Reported Decision : (2002) 54 NSWLR 289 (2002) 121 LGERA 64 New South Wales Court of Appeal CITATION : Roads and Traffic Authority of NSW v Heawood [2002] NSWCA 99 FILE NUMBER(S) : CA 40116/01 HEARING DATE(S) : 18 February 2002 JUDGMENT DATE : 12 April 2002 PARTIES : Roads and Traffic Authority of New South Wales (Appellant) David John Heawood and Bonnie Jean Heawood (Respondents) JUDGMENT OF : Handley JA at 1; Heydon JA at 2; McClellan J at 33 LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT 40075/00 FILE NUMBER(S) : LOWER COURT Cowdroy J JUDICIAL OFFICER : COUNSEL : M G Craig QC/J B Maston (Appellant) M H Tobias QC/R D Marshall (Respondents) SOLICITORS : Sparke Helmore (Appellant) Bilbie Dan Hickie (Respondents) CATCHWORDS : Public authority - Land and Environment Court appeal - Roads Act 1993 (NSW) s 32 - statutory construction - compensation payable for loss of access to property - whether loss of access necessarily total - D LEGISLATION CITED : Roads Act 1993 CASES CITED: Marshall v Director-General, Department of Transport (2001) 75 ALJR 1218 DECISION : The appeal is dismissed; the appellant is to pay the respondents' costs of the appeal. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40116/01 LEC 40075/00 HANDLEY JA HEYDON JA McCLELLAN J 12 April 2002 ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v HEAWOOD Judgment 1 HANDLEY JA: I agree with Heydon JA. 2 HEYDON JA: This is an appeal from an order of Cowdroy J, sitting in the Land and Environment Court, made on 12 February 2001. The order gave a negative answer to a preliminary question of law, namely: "Whether the only entitlement of the Applicants to compensation, if any, is for the total loss of access across the boundary of Bridge Street and Turanville Avenue, as set out and limited to paragraph 11(a) of the Statement of Particulars of Compensation filed by the Applicants herein." Background 3 The primary judge described the facts and the claim pursuant to s 32(2) of the Roads Act 1993 as follows: "The applicants are the registered proprietors of land in the Shire of Muswellbrook located adjacent to the public roads of Bridge Street ('Bridge Street') and Turanville Avenue ('Turanville'), Muswellbrook ('the property'). Prior to 1993 vehicular access to the property was provided by a driveway from Bridge Street approximately ten metres wide. The carriageway of Bridge Street was at that time approximately one metre below the level of the property. Excavations undertaken along Bridge Street occurred some time after 1 July 1993. These excavations resulted in a significant change to the level of Bridge Street. The carriageway is now approximately three metres below the level of the property. Access to the applicants' property from Bridge Street is now via a narrow off-ramp. The excavations also included developing Turanville Avenue into a cul-de-sac. As a result of these excavations the applicants claim that the business of a service station which is conducted on the property has suffered financially due to a loss of access to the property especially from Bridge Street. Accordingly, the applicants have instituted this action against the appropriate Roads Authority (see s 7(4) of the Act) for compensation pursuant to s 32(2) of the Act. The matter comes before the Court pursuant to s 226(3) of that Act. … In reply, the respondent has raised the following preliminary question of law for determination by the Court: Whether the only entitlement of the Applicants to compensation, if any, is for the total loss of access across the boundary of Bridge Street and Turanville Avenue, as set out and limited to paragraph 11(a) of the Statement of Particulars of Compensation filed by the applicants herein." 4 Section 32 of the Act provides: "(1) If the fixing of the levels of a public road results in loss of access across the boundary between the road and land adjoining the road, the roads authority must restore access between the road and that land. (2) If the varying of levels so fixed results in loss of access across the boundary between a public road and land adjoining the land, the roads authority must pay compensation to the owner of the land for any loss or damage arising from the loss of access." 5 Paragraph 11(a) of the Statement of Particulars of Compensation is as follows: "The change in the level of Bridge Street and resultant loss of access has caused losses to the Heawoods. The Business has suffered as follows: (a) for a period in the first half of 1994 there was no access at all to the Land. Accordingly motorists were unable to access the Land in their vehicles to purchase petrol and products and have their vehicles serviced." 6 In short, while access to the service station from Turanville Avenue still exists, access to it from Bridge Street has been reduced but not destroyed. The RTA maintained below and in this Court that liability to pay compensation under s 32(2) only arises in circumstances in which the fixing of the levels of a public road results in a total loss of access across a boundary. It submitted that the claim for compensation made by the applicants below (respondents in this Court) must be limited to that period of time during which the excavation work carried out on Bridge Street prevented access to the property. The applicants below, on the other hand, denied that s 32(2) only creates an entitlement to compensation for financial losses suffered due to a total loss of access. They claimed for past and future economic loss, as well as diminution in the value of the property, suffered due to the restriction of access to the property. The RTA's principal submissions 7 The RTA said that s 32(2) should be construed to mean that compensation was payable if there was a total loss of access, but not if there was only a partial loss of access, or a restriction of access, so that, for example, if vehicular access to land was lost but pedestrian access remained there was no right of compensation. 8 It submitted that that construction was correct for three reasons: the literal construction of s 32, s 32 read in the light of the previous legislation, and s 32 when read with s 68. The RTA's literal reading 9 The first submission was that "loss" meant "a failure to maintain", that "access" meant "admittance or means of approach" and that "across" meant "from side to side". Hence it was submitted that: "the circumstance will attract either the obligation to restore access (subsection (1)) or the entitlement to compensation (subsection (2)) may be paraphrased as being - a failure to maintain a means of approach or admittance from the road side of the common boundary to the private property side of that boundary. So understood, the entitlement to compensation under subsection (2) will arise only where there has been a deprivation of access by reason of an alteration to the road level as distinct from a change in access by reason of such alteration." 10 Further, it was submitted that s 32 had to be read in the light of ss 29-31. "The scheme of Division 3 is to afford power to any roads authority (s 7) to prepare proposals, initially involving the fixing of the level of a public road for which that authority is responsible, and thereafter, as may be necessary, for the variation of that level: s 29. Any such proposal is required to be publicly notified and land owners adjoining the road, the subject of the plan to fix or vary the levels of the road, are entitled to make submissions which the roads authority is bound to take into account before determining to proceed: s 30. Section 30 speaks of the owner of land adjoining the part of the public road ' … as is affected by the proposed order ' for the fixing or varying of levels as being the person entitled to make submissions with respect to the proposed road levels. The roads authority is given power to decide to proceed with the proposal either with or without alteration or to abandon the proposal after consideration of those submissions: s 31(1). Effect is given to the proposal, if it is to proceed, by order published in the Gazette. Notice of the order coming into effect is to be given in a local newspaper: s 31(5)." It is in that context that, conformably with subsection (1) of s 32, the road level may be fixed even in the face of objection from the owner of land '… adjoining such part of a public road as is affected by … ' the level proposed to be fixed (s 30). The single obligation upon the roads authority is to ' restore ' access if the level fixed results in loss of access. Sense is made of the obligation to restore if it is regarded as being one to provide again a means of access across the boundary where access has been lost by reason of the level fixed. The process laid down by ss 29-31 to fix a level pursuant to subsection (1) of s 32 would be set at nought if the requirement to restore access consequential upon loss of access across the boundary meant the access that had hitherto existed. Focus had to this point been placed upon the meaning of the critical phrase in subsection (1). However, the same meaning is to be afforded to it in subsection (2). It would not be sensible to construe the identical phrase used in subsections of the same section in a different way ( King v Lewis (1995) 88 LGERA 183 per Kirby P at 192.5). This means that on the variation of levels of a road from the levels originally fixed, the roads authority must pay compensation if there is a deprivation of access across the boundary between the road and the land adjoining the road." The RTA's argument from legislative history 11 The second contention of the RTA rested on legislative history. "The statutory expression in s 32(2) giving rise to an entitlement to compensation, namely ' loss of access across the boundary ', is one that is novel to the Act. It is not found in any of its statutory predecessors nor, so far as our researches reveal, is it found in other Australian legislation. Prior to the commencement of the Act, the legislative provisions governing the entitlement to compensation arising from the fixing or alteration of levels of public roads were significantly different in their expression. Division 11 of Part 9 of the Local Government Act 1919 headed ' Levels of Roads ' gave power to a council to fix the levels of public roads but required that before so doing it should cause a plan of the proposal to be exhibited and for public notice of that proposal to be given. Objections were to be considered prior to proceeding and fixing of the levels took effect upon the approval of the Council being notified in the Gazette. Section 264(5) provided: If in the case of any original fixing of levels the access to the premises of any person is thereby directly affected in an injurious manner the council shall provide reasonable means of access to the premises. (Emphasis added) In the case of the 'refixing' of levels, subsection (6) of the same section provided that if - … the land in which any person is interested is thereby directly affected in an injurious manner , the person shall have a claim against the council for compensation for any loss or damage which he may sustain by reason of the land being so affected. (Emphasis added) Similar provisions were contained in s 20 of the State Roads Act 1986 . Section 25 of the Public Roads Act 1897 (61 Victoria 5) barred claims against the Crown against injury or damage resulting from any ' alignment or alteration of alignment ' of a road under the Act. A similar provision was contained in s 29 of the Public Roads Act 1902. The Main Roads Act 1924 adopted the provisions of the Local Government Act 1919 in relation to refixing of levels of a road ( vide s 36(7) and Rose v Commissioner for Main Roads (1936) 12 LGR (NSW) 174. The second reading speeches on the introduction of the Act in 1993 made no express reference to the new provisions contained in Division 3 of Part 3. Nevertheless, it is clear that the Act effected a substantial change to the prior statutory provisions. The concept of compensation being payable on the basis of land being directly affected in an injurious manner was replaced with a completely new test of loss of access across the boundary between the road and land adjoining the road caused by the change of levels of a road. The payment of compensation for 'injurious affection' is a concept that is commonly found in statutes that authorise public authorities to take action that impinges upon rights of property. It is a concept of broad application in the entitlement that it bestows upon an affected land holder ( Marshall v Director-General, Department of Transport (2001) 75 ALJR 1218 at [45-46] and [54]. However, the legislature chose not to adopt it as the basis for compensation under the Act." 12 The RTA submitted that the legislation revealed a conscious attempt to change the basis of entitlement to compensation when the levels of a road were refixed. An expression like "directly affected in an injurious manner" was to be construed amply; and hence s 264(6), permitting recovery of loss or damage by reason of a refixing of levels directly affecting land in an injurious manner was to be amply construed. The changed expression in s 32(2), "loss of access across the boundary", was to be narrowly construed. The RTA's argument based on s 68 13 The third contention of the RTA rested on s 68. By s 67 of the Act, access to a freeway, transitway, or controlled access road may be restricted. Should ' access across the boundary between any land and a public road ' be restricted or denied by reason of the road becoming a freeway, transitway or controlled access road then compensation is payable to the owner of land so affected: s 68(1). The affect upon access across the boundary which is the subject of s 68 is a legal rather than a physical affect. Importantly, compensation is expressed to be payable not only where access is denied but also where access is restricted . Had the drafter intended to provide this dual basis for compensation in circumstances where public roads were varied in level pursuant to s 32(2), one would have expected the same vocabulary to have been employed. The circumstance that it was not supports the interpretation of section 32(2) for which we contend." 14 The RTA's point was that where parliament intended to deal with the consequences of restricting access, as distinct from the consequences of totalling denying it, it had recourse to the express word "restricted". Where it did not intend to deal merely with restricting access, it did not employ that expression. 15 It should be noted that when s 68(1) was enacted in 1993 it did not include any references to "transitway". The insertion of that word took place by amendment in 1999. This event does not appear to have any impact on the differing constructions of s 32(2) propounded by either side. 16 After oral argument had concluded and after judgment was reserved, the RTA filed a further submission to the following effect: "The predecessors of s 68 (Freeways/controlled access roads) Roads Act 1993 were: (a) s 27C(5) (a) and (c) Main Roads Act 1924 (repealed 1986); (b) s 44 State Roads Act 1986 (repealed 1/7/1993). … In s 27C(5) Main Roads Act , the trigger for compensation for an adjacent landowner was if the estate or interest in land was 'directly affected in an injurious manner by reason of any restriction in the use of the land consequent upon' the proclamation of a main road as a motorway and the consequent prohibition under ss 27C(4) (a) on entering or leaving a motorway except by a means of access or route provided (added emphasis). In the State Roads Act , s 44 the trigger for compensation for an adjoining landowner was if the estate or interest in land was 'injuriously affected by a restriction on use of the land caused by 'the operation, inter alia, of s 41 which is a prohibition on entering or leaving a freeway or controlled access road except by a means of access or route provided (emphasis added). Compare Roads Act 1993, s 68 where the relevant trigger for compensation is: 'if access across the boundary between any land and a public road is restricted or denied as a result of the road becoming a freeway or controlled access road. This is conceptually different to the earlier legislation because: (a) the prior Acts were concerned with the existence of restrictions on the use of the private land whereas the 1993 Act is exclusively based on the restriction on access across the boundary line, and is therefore narrower; (b) the compensation rights under prior Acts were relevantly dependant upon a prohibition on entering or leaving the freeway or controlled access road (except as provided by the roads authority) whereas s 69 Roads Act 1993 expressly includes restrictions, not only denial (prohibition) of access across the boundary. The appellant therefore submits that reference to the corresponding provisions prior to s 68: (i) shows that there was a substantial change of approach by the legislature to the circumstances giving rise to compensation; (ii) makes good the appellant's submission that a clear distinction was being drawn between s 68 and s 32(2) Roads Act 1993 on the one hand and between the prior legislation and those provisions, on the other; and that for a person to be able to claim to have lost access across the boundary for the purposes of s 32(2), i.e. to be in the position of 'loss of access across the boundary', there must be denial of such access either permanently or for a closed period." The RTA's arguments considered The RTA's literal reading of s 32(2) considered 17 The RTA's reading of s 32(2) was supported by recourse to dictionaries. However, this tactic backfired. Thus the ninth meaning given for "loss" in The Macquarie Dictionary (3rd ed) was "failure to preserve or maintain". But the example given at that point by the editors, "loss of speed", undermines the RTA's contention, because one can lose speed while still remaining in motion. Further, various other meanings support the view that "loss" can mean something less than a complete loss. "A dead loss" is defined as "a. a complete failure. b. an utterly useless person or thing": hence a "loss" without the adjective can be a less than complete failure, or a person or thing which is useless, but not utterly so. Meaning 11 gives as a meaning in commerce "failure to recover the costs of a transaction or the like, in the form of benefits derived": hence there can be a complete loss of recovery or a partial loss of recovery. Similarly, The New Shorter Oxford English Dictionary (1993) vol 1, defined "loss" in meaning 6 as "Diminution of one's possessions or advantages; detriment or disadvantage involved in being deprived of something, or resulting from a change of conditions … ." An advantage can be diminished without being wholly lost. 18 Similarly, in ordinary speech one can lose an item without losing all of it. One can lose money without experiencing a total loss of all one's money. One can lose weight without losing all one's weight. 19 A further difficulty in the RTA's construction is that on that construction there would be no right to compensation if vehicular access was wholly lost but pedestrian access, or access by road, was maintained; or if, in the case of a garage, access for small trucks and passenger vehicles with four wheel drive features retained access but large fuel trucks and non-four wheel drive vehicles lost access. These would be bizarre outcomes, because in a practical or commercial sense, depending on the type of land involved, to lose vehicular access completely, or to lose all but limited types of vehicular access, could be very damaging. 20 The respondents pointed out that in Marshall v Director-General, Department of Transport (2001) 75 ALJR 1218 at [37]-[38], Gaudron J said, after expressing agreement with the majority: "It is a basic rule of statutory construction that legislative provisions are to be construed according to their natural and ordinary meaning unless that would lead to a result that the legislature must be taken not to have intended. The rule serves the important purpose of ensuring that those who are subject to the law understand the nature and extent of their rights and obligations. And because it serves that purpose, good reason must be shown before it will be concluded that the legislature did not intend the consequences that would flow if the provision in question were given its natural and ordinary meaning. Although the rule that legislative provisions are to be construed according to their natural and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to do otherwise, would limit or impair individual rights, particularly property rights. The right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit. Certainly, such provisions should not be construed on the basis that the right to compensation is subject to limitations or qualifications which are not found in the terms of the statute." Hayne J at [67] expressed specific concurrence with those remarks. 21 The natural and ordinary meaning of "loss of access" extends beyond total loss. If a different meaning, namely that "loss" means "total loss", were to be selected, there would be a limitation on or impairment of the proprietary rights of persons in the position of the respondents. While the present case does not concern the right to compensation for injurious affection, the right to compensation for impact on access is, depending on its scope, an important right, and hence s 32(2) should be construed with all the generality its words permit, and not by inserting limitations or qualifications by reference to the adjective "total", which is not to be found in s 32(2). The RTA contended that Marshall's case was a case where there clearly was an entitlement to compensation (the only question being its quantum), whereas the issue in the present case was whether there was any entitlement to compensation at all. In my opinion the principle of construction enunciated by Gaudron J is not to be read down, and does not lose its relevance, by reason of that circumstance. 22 It is necessary to turn to the RTA's argument that s 32(1) and s 32(2) should be construed in the same way. The argument was that if the primary judge's construction of s 32(2) were sound, so that "loss" extended beyond "total loss", the same reading would apply to s 32(1). The consequence would be that a duty to restore the whole of the access existing prior to the fixing of the level would exist, even if some access remained available. This, it was said, would render pointless the process laid down by ss 29-31. 23 It is clear that s 32(1), unlike s 32(2), confers no right to compensation: it confers only a right to restoration of access. It is also clear that s 32(1) concerns the effect of fixing levels and s 32(2) concerns the effect of varying levels already fixed. And it also seems clear that each subsection is speaking of loss of access in a practical sense, not loss of a right of access: that is because so far as a varying of already fixed public road levels is concerned, the right to access is guaranteed by s 6(1), and so far as a fixing of levels is concerned, what is lost is the practical access enjoyed before the fixing of levels. Indeed the RTA conceded that both s 32(1) and s 32(2) were concerned with a loss of physical access. Section 32(1) does not call for restoration of the precise access enjoyed in practice before the levels were fixed; it says that the roads authority "must restore access between the road and that land", not "must restore that access across the boundary at the point at which it was lost". Access which was qualitatively and quantitatively equivalent would suffice. That weakens the force of the RTA's argument that if "loss of access" means the same in both subsections, and if "loss of access" includes restrictions on access as well as denial of access, s 32(1) could put at naught the ss 29-31 process. It would not, because it is not identical access that must be restored, only equivalent access. And there is another reason why the duty to provide equivalent access does not set at naught the ss 29-31 processes: it does not set them at naught because it is a consequence of them, and if restoration of access is onerous, the roads authority can alter its proposal or resume the land. 24 Similarly, if the varying of fixed levels results in a loss of access at one point (whether the loss is complete or whether there is a loss in the sense of a restriction of access), the roads authority is not obliged to pay compensation if there is no practical difference because of access at another point. Apart from any other consideration, what the owner of the land is compensated for is loss or damage arising from a loss of access, and if practically equivalent access was given, though at a different point, there would be no loss or damage. 25 Further, accepting that s 32(1) and s 32(2) should be construed in consistent fashion, the construction advanced by the RTA of s 32(1) is open to the same criticisms as its construction of s 32(2), namely that its narrow operation produces bizarre results. The RTA's argument from legislative history considered 26 The difficulty with the argument based on legislative history is that the court was not taken to any report, second reading speech, explanatory memorandum or other documents in the nature of travaux préparatoires. It was common ground between the parties that the language of s 32(2) was novel. In the circumstances there is nothing to do but construe the words of s 32(2) as they appear in the context of the Roads Act 1993. If they had been intended radically to restrict rights to compensation it would have been expected that the executive government would have drawn that intention to public notice in the second reading speech or in some other way. The RTA's argument from s 68 considered 27 Contrary to the RTA's argument, the language of s 68(1) is not favourable to its construction of s 32(2). Parliament used the expression "any loss or damage arising from the loss of access" appearing at the end of s 68(1) as encompassing "loss of access" whether that access had been lost by reason of access having been "restricted or denied". If "loss of access" in s 68(1) includes both restriction of access and denial of access in s 68(1), that expression in s 32(2) is also capable of including not only denial of access but also restriction of access. 28 So as far as the RTA relied on the differences in language between s 68 and its predecessors, a similar problem arises as arose with the contrast between s 32(2) and its predecessors: the differences do not cast light on the meaning of the current legislation in the absence of appropriate extra-legislative materials. Minor RTA arguments considered 29 The RTA drew attention to the fact that, pursuant to Part 3 Division 1 of the Roads Act, where a roads authority approves, registers and notifies a survey plan under s 21 (after surveys have been conducted to identify the boundaries of a public road under s 18, public notice has been given of the proposed boundaries under s 19, and submissions made under s 20 have been considered), s 21(4) provides that no compensation is payable to any person with respect to any loss or damage arising from the operation of s 21. A similar submission was made in relation to Part 3 Division 2 (road widening), and it was said that no compensation was payable until the relevant land needed for the widened roads was resumed. It was submitted that these were instances of the legislature contemplating limited rights to compensation, just as, on the RTA's construction, s 32(2) does. This reasoning does not in my opinion offer positive support to the RTA's construction of s 32(2). 30 Finally, the RTA criticised the trial judge's reliance on Henaghan v Rederiet Foranghierne [1936] 2 All ER 1426 at 1433 on the ground that the language and context were different. This may be conceded, but the trial judge's reliance on that case was not essential to his conclusion. Conclusion 31 All the RTA's arguments for not giving "loss of access" in s 32(2) a meaning wider than "total loss of access" have failed. The RTA has not demonstrated that the trial judge's answer to the question he was asked was wrong. Orders 32 The following orders are proposed. 1. The appeal is dismissed. 2. The appellant is to pay the respondents' costs of the appeal. 33 McCLELLAN J: I agree with Heydon JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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