MANSON v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY P and SHELLER JA 13 May 1996 [1996] NSWCA 339 Mahoney P. The Court has come to a conclusion in relation to this matter and in the special circumstances of the case the Court will deliver judgment in relation to it. Mr and Mrs Manson are owners of property which I understand is situated at 593 Pennant Hills Road, Beecroft. The land is, according to the documents before the Court, Lot 9 in Deposited Plan 30912. It is proposed to build a freeway, not immediately next to the land, but within a short distance of the land and in the course of doing that work, excavations will be carried out which, if one may infer from the terms of the plan which has been placed before the Court, will establish a retaining wall from the ground level down to the carriageway some three or four metres or more below. In connection with the construction of the freeway it is proposed to acquire, as they have been described, a rock anchor easement. This will involve that over an area of land, some three metres or more below the ground level of the land of Mr and MrsManson, it is proposed to insert rock anchors presumably in order to retain the retaining wall or otherwise secure the stability of the freeway. The Government — I use that term to include the relevant statutory authority — proposes to acquire an easement or easements of the kind to which I have referred. It is in connection with the steps taken to acquire those rights that the present litigation has arisen. It is not necessary for me to detail all of the facts. They are set forth in the judgment of Mr Justice Bryson in the Equity Division from which leave to appeal is now sought. It is sufficient if I refer to the facts and the arguments briefly. In order to satisfy the requirements, or with a view to satisfying the requirements, of the relevant legislation, namely the Land Acquisition (Just Terms Compensation) Act 1991, a notice was sent by letter to Mr and Mrs Manson on 5 February 1996. That letter, directed from the Roads and Traffic Authority, referred to the circumstances of the proposed construction and to the proposal to acquire, as it was there described, the easement for the rock anchors. Subsequently, on 15 February 1996 the Roads and Traffic Authority forwarded, under cover of a letter, a notice of proposed acquisition in suggested compliance with the legislation. It has been proposed pursuant to that notice, or otherwise, to effect the acquisition of the relevant easement or easements. Mr Mason QC, the Solicitor General, has informed the Court that the necessary executive council document has been signed by the relevant Minister and that it is proposed that notice of the acquisition of the easement be published in the Government Gazette on Friday next, 17 May 1996. It is for practical purposes the publication of the relevant notice in the Government Gazette which effects the acquisition or resumption of the land. 2 UNREPORTED JUDGMENTS Mr and Mrs Manson have objected to the carrying out of the resumption. Proceedings were taken before Bryson J in the Equity Division seeking aninterlocutory injunction restraining the Roads and Traffic Authority from proceeding with the proposed acquisition. On 6 May 1996 his Honour, in a detailed written judgment, refused the interlocutory injunction and directed pleadings and gave other directions for the purpose of bringing the suit on for hearing should the parties desire to proceed with it. Application came before me in chambers at the end of last week seeking that the time for lodging a summons for leave to appeal against his Honour's judgment, be shortened. The appropriate orders were made and the matter is before the Court today. The present application is an application for leave to appeal against his Honour's refusal of the interlocutory injunction. The fact that the matter is an application for leave to appeal has been emphasised from time to time during the course of the judgment today. However, in the circumstances, the Court has permitted the argument to extend far beyond the limits which ordinarily would be imposed upon an application for leave to appeal. The Court has heard substantial argument in relation to the matters which have been sought to be raised on behalf of Mr and Mrs Manson. I shall deal briefly with the points which have been raised to establish on their behalf that there is the relevant issue to be tried and that the issue is such that this Court should grant an interlocutory injunction or at least should grant leave to appeal against his Honour's refusal of such an injunction. There have been, in substance, four points taken in this regard. It has been submitted first that the procedure adopted does not comply with s 15(d) of the Act; second, that it does not comply with s 15(e) of the Act; third, that the interest which it is proposed to acquire is not an interest which may be acquired under the Act; and fourth, that the interest which is proposed to be acquired on Friday by the publication of the notice in the Government Gazette is an interest relatively different from that setforth in the notice of proposed acquisition; and accordingly that the statutory requirements have not been complied with. The provisions of s 15(d) deal with the form of the notice which is to be given. The Act provides that where it is intended to acquire land by compulsory process, the Authority may not acquire land in that way unless the Authority has given the owners written notice of its intention to do so: s 11. Provision is made by s 12 in relation to the persons to whom the notice is to be given. Section 13 provides, as the headnote indicates, that there shall be a minimum period of notice, at least ninety days before the land is compulsorily acquired. Section 14 deals with the completion of the acquisition and s 15 makes provisions as to the form of the notice. As far as it is here relevant the section provides: 15. A proposed acquisition notice given to an owner of land must: (d) specify the period within which the land will be compulsorily acquired; and (e) request any owner who wishes to claim compensation for the acquisition to lodge with the authority of the State a claim for compensation within the period specified in the notice (being not less than 60 days after the notice is given to the owner); ... ' JOBNAME: No Job Name PAGE: 3 SESS: 1 OUTPUT: Mon Feb 25 18:19:39 2008 /reports/caseml]/case/urj/9607857 WAANSON v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (Mahoney P38 In the present case it has been submitted that the notice given does not comply with s 15(d) in that it does not specify 'the period within which the land will be compulsorily acquired'. The relevant notice is, as I have indicated, given under cover of the letter of 15 February 1996. The document is described as a 'proposed acquisition notice' but it is obviously intended to be and, I think, has been taken to be the notice for the purpose of the legislation. Paragraph 2 of that notice provides, as far as is here relevant, the following: 2. The Roads and Traffic Authority of New South Wales intends to compulsorily acquire this land by acquisition notice published in the Government Gazette. This notice will appear in the Government Gazette not less than 90 days after the giving of this notice unless the land is acquired by the Roads and Traffic Authority of New South Wales prior to that date by negotiated purchase. The argument has been that a specification: 'not less than 90 days after the giving of this notice', is not a specification of 'the period' required by s 15(d). Mr Mason QC, for the Roads and Traffic Authority, in reply to that submission has pointed to the terms of the letter of 15 February. He has referred also to the terms of the letter of 5 February which preceded it. I think it is to be taken from the correspondence that at least the letter of 15 February 1996 was intended to be part of the statutory process. I think it would be artificial indeed to restrict the terms of the notice given within the legislation simply to the terms of the document 'proposed acquisition notice'. In the letter of 5 February 1996 reference was made to the legislation and to the terms of the document in question and reference was made to some of the legal and technical matters arising under the Act or otherwise. In the letter of 15 February 1996 an attempt was made to explain the documents that were sent under cover of it. The letter included not merely the notice of proposed acquisition to which I have referred, but various other statutory forms. It included a form of claim for compensation, a statutory declaration, a copy of part of the Act and a document described as an extract of a memorandum which had been lodged with the Registrar General. Those documents were, I think, intended to be part of the communication — I shall use a neutral word — between the Authority and Mr and Mrs Manson. In the letter of 15 February 1996, an explanation was given as to why and in what way those forms were to be construed. It is not necessary to detail all of the matters referred to. But the Authority pointed out to Mr and Mrs Manson that in its view compensation may not be or was not able to be recovered because of what it hasdone and because of the provisions of s 62. It pointed out also that some of the forms were inconsistent with the provisions of the Act. It was obviously intended that the letter convey to Mr and Mrs Manson that some of the forms at least had to be read against the background of the terms of the Act and the contests which might arise both under s 62 and otherwise. In the letter of 15 February 1996 in this context, it was said: JOBNAME: No Job Name PAGE: 4 SESS: 1 OUTPUT: Mon Feb 25 18:19:39 2008 /reports/caseml]/case/urj/9607857 UNREPORTED JUDGMENTS It is intended that compulsory acquisition of the easement be notified in the Government Gazette on or about Friday 17 May 1996. I will write to you again after that notification occurs. Mr Mason QC has submitted that by specifying the date on which the acquisition was to take place in that way the terms of s 15(d) have been complied with. Mr King's argument suggests that to specify a particular date is not to specify 'the period in which' the land is to be compulsorily acquired. Arguments of this kind are, I think, of some nicety. I think that the argument that a requirement that a period within which a thing is to be done is not satisfied by the specification of the precise date on which it is to be done, is an argument which is, on the face of it, not immediately attractive. In my opinion a specification of the date upon which something is to be done, the specification, as it were, of a particular period of 24 hours during which it is to be done, is a sufficient satisfaction of a requirement that the period within which something is to be done is to be specified. I do not think that there has been, in that sense, a non-compliance with s 15(d). However, in the course of argument reference was made to other matters and in case it may be thought that they have been overlooked I shall refer to the main matters referred to. Reference was made to the power under s 16(3) given to the Authority to amend a proposed acquisition notice for the purpose of correcting 'a clerical error or an obvious mistake in the notice'. If in fact there was, by the terms of the letter of15 February 1996 and the accompanying documents, not a satisfaction of s 15(d), it would in my opinion have been open to the Authority to correct what had been done as an obvious mistake. It is clear that the Authority, the person who had drafted the documents, took the view that the specification of the date 17 May 1996, was a specification of the period for the purposes of s 15(d). If he or she was wrong in that assumption then this was, in my opinion, an obvious mistake within s 16(3) and it was open to the Authority to correct it. The Authority has not, of course, corrected it in any particular way, but what I have said is relevant in relation to matters of discretion to which I shall refer. Reference was also made s 33 of the Act. That provides that once land has been acquired by compulsory process, the validity of the acquisition is not affected by the failure to comply with any requirements of the Part relating to the giving of notice of the proposed acquisition. That section has been relied upon by Mr Mason QC in support of the contention that it was not intended that non-compliance with the strict requirements of s 15(d) or otherwise the requirements of this part of the Act should result in invalidity of what was done. I think that is true. I think that the legislation plainly contemplated that the precise terms there specified would be complied with: they would not have enacted them if that was not so. But the draftsman intended, in my opinion, to ensure that failure to comply with the provisions should not go to validity. Accordingly, within what has been said in this regard, in cases JOBNAME: No Job Name PAGE: 5 SESS: 1 OUTPUT: Mon Feb 25 18:19:39 2008 /reports/caseml]/case/urj/9607857 WAANSON v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (Mahoney PB such as Adler v District Court of New South Wales (1990) 19 NSWLR 317, Ido not think that a failure to comply with s 15(d) would go to the validity of what was done. Ido not mean by this that in an appropriate case a court will not grant an injunction to prevent an authority proceeding in the purposed exercise of a statutory power where it has not complied with the terms of the exercise of the power merely because what is involved is a technicality or because what has been done or omitted falls within that description. If statutory powers are to be exercised, it is, of course,important that those who are exercising them do so strictly in accordance with the terms of the power granted to them. But the nature of what has been done or omitted may be relevant in considering other matters, for example matters going to discretion. It is not necessary for me to deal with other matters arising under the legislation. However, it is proper to note that from the beginning it has, I think, been plain to all parties concerned what was going to happen with the land and the time during which the land was to be acquired. I think that as early as 15 February 1996, if not before, the date of proposed acquisition was known to all of the parties. An argument therefore as to the specification of periods and the like, is, in my opinion, properly to be described as an argument as to technicalities. As Ihave said, technicalities are important in some circumstances, but it is proper to have in perspective what it is about which the present argument turns. I therefore do not think that the steps taken towards the proposed acquisition are invalid by reason of the terms of s 15(d) or any non-compliance with it. I go then to s 15(e). That requires that the notice request the owner who wishes to claim compensation for an acquisition to lodge a claim for the purpose in the terms there specified. It has been argued (essentially because of what has been said in relation to the doubt as to whether and to what extent Mr and Mrs Manson are entitled to compensation) that that provision has not been complied with. I do not think that that is an argument which should be accepted. I shall not detail the terms of the proposed acquisition notice or the other documents in relation to it. I think it is clear beyond argument that the Authority was pointing out to Mr and Mrs Manson that they, prima facie, are entitled to such compensation as the Act may give to them but that in the circumstances and particularly because of s 62, the Authority believed that compensation not to be of any substance. The Authority drew to their attention its contention that, because of s 62 and otherwise, the right to compensation will be of little use to them. Whether that is so or not is a matter which remains to be determined. But I do not think that, by reason of what was said in the correspondence, the provisions of s 15(3) have not been complied with. I come then to the nature of the right which is proposed to be acquired. In the notice of acquisition, in cl 1, reference was made to the interest to be acquired. That reference is in the following terms: 'A full description and title details of the land are in the attached schedule'. That is the land constituting the 'interest'. In the schedule the land is described in the terms there set forth: JOBNAME: No Job Name PAGE: 6 SESS: 1 OUTPUT: Mon Feb 25 18:19:39 2008 /reports/caseml]/case/urj/9607857 UNREPORTED JUDGMENTS An easement for rock anchors appurtenant to Lot 104 in Deposited Plan 848850 (dominant tenement), affecting that part of Lot 9 in Deposited Plan 30912 (servient tenement) shown by the letter (S) on RTA Plan 6002 201 SS 0099 and described thereon as a "proposed easement for rock anchors variable width" and limited in height as shown on that Plan and unlimited in depth; and Easement rights as described under the heading "Easement for Rock Anchors" in Memorandum 0915560 filed in the Land Titles Office over the site shown as "proposed easement for rock anchors variable width" in RTA Plan 6002 201 SS 0099. The land to be burdened by the easement is part of the land comprised in Certificate of Title 9/30912." In relation to the rights to be acquired, it appears that there has been lodged with the Registrar General under the statutory provisions, a memorandum of a form which provides the basis upon which the present easement is to operate. That memorandum appears to be Memorandum number 915560. Mr Mason QC, during argument, placed before the Court the form which the acquisition is to take, the form of the rights which are proposed to be acquired by the notice in the Government Gazette. The form differs slightly from that specified in the notice. Because of the argument to which I shall refer, I shall incorporate that form in my judgment. It is in the following terms: Easement for Rock Anchors. FULL AND FREE right, title, liberty and licence for the Authority, its successors or assigns (being a public or local Authority) to have the soil and/or other material of the easement within the servient tenement remaining undisturbed AND TOGETHER WITH full and free right, title, liberty and licence for the Authority, its successors or assigns and every person authorised by any of them with any tools, implements and machinery necessary for the purpose to enter from the dominant tenement underground upon the easement within the servient tenement and to remain there for any reasonable time for the purposes of constructing placing leaving inspecting repairing maintaining or removing such rock anchors or any parts thereof in the easement within the servient tenement AND for any of the aforesaid purposes to open the soil of the servient tenement within the easement and to remove it to such an extent as may be necessary PROVIDED THAT the Authority, its successors and assigns and every person authorised by any of them will take all reasonable precautions to ensure as little disturbance as possible to the servient tenement. The person having the right to release, vary or modify the said easement is the Authority, its successors or assigns. The argument of Mr King in this regard has been that the rights proposed to be acquired as set forth in the first document to which I have referred are not rights which are capable of being acquired by compulsory process under the legislation. I do not think that that argument should be accepted. The Act provides authority for the acquisition of 'land'. Land within the terms of the Act includes 'any interest in land': s 4(1). The term 'interest' is defined in that section to mean, inter alia, 'a legal or equitable estate or interest in the land or an easement, right, charge, power or privilege over, or in connection with, the land'. JOBNAME: No Job Name PAGE: 7 SESS: 1 OUTPUT: Mon Feb 25 18:19:39 2008 /reports/caseml]/case/urj/9607857 WAANSON v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (Mahoney PY The argument has been that the proposed right (it is, as I have said, described as an easement) is not an easement which is known to the law and accordingly is not something which is capable of being acquired under the Act. The Act in terms provides that that which may be acquired includes a 'power or privilege over or in connection with the land'. The rights here taken, whether they be within the definition in law of an easement, are I think within the description of a power or privilege over the land in question or otherwise within the verbiage of the Act. I think that the Act, although it deals with the compulsory acquisition of rights of private property, is to be construed having regard to the context in which the powers given by it are likely to be exercised. Modern day government envisages, I think, that rights of various kinds, whether traditional or otherwise, may from time to time, be acquired from citizens. I do not think that it would be in accordance with the purposes sought to be achieved by the legislation so to construe the terms of it that the rights which are capable of being acquired are limited to rights which were traditionally recognised in the law of real property as it existed in England and as it has been adopted and adapted in Australia. I think that the terms of the legislation should be given their ordinary meaning and that where the rights which are to be acquired involve the acquisition of a power or privilege to do things on land, or in connection with land, those rights should be treated as being within the terms of the Act. I then come to the final main argument which has been submitted. It is to the effect that the rights which are specified in the document which Mr Mason has handed up, being the form of the rights to be acquired by the Gazette publication on Friday next, are different from the rights which were specified in the notice. It has therefore been argued, as I understand the argument, that no notice has been given in respect of the rights to be acquired and accordingly that the statutory provisions have not been complied with. It has then been submitted that the publication of the notice in the Government Gazette and the acquisition of the land should not proceed. Mr Mason QC has, in the course of the document handed to the Court by him, underlined portions of the document. I take these to be the portions in which there is the variation from the terms of the original form of 'easement for rock anchors'. If that be so, then the variations are I think essentially of form. There is, I think, no change in the content of the rights to be acquired. If it be that there is a slight increase or decrease in the precise content of the rights involved, I do not think that that change is a matter of substance. I would not see such change (if any) as has taken place asone which produces the result that the notice which has been given did not contain 'a description sufficient to identify the land proposed to be acquired' within s 15(d). The Act does not require the notice to specify, as in the terms of an old system conveyance, the precise rights to be acquired. The notice which has been given and the statutory procedures which have been followed are a proper basis for the acquisition of the rights specified in the document which Mr Mason has handed to the Court. JOBNAME: No Job Name PAGE: 8 SESS: 1 OUTPUT: Mon Feb 25 18:19:39 2008 /reports/caseml]/case/urj/9607857 UNREPORTED JUDGMENTS For these reasons, in my opinion, the arguments advanced for Mr and Mrs Manson should fail. Before parting with this matter there are certain other matters to which reference may be made. If in fact there were, between the literal terms of what has been done and what is provided in the legislation, some divergence, the question would arise whether that divergence was such as to warrant the grant of an interim injunction to restrain the publication of the notices on Friday and otherwise the procedures which the Authority proposes to follow. As I have emphasised, it is right that powers which are granted by legislation and otherwise be exercised only in accordance with their terms. There is a public interest involved in that being so. However, where the differences in question are essentially matters of form, as I have indicated at least the first two matters are, then the question would arise whether any useful purpose would be served by the grant of an interim injunction to restrain the matter proceeding further. In my opinion, if and in so far as there be difficulties involved, those difficulties can be cured. The question is whether this Court should restrain what is proposed to be done and which will have validity as far as relates to s 33 once done because of discrepancies of the kind to which I have referred. Temphasise that I am conscious as has been pointed out in other cases of the need to follow the statutory requirements. Parties are entitled to have their rights determined upon the basis of the strict legal entitlements under legislation and otherwise. But in the present case, I do not think that if this matter is to be dealt withas on a proceeding going to a final hearing, any useful purpose will be served by restraining the procedures which have been commenced in the present case. Were the matter to come to a matter of discretion, I do not think that as a matter of convenience or discretion this Court would grant leave to appeal against the judge's decision to refuse to grant or continue an interlocutory injunction. The second matter to which I would refer is this. There is obviously a difference of opinion between the Authority and Mr and Mrs Manson as to their rights to compensation under the legislation for what is proposed to be done and the extent of those rights to compensation. Nothing which I have said in this matter is to be taken as indicating that it is my opinion that the view taken by the Authority is correct. It may or may not be. But on the material now before the Court, I can envisage the possibility that there may be serious infringements of the proprietary rights of Mr and Mrs Manson and in respect of those infringements it may be that they can effectively claim compensation under the legislation. Iam conscious of the terms of s 62 and of some of the difficulties to which the owners of private property may be subjected by a strict application of that section. For myself, I would not find it impossible to envisage that in the course of the exercise of the rights here in question, there would be an injurious interference with the occupation of the surface of the land by Mr and Mrs Manson. I do not think it is beyond the bounds of possibility that the value of their land will be immediately affected even though the WAANSON v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (Mahoney P® surface were not breached in any way. I can envisage that in the carrying out of the works in the exercise of the rights here in question, there may be a serious interference with their enjoyment of the surface of the land at various times. I do not want by what I have said in this case in any way to limit the possibility that they may well be able to claim compensation for what is now done by the acquisition or by what may occur as the result of it. It may be that further litigationwill ensue in that regard. I assume that the authority will, in the exercise of its rights, exercise all proper care but notwithstanding that, it may be that there will be interference with their beneficial enjoyment of the property and it will then fall to be determined whether, notwithstanding the terms of the legislation, they are entitled to compensation for that. I shall note a further matter. The trial judge referred to the question whether an undertaking for damages should be given if the right to an interlocutory injunction was pressed. I note that in the present case before this Court, such an undertaking has been proffered. Observations have been made as to the nature and extent of it, but in view of the views which I have formed, it is not necessary to pursue those matters. For these reasons I am of the opinion that the application for leave to appeal should be dismissed. Sheller JA. For the reasons that his Honour, the President, has given, I agree that the application for leave should be dismissed. Mahoney P. It follows, I think, that it should be dismissed with costs. KING: Your Honour, there is one aspect of that and that is the service of this further amending notice in relation to the matter which your Honour obviously dealt with adversely to us but that was a new circumstance which, in my submission, was not inappropriate to be brought before the Court and to have judgment passed upon and there is benefit to the public in that having been done and so there is a basis in my submission that each party should pay their own costs. MAHONEY P: The order of the Court is the application is dismissed with costs. KING: There is just one other matter. Under the rule Pt 51 r 15, the Court has power in relation to exercising any powers under the Act that may otherwise accrue and it's also dealt with under Pt 51 r 2, provisions of other parts of the Supreme Court Act and rules may apply. As I indicated to your Honours earlier, there is no point in us pressing on with the proceedings your Honour and it would be my application that if the Court was able to make any order that the proceedings simply be now dismissed. MAHONEY P: Well if the parties agree the Court can order that the proceedings as a whole be dismissed. That would raise a question of costs also of course and the Court would have to hear Mr Mason upon that. KING: That is so your Honour, although there have been no other costs incurred but no doubt that is a matter for him. MASON: Well I am content with the order being made but with costs. And I agree with what my friend says, nearly all the costs have been taken up by the two interlocutory hearings. MAHONEY P: You've heard what Mr Mason has said. Do you ask that the application, the proceeding be dismissed with costs? 10 UNREPORTED JUDGMENTS KING: Yes your Honour. MAHONEY P: I think that frankly Mr King you have little alternative, you are giving away very little by asking for that but if that is the order that both parties seek then the Court will note that and the proceedings as a whole will be 5 dismissed with costs. APPLICATION DISMISSED WITH COSTS. Orders accordingly.