Scevola v Minister Administering National Parks and Wildlife

Court of Appeal (NSW)|2018-07-27|Before: Meagher JA, Gleeson JA, Pain J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] Mr Scevola sought leave to appeal from an order summarily dismissing his claim to declaratory and other relief in relation to an alleged compulsory acquisition of land and an order that he pay the respondents' costs of the motion for dismissal. Mr Scevola owns a lot in the Heritage Estates, near Jervis Bay. The Heritage Estates, as originally subdivided and zoned, did not permit residential development on individual lots. In June 2012, NSW and the Commonwealth entered into an agreement under which land in the Heritage Estates would be voluntarily acquired using Commonwealth Funds, and become part of Jervis Bay National Park. For that purpose, the Foundation for National Parks and Wildlife ("the Foundation") agreed with NSW that the Foundation would acquire the land with those Commonwealth funds. In the implementation of the agreement, the Shoalhaven Local Environmental Plan 2014 (Amendment No 4) ("2014 LEP") was made, which rezoned the land to "E2-Environmental Conservation". The Foundation then invited from landowners offers to sell to the NSW Office of Environment & Heritage, representing the Minister administering the National Parks and Wildlife Act 1974 ("NPW Minister"). Whilst many landowners have made such offers that have then been accepted, Mr Scevola has not. Mr Scevola sought from the primary judge (Pain J) certain declarations and injunctive relief as to conduct said to be in contravention of Land Acquisition (Just Terms Compensation) Act 1991 (NSW), including a declaration that he had a right "in fee simple" comprising of "unformed roads" in the Heritage Estates, and orders restraining NPW Minister and the Shoalhaven Council from using the Foundation to procure his land. He also challenged the validity of the 2014 LEP. His claim was summarily dismissed. Held (Meagher and Gleeson JJA), dismissing the application for leave to appeal:

Introduction

This is an application for leave to appeal from two decisions of the Land and Environment Court. The first, Scevola v Minister Administering National Parks and Wildlife [2017] NSWLEC 106, summarily dismissed a claim of the first applicant (Mr Scevola) to declaratory and other relief in relation to the alleged compulsory acquisition of land in the Heritage Estates near Jervis Bay. The second ordered that Mr Scevola pay the costs of the respondents' motions for summary dismissal: Scevola v Minister Administering National Parks and Wildlife (No 2) [2017] NSWLEC 139.
The claims in the Land and Environment Court were said to be within Class 3 or 4 of that Court's jurisdiction, being either claims for compensation by reason of an acquisition of land or a claim concerning the validity of a planning instrument, the Shoalhaven Local Environmental Plan 2014 (Amendment No 4). Accordingly, leave to appeal is required, the first decision being "interlocutory" and the second one "as to costs": Land and Environment Court Act 1979 (NSW), ss 16, 19(e), 20(1)(b), and 24(1) (jurisdiction); and ss 57(4)(d), (f) and 58(3)(a), (c) (rights of appeal). By Supreme Court Act 1970 (NSW), s 48(1)(a)(i) and (2)(f), the appeal is to this Court. Any application for leave to appeal was to be filed and served within 28 days after the "material date", in this case 24 August 2017 in relation to the principal judgment, and 23 October 2017 in relation to the costs judgment. As the summons seeking leave to appeal from both judgments was filed on 11 April 2018, Mr Scevola requires an extension under r 51.10(2) of the time in which to file that summons.
The respondents at first instance and in the proposed appeals are Minister administering the National Parks and Wildlife Act 1974 (NPW Minister), the corporation sole constituted by National Parks and Wildlife Act 1974 (NSW) (NPW Act), s 150; Foundation for National Parks and Wildlife (Foundation), a company limited by guarantee and registered charity; Shoalhaven City Council and the NSW Minister for Planning. The summons seeking leave to appeal names as second applicant, the Shoalhaven Landowners Association Incorporated (SLA). Although SLA was named as applicant in the proceedings as originally constituted, it was removed as a party on the first day of the hearing on the application of Mr Scevola who was substituted as "sole applicant". That occurred in circumstances where SLA's registration under Associations Incorporation Act 2009 (NSW) had been cancelled on 2 December 2011 and not re-instated by the hearing on 19 July 2017.

The position of Shoalhaven Landowners Association Incorporated

The position of SLA as a party to this application may be dealt with at the outset. One of the matters sought to be agitated by Mr Scevola in the appeal is whether SLA had sufficient standing to bring and prosecute the proceedings below and whether the primary judge erred in some way in acceding to his application to be substituted as applicant. Her Honour did not so err. At the time, SLA did not exist. Nor did it, as distinct from its members, own any land within the Heritage Estates. As SLA was not a party to the underlying proceedings, it is not a necessary or proper party to any proposed appeal. Its application for an extension of the time in which to seek leave to appeal should be refused.

Background facts

The circumstances leading to the proceedings before the primary judge are summarised at Judgment [10]-[13]. That summary in turn refers to earlier proceedings in the Federal Court, including the decision of the Full Federal Court: Esposito v Commonwealth (2015) 235 FCR 1; [2015] FCAFC 160.
Mr Scevola is the legal owner of a lot in the Heritage Estates subdivision and claims also to have an equitable interest in another lot in that subdivision. That land was originally subdivided in 1915 and in 1964 was zoned "rural", which did not permit development for residential purposes on the individual lots. In 1985, the rural zoning was varied but not in a way which permitted residential development on individual lots. In December 1992, the Shoalhaven Council decided to investigate the possibility of rezoning to enable dwellings to be erected on individual lots. And in 2007 the Council referred that rezoning proposal, which included the completion of infrastructure works, to the Commonwealth Minister for the Environment and Water Resources under Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), Pt 7 for the purpose of the Minister determining whether the Council's proposal was a "controlled action" within s 67 requiring the Minister's consent to proceed. That proposal was referred because of the presence of threatened flora and fauna (listed as such under the EPBC Act) on the Heritage Estates land.
In March 2009, the Commonwealth Minister determined that the Shoalhaven Council's rezoning proposal should not proceed. There followed discussions between New South Wales and the Commonwealth which resulted in June 2012 in an "intergovernmental agreement…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": Esposito v The Commonwealth (FCAFC) at [8].
The following occurred in the implementation of that agreement. Shoalhaven Council resolved in May 2012 that the Heritage Estates be rezoned to "E2 - Environmental Conservation", and for that purpose released a draft LEP. On 16 June 2016, the Shoalhaven Local Environmental Plan 2014 (Amendment No 4) was made effecting that rezoning. Earlier in June 2012, the Commonwealth advanced funds to New South Wales to assist it with the voluntary acquisition of the land within the Heritage Estates. Once acquired that land was to become part of Jervis Bay National Park. For the purpose of its acquisition, an agreement was entered into between the Foundation and the State of New South Wales under which the Commonwealth funds were to be used by the Foundation to acquire the Heritage Estates land. Thereafter, the Foundation did so by inviting offers from individual land owners to sell their land to "NSW Office of Environment & Heritage" representing NPW Minister. (Before this Court, there was evidence of invitations made in September 2017 by the Foundation to landowners to offer to sell their land and it was accepted in argument that those offers were in very similar terms to the "earlier offers" invited in late 2012 and early 2013.) Many but not all of the landowners invited to make such offers, did so.

The proceedings in the Federal Court

In 2013 a number of landowners, including some who had accepted the Foundation's invitation, commenced a representative action in the Federal Court in which it was alleged that their land had been acquired other than on "just terms" in contravention of the guarantee in s 50(xxxi) of the Constitution. As the primary judge recorded at Judgment [11], their claims were summarised in the interlocutory judgment of Griffiths J in Esposito v Commonwealth of Australia [2013] FCA 546 at [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.
The Full Federal Court ultimately rejected the two ways in which it was said that there had been an acquisition of property for the purposes of s 51(xxxi). The first was that the EPBC Act and a 1985 zoning instrument effected an acquisition of property rights. The Court held at [61]: ... it is clear to us that the appellants continue to own all of the property they have always owned. What they have lost - the fulfilment of a value-adding hope [rezoning] and with it the destruction of much of the value of their property - are not themselves proprietary in nature. It follows that the first claim under s 51(xxxi) must fail because of the absence of any acquisition of the appellants' property.
Secondly it was argued that the Commonwealth enabled New South Wales to use its powers compulsorily to acquire land using Commonwealth funds. That argument was also rejected principally because (at [67]): … 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 …
The Court accepted at [70] that "an apparently voluntary disposal may conceal, in fact, an involuntary acquisition" but concluded that could not "be said to have occurred in this case".

Relief sought in the Land and Environment Court

The relief sought by Mr Scevola before the primary judge was amended to reflect his joinder as applicant in place of SLA. That relief, as amended, was extracted by the primary judge at Judgment [8]. It was directed to three subjects. Prayers 1 to 4 deal with compulsory acquisition, prayer 5 with the validity of the 2014 rezoning, and prayer 6 with the ownership of "unformed roads" within the Heritage Estates.
Mr Scevola sought declarations concerning obligations of NPW Minister in relation to the acquisition of his land (prayer 1); and as to the conduct of the Foundation in procuring the transfer of that land to NPW Minister in contravention of provisions of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (the Just Terms Act) (prayer 4). Prayers 2 and 3 sought orders restraining NPW Minister and Shoalhaven Council from using the Foundation to "procure" Mr Scevola's land on behalf of NPW Minister, in each case until the Land and Environment Court "has heard and determined the rights, obligations or compensation payable to [him]".
Prayer 5 sought to restrain NPW Minister and Shoalhaven Council from "proceeding" to rezone land in the Heritage Estates to "Environmental Conservation E2", until the Land and Environment Court "has fully heard and determined the suitability of this land" for that zoning. Finally, prayer 6 sought a declaration that Mr Scevola has a right "in fee simple" comprising of all the "unformed roads" within the Heritage Estates "which should form part of the acquisition process" with the result that the "value of such roads [should] be compensated" to him.

Disposition of application for leave to appeal from summary dismissal

It is not suggested that the primary judge misdirected herself as to the relevant test when addressing the summary dismissal application. Citing Agar v Hyde (2000) 201 CLR 552 at [57]; [2000] HCA 41 (Gaudron J), her Honour said that the proceedings should not be summarily dismissed unless she was satisfied to a "high degree of certainty" that if allowed to go to trial in the ordinary way, they would fail: Judgment [69]. Her Honour summarily dismissed each of the claims to relief. For the reasons appearing below, there is no arguable basis for maintaining that she erred in doing so.

Prayers 1 to 4 (acquisition or "constructive" acquisition)

Prayer 1 maintains that there has been an acquisition by NPW Minister of Mr Scevola's land under NPW Act, s 145(b) or 146(1)(e) "by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991". The primary judge held that no such acquisition had occurred, either by agreement or by compulsory process: Judgment [76]. That conclusion is undoubtedly correct and was not contested by Mr Scevola other than on the basis that had been a "constructive" acquisition. There was no evidence suggesting any compulsory acquisition by NPW Minister, and no evidence that any agreement had been made between the Foundation acting for NPW Minister (the corporation sole) and Mr Scevola, whether in response to the Foundation's invitation to treat or otherwise. Nor has there been any "constructive" acquisition: Judgment [81]. The argument made in support of such an acquisition does not at all accommodate the language of the Just Terms Act. It is that the diminution in the value of the land by reason of the further zoning restrictions effected an acquisition of rights in property. For the reasons given by the Full Federal Court at [61], there was no acquisition of property, and certainly not a compulsory acquisition to which the Just Terms Act might apply.
The primary judge was correct to conclude that Just Terms Act, s 38 was not applicable to Mr Scevola, there being no proposed acquisition by agreement of his land. That is not to say that s 38 was not capable of applying to this land. If Mr Scevola had accepted the Foundation's invitation to offer to sell to the Office of Environment & Heritage (representing NPW Minister) and that offer was accepted, there would have been a "proposed acquisition by agreement of land". The remaining question would be whether that land was "not available for public sale" which depends on whether it does not satisfy the description in subsection 5(3) of land that "is available for public sale": cf Judgment [80], [85]. If applicable, Just Terms Act, s 38 would require that the "same matters as are required to be taken into account" under Part 3 in determining the compensation payable for an acquisition by compulsory process be taken into account in connection with that acquisition. However, none of the foregoing identifies any material error of the primary judge in concluding that there had been no acquisition by agreement or otherwise of Mr Scevola's land or interest in land (cf prayer 1).
There has been no conduct of the Foundation shown to be contrary to the Just Terms Act or the NPW Act. To the extent that the Foundation invites an offer to sell to NPW Minister which is an "authority of the State" and that results in an agreement for acquisition of land to which s 38 applies, the relevant authority is required to determine the compensation payable taking into account the matters described in Just Terms Act, s 55. That provides no basis for the injunctive relief sought in prayer 2. Nor is there any basis for restraining Shoalhaven City Council from "using" the Foundation to procure such offers for sale to NPW Minister. More fundamentally, in relation to prayer 3, as the primary judge noted at Judgment [88], there was no evidence that in doing so the Foundation was acting for or on behalf of the Council.
Finally, by inviting offers to sell, the Foundation is not acting as an "authority of the State". Nor does it need to do so in order for any landowner to whom an invitation is made to have the benefit of s 38 in the event that there is a "proposed acquisition by agreement of land" to which that section applies. It follows that prayer 4 is also misconceived and that the primary judge rightly concluded that there was no prospect of Mr Scevola obtaining any of the relief sought by prayers 1 to 4.
That is not to say that the lot holders in Heritage Estates would have no opportunities to rely upon the Just Terms Act. The first may arise under s 38 and is referred to above. Another, discussed in argument before this Court, may arise by reason of an owner-initiated compulsory acquisition in a case of "hardship" under Part 2, Division 3. Such an entitlement might arise with respect to the Shoalhaven Local Environmental Plan 2014 (Amendment No 4), in which case the relevant acquiring authority would be the corporation sole constituted by the Minister administering the Environmental Planning and Assessment Act: Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), ss 8, 27; Shoalhaven LEP 2014, Part 5.1(2).

Prayer 5 (validity of 2014 rezoning instrument)

The primary judge dealt with Mr Scevola's claim challenging Shoalhaven Environmental Local Plan 2014 at Judgment [94]-[97]. Her Honour correctly concluded that there was no basis for making the order sought in prayer 5 because the zoning was gazetted and took effect on 24 June 2016. If Mr Scevola had intended to challenge the making of that LEP by way of judicial review proceedings under EPA Act, s 35, those proceedings should have been commenced within three months from the date of its publication. Finally, as the first and fourth respondents to the present application note in their written submissions, there are no grounds of appeal which address her Honour's conclusions with respect to this claim to relief.

Prayer 6 (roads in Heritage Estates)

At Judgment [98]-[100], the primary judge dismissed the claim to this declaration on the basis that the current and former landowners have no proprietary interest in the "unformed" roads within the Heritage Estates. As her Honour explained at Judgment [98], Mr Scevola's evidence showed that those "unformed" roads were dedicated as public roads and vested in the Shoalhaven Council by a notice published in the Government Gazette on 31 March 2006. See Roads Act 1993 (NSW), ss 7(4)(b), 16 and 145(3). Upon the publication of that notice in the Gazette the land constituted by those roads became free of all "trusts, restrictions, dedications, reservations, obligations and interests" (s 16(3)).

Disposition of application for leave to appeal from costs orders

The primary judge rejected Mr Scevola's submission that the proceedings were brought in the public interest, concluding that the "essential issues [he] sought to raise concerned the program of voluntary acquisition of private land using Commonwealth government funding administered by the Foundation". Her Honour also rejected Mr Scevola's submission that a costs order should not be made because he might suffer hardship, noting that generally hardship does not provide a good reason for costs not to follow the event. Mr Scevola does not identify any basis on which the primary judge's exercise of the discretion as to costs miscarried.

Conclusion

Notwithstanding that leave to appeal was required, the applicants have also filed a notice of appeal in this Court (proceedings 2017/350504). As leave to appeal is to be refused, that appeal is incompetent and should be dismissed.
Accordingly, in proceedings 2018/114947 the Court orders: 1. Extend time for filing of Mr Scevola's application for leave to appeal to 5pm on 11 April 2018. 2. Dismiss Mr Scevola's application seeking leave to appeal from judgments and orders of the Land and Environment Court of 24 August 2017 and 23 October 2017. 3. Dismiss application of Shoalhaven Landowners Association Incorporated to extend time for filing application for leave to appeal. 4. Mr Scevola pay the respondents' costs of the application for an extension of time and for leave to appeal.
And in relation to proceedings 2017/350504, the Court orders that the notice of appeal filed 23 January 2018 be dismissed.

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: 06 August 2018

appeal). By Supreme Court Act 1970(NSW)

See Roads Act 1993(NSW)

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