Albany v The Commonwealth

High Court of Australia Jacobs J Albany v The Commonwealth

Judgment reserved

9 December 1976 Jacobs J.

On 15 June 1973 the Commonwealth acquired, pursuant to the Lands Acquisition Act 1955-1966 Cth an area of 32 square miles situated immediately to the east of the lands comprising Darwin and its environs which had been acquired by the Commonwealth under the Darwin Lands Acquisition Act 1945 Cth. The first-named plaintiff, whom for convenience I shall hereafter generally call "the plaintiff", was at the date of the 1973 acquisition the owner in fee simple of a substantial area of land in the 32 square miles then acquired, and in the present action claims compensation for these lands. The other plaintiffs were purchasers of lots in portion of the lands owned by the plaintiff, namely, section 111 in the Hundred of Bagot, and likewise claim compensation in respect of their respective interests.

The original town of Darwin is situated upon the southwestern tip of a peninsula in Beagle Gulf which is bounded by Hope Inlet on the north and East Arm and Elizabeth River on the south. The peninsula is approximately 15 miles from east to west and 10 miles from north to south. The lands acquired by the Commonwealth in 1945 were the lands extending from the original site of Darwin to a north-south line approximately 9 miles to the east (the 1945 Darwin acquisition boundary). The 1973 acquisition of 32 square miles was immediately to the east of the 1945 Darwin acquisition boundary in or towards the centre of the peninsula. It would appear that the lands to the north and south of the acquired area were existing Crown lands.

The highest part of the peninsula is little more than 150 feet above sea level. Around the peninsula, particularly on the north and south, there are extensive swamp areas. The peninsula is divided along its length by the old North Australian railway and the Stuart Highway. In the centre of the peninsula towards the western end and immediately north of the Stuart Highway is the airport with its associated civil and military installations. The position of the airport and of its associated installations is definitive of the manner in which the city has been extended within the 1945 acquisition boundaries and in which, within those boundaries and beyond, it can extend in the future. Once the town began to extend beyond the southwestern tip of the peninsula the first suburbs were situated on each side of the railway and the highway adjacent to the early development. Then development extended further north between the western coast of the peninsula and the airport boundary through Ludmilla and Bagot. As the population grew the suburbs which are known as the northern suburbs have gradually been developed north of the airport towards Lee Point which is situated at the northwestern tip of the peninsula. Then, more recently, as the suburbs to the north have begun to be fully developed, further developments, still north of the airport, but further to the inland of the peninsula, have developed or are now in course of development. These are the suburbs of Wulagi, Anula, Malak, and Karama. Further development of the suburbs to the north is precluded at least for the present by Air Force and Civil Aviation installations south from Lee Point and to the east of these installations but still within the 1945 acquisition area is the very large Leanyer Swamp.