RD Miller Pty Ltd v Roads and Maritime Services NSW

BELL P: I agree with Preston CJ of LEC.

WHITE JA: The circumstances giving rise to this appeal are set out in the reasons of Preston CJ of LEC which I have had the advantage of reading in draft. The essential facts are in a short compass. Prior to October 2013 the applicant’s land lay adjacent to the Princes Highway south of Bega. There were four physically formed access points from the applicant’s land to the Princes Highway. The applicant had bought the land in 2005 with a view to its redevelopment for industrial and residential purposes. Section 6 of the Roads Act 1993 (NSW) provides:

The applicant had both a statutory and a common law right to access the Princes Highway across the boundary between the Princes Highway and its land, but that right was subject to such restrictions as might be imposed by or under the Roads Act or any other Act or law.

The respondent (“RMS”) pleaded that construction of the Bega Bypass commenced in or about June 2012 and was open to traffic in December 2013.

It was admitted on the pleadings that:

The “Road” was defined in the applicant’s Points of Claim ([5]) as follows:

The applicant pleaded that the Works resulted in the loss of three access points from the Road to the Land, as well as any other access available along the western boundary of the Land to the entire southern portion of the Land.

This allegation was denied, but for the purposes of the present appeal, the facts may be taken as alleged (D’Orta-Ekenaike v Victoria Legal Aid (2005) 233 CLR 1; [2005] HCA 12 at 75 [230]-[231]; Ea v Diaconu [2020] NSWCA 127; 380 ALR 727 at 731 [17]).

Paragraph 20 of the points of claim pleaded that:

This was also denied, but for the purposes of the appeal may be taken to be true.

In its application to the Land and Environment Court filed on 14 December 2018 the applicant attached a letter from its solicitors, Harrington Lawyers, describing the nature of the claim for compensation. They stated:

These statements were supported by an engineering report which described both the realignment of the Princes Highway and a change in levels of the road at access point 2 that made physical access from access point 2 to the Princes Highway (now renamed Newtown Road) impossible.

The road works physically restricted access from the applicant’s land to the new realigned road, both as a result of the realignment and the change of level at access point 2. After those works were completed, a plan of subdivision entitled “Plan of Land to be Acquired for the Purposes of the Road Act 1993” was registered. It was prepared by RMS and was registered on 8 December 2014. The plan indicated that Lot 11 in DP1201729 was required for a controlled access road under s 49 of the Roads Act. It indicated that access would be restricted across the boundaries marked relevantly J-K (being the boundary between Lot 11 and the applicant’s land).

It was only three years later, that is, after the physical works that restricted access from the applicant’s land to what had been the Princes Highway had been undertaken, and after the deposited plan indicating the proposal of restrictions on access had been registered, that an order was made that declared the relevant part of Newtown Road to be a controlled access road, declared that access to the controlled access be restricted to particular points, and denied the applicant access to the road from other points. The order was said to be made under ss 46, 49, 54 and 67 of the Roads Act.

The order declaring that part of Newtown Road to be a controlled access road was gazetted on 15 December 2017. The applicant alleges that physical access that had previously been available to the Princes Highway had been restricted or denied by the works carried out in 2013.

The applicant served an engineer’s report and a valuer’s report. The latter report claimed that had access point 1 been available, the value of the property would have been $2,230,000 and the current value of the property on the basis of its development potential using the access that was the subject of the current development consent (based upon the restriction of access) was $545,000. It claimed compensation of $1,775,000 and interest.

In response, MinterEllison, who acted for RMS, stated:

In paragraph 37(a) of its original Points of Claim that was struck out by Robson J (RD Miller Pty Ltd v Roads and Maritime Services NSW [2019] NSWLEC 129), the applicant pleaded:

By its notice of motion seeking leave to replead that was substantially dismissed by Duggan J (RD Miller Pty Ltd v Roads and Maritime Services NSW (No. 2) [2019] NSWLEC 173) the applicant sought to allege:

The position taken by RMS both below and on appeal was that the road that is now Newtown Road became a controlled access road only on the making of the declaration gazetted on 15 December 2017. It was only then that there was a legal restriction or denial of access between the boundary of the applicant’s land and the road (s 68(1)). The amount of compensation payable under s 69(1) was an amount equal to the difference between the market value of the land immediately before and the market value of the land immediately after the gazettal of the legal restriction of the right of access on the declaration of the road as a controlled access road. On RMS’ submission there was no difference in the market value of the land immediately before and immediately after the gazettal of that legal restriction. This was because immediately before the gazettal the applicant did not have any practical means of access to the road other than that permitted by the declaration, and it was known that an order would be made declaring the road to be a controlled access road and restricting access as foreshadowed by the plan of subdivision.

In other words, RMS had constructed works in 2013 that physically denied the applicant access to the realigned and re-levelled road, and the gazettal, four years later, did not change the market value of the land from what it had been immediately before the gazettal. Immediately before the gazettal the physical works restricting access had already been completed and it was known to the market from the registration of the deposited plan in 2014 that in due course an order would be made restricting access in the way that was ultimately declared.

If correct, this would be a remarkable result. It leaves the landowner’s right to compensation for denial or restriction of access dependent upon how RMS chooses to take steps to have a road declared to be a controlled access road. Where a declaration is made under s 49 (as it was in this case), the Minister can declare a main road designed to facilitate the movement of motor traffic to be a controlled access road. (There was no dispute that the Princes Highway, even if it had previously been declared to be a highway, was also a main road.) The Princes Highway was realigned so that a new road along the realignment must have been opened and declared, unless the realignment was wholly within the boundaries of the previously declared road. This may have been done by the deposited plan registered in 2014, although the physical works had been completed earlier. We did not receive submissions on this. Suffice it to say that while the declaration of the realigned road as a controlled access road was made in December 2017, the physical restriction of access from the applicant’s land to the realigned road, had been effected long before that. At least, that is the applicant’s allegation that may be accepted for the purpose of the appeal.

Sections 67, 68 and 69 are to be construed both in their context, and having regard to the purpose of the provisions. Where, as here, Parliament has provided for payment of compensation to a landowner whose proprietary rights are injuriously affected by the exercise of a statutory power for the general public benefit, the statutory provisions providing for payment of compensation should be construed with all the generality of which the words admit (Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37 at 623 [38], 627 [48], 634 [67]; Cumerlong Holidays Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27 at 503, [33]-[34]). Although the text of the legislation is both the starting and ending point, the legal meaning of the text, must be construed from the outset having regard to both context and purpose (SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at 368 [14]; SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at 149 [20], 157 [41], 162 [64].

In the present case it is the purpose of Div 4 of Pt 5 that is critical. The purpose of the Division includes the payment of compensation arising from “Loss of access to a ... controlled access road”. (Heading of Division 4.) Division 4 provides:

The critical word in the construction of s 68(1) in the circumstances of the present case is “becoming”. Did the Princes Highway (realigned and renamed as Newtown Road) “become” a controlled access road only on the declaration made by the Minister in December 2017, or did its “becoming” a controlled access road commence from the physical works constructed for that purpose in October to December 2013 and culminate in the gazettal of the declaration? If the latter, was the right of access restricted only when the Minister declared the road to be a controlled access road, or was the right of access restricted when the works were done that physically restricted access?

On the application to strike out the pleading, the facts alleged in para 37(a) of the amended points of claim are to be taken as true. That is, there was a course of conduct whereby the road became a controlled access road by three steps. First, the carrying out of the Works. Secondly, the registration of the deposited plan insofar as it related to Lot 11 in DP 1201729. Thirdly, the making of the order gazetted on 15 December 2017 declaring Lot 11 in DP 1201729 to be a controlled access road under s 49 of the Act, and declaring that access to the controlled access road was restricted under s 67.

RMS submitted that notwithstanding that for the purposes of the present application it is to be taken that the physical restrictions on access were the result of works undertaken between October and December 2013, and that those physical restrictions were part of a course of conduct leading to the ultimate declaration of the road as a controlled access road, the road only became a controlled access road on the making of the order declaring the road to be a controlled access road.

The Pointe Gourde principle (Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565) is not directly applicable. That so-called principle, of which Pointe Gourde was itself a mere application (or misapplication: Transport for London (formerly London Underground Ltd) v Spirerose Ltd (in administration) [2009] 1 WLR 1797; [2009] 4 All ER 810 per Lord Walker of Gestingthorpe at [20]), was established in connection with the Land Clauses Consolidation Act 1845 (UK) which established procedures for the payment of compensation on the compulsory acquisition of land under private Acts, but which did not seek to specify how compensation should be determined, except by reference primarily to “the value of the land” (s 63). In the context of statutes that provided for the compulsory acquisition of property and the payment of compensation on such acquisition, the principle was that the value of the land for which compensation was to be payable was the value of the land to the vendor (under a contract for compulsory acquisition), and not its value to the purchaser. The starting point for assessing value was the market value of the land, but in assessing the value of the land to the vendor having regard to its market value, the effect on market value arising from the “scheme” for the acquisition of the land, either positive or negative, was to be disregarded (In re Lucas and Chesterfield Gas and Water Board [1909] 1 KB 16 at 28, 35, 36; In re South Eastern Railway and London County Council’s Contract [1915] 2 Ch 252 at 258-9; Rugby Joint Water Board v Shaw-Fox [1973] AC 202 at 213-215, 219, 238-240; San Sebastian Pty Ltd v Housing Commission of New South Wales (1977) 37 LGRA 191 at 202-203; Housing Commission (NSW) v San Sebastian Pty Ltd (1978) 140 CLR 196; [1978] HCA 28 at 205). The principle was explained by Dixon J in Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495 at 571 as follows:

The so-called Pointe Gourde principle was not a free-standing principle of the common law, but an approach to the interpretation of statutes that provided for the payment of compensation on compulsory acquisition. It is rooted in an assumption as to legislative purpose and can be displaced by contrary legislative indication (Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at 269-272, [29]-[35]. It has no direct application in the present case which is not one of compulsory acquisition for a public purpose. But it can inform by analogy the legislative purpose of Div 4.

Just as it would not usually reflect the purpose of a statute, that provides in general terms for the payment of compensation for the value of the land resumed, that the amount payable be affected by a direct relationship between a restriction imposed on land use and the proposed establishment of the public works for which land was resumed (Housing Commission (NSW) v San Sebastian Pty Ltd at 206), so in the case, not of a resumption of land, but the restriction of access to a road, it is not likely that the statutory purpose of providing compensation for restriction of access to the road could be defeated or affected by the order in which steps are taken to cause the road to become a controlled access road.

I agree with Preston CJ of LEC that the Pointe Gourde principle is not of assistance in construing s 69. The Pointe Gourde principle was developed in the context of assessment of compensation on the basis of the value to the owner of the property acquired. Market value was but the first stage of that assessment (Emerald Quarry Industries Pty Ltd v Commissioner of Highways (SA) (1979) 142 CLR 351; [1979] HCA 17 at 365-366; Palatine Graphic Arts Co Ltd v Liverpool City Council [1986] QB 335 at 341). Section 69(1) requires the assessment to be on the basis of a difference in market value immediately before and after the right of access was restricted or denied. If the restriction or denial of the right of access is confined to the legal restriction or denial on the making of the order declaring the road to be a controlled access road, then there does not seem to be any scope in s 69(1) for disregarding the steps that led up to the making of the declaration. The effect of such steps on market value would be known earlier than “immediately before” the declaration was made. To apply the Pointe Gourde principle to s 69 would be to adjust the assessment of the difference between the market value of the land immediately before and after the declaration was made, for which no allowance is made in s 69(2) (Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority at [47])

The better construction, consistently with a liberal application of the provisions with a view to providing compensation for the denial of access (Marshall v Director-General, Department of Transport at [38], [48], [67]; Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd at [33]-[34]), and one which has due regard to the text, is to construe the opening phrase in s 68(1) as encompassing the actual restriction or denial of access that occurred as part of a course of conduct that led to the road “becoming” a controlled access road. As the applicant submitted that is not to read words into the section, but rather to give effect to the word “becoming”.

Section 67(1) provides that an order declaring a road to be a controlled access road may restrict access in the way provided for by s 67(2). Under s 68(3) compensation only becomes payable if a claim for compensation is made within 12 months after the land has been declared to be a freeway, transitway or controlled access road. But under s 68(1), compensation is payable not only if access is restricted or denied by the making of an order under s 67, but if access is “restricted or denied as a result of the road becoming a ... controlled access road”.

Nothing in Div 4 stipulates that the restriction for which compensation is payable as a result of the road’s becoming a freeway, transitway or controlled access road, is confined to the restriction imposed by the order itself.

Section 69(1) requires the assessment of compensation to be made according to the change in market value of the land “immediately before” and “immediately after” the right of access was restricted or denied. RMS submitted that this is inconsistent with the provision of compensation for physical restrictions that would be constructed over a period of time. It submitted that as work progressed, there would be successive incremental restrictions on access, each of which, on the applicant’s argument, would give rise to separate claims for compensation under s 69 after the road had been declared a controlled access road.

But s 68(1) permits of an holistic and not piecemeal interpretation of what constitutes a relevant “restriction” arising from a continuous or periodic conduct of work. In the present case, if the period of physical work that resulted in a physical restriction of access took four months, then, on one interpretation, the time immediately before access was restricted will be the time immediately before the work was commenced, and the time immediately after the right of access was restricted will be the time immediately after the work was completed. Another interpretation is that because, so it is said, restrictions were imposed as part of a process by which the road became a controlled access road, the restriction of the right of access began at the commencement of physical work and was concluded only on the making of the declaration. Either interpretation is arguable. On either construction it would only be the difference in market value attributable to the restriction on access that would be compensable.

It is not obvious that registration of the plan of subdivision was a separate act of restriction of access, but that is a matter for trial. If it were, then on the former interpretation, additional compensation would be payable pursuant to s 69(1) for any change of market value of the land immediately before and after any such additional restriction. Likewise, if, contrary to RMS’ contention, the making of the order affected the market value of the land immediately before and the market value of the land immediately after the order was declared, then additional compensation would be payable. In any case, compensation only becomes payable if the claim is made within 12 months after the declaration.

It is neither necessary nor appropriate to attempt to resolve such issues in this appeal. It is better that such questions be resolved only when the facts are known (Wickstead v Browne (1993) 10 Leg Rep page SL 2 affirming Wickstead v Browne (1992) 30 NSWLR 1 at 5). It suffices to say that “becoming” is a word as apt to describe a process as it is a single event. The use of that word rather than the phrase “being declared” in s 68(1) is at least consistent with, if not indicative of, Parliament’s contemplating that access to the public road could be restricted or denied through a process ultimately leading to the declaration of the road as a freeway, transitway or controlled access road.

Neither the applicant nor RMS contended that the applicant would be entitled to claim damages from RMS for its restriction of the applicant’s access to the road prior to its being declared a controlled access road. It may be taken that it had authority to carry out the road work on land which was under its control pursuant to s 71 of the Roads Act (Cappello v Roads and Maritime Services [2019] NSWCA 227 at [49] ff).

To recapitulate, the applicant alleges that what is now Newtown Road became a controlled access road by the following steps in chronological sequence:

Access to the Princes Highway was first allegedly restricted in 2013 by the construction of works. The applicant alleges that those works were done as part of a plan or process that the road would become a controlled access road. It alleges that there was an additional restriction arising from the registration of the plan of subdivision which is said to have also affected the market value of the land. Registration of the plan is said to be part of the process by which the road became a controlled access road.

If the facts alleged are established the applicant would be entitled to compensation, the assessment of which would not be confined to a change in market value of the land immediately before and after the making of the declaration of the road as a controlled access road.

The applicant does not now rely upon its pleading of para 37 of the Points of Claim that was in issue before Robson J. Its revision of that paragraph sought to engage more closely with the terms of s 68.

Although I do not consider that the orders of Robson J should be set aside, I consider that the orders should not have been made. It is unnecessary to set aside those orders as they are superseded by the later orders of Duggan J, which should be set aside.

I propose the following orders:

PRESTON CJ of LEC: The applicant, RD Miller Pty Ltd (“Miller”), seeks leave to appeal from two interlocutory decisions of the Land and Environment Court, the first by Robson J on 12 June 2019 to strike out certain paragraphs of Miller’s points of claim in proceedings claiming compensation for loss of access to a controlled access road, and the second by Duggan J on 15 November 2019 to not grant Miller leave to amend certain paragraphs of its points of claim.

I have determined that leave to appeal should be granted but the appeal should be dismissed. Costs should follow the event.

Miller is the owner of land at Bega that has frontage and access to a road that was formerly part of the Princes Highway but later was renamed Newtown Road. Since 2012, Miller has been undertaking subdivision of its land into rural residential allotments.

In 2013, the Roads and Maritime Services (“RMS”) constructed the Bega Bypass, which altered the access from Miller’s land to the former Princes Highway, now Newtown Road. Prior to the construction of the Bega Bypass, Miller’s land had three gated access points along its western boundary adjoining the Princes Highway. Miller was entitled to access the Princes Highway from any location along the western boundary, under s 6(1) of the Roads Act 1993. After the Bega Bypass was completed and opened to traffic in December 2013, access across the boundary between Miller’s land and the Princes Highway was no longer physically possible at the three pre-existing access points. As a consequence, Miller was required to construct alternative access. This increased the scope of works required for the future subdivision of the land, including some 200 metres of roadway, substantial cut and fill earthworks and additional utility services.

On 15 December 2017, the Minister, by order published in the Gazette, declared part of the Princes Highway at Bega, including the part adjoining Miller’s land, to be a controlled access road, under s 49 of the Roads Act. That order declaring part of the Princes Highway adjoining Miller’s land to be a controlled access road also restricted access between Miller’s land and the controlled access road, under s 67(1) of the Roads Act. Access was restricted to one point.

That restriction of access across the boundary of Miller’s land and the controlled access road gave rise to Miller being entitled to compensation for any loss or damage arising from the loss of access, under s 68(1) of the Roads Act.

Miller made a claim for compensation to RMS under s 226(1) of the Roads Act for the loss of access from its land to the controlled access road, under s 68(1) of the Roads Act. When agreement was not able to be reached with the RMS, Miller referred the claim for compensation to the Land and Environment Court for determination, under s 226(3) of the Roads Act.

In its points of claim filed on 29 March 2019, Miller proposed three alternative approaches (described as “scenarios”) to determine the amount of compensation payable under s 69 of the Roads Act. Section 69(1) prescribes the amount of compensation payable:

Miller’s three scenarios were based on different interpretations of words and phrases in s 69(1) of the Roads Act. The first scenario, pleaded in paragraph 37(a) of the points of claim, was based on the phrase “the market value of the land”. Section 69(1) calls for a comparison of “the market value of the land” immediately before and immediately after the right of access was restricted or denied. Miller sought to argue that “the market value of the land” immediately before the right of access was restricted or denied should be interpreted in a way that would disregard any decrease in the market value of the land caused by the carrying out of the Bega Bypass works on the road, which was later declared to be a controlled access road.

Miller argued that this disregard could be effected by measuring the time at which “the market value of the land” immediately before the right of access was restricted as being December 2013, being the date from which the Bega Bypass was completed and access was physically restricted. Miller argued that this interpretation of “the market value of the land” was warranted by analogy to similar provisions for assessing the market value of land in s 56(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (“the Land Acquisition Act”) or to common law principles of valuation of market value in Spencer v Commonwealth of Australia (1907) 5 CLR 418; [1907] HCA 82 (“Spencer”), Pointe Gourde Quarrying and Transport Co Ltd v Sub- Intendant of Crown Lands [1947] AC 565 (“Pointe Gourde”) and Housing Commission (NSW) v San Sebastian Pty Ltd (1978) 140 CLR 196; [1978] HCA 28 (“San Sebastian”).

The second scenario, pleaded in paragraph 37(b) of the points of claim, was based on the words “immediately before” in s 69(1) of the Roads Act. Miller argued that RMS, by constructing the Bega Bypass in 2013, physically restricted access across the boundary between Miller’s land and the Princes Highway. That physical restriction of access caused Miller loss or damage in that it has had to construct alternative access. Under the Roads Act, however, Miller could not immediately claim compensation for its loss or damage arising from this physical restriction of access. It was not until the Minister made the order under s 49 declaring the part of the Princes Highway adjoining Miller’s land to be a controlled access road, and under s 67(1) restricting access to and from that road, that Miller became entitled under s 68(1) of the Roads Act, to compensation.

Miller argued that unless the words “immediately before” in s 69(1) are construed to permit the market value of the land to be assessed by disregarding the decrease in value of the land caused by the carrying out of the Bega Bypass works that physically restricted access to Miller’s land, RMS would be allowed to “take advantage of its own wrong or abuse of process imposed and regulated” by the Roads Act. Miller argued that the way to avoid this abuse of process would be to measure the time at which “market value of the land immediately before…the right of access was restricted or denied” for the purposes of s 69 of the Roads Act as being December 2013, being the date when the Bega Bypass was completed and physical access restricted.

The third scenario, pleaded in paragraph 37(c) of the points of claim, assessed the market value of the land immediately before the Gazettal of the Minister’s order on 15 December 2017 on the basis that Miller had an ability to enforce or negotiate a right of access to the Princes Highway under s 6 of the Roads Act, “even in circumstances where that had been (unlawfully or otherwise) restricted” by RMS constructing the Bega Bypass.

RMS applied to strike out Miller’s claims for compensation based on the first and second scenarios (paragraphs 37(a) and 37(b) of the points of claim). Robson J upheld RMS’s application to strike out paragraphs 37(a) and 37(b) of the points of claim: R D Miller Pty Ltd v Roads and Maritime Services NSW [2019] NSWLEC 129. The third scenario, pleaded in paragraph 37(c), after Miller amended it, was no longer the subject of the strike out application and was retained in the points of claim.

Robson J’s reasons for striking out paragraphs 37(a) and 37(b) of the points of claim were that the scenarios on which they were based had no foundation in the Roads Act. The issue in dispute in the strike out application was a question of law, being the proper interpretation of relevant provisions of the Roads Act (notably ss 68 and 69). Robson J found that the interpretation propounded by RMS was correct, and the interpretation propounded by Miller and on which paragraphs 37(a) and 37(b) of the points of claim were founded, was incorrect. In these circumstances, it was appropriate to strike out the challenged paragraphs of the points of claim: see [68] of the judgment.

As to the first scenario pleaded in paragraph 37(a), Robson J found that the phrase “the market value of the land” in s 69(1) of the Roads Act is not to be construed as bearing the same meaning as “market value” in s 56(1) of the Land Acquisition Act or in accordance with so called common law principles in Spencer, Pointe Gourde, or San Sebastian: at [84]. The Roads Act does not provide for a statutory “disregard” in determining the market value of the land under s 69: at [86]-[88]. Accordingly, there was no basis for measuring the market value of the land at December 2013, being the date when the Bega Bypass was completed and physical access was restricted, which Miller alleged caused a decrease in the value of the land, as pleaded in paragraph 37(a).

As to the second scenario, pleaded in paragraph 37(b), Robson J found that the principle on which the second scenario relied, that an interpretation of a statute would not be adopted that would allow a person to take advantage of their own wrong, did not support interpreting the words “immediately before” in s 69(1) in such a way as to allow the time at which ““the market value of the land immediately before… the right of access was restricted” to be December 2013, when the Bega Bypass was completed and physical access was restricted, as pleaded in paragraph 37(b). Such an interpretation was “untenable”: at [90]. Further, the conduct of the RMS in constructing the Bega Bypass and thereby physically restricting access could not be “said to be a ‘wrong’ or ‘abuse of process’ which would affect or drive the construction of the words ‘immediately before’ in s 69 of the Roads Act” as claimed in paragraph 37(b)(iii): at [91].

Having concluded that “there is ‘certainty of outcome’ because pars 37(a) and 37(b) of RDM’s POC disclose no reasonable cause of action”, Robson J considered “it appropriate to exercise my discretion to strike out pars (37)(a) and (37)(b).”: at [94].

Miller re-pleaded its claim for compensation and sought leave to add new paragraphs 37(a) and 37(b) to its points of claim. The third scenario, pleaded in paragraph 37(c) remained, as Robson J had not struck out that pleading.

In the amended pleading, Miller proposed two new scenarios to determine compensation under s 69(1) of the Roads Act. Unlike the original pleading that focused on the words and phrases in s 69 of “the market value of the land” and “immediately before”, the amended pleading focused on the phrase in s 69(1) of the “right of access was restricted or denied”.

Miller argued that this phrase needed to be construed by reference to s 68(1) of the Roads Act. One of the events that triggers the entitlement of an owner to claim compensation under s 68(1) 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…controlled access road”. Miller seized upon the words “as a result of the road becoming” a controlled access road. Miller argued that those words can describe not only the event of an order under s 49 of the Roads Act declaring a road to be controlled access road but also a “course of conduct” whereby a road becomes a controlled access road.

In the first scenario, pleaded in the amended paragraph 37(a), Miller described the course of conduct as comprising three events: the Bega Bypass works that physically restricted access across the boundary between Miller’s land and the Princes Highway by December 2013; the registration and terms of the deposited plan for the part of the Princes Highway that was later declared to be a controlled access road (the deposited plan was registered about 8 December 2014); and the making of the Minister’s order by publication in the Gazette on 15 December 2017 declaring the road to be a controlled access road and restricting access to and from the controlled access road. Miller argued that the right of access was restricted or denied by this course of conduct (comprising these three events). Accordingly, the time at which “the market value of the land immediately before…the right of access was restricted or denied” for the purposes of s 69 of the Roads Act ought to be measured is from December 2013, being the date of the first of the events comprising the course of conduct of the road “becoming…a controlled access road”.

In the second scenario, pleaded in the amended paragraph 37(b), Miller described the course of conduct as comprising two events: the registration and terms of the deposited plan for the part of the Princes Highway that was later declared to be a controlled access road (the deposited plan was registered about 8 December 2014) and the making of the Minister’s order by publication in the Gazette on 15 December 2017 declaring the road to be a controlled access road and restricting access to and from the controlled access road. Miller argued that the right of access was restricted or denied by this course of conduct (comprising these two events). Accordingly, the time at which the “the market value of the land immediately before…the right of access was restricted or denied” for the purposes of s 69 of the Roads Act ought to be measured is from 8 December 2014, being the date of the first of the events comprising the course of conduct of the road “becoming…a controlled access road”.

Duggan J refused to grant Miller leave to amend the points of claim to add the new paragraphs 37(a) and 37(b): R D Miller Pty Ltd v Roads and Maritime Services (No 2) [2019] NSWLEC 173. Duggan J’s reasons echoed those of Robson J, Duggan J adopting the same interpretation of the provisions of the Roads Act as Robson J had: at [17]-[19] of the judgment. Duggan J found that the amended paragraphs 37(a) and 37(b), although using different wording, sought:

As a consequence, Duggan J found the proposed amendments should not be distinguished and the findings made by Robson J were applicable to those amendments: at [26].

As to the proposed amended paragraph 37(a), Duggan J found that the pleaded “course of conduct of the road becoming a controlled access road”, beginning with the completion of the Bega Bypass in December 2013:

Accordingly, these particularised matters “cannot be said to relate to the period ‘immediately before’ the right of access was restricted as is required by s 69(1) of the Roads Act”: at [21].

As to the proposed amended paragraph 37(b), Duggan J similarly found that the pleaded course of conduct, beginning with the registration on 8 December 2014 of the deposited plan of the part of the road that was later declared to be a controlled access road, “does not give rise to an entitlement to compensation as anticipated in the legislative scheme”: at [22].

Duggan J further found that the reference in s 68(1) of the Roads Act to the “road becoming…a controlled access road” is “a reference to the event prescribed by the Roads Act itself”, namely the Minister’s order under s 49 declaring a road to be a controlled access road that restricted access to and from the controlled access road under s 67(1). “There is no indicia, either in the objects of the Act, the text or context of the provision that would support an alternative construction”: at [24].

Duggan J rejected Miller’s contention that the “right of access” referred to in s 69(1) was not limited to a right in the legal sense. Duggan J held that the “‘right to access’ is the right of access identified in s 6 of the Roads Act”: at [25].

Duggan J concluded that “the Applicant’s amendments disclose no reasonable cause of action such that the proposed contested paragraphs 37(a) and (b) of the amendment is manifestly untenable”: at [27].

Miller seeks leave to appeal against both Robson J’s decision to strike out the original paragraphs 37(a) and 37(b) of the points of claim and Duggan J’s decision to refuse leave to re-plead paragraphs 37(a) and 37(b) of the points of claim.

As to the appeal against Robson J’s decision, Miller’s argument was twofold: first, Robson J’s interpretation of the Roads Act was wrong and, secondly, for the purposes of a strike out application, the Court was not required to determine the correctness of Miller’s interpretation of the Roads Act, upon which the challenged paragraphs were based, but simply to determine whether the interpretation advanced by Miller was open.

On the hearing of the application for leave to appeal, Miller no longer pressed its application to appeal against Robson J’s decision to strike out paragraph 37(b), which pleaded the second scenario relying on the principle that the Court would not adopt an interpretation of the words “immediately before” in s 69(1) of the Roads Act that would permit the RMS to take advantage of its own wrong. As Miller conceded in its written submission, “the applicant does not impugn that decision with respect to paragraph 37(b)”: at [30] of the applicant’s written submissions (AWS). Hence, Miller only sought to challenge Robson J’s decision to strike out paragraph 37(a) of the points of claim.

As to the first argument, Miller accepted that the terms of the Roads Act are determinative of the grounds upon which compensation can be claimed under ss 68 and 69 of the Roads Act. That is to say, Miller accepted that, for the purposes of construing the Roads Act and the entitlement to compensation for actions taken under that Act to restrict access to a controlled access road, concepts outside of the Roads Act, including those from the Land Acquisition Act, are not necessarily relevant. By this concession, Miller no longer pursued the second of the two ways it had put its argument before Robson J in support of paragraph 37(a) of the points of claim, namely that the Court should disregard any decrease in the value of the land caused by the carrying out of the Bega Bypass by analogy to the statutory disregard in the definition of “market value” in s 56(1) of the Land Acquisition Act.

Miller continued to press, however, the first way it had put its argument before Robson J, which relied on common law principles as the basis for disregarding the decrease in the value of the land caused by the carrying out of the Bega Bypass. Miller submitted that “in the absence of definitions of the fundamental terms relevant to the assessment of compensation – ‘compensation’, ‘market value’, ‘restricted’, ‘denied’ and the phrase ‘loss of access’ – there is scope for the common law to inform the process of assessing compensation in Div 4 [of Part 5 of the Roads Act]. Accordingly, in the absence of those terms being defined in a comprehensive way, the Court was wrong to find that the common law has no role to play”: at [36] of AWS.

Miller argued that the role the common law could play is in informing the interpretation of those words and phrases in the Roads Act. Miller submitted that the historical genesis of the term “market value” (in the Land Acquisition Act) in fact derived from the High Court’s decision in Spencer, and that the Pointe Gourde principle adopted by the Court in San Sebastian provided a proper approach to market value in the importation of a disregard of the purpose for which the administrative action is taken: at [37] of AWS.

Miller submitted that interpreting the compensation provisions of Div 4 of Part 5 of the Roads Act in accordance with these common law principles accords with the accepted approach “that legislative provisions that confer a right to compensation following the resumption of private land are to be construed with the presumption that the legislature intended the claimant to be liberally compensated”: at [38] of AWS.

As to the second argument, Miller submitted that it was at least “open to the Court to find that the Spencer and San Sebastian approaches to market value are of assistance in interpreting the correct approach to compensation and market value in Div 4 [of Part 5 of the Roads Act], and hence there was no basis for Robson J to strike out the pleading in paragraph 37(a)”: at [40] of AWS.

As to the appeal against Duggan J’s decision, Miller’s argument was that Duggan J was wrong to adopt Robson J’s reasoning and apply his approach to the strike out application in her dealing with the application to amend the points of claim. Miller submitted that it had advanced in its amended pleading an approach to the correct statutory construction of the relevant provisions of the Roads Act that was different to that advanced either by Miller or by the RMS in their submissions on the strike out motion.

Miller argued that its amended paragraphs 37(a) and 37(b) were drafted on the basis that its earlier approach, advanced before Robson J, that the common law has a role to play in interpreting the relevant provisions of the Roads Act, was wrong and instead advanced a different approach based on the language of ss 68(1) and 69(1) of the Roads Act. Miller summarised this different approach as follows:

For the new paragraph 37(a), Miller defined the course of conduct by which access across the boundary between its land and the road was restricted or denied as a result of the road “becoming” a controlled access road as comprising, firstly, the Bega Bypass works that changed the levels of the road adjoining Miller’s land to restrict physical access; secondly, the registration of the deposited plan for part of the road adjoining Miller’s land, which contained notations foreshadowing that certain lots “are required for controlled access road under s 49 of the Roads Act 1993” and that “access will be restricted across the boundaries” marked with specified letters (the plan showed that access would be restricted to and from Miller’s land except at a point near the slip road); and thirdly, the making of the order under s 49 declaring the road to be a controlled access road and restricting access under s 67. For the new paragraph 37(b), Miller defined the alternative course of conduct to comprise the second and third of these events, namely the registration of the deposited plan and the making of the order declaring the road to be a controlled access road and restricting access. Miller contended that the first event in these alternative courses of conduct was the time at which “the right of access was restricted or denied” for the purpose of determining the amount of compensation payable under s 69(1).

Miller submitted that the basis of its new paragraphs 37(a) and 37(b) was not the basis of the pleading in the original paragraph 37(a) dealt with by Robson J. Duggan J was therefore wrong to adopt Robson J’s reasoning.

Miller submitted that it is not self-evident from the relevant provisions of the Roads Act that restriction of access cannot include a physical loss of access (by the carrying out of the Bega Bypass works) and/or legal restriction or loss (by the lodgment of the deposited plan): at [46] of AWS.

Miller submitted that Duggan J was also wrong to have found that the restriction of the right of access, in s 69(1), referred only to the restriction of access imposed under s 67(1) by the order declaring the road to be a controlled access road. Miller submitted that this was one legal restriction but not the only legal restriction. Miller relied on the registration and terms of the deposited plan for the road that later was declared to be a controlled access road as revealing another legal restriction. Miller submitted “the deposited plan arose directly as a result of the works and the associated exercise of powers under the Roads Act – the plan itself is called a “Plan of Land to be Acquired for the Purposes of the Roads Act 1993”. The deposited plan “was also the precursor to the declaration under the Roads Act, and specifically referenced the Act, the making of a controlled access order, and the restriction of access”: at [46] of AWS. Miller submitted that Duggan J overlooked these facts about the deposited plan.

Miller submitted that Duggan J also erred in not allowing Miller to re-plead its case. On the basis that the construction advanced by Miller was open, there was no foundation for not permitting Miller to advance a case for that construction. No hearing date had been set, no evidence had been filed, and while the application to amend was in consequence of the strike out by Robson J, it was a proper course to have followed so that the pleading advanced reflected the terms of the Roads Act rather than, as determined by Robson J, terms extraneous to the Roads Act: at [52] of AWS.

Miller argued that leave to appeal against both interlocutory decisions of Robson J and Duggan J should be granted essentially for three reasons: first, the decisions reveal error of legal principle in the ways set out above; secondly, the questions of interpretation of the relevant provisions of the Roads Act are of general public importance; and thirdly, the decisions will significantly limit the amount of compensation claimable by Miller.

Although RMS initially opposed leave to appeal being granted, at the hearing RMS accepted that this was an appropriate case for leave to appeal to be granted. RMS submitted, however, that the appeal should nevertheless be dismissed. The essential reason was that the interpretation of the relevant provisions of the Roads Act on which the original paragraph 37(a) of the points of claim, struck out by Robson J, and the new paragraphs 37(a) and 37(b) of the points of claim, not allowed by Duggan J, were founded was not correct.

RMS contended that the time at which “the right of access was restricted or denied”, for the purpose of determining the amount of compensation payable under s 69(1) of the Roads Act, is the time at which the restriction effected by an order under s 67(1) restricting access to and from the controlled access road comes into effect. Section 70 has the effect that, upon the making of the order, access is “restricted or denied…as a result of” the road becoming a controlled access road. The time “immediately before the right of access was restricted or denied” in s 69(1) is the time immediately before the order under s 67(1) comes into effect: at [19] of the respondent’s written submissions (“RWS”).

RMS submitted that the phrase “immediately before the right of access was restricted or denied” in s 69(1) refers only to a restriction on access in law, not to a physical restriction on access. Sections 67, 68, 69 and 70 of the Roads Act must be read together. They form a coherent scheme. There is a textual thread running through these sections. Section 67, read with s 70, imposes a restriction on access in law. Section 68(1) gives a right of compensation for the restriction or denial of access imposed by an order under s 67(1) that is effected by s 70. Section 69 then identifies the amount of compensation payable: at [22(a)-(c)] of RWS.

Section 67, read with s 70, cannot be read as referring to a “physical” restriction on access; it can only refer to a restriction on access in law. Sections 68 and 69 do not refer in terms to a “physical” restriction on access and there is no textual or contextual basis for reading that concept in. Those restrictions are not directed to restrictions on access (i.e. physical access) but rather to restrictions on the right of access (i.e. the intangible right constituted by the freedom to access land) effected by the combined operation of ss 67 and 70: at [22(d)-(e)] of RWS.

If s 69 is directed to the time at which the order under s 67 takes effect, there is certainty as to the date of valuation. In contrast, if s 69 is directed to the time at which works forming part of the course of conduct leading to an order under s 69 commences, then there is uncertainty as to the date of valuation: at [22(f)] of RWS.

RMS submitted that Miller’s argument underpinning its original paragraph 37(a) of the points of claim, that the amount of compensation payable under s 69(1) can be assessed by disregarding any decrease in value of Miller’s land caused by the carrying out of the Bega Bypass works that restricted physical access, is inconsistent with this statutory scheme. When construing compensation statutes, the focus must always be on the text of the particular statute, citing Walker Corporation v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at [31]-[35]. This is consistent with contemporary principles of statutory interpretation which emphasise that the beginning and the end of statutory construction is the text of the statute being construed, see, for example, R v Getachew (2012) 248 CLR 22; [2012] HCA 10 at [11].

RMS submitted that neither the text nor the context of the provisions of the Roads Act entitling an owner of land whose access has been restricted or denied to compensation for loss or damage arising from the loss of access support incorporation of the principle in Pointe Gourde or San Sebastian: at [24] of RWS. The principle discussed in those decisions dealt with the assessment of the market value of land that had been compulsorily acquired by a government authority by disregarding any increase or decrease in the value of the land caused by the carrying out of the public purpose for which the land was acquired, for the purpose of determining the amount of compensation to be paid to the dispossessed owner of the land. The principle has no application to the particular provisions of the Roads Act dealing with a different assessment of market value of land for a different purpose of determining the amount of compensation payable, not for the compulsory acquisition of the land, but rather for a restriction or denial of access to and from the land.

RMS submitted that Miller’s argument underpinning the new paragraphs 37(a) and 37(b), that the restriction or denial of access can involve “a course of conduct” by which a road becomes a controlled access road, also has no textual basis in the Roads Act. Miller’s contention unhinges s 68(1) from s 69(1). Section 69(1) directs attention to the time “immediately before” the restriction or denial of access; it does not direct attention to the time immediately before the course of conduct of which the restriction or denial of access was a part. The word “immediately” does not and cannot refer to a time many years prior to the taking effect of an order under s 67(1) restricting or denying access.

RMS submitted that Miller’s contention also reads the phrase “as a result of” in s 68(1) as being non-causal. Under Miller’s new paragraphs 37(a) and 37(b), the first event in the pleaded course of conduct (the Bega Bypass works for paragraph 37(a) and the registration of the deposited plan for paragraph 37(b)) is claimed to be the time at which access was restricted or denied. Yet, both of these events occurred before the order under s 67(1) was made that restricted or denied Miller’s right of access. RMS submitted that this is inconsistent with the phrase “as a result of”: at [23(e)] of RWS.

RMS submitted that Duggan J did not err in following the decision of Robson J. The draft amended pleading effectively replaced the argument Miller had made in the original paragraph 37(a), about disregarding “steps in the process”, with the argument made in the new paragraphs 37(a) and 37(b) about a “course of conduct”. Both arguments had the same intention of fixing the time at which the market value is to be assessed for the purpose of determining the amount of compensation payable under s 69(1) as being an event that occurred three or four years before the order under s 67(1) was made. Although the arguments had different reasoning, the result was the same. Both arguments find no basis in the statutory language of the Roads Act: at [28] of RWS.

Similarly, RMS submitted that Duggan J did not overlook Miller’s contention based on the deposited plan. That contention could only succeed if the Roads Act applied to a “course of conduct” anterior to the making of an order under s 67, but it does not: at [27] of RWS.

RMS submitted, therefore, that neither the original paragraph 37(a) of the points of claim nor the new paragraphs 37(a) and 37(b) advanced a claim for determining the amount of compensation to which Miller was entitled that was maintainable under the relevant provisions of the Roads Act. Robson J was correct to strike out the original paragraph 37(a) and Duggan J was correct to not grant leave to plead the new paragraphs 37(a) and 37(b). The appeal should therefore be dismissed.

As earlier noted, RMS properly accepted that this is a case where it is appropriate for this Court to grant leave to appeal from the decisions of Robson J and Duggan J. Important questions of statutory interpretation of the relevant provisions of Division 4 of Part 5 of the Roads Act are raised by the appeal, which have not been the subject of prior decisions by this Court or other courts. The consequence of the decisions of the Court below is to severely limit the amount of compensation that Miller can claim. These factors support granting leave to appeal.

On a proper construction of the provisions of Division 4 of Part 5 of the Roads Act, Robson J was correct to strike out the original paragraphs 37(a) and 37(b) of the points of claim and Duggan J was correct to not grant leave to amend the points of claim in terms of the new paragraphs 37(a) and 37(b). These respective paragraphs of the points of claim did not, in their terms, plead methods for determining the amount of compensation to which Miller is entitled that are maintainable under the provisions of Div 4 of Part 5 of the Roads Act.

Moreover, the argument that underpinned the original paragraph 37(a) of the points of claim, that the “market value of the land” in s 69(1) of the Roads Act is to be assessed by disregarding any decrease in the value of the land caused by the carrying out of works to construct the road that was later declared to be a controlled access road and pursuant to which Miller’s right of access to or from the controlled access road was restricted or denied, is not maintainable under the provisions of Div 4 of Part 5 of the Roads Act. There is no utility in granting Miller leave to replead this argument.

I would therefore dismiss the appeals against the decisions and orders of Robson J and Duggan J.

Section 68(1) of the Roads Act prescribes two circumstances in which an owner of land is entitled to compensation for loss of access: first, “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, transitway or controlled access road” and, secondly, “if a person has started to construct a means of access to a freeway, transitway or controlled access road before its declaration as such and the consent of RMS to its completion is refused.”

The second circumstance refers to the need for the consent of RMS to be obtained for the construction of any means of access to or from a freeway, transitway or controlled access road under s 70(a) of the Roads Act. Upon a road being declared to be a freeway, transitway or controlled access road, s 70 operates to impose restrictions on access to and from the freeway, transitway or controlled access road. One of those restrictions, in s 70(a), is on construction of any means of access to or from the freeway, transitway or controlled access road otherwise than in accordance with the consent of RMS. This is the restriction referred to in the second circumstance in s 68(1) that triggers an entitlement to compensation.

The first circumstance in s 68(1) that triggers an entitlement to compensation refers to the other restriction on access in s 70(b). Section 70(b) prohibits a person entering or leaving a freeway, transitway or controlled access road except by a means of access or a route provided for that purpose. A means of access or a route for entering or leaving a freeway, transitway or controlled access road may be provided in the order, made under ss 48, 52A or 49, declaring the road to be a freeway, transitway or controlled access road respectively and that restricts access to or from the freeway, transitway or controlled access road under s 67(1), including by specifying “the points along the freeway, transitway or controlled access road at which access may be gained to or from other public roads” (s 67(2)(a)).

It is the combined operation of the order under ss 48, 52A or 49 declaring a road to be a freeway, transitway or controlled access road respectively and restricting access to or from a freeway, transitway or controlled access road under s 67, and the prohibition in s 70(b) on entering or leaving the freeway, transitway or controlled access road except by a means of access or a route provided for that purpose, that constitutes the first circumstance in s 68(1) that triggers an entitlement to compensation.

The language of the first circumstance in s 68(1) is structured in three parts:

This structure reveals that the event in the third part must cause the consequence in the first part. Put another way, the consequence of restriction or denial of access must be caused by (be a result of) the event of the road becoming a freeway, transitway or controlled access road.

The consequence of “access across the boundary between any land and a public road is restricted or denied” arises from the operation of the prohibition in s 70(b). That prohibition only operates with regard to “a freeway, transitway or controlled access road”. A road can only be a freeway, transitway or controlled access road if the Minister makes an order under ss 48, 52A or 49, declaring the road to be a freeway, transitway or controlled access road respectively. That is clear from the definitions of those terms in the Dictionary to the Roads Act. A “controlled access road”, for example, is defined to mean “a road that is declared to be a controlled access road by an order in force under s 49”. This is the sense in which s 68(1) uses the word “becoming”. A road becomes a freeway, transitway or controlled access road by the Minister making an order under ss 48, 52A or 49 declaring the road to be a freeway, transitway or controlled access road respectively.

Upon a road becoming a freeway, transitway or controlled access road, by the Minister making an order under ss 48, 52A or 49 respectively, the prohibition in s 70(b) on entering or leaving the freeway, transitway or controlled access road comes into effect. Thereby, access across the boundary between the land and the public road that has become a freeway, transitway or controlled access road is restricted or denied.

Once either of these two circumstances occur, the entitlement to compensation under s 68(1) is triggered, being “compensation…for any loss or damage arising from the loss of access”. The “loss of access” referred to is the restriction or denial of access across the boundary between the land and the public road that has become a freeway, transitway or controlled access road.

Subsection 68(2) qualifies subs (1). Notwithstanding that either of the two circumstances in subs (1) may have happened, so as to trigger an entitlement to compensation, subs (2) provides that compensation is not payable to the owner of any land merely because:

These exceptions to the entitlement to compensation support the construction of subs (1) articulated above.

Although entitlement to compensation arises upon the occurrence of either of the circumstances in subs (1), compensation is not payable to the owner of the land unless “a claim for the compensation is made within 12 months after the land concerned has been declared to be a freeway, transitway or controlled access road”: s 68(3). The fact that the time for making a claim for compensation runs from the occurrence of the event of the road being declared to be a freeway, transitway or controlled access road is important. This emphasises that the event referred to in the first circumstance of s 68(1), of “the road becoming a freeway, transitway or controlled access road”, is the making of an order under ss 48, 52A or 49, declaring the road to be a freeway, transitway or controlled access road respectively.

Section 69 prescribes the amount of compensation payable to the owner of land for any loss or damage arising from loss of access. Section 69(1) provides the method for determining the amount of compensation:

I will deal with each of the components of this prescribed method for determining the amount of compensation in a moment. Before doing so, it should be noted that the method prescribed in s 69(1) for determining the amount of compensation payable is qualified by subsection (2). Section 69(2) requires, in determining the amount of compensation payable under subs (1), the taking into consideration of two relevant matters (the matters in paragraphs (a) and (b)) and not taking into account an irrelevant matter (the matter in paragraph (c)). The relevant matter to be considered in paragraph (a) directly affects the market value of the land immediately after the right of access was restricted or denied if the restrictions were modified by any consent given by RMS or undertaking given or promised by RMS. The relevant matter in paragraph (b) does not directly affect the market value of the land but rather is a set off (a benefit accruing to the claimant) that must be taken into account in determining the amount of compensation payable to the claimant. The irrelevant matter in paragraph (c) concerns whether the interest of the claimant has become, or ceased to become, the same as the interest of the claimant in other land.

Of some assistance in the construction of the words and phrases in s 68(1) and s 69(1) regarding restriction or denial of access is the reference in s 69(2)(b) to the time “after the restrictions took effect”. Restrictions on access are imposed by an order declaring a road to be a freeway, transitway or controlled access road that restricts access to or from the freeway, transitway or controlled access road, under s 67(1). On publication of the order in the Gazette, the restrictions take effect. The prohibitions in s 70 operate upon the publication of the order in the Gazette. The use of the phrase in s 69(2)(a) “after restrictions took effect” is consistent with the use of the phrases in s 68(1) “if access…is restricted or denied” and “loss of access” and in s 69(1) “the right of access is restricted or denied”, to refer to the restriction of access imposed by an order under s 67(1).

I turn to examine the components of the method prescribed in s 69(1) for determining the amount of compensation payable for loss of access.

The word “compensation” in s 69(1) refers to the entitlement under s 68(1) of the owner of land to be paid an amount of money “for any loss or damage arising from the loss of access”, being the restriction or denial of access across the boundary of the owner’s land and a public road declared to be a freeway, transitway or controlled access road. “Compensation” in this sense “prima facie means recompense for loss” or “the money equivalent for the loss”: Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495 at 571. The “loss” under ss 68 and 69 of the Roads Act is the loss or damage arising from the loss of access.

The “amount of compensation payable”, however, is fixed by s 69 of the Roads Act. The claimant is not entitled to compensation at large. Section 69(1) prescribes the method for determining the amount of compensation payable to an owner of land for any loss or damage arising from the loss of access. The amount of compensation payable is an amount equal to the difference between the market value of the land immediately before and the market value of the land immediately after the specified consequence occurs, namely “the right of access was restricted or denied”.

The method for determining the amount of compensation payable depends on assessing the market value of the land either side in time of the time of occurrence of the specified consequence of the right of access being restricted or denied. The right of access referred to in s 69(1) includes the right recognised in s 6(1) of an owner of land adjoining a public road “to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road”. The right conferred by s 6(1) “does not derogate from any right of access that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any Act or law” (s 6(2)).

One of the ways the right of access can be restricted or denied is by an order declaring a road to be a freeway, transitway or controlled access road, restricting access to or from the freeway, transitway or controlled access road under s 67(1). Upon the making of such an order, s 70 operates to impose restrictions on any means of access to or from the freeway, transitway or controlled access road except in accordance with the consent of RMS and on entering or leaving the freeway, transitway or controlled access road except by a means of access or a route provided for that purpose.

The consequence of the right of access being restricted or denied, therefore, occurs when the order declaring the road to be a freeway, transitway or controlled access road and imposing restrictions on access to or from the freeway, transitway or controlled access road is published in the Gazette.

The method prescribed in s 69(1) for determining the amount of compensation payable compares the market value of the land at two points of time either side of the time of the occurrence of the consequence of the right of access being restricted or denied, namely “immediately before” and “immediately after”. The word “immediately” qualifies the conjunctions “before” and “after” to signify that the times at which the market value is to be assessed are to be without any delay before and after the occurrence of the consequence of the right of access being restricted or denied.

Although s 69(1) prescribes the method by which the amount of compensation payable to an owner of land whose right of access was restricted or denied is to be determined, it does not define the term “market value of the land”. The term is a common one in compensation statutes, particularly those concerned with compensation for the compulsory acquisition of land. Market value of land refers to the amount that would have been paid for the land if it had been sold at a particular time by a willing but not anxious seller to a willing but not anxious buyer: Spencer v The Commonwealth (1907) 5 CLR 418 at 432, 441; Commonwealth v Arklay (1952) 87 CLR 159 at 169-170; Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413; [1999] HCA 25 at [49]; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority at [51].

Section 69(1) of the Roads Act uses the term “the market value of the land” in this sense. Section 69(1) prescribes the amount of compensation to be an amount equal to the difference between the market value of the land immediately before and the market value of the land immediately after the right of access was restricted or denied. The market value of the land immediately before the right of access was restricted or denied would be expected to be higher, because the land enjoyed access across the boundary to the public road, while the market value of the land immediately after the right of access was restricted or denied would be expected to be lower, because of the loss of access. The difference between these market values of the land immediately before and immediately after the right of access was restricted or denied will therefore be the money equivalent of the loss of access.

The question that Miller’s original paragraph 37(a) of the points of claim raises is whether, in assessing the market values of the land immediately before and immediately after the right of access was restricted or denied, any increase or decrease in the value of the land because of the road becoming a freeway, transitway or controlled access road and having access to or from the freeway, transitway or controlled access road restricted or denied, is to be disregarded.

Miller argues that any such increase or decrease in the value of the land is to be disregarded, applying by analogy the principle which has been developed in a body of case law determining compensation for the compulsory acquisition of property and which has found statutory expression in legislation for the compulsory acquisition of land, such as s 56(1)(a) of the Land Acquisition Act.

The essence of the principle is that, in assessing the market value of land that has been compulsorily acquired, any increase or decrease in the value of the land due to the carrying out of “the scheme” or “the public purpose” or “the proposal to carry out the public purpose” for which the land was acquired, is to be disregarded.

The principle is commonly referred to as the Pointe Gourde principle after the name of the case in which the principle was most conveniently stated. However, the principle did not originate in that case, but was already settled in the late 19th century. Two of the cases cited by the Privy Council, South Eastern Railway Co v London County Council [1915] 2 Ch 252, 258 (Eve J) and Fraser v City of Fraserville [1917] AC 187 at 194 (Lord Buckmaster), were decided in the early 20th century but there were already decisions in the late 19th century, including Stebbing v Metropolitan Board of Works (1870) LR 6 QB 37, applying the principle.

Jacobs J in San Sebastian recognised that the principle has been developed in cases concerning compensation for the compulsory acquisition of land independently of express statutory provision (at 205).

Pointe Gourde concerned an increase in the value of the land by the carrying out of the scheme for which the land was compulsorily acquired. In connection with the establishment of a naval base in Trinidad, the Crown compulsorily acquired quarry land owned by the company. The value of the quarry land was increased by the construction of the naval base, which was in the vicinity of the quarry, as it required a large quantity of stone. The relevant scheme for which the land was compulsorily acquired was held to involve not merely the acquisition of the quarry land but also the construction of the naval base that would have increased the quarry profits had the land remained in the hands of the company (at 572-573). The Privy Council held:

The principle also operates in reverse: “A loss in value attributable to the scheme is not to enure to the detriment of a claimant”: Director of Building and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111 at 136 and Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 at 434. In the latter case, the carrying out of the scheme decreased the value of the land. The Privy Council held:

The Privy Council summarised the principle as follows (at 435):

The principle was recognised in Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495, a case involving compensation for compulsory acquisition of personal property (wheat) rather than real property (land). Dixon J noted that the purpose of compensation is the same, whether the property taken is real or personal: “It is to place in the hands of the owner expropriated the full money equivalent of the thing of which he has been deprived” (at 571). Dixon J continued:

This passage from Dixon J highlights an often overlooked fact about the Pointe Gourde principle: its origins and its use are in the determination of the value to the owner of land that has been compulsorily acquired. An old but still worthwhile summary of this value to the owner approach to compensation is by Fletcher Moulton LJ in In re Lucas and Chesterfield Gas and Water Board [1909] 1 KB 16 at 29:

The Pointe Gourde principle is one of the principles invoked to assist in determining the value to the owner of land that has been compulsorily acquired. Any enhancement or diminution in the value of the land due to the carrying out of the scheme for which the land is compulsorily acquired cannot be part of the value to the owner of the land: see South Eastern Railway Co v London County Council at 258; Fraser v City of Fraserville at 194. As Widgery LJ in Wilson v Liverpool Corporation [1971] 1 WLR 302 at 310 pointed out. “the purpose of the so-called Pointe Gourde rule is to prevent the acquisition of the land being at a price which is inflated by the very project or scheme which gives rise to the acquisition.”

Lord Simon in Rugby Joint Water Board v Shaw-Fox [1973] AC 202 at 241 described the Pointe Gourde principle as:

Lord Pearson in the same case said (at 214-215) that:

In Waters v Welsh Development Agency [2004] 1 WLR 1304; [2004] 2 All ER 915, Lord Nicholls, with whom the majority of the House of Lords agreed, pointed out (at [42]):

This statement was endorsed by Lord Walker in Transport for London (formerly London Underground Ltd) v Spirerose (in administration) [2009] 1 WLR 1797; [2009] 4 All ER 810 at [20]. Application of the Pointe Gourde principle creates a “‘no scheme’ world” that is used to determine the value to the owner of the land taken (at [20]). Earlier, Lord Walker identified the Pointe Gourde principle “as an imprecise principle, in the nature of a rebuttable presumption, adopted by the courts in the interpretation of statutes concerned with compensation for the compulsory acquisition of land” (at [11]).

Lord Collins in the same case referred to Lord Nicholls’ explanation that the Pointe Gourde principle is but one aspect of the “value to the owner” principle (at [127]) and opined that “it is a principle of statutory interpretation, mainly designed and used to explain and amplify the expression ‘value’” (at [128]). Lord Scott agreed with both Lord Walker and Lord Collins that “the principle is one of statutory interpretation…relating to the ‘value to the seller’ concept underlying the assessment of compensation” (at [9]). Lord Neuberger also agreed with Lord Collins that it is a principle of statutory interpretation to explain and amplify the statutory expression “value” (at [56]).

In Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380, Lord Brown endorsed both Lord Nicholls’ description of the Pointe Gourde principle as one aspect of the value to the owner principle and Lord Walker’s observation that it is essentially concerned with statutory construction (at [68]). Lord Collins accepted (at [102]) that the Pointe Gourde principle, or “no-scheme rule”, is one aspect of the value to the owner principle. Lord Clarke accepted (at [146]) Lord Collins’ statement that it is a principle of statutory construction.

In JS Bloor (Wilmslow) Ltd v Homes and Communities Agency [2018] 1 All ER 817 (at [8]), Lord Carnwath, with whom the other judges of the Supreme Court agreed, firmly placed the Pointe Gourde principle, or no-scheme rule, in the law of compensation for the compulsory acquisition of land: it is “the rule that compensation for compulsory acquisition is to be assessed disregarding any increase or decrease in value solely attributable to the underlying scheme of the acquiring authority.”

These various statements emphasise that the Pointe Gourde principle is a rule of statutory interpretation of the expression “value of land” that is used in compulsory acquisition legislation, which is invoked in order to ensure the expropriated owner is paid compensation on the basis of the “value to the owner” principle.

In Leichhardt Council v Roads and Transport Authority (NSW) (2006) 149 LGERA 439; [2006] NSWCA 353 at [24], Spigelman CJ observed that:

The Pointe Gourde principle is therefore applied in assessing the market value of land that had been compulsorily acquired as a way of computing the “value to the owner”. This is the point made by Dixon J in Nelungaloo Pty Ltd v The Commonwealth (at 571) and the judges in the English cases earlier referred to.

However, modern Australian legislation dealing with compensation for the compulsory acquisition of land has replaced the unifying “value to the owner” principle with expressly enumerated matters to which regard must be had in determining compensation for the compulsory acquisition of land. These statutorily enumerated matters include certain aspects of the value to the owner principle, such as market value, special value, disturbance and severance. The legislation usually also incorporates a form of the Pointe Gourde principle, which is to be applied in determining the market value of the land in the manner required by the legislation. This legislative abandonment of the value to the owner principle as a separate principle for determining compensation for the compulsory acquisition of land removed the justification for the Pointe Gourde principle as an aspect of the value to the owner principle. The Pointe Gourde principle survives only insofar as the compulsory acquisition legislation expressly incorporates the principle. The result is that “the principle’s vigour is now channelled and restrained by a much more complex statutory scheme”: Transport for London (formerly London Underground) v Spirerose Ltd at [24] per Lord Walker.

The Land Acquisition Act is an example of such legislation. It did not implement the vague concept of value to the owner found in earlier compulsory acquisition legislation but instead adopted an exhaustive statutory list of matters to be considered in determining the amount of compensation payable for the compulsory acquisition of land. It also expressly incorporated the Pointe Gourde principle in s 56(1)(a). The result is that in the Land Acquisition Act, “the word ‘value’, let alone ‘value to the owner’, has no operative function”: Leichhardt Council v Roads and Transport Authority (NSW) at [27]; El Boustani v The Minister administering the Environmental Planning and Assessment Act 1979 (2014) 199 LGERA 198; [2014] NSWCA 33 at [85]. As a consequence, prior judicial decisions founded on awarding compensation on the basis of the value to the owner principle must be treated with care: Leichhardt Council v Roads and Transit Authority (NSW) (at [29]).

More particularly, care needs to be taken in applying judicial expositions of the Pointe Gourde principle derived from statutes that provided for the award of compensation for the compulsory acquisition of property on the basis of the value to the owner principle. These judicial expositions sometimes elevated the Pointe Gourde principle to be part of the common law. In fact, as noted earlier, the principle is no more than a rule of statutory interpretation of provisions of compulsory acquisition legislation expressed in brief terms.

In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority, the High Court referred to the Privy Council’s statement in Melwood Units Pty Ltd v Commissioner of Main Roads that the Pointe Gourde principle is part of the common law for the assessment of compensation for compulsory acquisition of land and observed that “the nature of the ‘common law’ spoken of in this passage does not readily appear” (at [29]). The High Court cited Lord Pearson’s explanation in Rugby Joint Water Board v Shaw-Fox [1973] AC 202 at 214, that “there can be no ‘common law principle’ which is engaged in resumption cases ‘because compulsory acquisition and compensation for it are entirely creations of statute’” (at [29]). (Lord Scott in Transport for London (formerly London Underground) v Spirerose Ltd later said (at [2]): “Compulsory purchase is a creature of statute and the compensation to be paid to the expropriated owner is likewise provided for by statute.”) The High Court continued:

The High Court cautioned against construing modern Australian legislation dealing with compensation for the compulsory acquisition of land by reference to “principles” (at [31]). The High Court quoted with approval McHugh J’s warning in Marshall v Director-General, Department of Transport (2001) 205 CLR 603 at [62] that:

The High Court observed that where the compulsory acquisition legislation is drawn in “brief terms”, general considerations drawn from prior judicial decisions might be more “influential in the fleshing out of compulsory acquisition provisions”. However, prior judicial decisions have less of a role to play in interpreting “more comprehensively drawn legislation dealing with compulsory acquisition”, as “it is to this that primary regard must be given” (at [35]). See also Tolson v Roads and Maritime Services (2014) 201 LGERA 367; [2014] NSWCA 161 at [36].

The High Court emphasised that it is the terms of the particular legislation that provides for payment of compensation for the compulsory acquisition of land that are determinative and it is not to be assumed that those terms “reproduce or attempt to reproduce an understanding of ‘principles’ derived by way of gloss upon the spare terms” of early English legislation for the assessment of compensation for the compulsory acquisition of land (at [47]).

Whilst the existence of the Pointe Gourde principle, whether deriving from a body of case law or from an express statutory provision, for determining compensation for the compulsory acquisition of land, is not to be doubted, the application of the principle in determining the amount of compensation payable under s 69 of the Road Act is in doubt. There are at least four reasons why the Pointe Gourde principle has no application in determining the amount of compensation payable under s 69 of the Roads Act.

First, the language of s 69 of the Roads Act does not expressly incorporate the Pointe Gourde principle in the assessment of the market value of the land required by that section. As previously noted, the role that a principle derived from a body of case law can play in the interpretation of legislation providing for compensation depends on two factors: first, the purpose for which the principle has been developed and, secondly, the particularity with which the legislation is drawn: a greater role where the provisions are drawn in “brief terms” and a lesser role where they are “more comprehensively drawn.” The Pointe Gourde principle has been developed as a gloss on provisions of compulsory acquisition legislation drawn in brief terms to assist in assessing the value of land that has been compulsorily acquired in order to ensure that the expropriated owner is compensated on the basis of the value to the owner principle.

In contrast, the provisions of Div 4 of Part 5 of the Roads Act entitling an owner of land to be paid compensation for any loss or damage arising from the loss of access (s 68) and prescribing the method to determine the amount of compensation payable (s 69) serve a different purpose and are drawn with sufficient particularity for that purpose. The loss or damage for which compensation is payable is limited to the loss or damage arising from the right of access from land to an adjoining public road being restricted or denied. This right of access is but one of the rights in the bundle of rights that an owner of land enjoys by reason of ownership of the land. It is the restriction or denial of this right of an owner of land to access the adjoining public road for which compensation is payable, nothing more. This compensation for loss of access under the Roads Act stands in contrast to compensation for the loss of land that has been compulsorily acquired. The provisions of Div 4 of Part 5 of the Roads Act are drawn with sufficient particularity to allow determination of the amount of compensation that will be the money equivalent of the loss or damage arising from the restriction or denial of this right of access.

The provisions of s 69 prescribe the amount of compensation that is to be determined by, first, specifying the method to be used in s 69(1) and, secondly, the two relevant matters to be considered in s 69(2)(a) and (b) and the irrelevant matter not to be considered in s 69(2)(c). This reveals that the legislature has turned its mind to the question of how the amount of compensation payable for loss of access is to be determined and has prescribed the method for doing so.

What is noticeable in this carefully drawn method for determining compensation for loss of access is the omission of a statutory disregard akin to the Pointe Gourde principle. The legislature must be taken to have had knowledge of the Pointe Gourde principle: it is common place in compulsory acquisition legislation. The legislature did incorporate by reference the Pointe Gourde principle for determining the compensation payable for the compulsory acquisition of land for road purposes under Part 12 of the Roads Act, by requiring compensation to be determined in accordance with the provisions of Div 4 of Part 3 of the Land Acquisition Act, which includes s 56(1)(a) that is a statutory expression of the Pointe Gourde principle. But the legislature did not do likewise for the determination of compensation for loss of access under Div 4 of Part 5 of the Roads Act.

Having regard to the legislature’s careful prescription of how compensation is to be determined for any loss or damage arising from loss of access under Div 4 of Part 5 of the Roads Act, courts should be careful not to judicially legislate a different method to determine compensation. As Lord Neuberger warned in Transport for London (formerly London Underground) v Spirerose Ltd:

Secondly, incorporation of the Pointe Gourde principle does not sit comfortably with the method prescribed in s 69 of the Roads Act for determining the amount of compensation payable. The method prescribed in s 69(1) requires two assessments of the market value of the land either side in time of the time of occurrence of the specified consequence of the right of access being restricted or denied.

This specified consequence in s 69 of the Roads Act is different to the consequence embodied in the Point Gourde principle for assessing the market value of land that has been compulsorily acquired. The consequence embodied in the Pointe Gourde principle involves the total deprivation of all rights flowing from ownership of the land that has been acquired while the consequence under s 69 of the Roads Act involves restriction or deprivation of only one right that flows from ownership of the land, being the right of access to an adjoining public road.

Another difference between the method for determining compensation prescribed in s 69(1) and the Pointe Gourde principle concerns the time at which the market value is to be assessed. Section 69(1) requires the market value of the land to be determined at two different times, being immediately before and immediately after the right of access was restricted or denied. Under the Pointe Gourde principle, which has been developed for determining the compensation payable for the compulsory acquisition of land, the assessment of the market value of land is undertaken at only one time, namely at the date of the compulsory acquisition of the land. As this Court held in Griffith City Council v Polegato (1990) 20 NSWLR 696 at 701:

This difference in the time of assessment between the method prescribed in s 69(1) and the Point Gourde principle makes application of the Pointe Gourde principle to the assessment of the market value of land required by s 69(1) problematic. Is the disregard of alteration in value required by the Pointe Gourde principle to be applied to the market value of the land immediately before or immediately after the right of access was restricted or denied, or both? Whatever answer is given, it is not what is required by the Pointe Gourde principle, as it applies only at one time (the date of acquisition) and to a different event (the acquisition of the land).

Thirdly, as I have pointed out a number of times, the Pointe Gourde principle has been developed for and in the context of determining compensation for the compulsory acquisition of property, mostly real property but sometimes personal property. The vast majority of cases in which the principle has been developed and applied, including Pointe Gourde, San Sebastian and Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority, involve the assessment of the market value of land that has been compulsorily acquired by the government. Nelungaloo Pty Ltd v The Commonwealth is an example where personal property (wheat) was expropriated. The Pointe Gourde principle has not been applied in assessing compensation for loss not involving the compulsory acquisition of property.

In Gollan v Randwick Municipal Council [1961] AC 80 at 96, the Privy Council warned that “the principles which determine questions of compensation for property resumed or expropriated are not of assistance on questions of rating assessment”. Similarly, in Housing Commissioner of NSW v Falconer [1981] 1 NSWLR 547 at 570, Mahoney JA noted that the assessment of the “value” of land will depend on the statutory context and purpose for which the assessment is undertaken:

An example where different fields of compensation led to different application of the Point Gourde principle is in ss 124 and 125 of the Public Works Act. In assessing compensation under s 124, the Point Gourde principle was applicable, as San Sebastian held. However, the Point Gourde principle was not applicable in assessing compensation under s 125 of the Public Works Act: see Haig v Minister administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143.

Section 68(1) of the Roads Act requires that a money equivalent be fixed for the loss or damage an owner of land suffers arising from the loss of access as a result of a road becoming a freeway, transitway or controlled access road. Section 69(1) of the Roads Act prescribes the method by which the money equivalent is to be determined. The “field” of compensation for loss of access under ss 68 and 69 of the Roads Act is different to the “field” of compensation for compulsory acquisition of property. The declaration of a road as a freeway, transitway or controlled access road and the imposition of restrictions on access across the boundary of any land and the freeway, transitway or controlled access road under Part 5 of the Roads Act, do not involve the compulsory acquisition of the land. The acquisition of land is dealt with in a separate part of the Roads Act, Part 12. The compulsory acquisition of land for road purposes, and the determination of compensation for the compulsory acquisition of land, are to be undertaken in accordance with the Land Acquisition Act (see ss 178 and 190 of the Roads Act).

This observation about the different fields of compensation gains cogency when it is remembered that the Pointe Gourde principle was developed as an aspect of the “value to the owner” principle or as a means of interpreting the “value” of the land that has been compulsorily acquired to the owner. The “value to the owner” principle only has application where property, real or personal, has been resumed or expropriated. The purpose of compensation where property has been resumed or expropriated is “to place in the hands of the owner expropriated the full money equivalent of the thing of which he has been deprived.” (Nelungaloo Pty Ltd v The Commonwealth at 571). The value to the owner principle has no application where the owner of property has not been deprived of the property. Where the loss derives not from the compulsory acquisition of land, but from some other governmental action, such as restriction or denial of access from land to a public road, the Pointe Gourde principle has no application in determining the compensation payable for that different loss. The principle cannot assist as an aspect of the value to the owner principle because that principle does not apply. It cannot assist as an interpretive tool in determining the “value” of land taken, because no land has been taken.

Fourthly, flowing from these three points, the Pointe Gourde principle cannot readily be applied to the statutory scheme in Division 4 of Part 5 of the Roads Act for determining the amount of compensation payable to an owner of land for loss or damage arising from a loss of access.

Central to the Pointe Gourde principle is the disregard of an increase or decrease in the value of the property compulsorily acquired engendered not only by the acquisition itself but also by the scheme or the proposal to carry out the public purpose for which the property was acquired. Alteration in value engendered by the acquisition itself was referred to by Dixon J in Nelungaloo Pty Ltd v The Commonwealth (at 571) as well as by the Privy Council in Raja Vyricherla Narayana Gajapathiraju v Revenue Divisional Officer, Vizagapatam [1939] AC 302 at 318. Identifying the alteration in the value of the land because it has been compulsorily acquired is not usually contentious. Much more difficulty is encountered in identifying the alteration in the value of the land engendered by the scheme or the proposal to carry out the public purpose for which the land was compulsorily acquired. The central problem is identifying whether a particular event or conduct, which might have altered the value of the land, is part of the scheme or proposal.

In Pointe Gourde and other cases applying the English legislation or like legislation for compensation for the compulsory acquisition of land, the focus has been on “the scheme”. As Lord Nicholls observed in Waters v Welsh Development Agency (at [43]), “notoriously the practical difficulty with the Pointe Gourde principle lies in identifying the area of the 'scheme' in question.” Was a particular event or conduct which caused an increase or decrease in the value of the land that was compulsorily acquired, part of the scheme?

In cases applying a statutory incorporation of the principle, such as in s 124 of the Public Works Act or s 56(1)(a) of the Land Acquisition Act, the focus has been on “the public purpose” or “the proposal to carry out the public purpose”, for which the land was compulsorily acquired. Was a particular event or conduct, which caused an increase or decrease in the value of the land that was compulsorily acquired, “a step in the resumption process” (under s 124 of the Public Works Act, see San Sebastian at 206-207, 212) or part of “the proposal” to carry out the public purpose (under s 56(1)(a) of the Land Acquisition Act, see Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority at [53]-[54])? The repeated appeals in the Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority litigation amply illustrate the difficulty in identifying the scope of a proposal to carry out a public purpose. Roads and Traffic Authority of NSW v Perry (2001) 52 NSWLR 222: [2001] NSWCA 251 is another illustration of the need for, but difficulty of, identifying the scheme or public purpose for which the land was acquired (see eg at [52] and [96]).

The sufficiency of the casual connection between an event or conduct and an increase or decrease in the value of the land will vary depending on the statutory language. This is shown by the difference in statutory language between s 124 of the Public Works Act and s 56(1)(a) of the Land Acquisition Act. The language of the matter to be disregarded under s 124 of the Public Works Act, namely an alteration in value “arising from the establishment of…[the] public works upon or for which such land was resumed”, differs significantly from the language of the matter to be disregarded under s 56(1)(a) of the Land Acquisition Act, namely an increase or decrease in value “caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired” (see Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd (2005) 63 NSWLR 407; [2005] NSWCA 25 at [47] per Basten JA). This significant difference in the language in which the disregard was expressed in these statutes led the High Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority to hold that the proposition drawn from San Sebastian that an “indirect relationship”, where the maintenance of the planning restriction by the Council was seen as a “step in the process of resumption”, was a sufficient causal connection was not applicable to s 56(1)(a) of the Land Acquisition where a direct causal connection was required (at [53]-[54]).

If the Pointe Gourde principle is to be applied in the assessment of the market value of the land at the times required by s 69 of the Roads Act, it is necessary to identify the matter which causes any alteration in the value of the land that is to be disregarded in assessing the market value of the land. This is difficult to do because, unlike the application of the Pointe Gourde principle to the assessment of the market value of land that has been compulsorily acquired, there is no unifying matter that can serve as the touchstone. There is no “scheme” or “proposal to carry out the public purpose” for which the administrative action of compulsory acquisition of land is undertaken.

It might be thought that the best candidate for the matter, which causes any alteration in the value of the land that is to be disregarded, is the specified consequence that triggers the entitlement to compensation, namely the restriction or denial of the right of access. That restriction or denial of the right of access operates upon the publication in the Gazette of an order declaring a road to be a freeway, transitway or controlled access road that restricts access to or from the freeway, transitway or controlled access road.

If this be the matter which causes any alteration in the value of the land that is to be disregarded, the enquiry necessitated by an application of the Pointe Gourde principle would be to ascertain whether a particular event or conduct is part of this matter. For example, if works are carried out to construct a road that is subsequently declared to be a freeway, transitway or controlled access road and to which access is restricted or denied, can the works be said to be part of that matter of restriction or denial of the right of access?

This is the approach that Miller adopted in its originally pleaded paragraph 37(a) of the points of claim. Miller identified “the Works”, which were described to be: “Between about October and December 2013, as part of the construction of the Bega Bypass, works were carried out on that part of the Princes Highway that was adjacent to the Land, and included the construction of a new intersection from the Bega Bypass to the road” (at paragraph 18 of the points of claim).

Although not pleaded in terms of the Pointe Gourde principle, the original paragraph 37(a) of the points of claim claimed the market value of the land immediately before the right of access was restricted or denied should be assessed in effect by disregarding any decrease in the value of the land caused by the carrying out of these works. This was to be done by assessing the market value of the land at December 2013, being the date when the works were completed. This approach is inconsistent with an application of the Pointe Gourde principle, which would require an assessment of the market value of the land to be undertaken at the date the right of access was restricted or denied but disregarding in that assessment at that time any decrease in the value of the land caused by the carrying out of the works.

One problem with this approach would be to establish that the carrying out of the works to construct the road (in Miller’s case, the construction of the Bega Bypass) was undertaken in order to restrict or deny the right of access (in Miller’s case, to restrict access from its land to the former Princes Highway), which is the posited matter. This purpose will not be able to be established. The road works are undertaken for the purpose of constructing the particular road, not to impose restrictions on access to or from any road so constructed. To hold otherwise is to have the tail wagging the dog.

In Miller’s case, RMS constructed the Bega Bypass to improve road traffic and safety on main roads in the area. As the Bega Bypass included replacing in part the Princes Highway that passed through the town of Bega, the extent of works and the standard of construction involved were considerably greater than would be involved in the construction of a normal public road. The carrying out of these major road works by the RMS might have facilitated the Minister’s subsequent order declaring the Bega Bypass to be a controlled access road, but declaring the Bega Bypass to be a controlled access road was not the purpose for which the Bega Bypass was constructed. Similarly, the making of the Minister’s order declaring the Bega Bypass to be a controlled access road enabled the imposition of restrictions on access to or from the controlled access road as part of that order, but imposing restrictions on access was not the purpose of constructing the Bega Bypass.

In the amended pleading of paragraph 37(a) and 37(b) of the points of claim, Miller claimed that not only the carrying out of the works to construct the Bega Bypass was part of the matter of the right of access being restricted or denied, but also the registration of a deposited plan for lots created for the Bega Bypass was part of that matter. However, the purpose of the registration of the deposited plan was not to, and did not in fact, effect any restriction or denial of the right of access.

For these four reasons, the Pointe Gourde principle has no application in the determination of the amount of compensation payable under s 69 of the Roads Act for any loss or damage arising from a right of access being restricted or denied.

Miller’s pleadings, both the original and the amended pleadings, do not articulate claims for compensation in accordance with this construction of the provisions of Div 4 of Pt 5 of the Roads Act. The originally pleaded paragraph 37(a), although said in oral arguments to be based on the Pointe Gourde principle, did not in its terms articulate a claim that applied the Pointe Gourde principle.

Paragraph 37(a)(i) pleaded that the works involving the Bega Bypass were “a step in the process to legally restrict a ‘right of access’”. That language obscured the matter which is said to have caused an alteration in the market value of the land that is to be disregarded. There is no “process” of legally restricting a right of access. The legal restriction of the right of access operates upon the publication in the Gazette of the order declaring the road to be a controlled access road that restricted access to and from the controlled access road. This was an event, not a process.

Paragraph 37(a)(ii) pleaded that the market value of the land immediately before the right of access was restricted or denied is to be assessed “from December 2013”, being the date when the Bega Bypass works were completed. This date is not consistent with an application of the Pointe Gourde principle. If the Pointe Gourde principle could be applied in the determination of compensation for loss of access under s 69(1) of the Roads Act, the date for assessing the market value for land would be the date when the right of access was “legally restricted”, which is the date of publication in the Gazette of the order that restricted access. The Pointe Gourde principle (if applicable) would not require assessment of the market value of the land before the event or conduct that is said to alter the value of the land, but rather would require assessment of the market value of the land at the date when the right of access was legally restricted, but disregarding any decrease in the value of the land caused by the right of access being restricted or denied.

Paragraph 37(a)(iii) pleaded that the amount of compensation payable is the difference between the market value of the land immediately before the works were constructed and the market value immediately after. As earlier noted, the market value of the land is not to be assessed immediately before the works were constructed, but rather immediately before the right of access was restricted or denied by publication in the Gazette of the order that restricted access. Equally, the market value of the land is not to be assessed immediately after the works were constructed but rather immediately after the right of access was restricted or denied by publication in the Gazette of the order that restricted access.

Miller’s originally pleaded paragraph 37(a) did not, therefore, plead a claim based on an application of the Pointe Gourde principle. Robson J was correct to strike it out as not disclosing a claim for compensation maintainable under s 69 of the Roads Act.

But can Miller plead a claim, based on an application of the Pointe Gourde principle, that would be maintainable? For the reasons given earlier, I consider the Pointe Gourde principle has no application to the particular determination of compensation for loss or damage arising from a right of access being restricted or denied that is required by s 69(1) of the Roads Act. In these circumstances, there would be no utility in giving Miller the opportunity to try to plead a claim that does seek to apply the Pointe Gourde principle in the determination of the amount of compensation payable under s 69(1) of the Roads Act. For this reason, Robson J’s decision striking out the originally pleaded paragraph 37(a) should stand.

The amended paragraphs 37(a) and 37(b) of the points of claim were founded on an erroneous construction of ss 68 and 69 of the Roads Act. As summarised earlier, Miller’s claim in these paragraphs depended on the restriction or denial of the right of access, the consequence specified in s 69(1), being the result of the process of the road “becoming” a controlled access road. That construction is incorrect. The cause of the consequence referred to in s 68(1), of “access across the boundary between any land and a public road is restricted or denied”, is described as being “the road becoming a freeway, transitway or controlled access road”, but that cause is an event not a process. The event is the publication in the Gazette of the order declaring the road to be a freeway, transitway or controlled access road that restricts access to or from the freeway, transitway or controlled access road. The road “becomes” a freeway, transitway or controlled access road instantaneously upon the publication of the order. There is no process, and there are no steps in a process or a course of conduct, to the road becoming a freeway, transitway or controlled access road. The carrying out of the road works are part of land becoming a road, but not becoming a controlled access road.

There is, therefore, no basis in the statutory provisions of Div 4 of Part 5 of the Roads Act to assess the market value of the land at the time of the first of the events in a course of conduct, or steps in a process, of the road becoming a controlled access road. For the amended paragraph 37(a), the first event or step was the completion of the Bega Bypass in December 2013. For the amended paragraph 37(b), the first event or step was the registration of the deposited plan on 8 December 2014. Neither of these events or steps, however, made the road a controlled access road or imposed restrictions on access to or from the controlled access road. Only the order published in the Gazette had the effect of declaring the road to be a controlled access road and imposing restrictions on access to or from the controlled access road.

Duggan J was correct to refuse Miller leave to amend its points of claim to replead paragraphs 37(a) and (b) as the construction of the Roads Act on which those paragraphs were based was not maintainable and disclosed no reasonable cause of action.

Miller has largely been unsuccessful in its appeal. Whilst this Court grants Miller leave to appeal, the appeal itself should be dismissed. Miller has been unsuccessful in establishing that the decisions of the Court below to strike out the originally pleaded paragraph 37(a) of the points of claim and to refuse leave to amend the points of claim to plead the new paragraphs 37(a) and (b) should be set aside. In this result, the appellant should pay the respondent’s costs of the proceedings in this Court.

I would propose that the Court: