NEW SOUTH WALES ELECTRICITY TRANSMISSION AUTHORITY v KATER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY P, SHELLER and COLE JJA 6 September 1995, 20 September 1995 [1995] NSWCA 330 ENVIRONMENTAL PLANNING AND ASSESSMENT — Land and Environment Court — jurisdiction of — claim for damages — in respect of footrot allegedly introduced by activities of Authority — whether jurisdiction — held: There is. WORDS AND PHRASES — "by reason of" — "in respect of". ENVIRONMENTAL PLANNING AND ASSESSMENT — Environment Court — jurisdiction of — claim for compensation for damage allegedly suffered by owner of land from introduction of footrot in consequence of activities of Electricity Authority — jurisdiction of Court extends to matters provided under an Act — Public Works Act 1912, s102 confers jurisdiction on Court for claims "in respect of damage... sustained... by reason on... work" — by s96 of the Act the constructing authority is required to give "full satisfaction... for all damages sustained... by reason of the exercise of such powers" — held: Affirming Land and Environment Court (Bannon J); The Land and Environment Court has jurisdiction to determine the compensation payable in such a case. Land and Environment Court Act 1979, s19(h) Public Works Act 1912, s42, s80, s82, s84, s85, s88, s91, s96, s101, s102, and s104. ORDERS Appeal dismissed with costs. Kirby P I agree with Cole JA. Sheller JA I agree with Cole JA. Cole JA The question which arises on this appeal, brought by leave granted on 5 June 1995 from the decision of Bannon J, is whether the Land and Environment Court has jurisdiction to hear and determine a claim for damages allegedly suffered by the owner of land from the introduction of footrot in consequence of activities of the appellant where portion of the land owned by the respondent was resumed pursuant to s42 Public Works Act 1912. Bannon J held that the Land and Environment Court had such jurisdiction. In my view that decision was correct. THE CONSTRUCTION OF THE PUBLIC WORKS ACT 1912 The subject land was resumed by notice published in the Government Gazette dated 18 January 1991. The resumption was in accordance with and pursuant to s42 Public Works Act 1912. That section is found in Division 1 of Pt5 of the Act entitled "Methods of Acquisition of Land". Pt6 is entitled "Provisions Applicable To Every Case Where Land Is Taken Or Acquired Under This Act". By Division 6 of Pt6 the powers and duties of a constructing authority are set forth. By s80 the constructing authority is 2 UNREPORTED JUDGMENTS authorised to enter, survey, stake out and appropriate necessary land!, remove materials?, construct temporary or permanent inclined planes, tunnels, embankments, bridges etc3, alter the courses of rivers of streams+, construct drains5, erect buildings and yards®, make alterations and repairs or substitute works', fell and remove trees® and "generally may do all other acts necessary for constructing, reconstructing, making, maintaining, altering, repairing,adding to, extending and using such public work"9. The Authority taking temporary possession of land is liable in nuisance to persons other than the persons whose land is acquired!°. The Authority may take temporary possession of land but is obliged to pay the value of any crop thereon "'as well as full compensation for any other damage of a temporary nature", and rent!!. Within six months of ceasing such temporary possession of lands, the Authority must pay to the owner or into court "compensation for all permanent or other loss, damage or injury that may have been sustained by" the owner or occupier of such land "by reason of the exercise as regards the said lands of the powers herein granted". !2 S85 provides: "The amount and application of the compensation payable by the Constructing Authority in any of the cases aforesaid shall be determined in the manner provided by this Act for determining the amount and application of the compensation to be paid for lands taken under the provisions hereof." It is apparent from the sections to which I have referred that the compensation contemplated to be paid extends far beyond the mere value of land acquired. It is apparent from the powers conferred, in particular by s80, that significant damage may be caused both to lands owned by a person whose land is resumed, and to operations conducted thereon by him, or by any occupier of such lands. As compensation for "all permanent or other loss, damage or injury that may have been sustained" by an owner or occupier is payable in consequence of temporary possession of lands by a Constructing Authority, it would surprising indeed if the Act did not provide for payment of similar compensation to an owner or occupier where the lands were not temporarily occupied but were permanently acquired, or where the damage was to the remainder of land retained by the person whose land was acquired. S88 permits recovery of special damage caused to a person having a right of way over a road interfered with by the construction authority. S91 authorises the Constructing Authority to make and maintain "accommodation works" in the nature of gates, bridges, mounds, ditches, tunnels, culverts and the like. S96 addresses damages. It provides: s80(a) s80(b) s80(c) s80(d) s80(e) s80(f) s80(g) s80(h) s80(i) s82(i)(3) . $84(a)(b) . s84(c) SeeInAnswNe pe WHEW SOUTH WALES ELECTRICITY TRANSMISSION AUTHORITY v KATER (Cole JAB "Tn the exercise of the powers granted by this Act, the Constructing Authority and all other persons shall do as little damage as possible; and, if required, full satisfaction shall be made in manner herein provided, to all persons interested in any lands or hereditaments which are taken, used, injured, or prejudicially affected, for all damages sustained by them by reason of the exercise of such powers." Before Bannon J it was accepted by the appellant that the respondent's footrot claim for damages fell within s96. Before this Court, the appellant sought to depart from that position. It would not normally be permitted to do so, not having raised, indeed, having conceded, the issue before the primary judge!3. However, in this instance, as the matter could be raised at the hearing, which is fixed for November 1995, it is convenient to address the matter now. It is clear that such a claim does fall within s96. The contention of the appellant that: "The damage" to which s96 addresses itself is physical damage to the land itself not to personal injury or injury to livestock depastured on the land." is without substance. The damages which the section makes payable are "all damages sustained" by the persons interested in lands which are taken, used, injured or prejudicially affected. The damages which are payable are those sustained by those persons by reason of the exercise of the powers of taking, using, injuring or prejudicially affecting those lands. There is no reason to restrict the words "all damages sustained", otherwise than by reference to those damages flowing from exercise of the powers referred to. Pt7 deals with compensation. $101(1) provides: "Where the land described in any such notification as in section forty-two hereof mentioned consists wholly or partly of land alienated by or not the property of the Crown, or is not Crown land, the owners thereof, or the persons who, but for the provisions hereinbefore contained, would have been such owners, shall be entitled to receive such sum of money by way of compensation for the land of which they have been deprived under this Act as shall be agreed upon or otherwise ascertained under the provisions of this Division of the this Act." $102 provides: "Every person claiming compensation in respect of any land resumed under any such notification, or in respect of any work or other matter done under the authority of this Act where there has been such notification shall, within ninety days from the publication of such notification, or at any time afterwards within such time as the Land and Environment Court shall, upon the application and at the cost of the claimant, appoint in that behalf, serve upon the Constructing Authority and upon the Crown Solicitor a notice in writing setting forth - (a) the nature of the estate or interest of the claimant in such land, together with an abstract of his title; and (b) if he claims in respect of damage, the nature of the damage which he has sustained or will sustain by reason of such resumption or work or matter as aforesaid." The words of s102 make clear that the compensation is not restricted to the value of land but may be in respect of "any work or other matter done under the authority of this Act". S102(b) makes entirely clear that compensation is payable 13. See Coulton v Holcombe (1986) 162 CLR 1 4 UNREPORTED JUDGMENTS for damage resulting from the exercise of any power either to resume or to do any of the work to which I have referred. Damage includes damaged caused as a consequence of performing works. By s104, if the amount of compensation is not agreed, "the claimant may institute proceedings in the Land and Environment Court against the Constructing Authority as the nominal defendant". It is thus clear that the Public Works Act purports to confer on the Land and Environment Court jurisdiction to hear and determine a claim for damage arising out of the resumption of land or the performance of works in pursuance of the powers and duties conferred, in particular, by Division 6 of Pt6 of the Act. $19(h) Land and Environment Court Act 1979 provides that: "The court has jurisdiction... to hear and dispose of - (h) any other... matters which an Act provides may be heard and disposed of by the Court,... being... other matters that are not referred to in any other section of this Part." That subsection picks up the jurisdiction purportedly conferred by s104 Public Works Act. For the above reasons the Land and Environment Court has jurisdiction to hear the respondent's claim for damages for footrot allegedly caused by the performance of works by the appellant pursuant to the powers conferred by the Public Works Act. The only argument of any substance advanced in opposition to this construction was based on a consideration of s124 Public Works Act 1912. That section provided: "124 For the purpose of ascertaining the purchase money or compensation to be paid, regard shall in every case be had not only to the value of the land to be purchased or taken, but also to the damage (if any) caused by the severing of the lands taken from other lands of the owner, or by the exercise of any statutory powers by the Constructing Authority otherwise injuriously affecting such other lands; and the same shall be assessed according to what is found to have been the value of such lands, estate or interest at the time notice was given, or notification published, as the case may be and without the amount of the valuation notified to such claimant being binding in any way in relation to the assessment, and without reference to any alteration in such value arising from the establishment of railway or other public works upon or for which such land was resumed: Provided that in ascertaining such purchase money or compensation any enhancement in the value of the interest of any such owner in any land adjoining the land taken or severed therefrom by any construction of the authorised work shall be taken into consideration and given effect to by way of set-off or abatement. But in no case shall this proviso operate so as to require any payment to be made by such owner to the Constructing Authority in consideration of such enhancement of value as aforesaid: Provided also that in the case of land under the surface taken or acquired by notification in the Gazette for the purpose of constructing a subterranean tunnel for water supply or sewerage or railway transit, no compensation shall be allowed or awarded unless - (a) the surface of the overlying soil is disturbed; or (b) the support to such surface is destroyed or injuriously affected by the construction of such tunnel; or (c) any mines or underground workings in or adjacent to such land are thereby rendered unworkable or are so affected as aforesaid." WHEW SOUTH WALES ELECTRICITY TRANSMISSION AUTHORITY v KATER (Cole JAB The argument was that s124 constituted a code for assessment of compensation. It dealt only with valuation of land. Accordingly, to avoid conflict within Pt7, the nature of damage referred to in s102 must be construed as being limited only to the value of land, and not to the other forms of damage which a landholder may suffer from the acts of the Constructing Authority. The argument was said to be reinforced by s24(2) Land and Environment Act 1979 which provided that: "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." "Such claim" there addressed is a claim for compensation by reason of the acquisition of land for public purposes. In my opinion, the argument is without substance. Properly construed, s124 does no more than provide that, in relation to land acquired, whether by Gazette notification (s42) or by notice to the parties (s47), in determining the compensation for that land regard may be had "not only" to the value of the land so acquired, but also to damage flowing from separation from other lands, and damage flowing from exercise of statutory powers injuriously affecting such other lands, and also to any enhancement of value of remaining land acquired by the owner of land acquired. Absent those provisions, in determining compensation for land acquired by the Constructing Authority, regard would not be had to damage caused to lands other than lands acquired, or to enhancement of the value of remaining lands. $124 could not be a code. $84 provides for payment of damages for loss of a crop, and for the value of dressing of land. Pursuant to s80 the Constructing Authority may, for instance, break fences, and fell timber. Yet those matters do not fall within s124. If the argument of the appellant be correct, no compensation could be payable because it could not assessed within s124, notwithstanding that s84 (and s102), provide, in terms, for payment of such compensation. S124 applies only in relation to the aspects of losses to or enhancement of value of land to which it refers, namely, losses or enhancement to other lands. It does not purport to address other heads of damages which earlier provisions make payable in consequence of exercise of the powers conferred by Pt6. Reference was also made by the appellant to Brighton v Dungog Municipal Council!4. That authority does not, in my view, assist the appellant. Sir Frederick Jordan said: "It would seem, therefore, that, so far as the Public Works Act itself is concerned, when a person desires to enforce a claim for compensation in respect of acts done under s80 or s82 the procedure which he should adopt would depend upon whether the land had been acquired for the public work with which the Acts are associated by Gazette notification or by notice to treat. In the former case, it would enforceable by action in the Supreme Court or District Court as the case may be, and in the latter by proceedings before two justices, or if the claim exceeded 100 pounds before arbitrators: cf Stone v Corporation of Yeovil ([1876] 1 CPD 691; 2 CPD 99). At this point. however, it becomes necessary to advert more particularly to certain provisions of Pt7. By s102, if there has been a notification, any claimant for compensation, EVEN IF IT BE NOT FOR THE VALUE OF LAND RESUMED BUT ONLY FOR DAMAGE SUSTAINED THROUGH SOME 14. (1943) 15 LJR 74 6 UNREPORTED JUDGMENTS WORK OR MATTER DONE UNDER THE AUTHORITY OF THE ACT, must within ninety days of publication of the notification serve notice of his claim on the constructing authority and the Crown Solicitor. If damage in respect of a work or matter is claimed, the nature of the damage must be specified. A judge of the Supreme Court may extend the time, but only on the application and at the expense of the claimant."(emphasis added). Since those words were written the references to the Supreme Court in the Act have been deleted and the Land and Environment Court substituted. The passage quoted makes clear that Jordan CJ was of opinion, first, that action could be brought for damage, in the (now) Land and Environment Court, and second, that damages unrelated to the value of land resumed could be claimed in such an action. That view is entirely inconsistent with a construction of s124 which would hold that it comprised a code for assessment of compensation limited to valuation of land. The appeal should be dismissed with costs. COUNSEL: Appellant: RA Conti QC/MT McCulloch Respondent: MLD Einfeld QC/SG Habib SOLICITORS: Appellant: Allen Allen and Hemsley Respondent: Bartier Perry and Purcell