents rely on r 13.4 of the Uniform Civil Procedure Rules 2005 (UCPR) contending that the proceedings are frivolous or vexatious, do not disclose a reasonable cause of action and are an abuse of process of the Court. The Respondents also seek their costs of their notices of motion.
These proceedings relate broadly to a 180 ha paper subdivision comprised of approximately 1,200 lots called the Heritage Estates near Jervis Bay on the south coast of New South Wales. The subdivision occurred in 1915. The land was not subject to any zoning until 1964 when it was zoned "rural". This zoning did not permit residential development due to the small size of the lots. Many of the lots were sold individually in the 1980s resulting in approximately 1,100 different ownerships of the 1,200 lots. The proceedings are brought against the Minister Administering National Parks and Wildlife (the First Respondent Minister), the Foundation for National Parks and Wildlife (the Foundation) and the Shoalhaven City Council (the Council). The Foundation is an independent not-for-profit organisation, one of whose aims is to acquire high conservation value land to gift to Australia's publicly-owned national parks and protected areas.
The Minister for Planning (Fourth Respondent Minister) was joined under r 6.24 of the UCPR as the Fourth Respondent during the hearing in the event that the summons is considered to challenge an amendment of the Shoalhaven Local Environmental Plan 2014 (Shoalhaven LEP) which the Fourth Respondent made in 2016. The land in the Heritage Estates was then rezoned to E2 - Environmental Conservation.
There is some complexity associated with the proceedings given changes in the moving party. The original applicant in the proceedings and at the commencement of the hearing of the notices of motion was described in the summons as the Shoalhaven Landowners Association (SLA), an unincorporated group (at the time of these proceedings) of landowners in the Heritage Estates. From discussions during the hearing my understanding is that the SLA has about 240 members and has been incorporated in the past. Following much discussion at the commencement of the hearing the Court ordered on the application of the agent for SLA Mr Salvatore Scevola that the SLA be removed as a party pursuant to r 6.29 of the UCPR. Mr Scevola applied and was joined as the sole Applicant under r 6.24. Mr Scevola is a law student and represented himself. As the original applicant the SLA filed a notice of motion on 8 May 2017 seeking that the matter be expedited. I infer that Mr Scevola also wishes to press that motion as his submissions addressed it. I will firstly consider the Respondents' notices of motion.
Mr Scevola is a landowner in the Heritage Estates. He informed the Court that he became the owner of Lot 62 DP 8770 in April 2017, a recent acquisition in the context of events concerning the Heritage Estates referred to during the hearing. He also submits that he has had an equitable interest in Lot 71 DP 8772 since 2006 under a deed of agreement with the owner of that lot. As the sole Applicant, only the land in which Mr Scevola has an interest is strictly before the Court. As will become clear the issues Mr Scevola seeks to raise relate to the Heritage Estates more generally and his submissions were largely presented as if on behalf of members of the SLA. Dealing with the legal basis for Mr Scevola's claims is problematic in that whether any of the relief sought concerns his land in particular is unknown to the Court.
The essential concern underpinning Mr Scevola's claim must be that the land in which he has an equitable interest, Lot 71, has lost value since 2006 because of attempts to have land in the Heritage Estates transferred to national park reserve and that loss should be recoverable. Given his very recent acquisition of Lot 62 this year it is unclear that any of the relief sought in the summons is justified in relation to Lot 62. For example, I do not know if Mr Scevola has received an offer to buy land from the Foundation since he became the owner of Lot 62. Of necessity therefore the legal arguments will occur in something of an evidentiary vacuum in terms of Mr Scevola's situation.
As will become clear the matters raised can be determined because of the broader history of the area and the necessary statutory construction issues which arise. I consider the essential issues that require resolution can be considered adequately in this judgment despite that evidentiary vacuum.

Summons

The summons must of necessity be amended following the removal of the SLA and joinder of Mr Scevola as the Applicant. It seeks relief in the following terms with appropriate amendments made: 1. A declaration by way of an interlocutory order that the Minister Administering National Parks and Wildlife Service of NSW has failed to properly acquire (or seek to acquire) land within the precinct of Worrowing Heights NSW, DP's 8590, 8591, 8770, 8771, & 8772 otherwise known as "The Heritage Estates" Jervis Bay. The Minister is obliged to engage with Sections 145 & 146 of the National Parks and Wildlife Service Act (NSW) 1974 for the Applicant's land earmarked or "required" for a National Park. The said Act also engages subsection (2) which requires the Minister to acquire the Applicant's land in accordance with the Land Acquisition (Just Terms) Act (NSW) 1991 for all acquisitions whether such transfers be by 'agreement or compulsory process'. 2. A Declaration by way of interlocutory order that the Minister Administering National Parks and Wildlife Services is restrained from using the Foundation for National Parks and Wildlife Service to "procure" the Applicant's land on behalf of the Minister until such time as the Land and Environment Court of NSW has heard and determined the rights, obligations or compensation payable to the Applicant. 3. A Declaration by way of interlocutory order that the Shoalhaven City Council desist and be restrained from using the Foundation for National Parks and Wildlife Service to "procure" the Applicant's land on behalf of the Minister Administering National Parks and Wildlife until such time as the Land and Environment Court of NSW has heard and determined the rights, obligations or compensation payable to the Applicant. 4. A declaration by way of interlocutory order that the Foundation for National Parks and Wildlife has acted in the capacity of "an Authority of the State" in the procuring of the Applicant's land to transfer to the Minister Administering National Parks and Wildlife Services in contravention of the rules and principles set out in ss 3, 5, 8, 9, 21, 37, 38, 54, 55, 56, 57, 59, 61, & 68 of the Land Acquisition (Just Terms) Act (NSW) 1991. 5. An interlocutory order restraining the first and third Defendants from proceeding to rezone land identified in DP's 8590, 8591, 8770, 8771, & 8772 otherwise known as "The Heritage Estates" Jervis Bay to Environmental Conservation E2 until such time as the Court has fully heard and determined the suitability of this land in that classification or any other including for Residential purposes. 6. A Declaration by way of interlocutory order that the Applicant has a right in fee simple comprising of all the "unformed roads" within the estate and that should the roads form part of the acquisition process that the value of such roads be compensated to the Applicant. 7. An order expediting the matter before the court for hearing before the duty Judge. 8. An order for costs. 9. Any other order the court thinks suitable in the delivery and discharge of this matter before the court.
At issue is whether the Court has jurisdiction to grant the relief sought by the Mr Scevola in the summons, whether the summons discloses a reasonable cause of action, whether the proceedings are an abuse of process and whether an issue estoppel arises.
The circumstances surrounding the Heritage Estates are usefully summarised in the Full Federal Court's decision Esposito v Commonwealth of Australia (2015) 235 FCR 1; [2015] FCAFC 160 (Esposito FFC) concerning representative proceedings brought on behalf of a class of members who were landowners in the Heritage Estates. I infer that a number of the members of the representative class are members of the SLA. The Full Federal Court stated: [2] The Heritage Estates consist of 1,232 lots of land which were sold to approximately 1,100 individuals in the late 1980s. At the time these purchases took place, the lots were not zoned by the Council in a way which permitted residential dwellings to be erected upon them. Despite this, it is apparent that the entrepreneurs involved in the sales of the land to the appellants (and those whom they represent) suggested at the time of their purchases that there was reason to believe that the zoning restrictions might be lifted in the future. The evidence before the primary judge suggested, and we accept, that many of the class members are people of modest means and for whom these purchases were seen as significant investments. [3] The entrepreneurs' intimation that at some stage the land might be rezoned was not far-fetched. Local councils such as the Council derive revenue by way of rates from residents and the Council had an interest in increasing the number of ratepayers if possible. More generally, subject to being satisfied that appropriate infrastructure might be put in place, the Council's attitude to rezoning seems to have been benign. [4] The Heritage Estates are, however, located on the Bherwerre isthmus which is said to form a habitat corridor for species and ecosystems in the nearby Booderee National Park, which lies on land owned by the Commonwealth. The Heritage Estates are also nearby to the Jervis Bay National Park and form a natural corridor between the two parks... [5] By 2007, following a protracted series of inquiries and consultations, the Council had before it a proposal with two aspects to it, first, to rezone 730 of the 1,232 lots in the Heritage Estates as residential and, secondly, to construct a road network, undertake certain bushfire prevention steps and provide services and infrastructure to the land ('infrastructure works'), to support that scale of residential development. It will be observed that, in form, the rezoning proposal was a regulatory proposal, whereas the infrastructure works involved actual development activity by the Council. Later in these reasons, we consider the implications which may flow from this distinction. The twofold proposal was the result of a considered report into the area conducted in 1999 for the New South Wales Government by Mr Kevin Cleland. Amongst the topics Mr Cleland considered were environmental ones. Ultimately, he recommended that some of the Heritage Estates should be opened up for residential development. This gave some support to any expectation of rezoning. [6] ... the presence of the Threatened Species on the Heritage Estates meant that the Council's proposal to complete the infrastructure works could not proceed without the permission of the Federal Minister under the EPBC Act. The Council lodged a referral on 9 May 2007, in effect, seeking the approval from the Federal Minister for the rezoning and the infrastructure works. As we later explain, the EPBC Act did not prohibit the rezoning and the Federal Minister's permission for it was not needed. [7] Following more consultations and submissions, the Federal Minister decided that neither the rezoning, nor the infrastructure works should be permitted to proceed. This he did on 13 March 2009. Both before and after this time the EPBC Act barred the Council from proceeding with the infrastructure works. On its face, the refusal also denied the Council permission to carry out the rezoning, but that permission was not required. Further, under State law the power to rezone land was vested in the relevant State Minister, so that the Council, in any event, did not have the power to rezone the land... [8] What appears to have provided the substantial impetus to the commencement of the present proceeding is the governmental efforts, in the aftermath of the Federal Minister's refusal decision, to add the land within the Heritage Estates to the national reserve with the eventual aim of adding it to the Jervis Bay National Park. This proposal, as finally consummated, took the form of an inter-governmental agreement between New South Wales and the Commonwealth under which, using funds provided by the Commonwealth, land in the Heritage Estate would be voluntarily (not compulsorily) acquired. At the same time, an undertaking was given to rezone the land E2, that is to say, such that it could only be used for environmental conservation. An initial offer price of $5,500 per lot was made to landowners on 31 October 2012, with the price dropping to $5,000 per lot thereafter until 3 June 2013 when the offer was set to expire. Ultimately, the offer period was extended to 30 December 2013. By the time the present proceeding was commenced, a number of landowners had accepted the offer but there were some who had not. The lead applicant in the representative proceeding, Mrs Esposito, was amongst those who opted to retain their land. Mr Talarico, an appellant, was amongst those landowners who had accepted the offer. [9] It was common ground before the primary judge that after the Federal Minister took the steps he did on 13 March 2009 to protect the Threatened Species this had resulted in the appellants' lots being worth between $0 and $500.
The representative action in the Federal Court alleged that the landowners' land had been sterilised or acquired other than on "just terms" by the actions of the Commonwealth Government and the Respondents in contravention of the guarantee in s 51(xxxi) of the Australian Constitution. The applicants' claims were succinctly outlined in Esposito v Commonwealth of Australia [2013] FCA 546 (Esposito FC interlocutory Griffiths J) at [3]: 3 ... the applicants claim that the Commonwealth, the State, Shoalhaven Council and the Foundation have collaborated and conspired to acquire the applicants' property other than on just terms, thereby unjustly enriching one or each of them, at the expense of the applicants. They say further that the alleged collaboration stems from an informal arrangement between those tiers of government whose object and purpose is, by circuitous means, to evade the constitutional guarantee binding the Commonwealth and any person who participates in the Commonwealth's conduct so as to be an instrument of an acquisition of property without compensation.
Additional findings on the role of the Foundation in relation to the Heritage Estates were set out in Esposito FC interlocutory Griffiths J as follows: 11 The applicants say that the Commonwealth government agreed to provide funding with a view to resolving the tenure of 1,145 privately-owned lots in the Heritage Estates. Landowners were advised by the Council in pro forma letters dated 15 October 2012, that the Commonwealth government had provided funding in the amount of approximately $5.5m. The landowners were advised that the Foundation would be managing what was described as a "Voluntary Heritage Estates Land Purchase project", under which the landholder would shortly be offered a fixed price for his or her land. If the landholder accepted the offer and sold their land, they were told by the Council that it would be added to the Jervis Bay National Park. Landholders were also advised in the pro forma letter that Commonwealth funding was being provided on the basis that: • Council would donate its land within the Heritage Estates to the National Park and will rezone the land that makes up the Heritage Estates to E2 - Environmental Conservation, at an appropriate time; • the Foundation would contribute $60,000 and manage what was described as "the voluntary land purchase process"; • the NSW Office of Environment and Heritage would manage the land ultimately acquired for conservation in perpetuity as part of the Jervis Bay National Park; and • the funding would expire on 30 June 2013. 12 Landholders were encouraged in the pro forma letter to take advantage of the "opportunity" as it was stated that there were "no viable alternative options to resolve the land's tenure". 13 The Foundation distributed a pro forma letter to affected landholders on 31 October 2012. Recipients were invited to participate in the Heritage Estates project by selling their land. They were advised that the Foundation was managing the project "in partnership with all levels of government" and that the Australian government was providing the majority of the funds. The intention to add any land purchased through the project to the Jervis Bay National Park was confirmed and landholders were advised that there was an "early bird" price of $5,500 per lot for the first 800 lots who forwarded a written offer to sell form by 31 March 2013. After the first 800 lots had been purchased (or after 5:00 pm on 31 March 2013), whichever occurred first), the price would reduce to $5,000 per lot. Acceptance of all offers to sell lots at Heritage Estates would close at 5:00 pm on 3 June 2013. Landholders were advised that the purchase price offer was calculated by reference to "the actual market value of the lots, which was determined using the NSW Valuer General's land valuations", as well as independent valuation advice which took into account nearby sales in recent years. 14 The Foundation advised landholders that their "participation in the project is totally voluntary and you have the right to change your mind about the sale of your lot right up until settlement of the sale has occurred". Landholders were encouraged to consider the offer as it was described as a "one-off opportunity which is only available within the dates specified".
The application for urgent injunctive relief in Esposito FC interlocutory Griffiths J and final relief in Esposito v Commonwealth of Australia [2014] FCA 1440 was unsuccessful. The Full Federal Court in Esposito FFC dismissed the appeals from both decisions. The High Court dismissed an application for special leave to appeal in Esposito v Commonwealth of Australia [2016] HCASL 87.
On 24 June 2016 the Shoalhaven Local Environment Plan 2014 (Amendment No 4) was published rezoning the Heritage Estates to E2 - Environmental Conservation. The terms of this zoning in the Shoalhaven LEP land use table is as follows: Zone E2 Environmental Conservation 1 Objectives of zone • To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values. • To prevent development that could destroy, damage or otherwise have an adverse effect on those values. • To protect water quality and the ecological integrity of water supply catchments and other catchments and natural waterways. • To protect the scenic, ecological, educational and recreational values of wetlands, rainforests, escarpment areas and fauna habitat linkages. • To conserve and, where appropriate, restore natural vegetation in order to protect the erosion and slippage of steep slopes. 2 Permitted without consent Nil 3 Permitted with consent Aquaculture; Bed and breakfast accommodation; Boat sheds; Dwelling houses; Eco-tourist facilities; Emergency services facilities; Environmental facilities; Environmental protection works; Home businesses; Recreation areas; Research stations; Roads; Sewerage systems; Water recreation structures; Water supply systems 4 Prohibited Business premises; Hotel or motel accommodation; Industries; Multi dwelling housing; Recreation facilities (major); Residential flat buildings; Restricted premises; Retail premises; Seniors housing; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3.

Environmental Planning and Assessment Act 1979

The Environmental Planning and Assessment Act 1979 (EPA Act) relevantly provides: Part 3 Environmental planning instruments Division 1 General … 26 Contents of environmental planning instruments (1) Without affecting the generality of section 24 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following: … (c) reserving land for use for the purposes of open space, a public place or public reserve within the meaning of the Local Government Act 1993, a national park or other land reserved or dedicated under the National Parks and Wildlife Act 1974, a public cemetery, a public hospital, a public railway, a public school or any other purpose that is prescribed as a public purpose for the purposes of this section, … (e) protecting or preserving trees or vegetation, (e1) protecting and conserving native animals and plants, including threatened species, populations and ecological communities, and their habitats, … 35 Validity of instruments The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date of its publication on the NSW legislation website.

Land and Environment Court Act 1979

The Land and Environment Court Act 1979 (Court Act) relevantly provides: Part 3 Jurisdiction of the Court Division 1 General 16 Jurisdiction of the Court generally (1) The Court shall have the jurisdiction vested in it by or under this or any other Act. (1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act. (2) For the purposes of this Act, the jurisdiction of the Court is divided into 8 classes, as provided in this Division. ... 19 Class 3 - land tenure, valuation, rating and compensation matters The Court has jurisdiction (referred to in this Act as "Class 3" of its jurisdiction) to hear and dispose of the following: … (e) claims for compensation by reason of the acquisition of land, referred to in Division 2, … 20 Class 4 - environmental planning and protection and development contract civil enforcement (1) The Court has jurisdiction (referred to in this Act as "Class 4" of its jurisdiction) to hear and dispose of the following: … (b) proceedings referred to in section 35 of the Environmental Planning and Assessment Act 1979, … Division 2 Claims for compensation 24 Claim for compensation in compulsory acquisition cases (1) If: (a) a claim is made for compensation because of the compulsory acquisition of land in accordance with the Land Acquisition (Just Terms Compensation) Act 1991, Division 2 of Part 12 of the Roads Act 1993 or any other Act, and (b) no agreement is reached between the claimant and the authority required to pay the compensation, the claim is (subject to any such Act) to be heard and disposed of by the Court and not otherwise. (2) The Court shall, for the purpose of determining any such claim, give effect to any relevant provisions of any Acts that prescribe a basis for, or matters to be considered in, the assessment of compensation. 25 Determination of estate, interest and amount (1) In hearing and disposing of any claim referred to in section 24, the Court shall have jurisdiction to determine the nature of the estate or interest of the claimant in the subject land and the amount of compensation (if any) to which the claimant is entitled. …

Land Acquisition (Just Terms Compensation) Act 1991

At issue is whether the Respondents' actions amount to a compulsory acquisition to which the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act) applies. The Just Terms Act relevantly provides: Part 1 Preliminary 3 Objects of Act (1) The objects of this Act are: (a) to guarantee that, when land affected by a proposal for acquisition by an authority of the State is eventually acquired, the amount of compensation will be not less than the market value of the land (unaffected by the proposal) at the date of acquisition, and (b) to ensure compensation on just terms for the owners of land that is acquired by an authority of the State when the land is not available for public sale, and (c) to establish new procedures for the compulsory acquisition of land by authorities of the State to simplify and expedite the acquisition process, and (d) to require an authority of the State to acquire land designated for acquisition for a public purpose where hardship is demonstrated, and (e) to encourage the acquisition of land by agreement instead of compulsory process. (2) Nothing in this section gives rise to, or can be taken into account in, any civil cause of action. 4 Definitions (1) In this Act: acquisition of land means an acquisition of land or of any interest in land. acquisition notice means a notice under section 19 which declares that land has been acquired by compulsory process. authority of the State means: (a) a Minister of the Crown, or (b) a statutory body representing the Crown, or (c) a council or a county council within the meaning of the Local Government Act 1993, or (d) any other authority authorised to acquire land by compulsory process. … compulsory acquisition of land means the acquisition of the land by compulsory process under this Act. … owner of land means any person who has an interest in the land. public purpose means any purpose for which land may by law be acquired by compulsory process under this Act. … special value of land is defined in section 57. (2) For the purposes of this Act, an authority is authorised to acquire land by compulsory process if: (a) the authority is authorised by law to acquire land by compulsory process under this Act, or (b) land is authorised by law to be acquired for the authority by resumption or appropriation under any provision of the Public Works and Procurement Act 1912 or the authority is declared by law to be a Constructing Authority in connection with any such resumption or appropriation. (3) In this Act, a reference to the Minister responsible for an authority of the State is: (a) if that authority is constituted by or under an Act - a reference to the Minister administering that Act, or (b) if that authority is a Minister - a reference to that Minister. … 5 Acquisition of land to which Act applies (1) This Act applies to the acquisition of land (by agreement or compulsory process) by an authority of the State which is authorised to acquire the land by compulsory process. (2) This Act does not apply to any such acquisition if the land is available for public sale and the land is acquired by agreement. (3) Land is available for public sale if: (a) the land is advertised by the owner as being available for sale, or (b) the land is listed by the owner with a real estate agent as being available for sale, or (c) the land is otherwise held out by the owner as being available for sale. ... Part 2 Acquisition of land by compulsory process … Division 3 Owner-initiated acquisition in cases of hardship 21 Definition of "land designated for acquisition for a public purpose" (1) For the purposes of this Division, land is designated for acquisition by an authority of the State for a public purpose if: … (b) the land is reserved by an environmental planning instrument for use exclusively for a purpose referred to in section 26 (1)(c) of the Environmental Planning and Assessment Act 1979 and the instrument (or some other environmental planning instrument) specifies that authority as the authority required to acquire the land. ... (3) For the purposes of subsection (1)(b), land is reserved by an environmental planning instrument for use exclusively for a purpose referred to in section 26 (1)(c) of the Environmental Planning and Assessment Act 1979 only if: (a) the land is expressly set apart by that instrument for use exclusively for such a purpose, or (b) the land is expressly set apart by that instrument for use for such a purpose and also for other purposes, but those other purposes do not constitute a reasonable use of the land. The aims, objectives, policies and strategies of that instrument are to be taken into account in determining whether those other purposes constitute a reasonable use of the land. ... Part 3 Compensation for acquisition of land Division 1 Entitlement to compensation 37 Right to compensation if land compulsorily acquired 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. 38 Compensation entitlement if land (not available for public sale) acquired by agreement An authority of the State is to take into account, in connection with any proposed acquisition by agreement of land not available for public sale, the same matters as are required to be taken into account under this Part in determining the compensation payable for an acquisition by compulsory process. ... Division 5 Objections and appeals to Land and Environment Court 66 Objection against amount of compensation offered (1) A person who has claimed compensation under this Part may, within 90 days after receiving a compensation notice, lodge with the Land and Environment Court an objection to the amount of compensation offered by the authority of the State. (2) If any such objection is duly lodged, the Land and Environment Court is to hear and dispose of the person's claim for compensation. …

National Parks and Wildlife Act 1974

The National Parks and Wildlife Act 1974 (NPW Act) relevantly provides: Part 11 Acquisition and disposal of property 145 Acquisition of land for reservation or other purposes The Minister may, for the purpose of obtaining land for reservation under Part 4 or Part 4A, of conserving threatened species, populations or ecological communities, or their habitats or of preserving, protecting and preventing damage to Aboriginal objects or Aboriginal places: (a) on behalf of Her Majesty, enter into and give effect to an agreement for the vesting in, or surrender to, Her Majesty of any land, or (b) acquire land by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. 146 Acquisition or occupation of lands for certain purposes (1) For the purpose of: (a) improving access to any land reserved or dedicated or acquired under this Act, (b) the management, maintenance or improvement of any such land, or (c) carrying out works for any of those purposes, the Minister may: (d) on behalf of Her Majesty, enter into, and give effect to, an agreement for the vesting in, surrender to, or leasing to, Her Majesty, or for the occupation under licence, of any land adjoining or in the vicinity of the land so reserved or dedicated, or (e) acquire any land (including an interest in land) adjoining or in the vicinity of the land so reserved or dedicated by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. (2) For the purpose of obtaining lands for use in connection with the administration of this Act, the Wilderness Act 1987 or the Threatened Species Conservation Act 1995, the Minister may: (a) on behalf of Her Majesty, enter into, and give effect to, an agreement for the vesting in, surrender to, or leasing to, Her Majesty, or for the occupation under licence, of any land, or (b) acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. (2A) The Minister may, on behalf of the Crown, acquire land (including an interest in land) for the purpose of a future lease grant or dealing by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. ...

Roads Act 1993

The Roads Act 1993 relevantly provides: Part 2 Opening of public roads ... Division 2 Resolution of doubts concerning status of certain roads 16 Council may dedicate certain land as a public road (1) This section applies to land that is set aside for the purposes of a road left in a subdivision of land effected before 1 January 1907 (the date of commencement of the Local Government Act 1906) or in a plan of subdivision that was registered by the Registrar-General before 1 January 1920 (the date of commencement of the Local Government Act 1919). (2) The council of the local government area within which such land is situated may, by notice published in the Gazette, dedicate the land as a public road. (3) On the publication of the notice in the Gazette: (a) the land described in the declaration becomes free of all trusts, restrictions, dedications, reservations, obligations and interests, and (b) the land is dedicated as a public road. (4) No compensation is payable to any person with respect to any loss or damage arising from the operation of this section. (5) Land may not be dedicated as a public road under this section if the Land and Environment Court has made a declaration under section 17 to the effect that the land may not be so dedicated or if an application for such a declaration is pending before that Court. … Part 8 Regulation of traffic by roads authorities ... Division 2 Additional powers at the request of the roads authority 116 Applications for consent (1) A roads authority may apply to RMS for consent to: (a) the erection of any notice or barrier, the carrying out of any work or the taking of any other action for the purpose of regulating traffic on a public road for purposes other than those referred to in Division 1, or (b) the removal of any notice or barrier, the demolition of any work or the ceasing of any action for which it has been given consent under this Division. (2) Before doing so, the roads authority must cause notice of the application to be published in a local newspaper. (3) The notice: (a) must specify the particular action for which the roads authority is applying for consent, and (b) must state that any person is entitled to make submissions to RMS with respect to the granting of consent, and (c) must indicate the manner in which, and the period (being at least 28 days) within which, any such submission should be made. (4) This section does not apply to the erection of any notice, the carrying out of any work or the taking of any other action that the roads authority is required by Division 3 to erect, carry out or take.

Uniform Civil Procedure Rules 2005

The rules relevant to summary dismissal of proceedings appear in r 13.4 of the UCPR: Part 13 Summary disposal ... 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)

Evidence

A number of affidavits were read in these proceedings.

Affidavit of Ms Nguyen

Ms Nguyen solicitor for the First Respondent Minister affirmed an affidavit dated 7 July 2017. Exhibited to Ms Nguyen's affidavit was a bundle of documents which became Exhibit 1 in these proceedings. Exhibit 1 included the Project Plan of the Voluntary Heritage Estates Land Project (the Project) dated October 2012. The Project Plan described the acquisition process as involving "the voluntary purchase of privately-owned lots". Landowners were offered $5,000 for the lots after consideration of an independent valuer's advice. Risks associated with the Project were assessed and outlined in the Project Plan. The risk that the Council did not rezone the land E2 - Environmental Conservation was considered low, unlikely and would have a moderate impact on the Project if it were to eventuate. The risk of a low take up of the Project by landowners (below 60%) was deemed high, possible and would have a significant impact on the Project. The Project Plan recorded a risk that a majority of landowners form the view that they have a right to claim compensation under the Just Terms Act, leading to a low level of participation in the Project. This risk was deemed unlikely and of low potential impact on the Project.
Exhibit 1 also contained the Deed of Agreement between the Office of Environment and Heritage (OEH) and the Foundation executed on 25 June 2012. The Deed outlined the parties' agreement "to work together towards the purchase... of as many lots as possible of the Heritage Estates for inclusion in the Jervis Bay National Park in accordance with the Project Plan and this Deed with the grant provided by the Commonwealth". An example of a transfer document used to give effect to the transfer of land from a landowner within the Heritage Estates to the First Respondent Minister lodged by the Foundation was also included in Exhibit 1.

Affidavit of Ms Botsikas

Ms Botsikas solicitor for the Foundation swore an affidavit dated 11 May 2017. Exhibited to Ms Botsikas' affidavit was a bundle of documents which became Exhibit 1A. Exhibit 1A contained a letter sent from the solicitors for the Foundation to the SLA dated 1 May 2017 which raised concerns about the SLA's case as stated in the original summons. Mr Scevola's response to that letter dated 11 May 2017 was also included. Exhibit 1A contained copies of the judgments of the Federal Court, Full Federal Court and High Court in the Esposito v Commonwealth of Australia representative proceedings.
Ms Botsikas swore a further affidavit dated 7 June 2017 in which she attached copies of the defences to the amended statement of claim filed by the defendants in the Federal Court proceedings.

Affidavit of Mr Darbyshire

Mr Darbyshire Chief Executive Officer of the Foundation swore an affidavit dated 9 June 2017. Mr Darbyshire deposed that the purpose of the Foundation was "to acquire high conservation value land and to gift that land to Australia's publically owned national parks and protected areas". The Foundation is a not-for-profit organisation which receives donations from the public, community organisations, trusts and foundations, corporates and government agencies. The Foundation is not a statutory body and does not have legal power to compulsorily acquire land.
The Project has been subject to a number of deadlines. Funding that has not been used to purchase lots within the Heritage Estates is to be refunded to the Australian Government. The current offer to purchase land expires on 31 December 2017. The Foundation is concerned that Commonwealth funding to purchase the land in the Heritage Estates will not continue given the number of extensions to extend this deadline granted since 2013.
Mr Darbyshire deposed that sales of lots within the Heritage Estates significantly reduced after the commencement of proceedings in the Federal Court. By 30 May 2017 the Foundation had received signed offers to sell from owners of 548 lots. A total of 459 transactions have settled or the lots were sold by Council due to the non-payment of rates. There are currently 16 lots in the process of settling.
The Foundation intends to transfer the acquired lots to OEH for addition to the Jervis Bay National Park. This will provide added security to the habitats of 26 known threatened species in the area.

Affidavit of Ms Scotton

Ms Scotton solicitor for the Council swore an affidavit dated 5 June 2017. Exhibited to Ms Scotton's affidavit was a bundle of documents which became Exhibit 1B.
In her affidavit Ms Scotton outlined the history of the Heritage Estates. Rezoning investigations were undertaken by the Council in the 1990s and early 2000s. The Council made a referral under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) in May 2007 which led to the determination that the proposed rezoning was a "controlled action" which required approval of the Federal Minister for the Environment. The proposed rezoning was refused by the Federal Minister on 13 March 2009. The Council subsequently resolved to begin discussions regarding government acquisition of the Heritage Estates and reduce rates applicable to lots within the Estates.
Ms Scotton deposed that the Council later took steps to rezone the land to reflect its high biodiversity values and remove any uncertainty about future rezoning. The Council passed a resolution that the Heritage Estates be rezoned E2 - Environmental Conservation on 15 May 2012. The rezoning process stalled as a result of the Federal Court proceedings. The rezoning eventually occurred on 24 June 2016. Several documents related to the rezoning process including public exhibition and gateway determination under s 56 of the EPA Act were included in Exhibit 1B.
Ms Scotton deposed that the Council is not associated with the Foundation other than both organisations are represented on the steering committee which oversees the Project.
Concerning road closures in the Heritage Estates, Ms Scotton deposed that the road reserves in this area have been dedicated public roads since 31 March 2006. On 31 October 2011 the Roads and Maritime Services delegated its functions to the Council under s 116 of the Roads Act. This permitted the Council to install gates or barriers to regulate vehicular access to the Estates after having first publicly exhibited such a proposal. These measures were designed to address soil erosion associated with vehicle and trail bike tracks as well as illegal dumping. A proposal by the Council to install gates and barriers was publicly exhibited between 7 October and 6 November 2015. The Council resolved to proceed with the proposal as exhibited on 19 April 2016. A second proposal to install an additional gate and fence proceeded on 14 June 2016 following a public exhibition period from 9 March to 8 April 2016. Documents pertaining to this process were included in Exhibit 1B.
Ms Scotton deposed that the Council is in the process of finalising access arrangements for landowners within the Heritage Estates including access to keys and advice as to the risks associated with bringing vehicles into the area. Attached to Ms Scotton's affidavit was an example of a sign installed by the Council on the Estates in late 2016. The sign warned of the hazardous conditions in the Heritage Estates, presence of threatened species and that the Council does not maintain or monitor the unmade roads. Access was restricted to "authorised property owners only". Landowners wishing to access the Estates should contact the Council to apply for vehicular access.

Affidavit of Mrs Esposito

Mrs Esposito a landowner in the Heritage Estates and President of the SLA affirmed an affidavit dated 5 April 2017. Mrs Esposito purchased her lot in 1988. She attested that ongoing regulations have effectively "sterilised" the reasonable use of this land. Mrs Esposito was the lead applicant in the Federal Court representative proceedings. In her affidavit Mrs Esposito set out her understanding of the history of the Heritage Estates. Mrs Esposito attached correspondence between herself and various government bodies, parliamentarians and the Council concerning the status of the Heritage Estates and the nearby Jervis Bay National Park. Many documents prior to 2009 considered whether the Heritage Estates may be rezoned to allow residential development. A Commission of Inquiry held in 1999 concluded that there were no environmental reasons why the Heritage Estates could not be used for residential purposes.
Mrs Esposito provided evidence of payment of "residential non-urban" rates to the Council which she stated total more than $10,000. The Council has not collected one bin or cleaned one road within the Heritage Estates.
Mrs Esposito attested that prior to the refusal of the proposed rezoning by the Federal Minister under the EPBC Act her lot had been valued at $21,700. Its value dropped to $500 according to the Valuer-General after the refusal. Mrs Esposito considered the offer to sell her land for $5,000 in a letter from the Foundation dated 31 October 2012 was "offensive". Letters from the Foundation with subsequent offers clearly stated that landowners have no right to compensation under the Just Terms Act or to claim against the refusal to rezone. A letter from the Council to Mrs Esposito attached to her affidavit at annexure AA dated 27 February 2017 provided information about the Project including the Foundation's current offer to purchase lots for $5,000. Mrs Esposito stated that landowners have not been dealt with "justly and fairly... in the acquisition of their land rights" in contravention of the principles expressed in the Just Terms Act.
Annexure P was a letter from the Council dated 8 May 2006 which included a copy of the NSW Government Gazette of 31 March 2006 in which the roads within the Heritage Estates were dedicated public roads pursuant to s 16 of the Roads Act. Mrs Esposito stated that the Council's decision to install barriers and gates restricting vehicular access to the Heritage Estates is an affront to her property rights. The SLA has been denied rights to be effectively heard on the road closure issue.

Affidavits of Mr Scevola

Mr Scevola affirmed three affidavits. These are summarised insofar as they refer to matters relevant to the issues that remained for determination after the SLA was removed and Mr Scevola became the Applicant in these proceedings.
Mr Scevola affirmed a first affidavit dated 5 April 2017. Mr Scevola stated that the Heritage Estates was rezoned E2 - Environmental Conservation despite members of the SLA writing to the Council and attending Council meetings in protest. The Council is now seeking to install gates and barriers to prevent vehicular access to the roads within the Estates. Mr Scevola and Mrs Esposito in her capacity as President of the SLA wrote to the Minister for Planning and Council Mayor on 17 August 2016 requesting clarification of the status of the Heritage Estates. The Mayor's letter in response dated 31 August 2016 stated inter alia that "a range of uses are permissible with consent in the E2 - Environmental Conservation zone... [and] rezoning... does not trigger compulsory acquisition". The Mayor wrote that the closure of public roads within the Estates "is likely to occur in sections and will ensure that private land is not landlocked". The Council was "highly unlikely" to support a rezoning proposal to allow residential development within the Estates given the land's high environmental value.
Mr Scevola stated that the actions of government have inflicted "untold grief" on landowners within the Heritage Estates who have contributed "tens of millions of dollars in 'residential non-urban' land rates" to the Council. The Council has acted as a "proxy" for the State of NSW to "aid and abet in the sterilisation of this private land". This fact is made clear in Esposito FFC at [21].
Attached to Mr Scevola's affidavit were documents and correspondence between government departments which Mr Scevola stated demonstrated how the acquisition process was carried out. A document headed "Commonwealth grant to acquire Heritage Estates, Jervis Bay" dated 21 May 2012 (provenance unknown) envisaged "resistance to the sale by some landowners". It stated the OEH did not support rezoning the land to E1 - National Park as this would trigger compulsory acquisition if hardship could be demonstrated by the landowners. An email from the OEH dated 21 May 2012 questioned whether the Foundation had previously undertaken a land acquisition project for OEH and highlighted the unusual nature of the project. A further email from the same representative at OEH dated 24 May 2012 asked whether there was precedent for the OEH contracting a third party to acquire land on its behalf.
A letter dated 27 May 2011 from the Council to the Australian Government Land and Coasts Team stated that the median values of lots within the Heritage Estates was $15,000 per lot in some areas and $5,000 per lot in areas recommended for environmental protection based on 2008 valuations by the Valuer-General. The Council expected that the "next valuations will be more uniform" in light of the decision under the EPBC Act in 2009 and subsequent termination of rezoning investigations by the Council.
Attached to Mr Scevola's affidavit were valuation summaries from the NSW Department of Lands which relate to two lots which were compulsorily acquired under the NPW Act. The lots were within the former Pacific City Estates, of which the Heritages Estates formed part according to Mr Scevola. The landowners were offered $12,500 and $12,000 respectively for the acquisition under s 55 of the Just Terms Act.
A letter from valuers Walsh and Monaghan Pty Ltd to the Foundation dated 17 April 2012 provided valuation advice concerning the Heritage Estates. The letter set out a brief overview of the planning history of the Heritage Estates, information on sales within the Estates and concluding advice. The author was of the opinion that the value of each property was nominal, or between $500 and $1,000 per lot. Mr Scevola stated in his affidavit that the landowners were not consulted about any of these actions to acquire their land.
Mr Scevola affirmed a second affidavit dated 8 May 2017 in support of his application for expedition. This affidavit was largely in the form of submissions to the Court and I have treated it as such.
A third affidavit of Mr Scevola affirmed on 28 June 2017 was read in part. It contained a report by Bushfire and Environmental Services prepared for the Council dated February 2007. The report recommended that the Heritage Estates should not be rezoned for residential purposes due to the high conservation values of the area. It also recommended the purchase of private lots via a "shared government acquisition plan", reassessment of the road network within the Estates and restricted vehicle access to the area. Another document attached was "Funding Agreement in relation to the acquisition of the Heritage Estates" between the Commonwealth Government and State of NSW executed on 12 June 2012. It included a description of the Project Plan (referred to in the summary of Ms Nguyen's affidavit at par 22 above), a draft of which was to be submitted for approval by the Commonwealth Department of Sustainability, Environment, Water, Population and Communities. The draft Project Plan was to address the timing of the rezoning of the Heritage Estates to E2 - Environmental Conservation. The Steering Committee established for the purposes of the Project was to provide advice on the rezoning.

First Respondent Minister's submissions

The First Respondent Minister submitted that prayers 1-4 in the summons involve matters that are either beyond the jurisdiction of the Court and/or are claims that are otherwise "so obviously untenable that [they] cannot possibly succeed" per Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 (General Steel at 129.
The Court has jurisdiction to hear claims for compensation in cases of compulsory acquisition under s 24(1) of the Court Act. In this case neither the State of NSW nor the Minister used any powers to acquire land compulsorily. The State provided funds to the Foundation so that the Foundation could make offers to acquire the land. That process is entirely voluntary and there is no element of compulsion. The Foundation is not an "authority of the State" authorised to acquire land by compulsory process, see s 4 of the Just Terms Act. It is not an entity to which the Act applies. There was therefore no acquisition to which the Act applies per s 5(1).
There was also no "agreement" with the Minister or Foundation that might otherwise invoke the operation of s 38 of the Just Terms Act. Mr Scevola's claim does not disclose any matter that could enliven the Court's jurisdiction and the proceedings are futile as the Court does not have the power to grant the relief sought. The proceedings should be dismissed as disclosing no reasonable cause of action or, alternatively, as an abuse of process.
An issue estoppel arises as the question of whether there was compulsory acquisition by the State of NSW was resolved finally by the Full Federal Court in Esposito FFC. An argument was put to that Court that the State would "use its powers to acquire the land using the funds provided by the Commonwealth under the agreement", Esposito FFC at [65]. A principle difficulty with this argument was that the State "did not use any of its powers to acquire land compulsorily nor was it required to do so under the agreement", Esposito FFC at [67]. The Foundation and the Council were parties to the Federal Court proceedings, as was the State of NSW. Mr Scevola is bound by the decisions of the Federal Court and Full Federal Court.
Prayer 5 seeking an order restraining the rezoning of land is misconceived. The rezoning occurred on 24 June 2016 when the Shoalhaven Local Environmental Plan 2014 (Amendment No 4) was gazetted. Mr Scevola is out of time to challenge the validity of an environmental planning instrument under s 35 of the EPA Act. There is no suggestion that the principles enunciated in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53 (Hickman) should apply to allow Mr Scevola to bring such a challenge out of time.

Foundation's submissions

The Foundation agreed with the submissions of the First Respondent Minister and made some additional comments. The Foundation reiterated that it is not an authority of the State within the meaning of s 4 of the Just Terms Act nor is it authorised by law to acquire land by compulsory process. The Foundation acts as a project manager that facilitates the transfer of land from consenting landowners to the State of NSW.
Mr Scevola is not a former landowner, he maintains legal title to his lot within the Heritage Estates, and there has been no compulsory acquisition. The injunctive relief sought by Mr Scevola is futile given he is not compelled to sell his land. The summons contains no claim for compensation under the Just Terms Act, the Court has no jurisdiction to determine prayer 4 of the summons nor is that relief sought "ancillary" to any other relief claimed for which the Court does have jurisdiction per s 16(1A) of the Court Act.
An issue estoppel arises. In the alternative, an Anshun estoppel arises. The subject matter of the present proceedings was so relevant to the Federal Court proceedings that the claims made out reasonably ought to have been brought in those proceedings, see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 at 598, 602-603. The primary issue Mr Scevola seeks to raise in these proceedings is the entitlement of landowners to compensation. This issue was central to the Federal Court proceedings. It was unreasonable not to refer to the Just Terms Act in the context of those proceedings. The Federal Court has jurisdiction over matters not otherwise within its jurisdiction that are associated with Federal Court proceedings under s 32(1) of the Federal Court Act 1976 (Cth).

Council's submissions

The Council agreed with the First Respondent Minister's and Foundation's submissions and made some additional comments. Prayers 3, 5 and 6 of the summons seek relief against the Council. They do not disclose any reasonable cause of action.
The Council does not use the Foundation to "procure" land as is sought to be restrained in prayer 3. The Council is not associated with the Foundation, as is clear from Ms Scotton's affidavit summarised at par 33 above. The land within the Heritage Estates has already been rezoned. Accordingly, the relief sought in prayer 5 restraining the rezoning is futile. The rezoning itself does not affect the claim that there was a compulsory acquisition as the land was not set aside exclusively for a public purpose. Private use of the land within the Heritage Estates is still permissible with consent as set out in the Shoalhaven LEP, see par 14 above.
The "unformed roads" within the Heritage Estates referred to in prayer 6 were dedicated as public roads and vested in the Council on 31 March 2006 under s 16 of the Roads Act, see par 36 above. Subsection 16(3) of the Roads Act extinguishes all prior interests in land and no compensation is payable in respect of the roads dedicated per s 16(4). Mr Scevola's claim that the landowners within Heritage Estates have a proprietary interest in those roads and should be compensated for their acquisition is not maintainable.

Mr Scevola's submissions

These proceedings are not frivolous or vexatious or an abuse of process and have reasonable prospects of success. Mr Scevola maintains that the land within the Heritage Estates including his land has been effectively acquired without just compensation as a result of the behaviour of the Respondents. Just compensation ought to be awarded to give effect to the principles in the Just Terms Act as articulated in its objects (s 3) and Second Reading Speech (New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 11 April 1991, 1974).
The conduct of the First Respondent Minister and the Foundation in causing offers to be made for the land and the Council for rezoning the land has caused the land's value to drop considerably. These actions amount to a compulsory acquisition for which just compensation is payable. The First Respondent Minister and the Council are empowered by statute with the necessary powers to resume land for a public purpose, either in their own right or subsequent to a planning instrument that identifies a use as a public purpose. When the State is acquiring land for any public purpose identified in s 26(1)(c) of the EPA Act, here a national park, such land must be subject to policies and procedures mandated by the Just Terms Act.
The Project Plan for the Voluntary Heritage Estates Land Project (see par 22 above) includes in the risk assessment that a challenge by landowners under the Just Terms Act was possible and that there was always a plan afoot to bring this land including the roads into the possession of the First Respondent Minister.
The Just Terms Act is predicated on the principle that any landowner whose interests in land are affected by the need to carry out a public purpose will not be disadvantaged in the determination of compensation for that loss by the public purpose use. This is clear from the objects of the Just Terms Act as explained in the Second Reading Speech.
The offer to sell in the unsolicited letters from the Foundation offend this guarantee. The market value of land cannot be valued at a depressed rate as this defeats the purpose of the Just Terms Act. Such an approach is inconsistent with a long line of authority such as Leichhardt Council v Roads & Traffic Authority of NSW (2006) 149 LGERA 439; [2006] NSWCA 353 at [40].
The Council has closed the roads within the Heritage Estates denying landowners unfettered access to their private property. The Council maintains that these are public roads yet has failed to maintain them despite collecting land tax from landowners.
The Full Federal Court left two areas open for decision. The valuation findings of the trial judge did not accord with the evidence but as a consequence of the previous finding of no acquisition the Full Federal Court did not remit the matter of valuation for redetermination, at [91]-[92]. Secondly, even if the Federal Court found no acquisition for the purposes of Commonwealth law that does not mean there is no acquisition for the purposes of State law. The State has acted in pursuance of blighting of this land as a result of the Federal Minister's decision.
At no time did Mr Scevola or any other landowner "hold out" their land for sale. The Just Terms Act applies to all statutory authorities acquiring land. The Act applies to acquisitions by agreement and by compulsory process as provided by s 38.
The rezoning of the land to E2 - Environmental Conservation constitutes a restriction on use resulting in the property being unavailable for all reasonable uses. Such classification renders the land set aside for a public purpose as defined in ss 21(1)(b), (3)(b). The uses permitted with consent and prohibited effectively permit no private uses of the land, not even camping. As a result of actions by the Council in notices sent on 2 October 2015 the landowners do not even have vehicular access to their properties as a result of the road closures under the Roads Act. Mr Scevola claims an interest in the roads within the estate and ownership in accordance with Tanner v The Minister for Education and Training (2002) 117 LGERA 321; [2002] NSWLEC 40 (Tanner).

Principles applicable to summary dismissal

Caution is required by a court considering whether to summarily dismiss proceedings under r 13.4 of the UCPR, see Cosmos E-C Commerce Pty Ltd v Bidwell & Associates Pty Ltd [2005] NSWCA 81 at [37]-[38] per Pearlman AJA, Hodgson and Ipp JJA agreeing. The power to order summary dismissal should only be exercised where the lack of a cause of action is clearly demonstrated, General Steel at 129. The test to be applied has been variously described as being that a plaintiff's case must be "so obviously untenable that it cannot possibly succeed" or is "manifestly groundless", see Dey v Victorian Railways Commissioners at 91; General Steel at 129. As was explained by Gaudron J in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57]: The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
Rule 13.4 must be interpreted as operating subject to the overriding statutory purpose set out in s 56(1) of the Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of the real issues in the proceedings, see Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [29] (per Spigelman CJ, Basten and Campbell JJA agreeing) applied in Simmons v Protective Commissioner of NSW [2012] NSWSC 455 at [58]. The Respondents must satisfy a high hurdle to succeed.
A procedural aspect I should mention is that the forms of relief sought in the summons of declarations by way of interlocutory orders are problematic. A declaration is a form of final relief. The Court can issue interlocutory orders restraining specified actions and I will consider the summons on the basis that is what is sought.
Part of the Respondents' case is that the Court has no jurisdiction because issue estoppel arises as a result of what was considered by the Federal Court in Esposito. These submissions were premised on the assumption that the SLA was the applicant, as it was until during the hearing. The implications of the very late substitution of Mr Scevola as the sole Applicant were not explored in the evidence or in submission and it is unclear to me whether Mr Scevola is a member of the group of persons bound by the decisions in the Federal Court proceedings as identified by Foster J in Esposito v Commonwealth of Australia [2013] FCA 1039 at [88] as: (a) Those persons or entities who owned a lot in Deposited Plans 8590, 8591, 8770, 8771 and 8772 as at 13 March 2009; and (b) (i) Who still own that lot and have done so at all times since 13 March 2009; or (ii) Who owned that lot continuously from 13 March 2009 until transferring it via the voluntary tendering process being managed by the Foundation.
Mr Scevola's interests in two lots are identified in par 5 above. As Lot 62 DP 8770 was purchased this year he cannot be part of the representative group in Esposito on that basis. Whether his claimed equitable interest in Lot 71 DP 8772 since 2006 - about which I have no details as the deed of agreement is not before the Court - would result in him being included I do not know and will not assume it.
It is simpler and therefore preferable if I consider whether the NPW Act or the Just Terms Act apply in the circumstances set out in Esposito FFC at [2]-[9] as augmented by the affidavit evidence before me. The major additional circumstance which has occurred since Esposito is that on 24 June 2016 the Heritage Estates were rezoned to E2 - Environmental Conservation in the Shoalhaven LEP.

No compulsory acquisition (prayers 1-4)

Dealing with the substance of Mr Scevola's case, prayers 1-4 in the summons are based on the assertion of compulsory acquisition of land by the State of NSW (whether under the NPW Act or the Just Terms Act). Prayer 1 is directed at requiring the First Respondent Minister to apply ss 145 and 146 of the NPW Act for land earmarked or required for a national park. Prayers 2 and 3 seek to restrain the First Respondent Minister and the Council from "using" the Foundation to "procure" Mr Scevola's land and until the Court has heard his compensation claim. Prayer 4 seeks a declaration on an interlocutory basis that the Foundation has acted within the capacity of "an authority of the State" in "procuring" land in breach of numerous sections of the Just Terms Act.
Considering prayer 1, no acquisition of land by the First Respondent Minister as contemplated under s 145(b) (acquisition of land reserved by agreement or compulsory process under the Just Terms Act) or s 146(1)(e) (acquisition of land adjoining land reserved for national park inter alia or by agreement or acquisition under the Just Terms Act) of the NPW Act has occurred at any stage of the events outlined by the Federal Court in Esposito or in the affidavits of Mrs Esposito and Mr Scevola as summarised in pars 36-48 above. There is no evidence of any attempt by the First Respondent Minister to utilise these sections. Fundamentally, applying the first principle of statutory construction of considering the text of the statute (see Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [23]) there is no basis for finding an implied or inferred compulsory acquisition has occurred under the NPW Act. Nor can there be such a conclusion if the purpose and context of these provisions is considered (see Certain Lloyd's Underwriters v Cross at [24]-[25]).
None of Mr Scevola's land or other land in the Heritage Estates has been zoned exclusively for national park use under s 26(1)(c) of the EPA Act. The E2 - Environmental Conservation zone implemented in 2016 allows a number of uses of the land as provided in the land use table set out above in par 14. Uses permitted with consent include dwelling houses. Owner-initiated acquisition in cases of hardship as provided in ss 21(1)(b), (3) of the Just Terms Act where land has been reserved by an environmental planning instrument exclusively for a purpose referred to in s 26(1)(c) of the EPA Act does not arise in the circumstances of this case.
Turning to whether the Just Terms Act applies, much of Mr Scevola's submissions were directed to the objects of the Just Terms Act in s 3 as supported by the Second Reading Speech. None of that material assists Mr Scevola in the absence of the specific statutory processes required for its application arising.
The thrust of Mr Scevola's submissions is that because his and his neighbours' land have lost value as a result of NSW Government action compulsory acquisition has occurred. It is necessary to consider whether any of the machinery provisions of the Just Terms Act arise. If they do not, no compulsory acquisition to which the Just Terms Act applies has occurred. There has been no compulsory acquisition as referred to in s 37 as there is no evidence that any agency or department of the State of NSW has determined to issue an acquisition notice to Mr Scevola or anyone else in the Heritage Estates. None has been received by him.
Mr Scevola submitted that s 38 applies. This provides for land not available for public sale being acquired by agreement. Mr Scevola seemed to suggest in oral submissions that his land was not available for public sale. The precise legal basis for this submission is unclear in that I understand that he is the sole owner in fee simple of Lot 62. He is able to offer it for sale to any person. I do not know if Mr Scevola's equitable interest in Lot 71 means that both he and the registered owner can offer it for sale. Regardless there is no evidence that Lot 71 cannot be offered for sale to the general public. That Mr Scevola believes the only likely buyer is the Foundation does not render his land unavailable for public sale. Given that Mr Scevola bought Lot 62 this year suggests that there can be other buyers for land in the Heritage Estates. Section 38 does not arise in the circumstances of this case.
Fundamentally, there is no basis applying statutory construction principles requiring consideration of the text for an implied or inferred compulsory acquisition under the Just Terms Act.
Mr Scevola referred to several valuation cases decided under the Just Terms Act to support his claim. While Mr Scevola correctly stated some of their legal principles these authorities have no relevance to this case as the Just Terms Act does not apply.
Reliance was placed on offers of compensation made under the Just Terms Act for land in a neighbouring area known as Pacific City Estates as referred to in Mr Scevola's first affidavit summarised in par 41 and following above. I infer that this area was zoned under an environmental planning instrument exclusively for the public purpose of national park which gave rise to compensation being payable under the Just Terms Act. Those are different circumstances.
Prayers 2 and 3 concern the activities of the Foundation and the First Respondent Minister (prayer 2) and the Council (prayer 3). Prayer 4 concerns the Foundation alone. The nature of the scheme for the transfer of land in the Heritage Estates administered by the Foundation must be considered. The evidence concerning the purpose and operation of the Foundation in the Voluntary Heritage Estates Land Project is set out in the affidavit of Mr Darbyshire summarised above in pars 26-29 and was identified in Esposito FC interlocutory Griffith J set out above in par 12. The Project Plan was attached to Ms Nguyen's affidavit summarised above in par 22. The summons refers to "procuring" land which I infer is intended to suggest unscrupulous or indirect means on the part of the Foundation. It is not correct to characterise its activities as the acquisition of land on behalf of the State of NSW or as "procuring" land for the State. The State is a beneficiary of its activities, that is all. As the Foundation submitted, it is not an authority of the State and is not authorised by law to acquire land by compulsory process.
The mechanism by which land purchased voluntarily by the Foundation is transferred to the First Respondent Minister is identified in the Deed of Agreement between OEH and the Foundation executed on 25 June 2012 in Exhibit 1. An example of an instrument of transfer of land is also in Exhibit 1 showing the Foundation as the lodging party, individual lot owner as the transferor and Minister as the transferee. As the Minister submitted no contract for the sale of land existed or exists between a landowner and the Minister. The Minister is not a party to any agreement. The Minister is a third party beneficiary of an agreement between the landowners and the Foundation. That the land bought by the Foundation is transferred to the First Respondent Minister is not as a result of actions taken pursuant to ss 145 or 146 of the NPW Act. No actual or inferred agreement in relation to a compulsory acquisition arises from the circumstances of the Foundation's establishment and operation.
The role of the Foundation was criticised by Mr Scevola on the basis it acted as agent for OEH and acted at all times for the Government of NSW. The tenor of Mr Scevola's submissions is that the Foundation must be acting at the direction of the First Respondent Minister or his or her department. It was not an intermediary or passive player according to Mr Scevola but acquired land on the State's behalf. It is correct that in emails from OEH dated 21 and 24 May 2012 identified above in par 43 there is discussion of whether a third party can buy land on behalf of OEH and this is relied on by Mr Scevola. The Foundation entered into a Deed of Agreement with OEH dated 25 June 2012 which is annexed to Ms Nyugen's affidavit as summarised above in par 23. That agreement records the intention of the parties to cooperate in the purchase of as many lots as possible in the Heritage Estates for inclusion in the Jervis Bay National Park. None of this material establishes that the Foundation buys land at the behest of anybody. In a broad sense it assists in transferring land for the purpose of expanding a national park for the benefit of the whole community.
The Foundation has no coercive powers compelling a landowner to sell to it. That the issue of landowners forming the view that compulsory acquisition legislation could apply was identified as a "risk" in the Project Plan referred to in par 22 does not have any relevance to whether the Just Terms Act actually applies. The evidence establishes that the Foundation is a non-profit body providing a mechanism whereby Commonwealth Government funds can be offered to landowners in the Heritage Estates in a non-coercive manner. That the letters sent by the Foundation are unsolicited is irrelevant to their effect. They can be ignored by any recipient. No legal basis for making prayers 2 and 4 is established.
No affidavit evidence before me or in Esposito FC interlocutory Griffith J extracted at pars 11-12 above demonstrates that the Foundation acted or acts for the Council for any purpose. As it submitted, the Foundation does not "procure" land on the Council's behalf. Mr Scevola relied on a letter from the Council to Mr and Mrs Esposito dated 27 February 2017, annexure AA to Mrs Esposito's affidavit, which the Council wrote to provide information about the Foundation and the Project. The letter states that the Council is a partner in the Project which is managed by the Foundation. That there is co-operation between the Council and the Foundation has no legal consequence. The Project is managed by the Foundation not the Council. No legal basis for making prayer 3 is established.
Additional comments made by Mr Scevola at [19]-[34] of his written submissions referred to parts of the Full Federal Court decision in a somewhat critical manner. At [21] the Court held that the land had been largely sterilised by State law, because the land was zoned rural with no ability to erect a dwelling house on land less than 40 ha in area. As the conclusions of the Full Federal Court in [21] have no role to play in my reasoning I do not need to consider these submissions.
The circumstances referred to by Professor Gray in "Can environmental regulation constitute a taking of property at common law?" (2007) 24 Environmental and Planning Law Journal 161 according to Mr Scevola at [35]-[37] of his written submissions have no application in this matter where the scheme is entirely governed by statute, whether under the Just Terms Act, the NPW Act or the EPA Act. Common law principles have a very limited or no role to play in determining the application of these statutory schemes. The authorities summarised in Health Administration Corporation v George D Angus Pty Ltd (2014) 88 NSWLR 752; [2014] NSWCA 352 at [47]-[51] are instructive in this regard.
As part of their arguments on estoppel the Respondents relied on findings by the Full Federal Court in Esposito FFC at [67]-[70]: 67 There are a number of difficulties which confront this argument [that the funding agreement between the Commonwealth and State of NSW was contrary to the "just terms" provision in the Australian Constitution] at the outset. The principle one is that New South Wales did not use any of its powers to acquire land compulsorily nor was it required to do so under the agreement. It merely put the Foundation in funds to make offers to acquire the land. There was no compulsion required and none imposed. The appellants were not obliged to accept the offers which were made and, indeed, many members of the class did not. There is thus missing from this limb of the appellants' case any compulsory acquisition which might fall within s 51(xxxi). It is a critical difference with Magennis. … 69 Another way to evade the problem might be an argument that although it appeared on its face that the acquisition of the Heritage Estates land had been voluntary this concealed the truth of the matter. On this view, the appellants were confronted with a Hobson's choice between nothing and $5,500 which would be said, we apprehend, to be no choice at all. 70 Whilst we would accept that the question of whether there is an acquisition for the purposes of s 51(xxxi) is a question of substance and not form, and whilst we would also accept that it is possible that an apparently voluntary disposal may conceal, in fact, an involuntary acquisition, we do not consider this can be said to have occurred in this case. What was presented was a choice between a modest offer and the unpalatable prospect of keeping land which was sterilised for the foreseeable future by the EPBC Act. We do not think that the prospect of the latter was so forlorn in its outlook that it should be seen as depriving of their voluntariness the actions of those who accepted the offer of the former. This is underscored by the fact that some people did, indeed, choose not to accept the offer. Rational reasons for doing so might have included holding out for a change in the attitude of the Federal Minister to the Threatened Species. …
For reasons already stated I am not considering estoppel. It is nevertheless useful to consider the findings of the Full Federal Court in [67] set out above as they support my earlier finding that no compulsory acquisition has occurred under NSW law. While the discussion in the Full Federal Court was necessarily directed to the operation of s 51(xxxi) of the Australian Constitution the observations in [69]-[70] apply equally to Mr Scevola and his neighbours in this case. A rational reason for not accepting an offer from the Foundation is the hope that land would be zoned to allow residential development.
The Court has jurisdiction for matters conferred under s 24(1) of the Court Act. A claim for compensation can be heard by the Court if land is compulsorily acquired in accordance with the Just Terms Act and no agreement is reached between the claimant and the authority required to pay compensation. As the Respondents submitted no compulsory acquisition has occurred. No statutory authority or the State of NSW has exercised the compulsory acquisition powers under the Just Terms Act. The Court consequently has no jurisdiction in relation to the issues raised concerning the Just Terms Act. The Court has no jurisdiction to make prayers 1-4. No ancillary jurisdiction under s 25 of the Court Act arises either.

Rezoning of land (prayer 5)

A separate claim articulated in the summons is an order preventing the amendment of the Shoalhaven LEP. As that has already occurred by action of the Fourth Respondent Minister there is simply no basis to make the order sought in prayer 5. That part of the summons should be dismissed as disclosing no reasonable cause of action.
There is no other express relief sought by Mr Scevola in relation to the LEP now made and in effect. Giving Mr Scevola the benefit of the doubt, at best I infer from his written submissions in reply that a challenge to the making of the LEP is intended. The only matter identified in those submissions that might conceivably be a challenge is that Mr Scevola and the SLA were unaware that the LEP amendment had been gazetted. That alone is not a basis for challenging the making of the LEP. Ms Scotton's affidavit identifies the numerous steps taken in making the LEP amendment including public exhibition. There is no direct challenge to any of these steps in Mr Scevola's written submissions. Elsewhere in submissions Mr Scevola states that he and the SLA made submissions in relation to the draft LEP. No legal basis for a challenge is discernible in the material presently before the Court.
A further substantial hurdle if Mr Scevola is intending to challenge the making of the LEP gazetted in June 2016 is that any action is out of time given the time limit for the commencement of judicial review proceedings under s 35 of the EPA Act of three months from the date of publication. Mr Scevola would have to apply for an extension of time to commence a challenge to the LEP. The issue having been identified in the Respondents' submissions Mr Scevola stated in reply submissions that the Hickman principle is relied on but provided no basis for how this is so. Rule 59.10(1) of the UCPR is also referred to by Mr Scevola but would appear not to apply given the statutory limitation period in s 35 of the EPA Act, see r 59.10(4) of the UCPR.
What is presently before me does not articulate any basis for legal challenge of the LEP or explanation for how the Hickman principle can apply to overcome s 35. Nor is there any explanation for the substantial delay in commencing proceedings challenging the LEP which was made in mid-2016. Prayer 5 of the summons should be dismissed.

Roads in Heritage Estates (prayer 6)

Prayer 6 seeks a declaration by way of interlocutory order that Mr Scevola has a right in fee simple to the unformed roads in the Heritage Estates for which compensation should be payable as part of a compulsory acquisition process. Leaving aside the form of any order or declaration, how such a claim can exist legally under the Roads Act is not clear. The material annexed to Mrs Esposito's affidavit identifies that the unformed roads in the Heritage Estates were dedicated as public roads and vested in the Council in 2006 as provided by s 16 of the Roads Act. The Government Gazette Notice of 31 March 2006 is annexed to her affidavit. By virtues of s 16(3) all prior interests in the roads were removed. Under s 16(4) no compensation is payable as a result of this dedication. Mr Scevola has not provided any legal basis for the making of the order sought under the Roads Act or any other statute. Consequently, I am unaware of any power in the Court to make such an order. No reasonable cause of action is disclosed in prayer 6.
Separately to any issue of ownership of roads, Mr Scevola's complaint is about how the roads on the Heritage Estates are being managed by the Council. The evidence about the state of roads in the Heritage Estates is set out in the summary of Ms Scotton's affidavit at par 34 and Mrs Esposito's affidavit at par 37 above. The Council resolved twice in 2016 to install gates and barriers restricting vehicular access to the Estates under s 116 of the Roads Act because of land management and degradation concerns. Mr Scevola and Mrs Esposito assert that access has been denied to landowners by the Council seeking to install gates and barriers to prevent vehicular access to the road within the Heritage Estates. The evidence of Ms Scotton is that access for landowners in the Heritage Estates will be provided. An example of a sign erected by the Council at the Estates in late 2016 attached to Ms Scotton's affidavit supports this. The sign explicitly states that the area is restricted to "authorised property owners only" and that landowners wishing to access the area should contact the Council.
This matter is entirely separate from and unrelated to the issue of ownership of the roads on the Heritage Estates and is strictly speaking irrelevant to the relief sought in the summons. Mr Scevola relied on Tanner but that case has no application to the circumstances here. The Council is not compulsorily acquiring the road access to Mr Scevola's lands which was the issue in Tanner (on the assumption that the lots in which he has an interest are impacted by the Council's decision under s 116 of the Roads Act).
The Respondents have satisfied the high hurdle required for proceedings to be summarily dismissed. The Respondents' notices of motion should be upheld and Mr Scevola's summons dismissed. Orders to that effect will be made.
My critical observations throughout my reasons concerning Mr Scevola's case are not intended in any way as a criticism of Mr Scevola personally. He is no doubt doing the best he can in a complex matter.
Mr Scevola submitted and Mrs Esposito attested to paying large amounts in rates to the Council which they considered had not been used by the Council for the benefit of ratepayers in the Heritage Estates. While that circumstance is no doubt frustrating to them it has no legal consequence for any of the issues that have arisen in determining the notices of motion.
The Respondents seek their costs of their notices of motion. I will afford Mr Scevola the opportunity to address costs in light of my decision before making a costs order if he wishes to do so.
It is unnecessary to consider Mr Scevola's notice of motion seeking expedition of the proceedings in light of my determination of the Respondents' notices of motion.

Order

The Court orders: 1. The Respondents' notices of motion filed on 2 June 2017 are upheld. 2. The Applicant's summons filed on 5 April 2017 is dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005. 3. Costs are reserved. 4. The exhibits be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2017

Federal Court Act 1976(Cth)

(2006) 149 LGERA 439

(2002) 117 LGERA 321

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