Desane Properties Pty Limited v State of New South Wales

1. [1]

   WestConnex is the name given to six motorway projects that together are proposed to link Sydney’s West and South-West with the Sydney airport and Port Botany precincts. WestConnex comprises three stages.

2. [2]

   Stage 1 is the widening and extension of the M4 Motorway between Parramatta and Homebush, and the extension of it to Haberfield by construction of two new tunnels from Homebush to a new interchange at Haberfield. Construction of this stage is underway. The widening and extension to Homebush have been completed, and tolls are being collected.

3. [3]

   Stage 2 is the duplication of the M5 East Motorway by the construction of two tunnels from Kingsgrove to St Peters, and the construction of an interchange at St Peters, and an upgrade of the King Georges road interchange. Construction of this stage is underway.

4. [4]

   Stage 3 is sometimes referred to as the M4-M5 Link. It comprises two sub-stages.

5. [5]

   Stage 3A is the construction of a ‘mainline’ tunnel connecting the new part of the M4 at Haberfield (part of Stage 1) to the interchange at St Peters (part of Stage 2).

6. [6]

   Stage 3B has become known as the Rozelle Interchange. It entails the construction of an interchange comprising underground tunnels, and the construction of road connections allowing traffic, including that passing through the mainline tunnel, to connect with Victoria Road, the City West Link, the Anzac Bridge and the M4 and M5 as extended under Stage 1 and Stage 2. It is also intended to provide a point of connection to a proposed future harbour crossing described as the Western Harbour Tunnel (WHT), which will provide a link to the Northern beaches (WHTBL). The Rozelle Interchange would, by all accounts, be an engineering endeavour of exceptional complexity.

7. [7]

   Planning approval is being sought for Stage 3. There is no final design for it, only a Concept Design which was issued in May 2017. The overall proposed structure of WestConnex is shown in the following figure which forms part of the Concept Design.

8. [8]

   Desane, the plaintiff, a subsidiary of a public listed company, owns a valuable commercial property at 68-72 Lilyfield Road Rozelle (the Property).

9. [9]

   Roads and Maritime Services (RMS), the second defendant, is a corporation and NSW Government agency constituted under the Transport Administration Act 1988 (NSW). Under s 13A(1) of the Interpretation Act 1987 (NSW) (Interpretation Act), RMS has the status, privileges and immunities of the Crown.

10. [10]

    The Roads Act 1993 (NSW) (Roads Act) makes provision with respect to the roads of New South Wales.

11. [11]

    Section 171(1) of the Roads Act provides that RMS may acquire land for any purposes of that Act.

12. [12]

    The Land Acquisition (Just Terms Compensation) Act 1991(NSW) (Just Terms Act) is an Act relating to the acquisition of land on just terms by authorities of the State.

13. [13]

    The Just Terms Act contains provisions for the acquisition of land, by compulsory process, for a public purpose.

14. [14]

    References to sections are, unless the context otherwise indicates, to sections of the Just Terms Act.

15. [15]

    The compulsory acquisition process is preceded by the necessity for the land to be affected by a proposal for its acquisition by an authority of the State. There is provision for a minimum period of negotiation for acquisition by agreement before initiation of the compulsory acquisition process.

16. [16]

    The formal compulsory acquisition process is commenced by an authority of the State giving to the owner of land a proposed acquisition notice (PAN), of its intention to acquire the land by compulsory process. If, after a PAN is given, there is no negotiated outcome, the land may be compulsorily acquired by Gazetted acquisition notice. Compensation is payable.

17. [17]

    On 26 May 2017, RMS purported, under cover of a letter of that date, to give Desane a PAN for the Property.

18. [18]

    Desane argues that the PAN is of no effect because:

19. [19]

    Additionally, Desane argues that RMS was carrying on a business and, in trade or commerce, engaged in conduct which is misleading or deceptive or likely to mislead or deceive in contravention of s 18(1) of Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) [1] because by the PAN and its covering letter, it misrepresented that the Property was required by it, for a public purpose, when in truth it was not required or not required at that time. It seeks orders restraining RMS from acting on the PAN.

20. [20]

    To facilitate an understanding of the factual circumstances underlying this dispute, I have ordered the facts into two parallel chronologies, one concerning the WestConnex project itself and the other concerning the relationship and dealings between Desane and RMS in relation to the Property. This, I think, more readily enables appreciation of the circumstances about WestConnex as a project at any particular point in time, and of when and how the dealings between Desane and RMS relevantly intersect with those circumstances.

21. [21]

    I have had regard to the entirety of the extensive factual material in evidence, but have only recited those facts which I consider are necessary to demonstrate why I have made the findings I have made.

The Property

1. [22]

   Desane develops and manages real property. It acquired the Property in 1997 for $2.2 million and spent around $7 million improving it. The Property is at the intersection of Gordon Street and Lilyfield Road, Rozelle.

2. [23]

   The Property abuts the now disused Rozelle Rail Yards. Both tracts of land are within approximately 189 hectares of land and waterways now known as the ‘Bays Precinct.’ Under the Bays Precinct Sydney Transformation Plan, [2] this area is earmarked for redevelopment for use as housing, public space and employment. A preliminary assessment in December 2015 by UrbanGrowth to the Department of Planning & Environment (Department of Planning) identified the area, including the Property, as a proposed State Significant Precinct. Since 19 April 2016, the area has been designated as such a Precinct. One effect of such a designation is that changes to zoning and planning controls can be made through a State Environmental Planning Policy approved by the Minister for Planning, bypassing local council processes.

3. [24]

   In 2014, Desane engaged architects to prepare a planning proposal for the rezoning of the Property.

4. [25]

   In June 2015, it lodged a proposal with the Department of Planning, to re-zone the Property from Port and Employment to B4 Mixed Use, which would permit the development of residential apartments, retail and commercial space. The proposal envisaged some 200 apartments, retail and commercial space and a 90 place childcare centre. Desane has developed apartments nearby.

5. [26]

   By all accounts, the Department of Planning neglected to progress the application. At a meeting with representatives of that Department on 31 May 2016, an apology for mishandling it was given to Desane.

WestConnex – Stage 3

1. [27]

   Sydney Motorway Corporation (SMC), the third defendant, was established in 2014 by the NSW Government to act as the financing entity for WestConnex. SMC is owned by the Government. In October 2015, SMC became responsible for the financing, construction and delivery of WestConnex. RMS remained the Government roads agency acting on behalf of the Government as the agency commissioning WestConnex.

2. [28]

   In October 2017, after failure of a process to find a suitable design and construction tenderer for Stage 3B, responsibility for delivering Stage 3B was transferred to RMS.

3. [29]

   From about August 2014, SMC carried out design work, technical investigation, planning and cost-benefit analysis. Designs of Stage 3B were prepared by SMC and reviewed and assessed by RMS.

4. [30]

   SMC prepared a Project Implementation Plan in October 2015, which it revised in November 2015. [3]

5. [31]

   In November 2015, the Government published an updated Strategic Business Case for WestConnex. It included a proposal for the Rozelle Interchange, which would have necessitated use (and destruction) of the Property.

6. [32]

   The Business Case discloses that WestConnex is financed using ‘limited-recourse project financing’ and a ‘sale of business’ model, which includes a State entity holding equity in special purpose vehicles created to deliver the project and limited-recourse private sector debt finance against future toll revenue to fund a significant portion of construction costs. The Business Case refers to the inevitable need for the acquisition of property to deliver the project. It states that:

7. [33]

   In January 2016, RMS published a State significant infrastructure application report for the M4-M5 Link. [4] The report states that the M4-M5 Link was a component of the program of works proposed to be delivered as a series of projects, each subject to a stand-alone planning assessment and approvals process in accordance with the requirements of Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). References to the EP&A Act are to as it stood at the time.

8. [34]

   The report records that, as the proponent, RMS had formed the view that the impact of the M4-M5 Link is likely to significantly affect the environment. It records that the M4-M5 Link project is declared to be State significant infrastructure under the EP&A Act and is subject to Part 5.1 of that Act. This requires the preparation of an Environmental Impact Statement (EIS) and the approval of the Minister for Planning for the proposal. The report states that key components of the project include a new road interchange at Rozelle within the disused Rozelle Rail Yard, to provide connections to the re-aligned City West Link, Victoria Road and the Anzac Bridge. The report records that the final interchange design will be determined as part of the design development process. It records that construction of the project is to occur over a period of around four years and that it will require ancillary facilities during construction, including, but not limited to, construction compounds, sedimentation basins, concrete batching plant, pre-cast yards and stock piles. It states that the location and size of the ancillary construction facilities will be developed as part of determining the preferred project design and will be assessed in the EIS for the project.

9. [35]

   On 23 March 2016, RMS, represented by Ken Kanofski, its Chief Operating Officer – later Chief Executive, and SMC, represented by its Chief Executive, Dennis Cliche, signed a non-legally enforceable Memorandum of Understanding (MOU) in connection with Stage 3.

10. [36]

    Under the heading ‘Property’, the MOU includes the following:

11. [37]

    Where I refer to persons by their last name, I intend no disrespect.

12. [38]

    On 24 March 2016, Peter Jones of SMC, the Project Director for the M4-M5 Link portion of WestConnex, sent a written briefing to Cliche concerning property acquisition strategy.

13. [39]

    The Briefing includes the following: [5]

14. [40]

    WHT is the proposed future under harbour connection between the Rozelle Interchange and North Sydney. Jones gave evidence that, at the time of the briefing, it was envisaged that portals for WHT would involve destruction of the Property. Later, however, the proposed portals were moved away from the Property to be more under the geographical feature known as Balmain Hill. That aspect of the overall design – such as it is – no longer directly involves or impacts the Property. The acquisition of the Property for that purpose thus later ceased to be strategic as envisaged in the briefing. More is said of this later.

15. [41]

    Attachment A to the Briefing covers the Property.

16. [42]

    On 1 April 2016, Kanofski sent a briefing for endorsement to the Minister for Roads, Maritime and Freight and to the Secretary for Transport NSW, seeking approval for RMS to commence acquisition procedures for privately-owned and commercial/industrial sites south of Lilyfield Road for the Rozelle Interchange.

17. [43]

    A Government Cabinet Submission dated 18 April 2016, entitled ‘WestConnex Stage 3 (M4-M5 Link) – Strategic Property Requirements at Rozelle’ [6] , includes the following:

18. [44]

    On or about 27 April 2016, the Expenditure Review Committee, a sub-committee of the NSW Cabinet, approved funding for the acquisition of properties, including the Property, required for Stage 3.

19. [45]

    On 25 May 2016, approval to commence acquisition of four commercial properties, including the Property, was given within RMS.

20. [46]

    On 31 May 2016, RMS sent a letter to SMC confirming that RMS had obtained Government approval to commence acquisition processes for the ‘core site of the proposed Rozelle Interchange.’

21. [47]

    On 2 June 2016, RMS opened an acquisition file.

22. [48]

    On 29 June 2016, Peter Dunkin, then Chief Executive of RMS, sent a Briefing to the Minister for Roads, Maritime and Freight headed ‘Strategic property acquisitions at Rozelle Rail Yard.’ The Briefing note recorded:

23. [49]

    It seems that in this, and later documents, reference to the Rozelle Rail Yards is sometimes, loosely, intended to encompass not only the Yards themselves but adjoining privately owned land.

24. [50]

    In July 2016, SMC released a document headed ‘Community update’ inviting the public to attend a community ideas session to ‘share your ideas and feedback on what you would like us to consider in designing and building the M4-M5 Link.’ It stated amongst others:

25. [51]

    Apparently, by this time, there had been created, amongst the multiplicity of designs, one which included a proposed additional underground link between the Anzac Bridge and the Iron Cove Bridge via the Rozelle Interchange.

26. [52]

    On 7 July 2016, SMC published a document entitled ‘Q&As M4-M5 Link.’ It includes the following:

27. [53]

    Then, at a meeting on 21 July 2016, the Cabinet agreed [7] that the M4-M5 Link would deliver 10 hectares of ‘park ready’ land on the western half of the Rozelle site, and noted that the remainder of the site would include significant further additional open public space as part of the WHT. The Cabinet submission defined ‘park ready’ to include:

28. [54]

    On 21 July 2016, the Government issued a media release titled ‘New inner west park and tunnel link announced’ (the media release). The timing and contents of this release play a not insignificant role in the case. It is reproduced in full:

29. [55]

    That day, the Government supplied to ABC News the below artist’s impression (the artist’s impression) of what the Rozelle interchange will look like:

30. [56]

    It is not in issue that the Property lies within the depicted parkland area.

31. [57]

    On 26 July 2016, the Cabinet:

32. [58]

    On 28 July 2016, Jones wrote to Leichardt Municipal Council giving an update on the M4-M5 Link project. Amongst others, he wrote:

33. [59]

    In July and August 2016, SMC conducted a communication and engagement program with communities that would be impacted by the M4-M5 Link, including the Rozelle Interchange. It then published a Community feedback report which stated that suggestions would be considered as part of the design process. Thereafter, SMC’s project team continued to develop the design for the M4-M5 Link, including the design of the Rozelle Interchange.

34. [60]

    In September 2016, RMS lodged an addendum to the State significant infrastructure application report, which amended the Stage 3 application by adding the link to the Iron Cove Bridge. The addendum contained no detailed designs. The addendum stated that since preparation of the report in January 2016, the preliminary design development and traffic modelling has informed further refinement of the design in the form of a tunnel connection from the southern abutment of the Iron Cove Bridge to the proposed Rozelle Interchange. The report states that the temporary use of Easton Park [8] would be required to construct the dive and cut and cover tunnel portals to connect the surface roads at the Rozelle Interchange to the Iron Cove Link tunnel.

35. [61]

    On 17 October 2016, UrbanGrowth wrote to SMC about a Concept Design, which was then apparently in existence (but which does not appear to be in evidence). UrbanGrowth wrote, amongst others:

36. [62]

    In November 2016, RMS published a review of environmental factors for Site Management Works, not directly connected with WestConnex, which it proposed to carry out at the Rozelle Rail Yards. That review includes the following statement:

37. [63]

    On 7 November 2016, Kanofski briefed the Minister for Roads, Maritime and Freight and the Secretary for Transport NSW as to ‘Strategic property acquisitions at Rozelle Rail Yard.’ The briefing referred to the fact that RMS had commenced the acquisition of strategic property at the Rozelle Rail Yard and that acquisition would start before planning documents for the M4-M5 Link were placed on public display and on a shortened acquisition timeline of less than 18 months. The briefing stated:

38. [64]

    In evidence is an AECOM (technical and environmental advisers, infrastructure designers and planners, retained by SMC or RMS) drawing captioned ‘M4-M5 Link option 4259 plan’ dated 8 November 2016 for the Rozelle Interchange. The design does not directly impact the Property. [9]

39. [65]

    On 15 December 2016, SMC gave a presentation to RMS about the Rozelle Interchange and Iron Cove Link. The presentation included interim reference designs, including ones where tunnelling goes through parts or edges of the Property.

40. [66]

    In March 2017, RMS lodged a further addendum to the State significant infrastructure application report, which sought to amend it by refining the Rozelle Interchange design and removing Easton Park from the scope of the project.

41. [67]

    At this time, proposed designs had two tunnel ramps going through the Property. Also being considered were various optional designs for moving the location of the WHT and M4-M5 tunnels. Options then being considered directly affected the Property.

42. [68]

    On 31 March 2017, RMS briefed the respective Ministers for Roads, Maritime and Freight and for WestConnex on ‘Upcoming compulsory acquisition of properties required for WestConnex M4-M5 Link Project, Western Harbour Tunnel Beaches Link (WHTBL) and Rozelle Rail Yard site management.’

43. [69]

    Attachment A to the briefing identifies the properties to be acquired, including the Property. It states:

44. [70]

    The description of the Property in the attachment is accompanied by the following comment, ‘this property is required for WHTBL enabling works.’

45. [71]

    On 3 April 2017, Ismet Huseyin, Technical Lead WHTBL, wrote a memorandum to Doug Parris, Deputy Project Director WHTBL within RMS, setting out emerging construction site requirements within the Rozelle Rail Yard site to deliver the WHT. Amongst others, it recorded:

46. [72]

    The memorandum had a number of attachments, including a Rozelle Interchange updated Reference Design which does not directly impact the Property, except for a sliver identified as a utilities corridor (which I assume to be on the surface) and a proposed WHT site plan (subject to Rozelle Interchange design development) which does not impact the Property in any way.

47. [73]

    Parris sent the memorandum to Daniel Powrie, RMS Project Director WestConnex Stage 3, and others on 4 April 2017.

48. [74]

    On or about 13 April 2017, AECOM produced final reference designs. Amongst them is a design for the Interchange which shows the only surface impact on the Property as being the use (which I assume to be on the surface) of a sliver of it at its edge for a utilities corridor. [10]

49. [75]

    In May 2017, SMC released a Concept Design for Stage 3, which was reviewed by RMS prior to publication. As to the design of the Rozelle Interchange, it says:

50. [76]

    Under the heading ‘We are listening’, the Concept Design states:

51. [77]

    In a section entitled ‘Construction’, it says:

52. [78]

    On 3 May 2017 the Governor approved a recommendation made by the Minister for Roads, Maritime and Freight that the Property be acquired by compulsory process. The Minute Paper for the Executive Council is produced below.

53. [79]

    On 12 May 2017, the NSW Government published a press announcement referring to the release of the Concept Design. It announced that it was to proceed with the sale of at least a 51% stake in SMC to help fund the final stage.

54. [80]

    On 26 May 2017, RMS gave the PAN to Desane.

55. [81]

    On 19 June 2017, the Government published a Notice seeking registrations of interest from tenderers for the design and construction of the Rozelle Interchange, including the design of:

56. [82]

    There was only an expression of interest from one consortium, which expression was apparently heavily caveated. The Government considered a tender process with only one tenderer to be unsatisfactory, and it was not proceeded with.

57. [83]

    A further expression of interest process was initiated in January 2018. The time for lodgement of expressions of interest has not yet expired. The process is apparently proceeding.

58. [84]

    On 3 July 2017, Kanofski directed a briefing paper to the respective Ministers for WestConnex and Roads, Maritime and Freight in connection with the possibility of RMS considering temporary leasing arrangements for properties to be acquired. He identified four private properties, including the Property, as being required to be acquired for M4-M5 Link work adjacent to the Rozelle Rail Yards. Amongst others, the Briefing states:

59. [85]

    Over 2016 and 2017 numerous design options for the Rozelle interchange were prepared by AECOM.

60. [86]

    On 14 July 2017, AECOM produced a substantial volume entitled ‘Final reference design/ Rozelle Interchange/ Drawings.’ Various design options are still under active consideration, some of which reflect the Property as not being intersected by the Rozelle Interchange and others which do. Some designs have tunnels which do not travel under the Property. At least one such drawing, [11] dated 13 April 2017, shows a portion, albeit a minor one, of the Property being used for a utilities corridor. At least one other drawing makes it clear that further geotechnical investigations should be undertaken to examine the possibility of moving the drive tunnel portal to the East. [12]

61. [87]

    On 15 August 2017, the Minister declared WestConnex to be critical State significant infrastructure.

62. [88]

    Under Part 5.1 of the EP&A Act, a person is not to carry out development that is State significant infrastructure unless the Minister has given approval. [13]

63. [89]

    The Minister may approve or disapprove the carrying out of State significant infrastructure or may approve it with such conditions as the Minister determines. [14] The Minister has not made a determination.

64. [90]

    Stage 3 cannot proceed unless planning approval is granted by the Minister for Planning. Nor can any activity [15] be carried out until approval is granted. [16]

65. [91]

    On 18 August 2017, RMS published and lodged the EIS for Stage 3. On the subject of the design of the Rozelle Interchange, it says:

66. [92]

    This approach differs from that taken with Stages 1 and 2. There, the design and construction tenderer was selected before planning approval and was involved in formulating the final designs used in the planning approval process.

67. [93]

    The EIS contains the following section:

68. [94]

    The EIS also contains a section entitled ‘Rozelle civil and tunnel site.’ It states that ‘the Site would be predominately located on disused land that forms part of the Rozelle Rail Yards.’ It goes on to state:

69. [95]

    An indicative site layout is incorporated. The Property is within the civil and tunnel site. This time it is shown as an area for light vehicle parking. An extensive list of key construction activities to be carried out at, and supported by, the Rozelle civil and tunnel site is included.

70. [96]

    In about August or September 2017, SMC produced Urban Design Guidelines to ensure that the urban design of the project was ‘not a retrospective layer on top of a road design.’ One of the guidelines essential criteria is specified as

71. [97]

    On 13 September 2017, SMC produced a drawing [18] outlining the components of public open space that contribute to the 10 hectares of parkland. The drawing shows the entirety of the Property as useable public space. Areas for motorway operational facilities shown on the drawing do not impact the Property.

72. [98]

    On 22 September 2017, Kanofski provided a written briefing to the respective Ministers for WestConnex and Roads, Maritime and Freight, entitled ‘M4-M5 Link Interface with Bays Precinct Masterplan.’ The Briefing stated, amongst others:

73. [99]

    On the same day, the NSW Government called for registrations of interest for the purchase of 51% of SMC.

74. [100]

    On 31 October 2017, the responsibility for delivering Stage 3B was transferred from SMC to RMS.

75. [101]

    In February 2018, RMS published a Response to Submissions and Preferred Infrastructure Report in relation to Stage 3. Amongst others, it says:

76. [102]

    It also says:

77. [103]

    A design and construction tenderer has yet to be selected. The final design, structure, route and location of the Rozelle Interchange has yet to be determined.

DEALINGS BETWEEN DESANE AND RMS, AND RELATED MATTERS, LEADING UP TO THE PAN

1. [104]

   Felice (also known as Phil) Montrone OAM and Riccardo (also known as Rick) Montrone are directors of Desane.

2. [105]

   Both gave evidence and were cross-examined. They are truthful witnesses.

3. [106]

   As referred to earlier, the Property is in the ‘green space’ announced by the Government on 21 July 2016 and depicted in the artist’s impression.

4. [107]

   Rick Montrone says that the first time Desane was informed that the Property was located in proximity to WestConnex Stage 3 was on 26 July 2016 when Desane’s planning consultant Elise Crameri of AFP Corporation was sent a document by the Department of Planning, under cover of a letter in connection with Desane’s re-zoning application, showing this. Not surprisingly, Rick Montrone felt a sense of grievance at becoming aware of this important development in this way, after a public announcement.

5. [108]

   On 27 July 2016, the Montrones and others met with representatives of RMS, including Steven (Steve) Brien who held a position described as Senior Communication and Stakeholder Engagement Lead for the Motorways development branch of RMS.

6. [109]

   Rick Montrone says that Brien was asked why RMS was interested in the Property and what it would be used for, to which Brien responded:

7. [110]

   Rick Montrone says that the following exchange occurred between Crameri and Brien:

8. [111]

   Phil Montrone says he suggested, as an alternative to acquisition, RMS leasing the Property on a short or long term basis during construction and returning it to Desane at the end.

9. [112]

   Brien gave evidence and was cross-examined. Inconsistently with his position as the person charged with communication with Desane, but consistently with his apparent inability to furnish meaningful responses to the questions asked of him at the meeting, he was vague as a witness. There were some variances between his evidence and that of the Montrones. I prefer their evidence, but nothing material turns on the differences.

10. [113]

    On 29 July 2016, Phil Montrone wrote to the Hon. Duncan Gay MLC, Minister for Roads, Maritime and Freight. He wrote, amongst others:

11. [114]

    On the same day, Phil Montrone also, by email, requested a meeting with the Minister.

12. [115]

    The Minister never replied. No meeting took place.

13. [116]

    On 1 August 2016, Crameri, on behalf of Desane, wrote to the Department of Planning to request expedition of the rezoning application.

14. [117]

    On 11 August 2016, the Department of Planning wrote to Crameri, relevantly:

15. [118]

    On 16 August 2016, Beverley Magpayo of RMS emailed Tony Dixon, Parris and Brien, all of RMS, about Desane:

16. [119]

    Dixon replied, amongst other things:

17. [120]

    On 23 August 2016, Gary Chan, RMS Manager Valuations and Acquisitions, wrote to Phil Montrone:

18. [121]

    On 25 August 2016, Desane released information to the ASX concerning RMS’ proposal to acquire the Property.

19. [122]

    On 24 January 2017, Phil Montrone emailed Parris of RMS seeking a meeting to discuss RMS’ expression of interest in acquiring the Property.

20. [123]

    On 10 March 2017, RMS offered Desane $21,489,259.00 for the Property.

21. [124]

    On 10 April 2017, Awindra Prasad, RMS Manager Valuations and Acquisitions, wrote to Desane relevantly:

22. [125]

    On 13 April 2017, RMS wrote to Phil Montrone.

23. [126]

    On 3 May 2017, the Governor approved the compulsory acquisition of the Property.

24. [127]

    On 4 May 2017, Desane and its lawyers met RMS and its lawyers. The meeting was tense. Dealings continued but no resolution was reached.

25. [128]

    On 22 May 2017, Powrie wrote to Phil Montrone:

THE PAN

1. [129]

   On 26 May 2017, RMS served the PAN on Desane under cover of the following letter:

2. [130]

   It is appropriate to set out the full text of the PAN:

AFTER THE PAN

1. [131]

   On 1 June 2017, Jazper Blizzard emailed Magpayo, relevantly, as follows:

2. [132]

   On 2 June 2017, Jones wrote to Tom Kennedy of SMC:

3. [133]

   Kennedy replied as follows:

4. [134]

   Jones emailed Powrie:

5. [135]

   On 14 June 2017, the Montrones met with Jones, Powrie and another RMS officer. Rick Montrone says that a conversation to the following effect took place.

6. [136]

   Rick Montrone says he asked a number of questions which Jones did not answer but responded by talking about unrelated matters. Having observed Jones in the witness box, I have no difficulty in accepting this evidence.

7. [137]

   Before turning to the contest, it is convenient to set out the provisions of the pertinent legislation and other instruments.

The Roads Act

1. [138]

   The following are the materially relevant sections of the Roads Act:

The Just Terms Act

1. [139]

   The Minister responsible for the Act is the Minister for Finance, Services and Property.

2. [140]

   The following are the materially relevant sections of the Just Terms Act:

The Approved Form – s 15(a)

1. [141]

   On 24 June 1992, the Minister approved a form of PAN under s 15 of the Just Terms Act (Approved Form). That Approved Form is set out in the Schedule to these reasons.

The Interpretation Act

1. [142]

   The following are the relevant sections of the Interpretation Act:

2. [143]

   Desane’s claims included allegations against the State and SMC of knowing participation in misleading or deceptive conduct. Shortly before the hearing concluded, the proceedings between Desane and the State and SMC were settled. RMS remains the only active defendant.

3. [144]

   The hearing occupied eight days. The court book runs to 17 volumes, comprising over 6,000 pages. The Court received extensive written submissions and heard extensive oral argument on behalf of Desane and RMS.

4. [145]

   An inspection of the Property was held.

5. [146]

   Desane argues that the PAN is of no statutory effect because it does not comply with the requirements of the Just Terms Act.

DEPARTURE FROM THE APPROVED FORM

1. [147]

   Desane argues that the PAN is invalid because it does not conform to the Approved Form and was not accompanied by a compensation claim form in accordance with s 39.

2. [148]

   Ordinarily, this type of contention involves a determination of whether compliance with a statutory requirement for the performance of an administrative act is a pre-requisite for the validity of the act, or, conversely, whether failure by an authority to meet such a requirement invalidates its act; Forrest & Forrest Pty Ltd v Wilson (2017) 91 ALJR 833 (Forrest) at [62].

3. [149]

   Such a determination requires attention to the language of the relevant statutory requirement (here ss 15 and 39(2)), viewed in the context of the language of the Act as a whole, its subject matter and objects. It also requires consideration of the consequences of holding void acts done in disconformity with those requirements; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky) at [91]-[98] and Forrest at [61]-[63].

4. [150]

   Here, the authority of the State is RMS, the administrative act is the giving of the PAN, and the statutory requirements are that the PAN must be in the form prescribed by the regulations or approved by the Minister and must be accompanied by the claim for compensation form under s 39.

5. [151]

   There can be discerned a clear legislative purpose that a PAN is invalid unless it complies with each of the requirements of ss 15 and 39(2). The PAN must be in the form legislated for and it must be accompanied by a claim for compensation in the form legislated for.

6. [152]

   In Project Blue Sky at [91], in a well-known passage, McHugh, Gummow, Kirby and Hayne JJ said:

7. [153]

   In Forrest, Kiefel CJ, Bell, Gageler and Keane JJ said at [62]-[64]:

8. [154]

   Just as the case under consideration by the High Court in Forrest was distinguishable from that considered in Project Blue Sky, so is this case.

9. [155]

   Section 11(1) prohibits an authority of the State from acquiring land by compulsory process unless it has given the owners of the land a PAN. This is a necessary pre-condition for the exercise of the administrative power given in s 19(1) to acquire land by compulsory process. It is an essential preliminary step to the exercise of the power conferred by s 11(1). It is not the regulation of a function already conferred.

10. [156]

    Both ss 15 and 39(2) use the word ‘must.’ Sheppard J remarked in Deputy Commissioner of Taxation v Comcorp Australia Ltd (1996) 70 FCR 356 at 363, with respect to the word ‘must’ that,

11. [157]

    The requirements of ss 15 and 39(2) have a rule like quality, which can easily be identified and applied. Those requirements are expressed in determinative language.

12. [158]

    Sections 15(b) to (e) impose requirements obviously essential to inform the recipient of a PAN of what is proposed with respect to the land and of the critical entitlement to compensation. I do not consider that there is to be discerned any legislative intention within s 15 to distinguish between the consequences of non-compliance with these requirements and those laid down in ss 15(a) and (f).

13. [159]

    In R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603 at 618 [40], French CJ referred to the fact that private property rights, although subject to compulsory acquisition by statute, have long been hedged about by the common law with protections. These protections are not absolute but take the form of interpretive approaches where statutes are said to affect such rights. The Just Terms Act and the Roads Act (so far it authorises compulsory acquisition) are such statutes.

14. [160]

    At [42], His Honour referred to the statement of Griffiths CJ in Clissold v Perry, [20] a land resumption case, that:

15. [161]

    This does not, as His Honour further remarked, authorise the Court to put to one side ‘the unambiguous effect of the words which the Parliament has seen fit to use.’ [21]

16. [162]

    The unambiguous effect of the words here is consistent with the traditional common law protection. Compulsory acquisition of private property is no light matter. Complying with the requirements of s 15 is not a matter of difficulty, and it is not too much to ask of an authority of State given power to interfere with such rights.

17. [163]

    Any public inconvenience which might result from holding invalid a non-compliant PAN does not outweigh the public interest in protecting vested property rights from unlawful interference.

18. [164]

    In Forrest, the statute conferred power on the executive government to grant exclusive rights to exploit resources of the State. The Court referred to authorities [22] which establish, in that context, that:

19. [165]

    In my opinion, by analogy, when it comes to a statute such as the Just Terms Act, which imposes conditions regulating the compulsory acquisition by the executive government of exclusive rights to private property, the same approach should be taken.

20. [166]

    It is significant that s 33(a) provides that, once land has been acquired by compulsory process, the validity of the acquisition is not affected by a failure to comply with any requirement in relation to a proposed acquisition notice. This supports the conclusion that it is necessary for those requirements fully to be met.

21. [167]

    The PAN and the accompanying compensation claim form diverge from the Approved Form in a number of respects:

    1. (1)

       of New South Wales is missing in para 1;

    2. (2)

       The has been substituted in the PAN for This where it appears in para 3 of the Approved Form;

    3. (3)

       the Approved Form refers in para 3(e) to solatium. Para 3(e) of the PAN reads the disadvantage resulting from relocation;

    4. (4)

       para 6 of the PAN refers to 45 days. The equivalent para in the Approved Form refers to 30 days;

    5. (5)

       para 9 of the Approved Form makes provision for the address of the Office of Authority. Para 9 of the PAN identifies the contact as an Officer at Roads and Maritime Services’ Parramatta Office;

    6. (6)

       the claim for compensation Form 2 (para 1(a)) makes provision for the address of the Land. No address appears in the PAN at that point; and

    7. (7)

       para 6(e) of Form 2 makes provision for the insertion of an amount of claimed compensation for solatium. Para 6(e) of the PAN makes provision for the insertion of an amount for the disadvantage resulting from relocation.

22. [168]

    The divergences with respect to solatium and 30 days are substantial.

23. [169]

    The other divergences may be thought to be trivial and not to involve a real departure from the Approved Form.

24. [170]

    With effect from 1 March 2017, ss 42(1) and (4), 55 and 60 were amended into their current form by the Land Acquisition (Just Terms Compensation) Amendment Act 2016 No 59 (NSW).

25. [171]

    Prior to their amendment those sections provided as follows:

26. [172]

    The amending Act also inserted Schedule 1A, which is in the following terms:

27. [173]

    Pre-amendment:

28. [174]

    Disadvantage resulting from relocation, which has taken the place of solatium, is defined to mean:

29. [175]

    Where s 60(1) referred to compensation to a person resulting from the necessity to relocate his or her principal place of residence, it was undoubtedly arguably open to the construction that solatium could take account of an amount attributable a person other than the ‘person entitled’, resulting from the necessity for that other person to relocate his or her principal place of residence. The amendment removed any such component.

30. [176]

    Section 60(2) previously provided that the maximum amount of compensation in respect of solatium is $15,000 or such higher amount as may be notified by the Minister by Notice published in the Gazette. [24] The pre-amended enactment gave no entitlement to adjustment for inflation.

31. [177]

    Section 60(2) now provides that the maximum amount of compensation in respect of the disadvantage resulting from relocation is $75,000, and Schedule 1A provides for increase by regulations of the maximum compensation amount and, for the first time, for automatic adjustment for inflation.

32. [178]

    The recipient of a PAN which referred to a solatium would be in a substantially different position to a recipient of the present PAN. There is no longer any statutory definition of solatium to which resort may be had. If the recipient was directed to the now repealed definition, she or he would be faced with a definition significantly different to the definition of disadvantage resulting from relocation and provisions which operate in conjunction with it differently, at least in respect to automatic adjustment for inflation.

33. [179]

    The recipient of such a PAN who made a claim for solatium would be making one for which the Just Terms Act makes no provision.

34. [180]

    The period in s 42(1) for the giving of notice of entitlement to compensation is now 45 days.

35. [181]

    The recipient of a PAN which informs her, him or it that they will generally receive notice of their entitlement to compensation and the amount of compensation offered within 30 days is clearly in a significantly different position to being told that this will be within 45 days. In cases where land of significant value is concerned, this difference could have significant monetary consequences. This I find, in its own right, is a sufficient departure from the Approved Form to render the PAN invalid.

36. [182]

    However, so to find is to assume that the Approved Form is a valid statutory instrument.

37. [183]

    What takes this case out of the usual category is that whilst the RMS self-evidently failed to comply with the statutory requirement that the PAN be in the Approved Form, the Approved Form was, at the time of the PAN itself because of the amendments to the Act, out of accord and inconsistent with the provisions in respect of the solatium issue.

38. [184]

    A reference to 30 days in the PAN is not inconsistent with the Just Terms Act after amendment. It is merely a more stringent requirement than the period s 42(1) now imposes. Nothing prevents an authority of the State from doing better than 45 days. RMS could have followed the Approved Form in this respect, and have nevertheless acted consistently with the Just Terms Act.

39. [185]

    The solatium issue is different because if the Approved Form had been followed in respect of solatium, the PAN would have been out of accord and inconsistent with the provisions of the Just Terms Act in a material respect.

40. [186]

    This is a consequence of the fact that the Approved Form itself (in its present emanation) is pre-amendment conception and is out of accord and inconsistent with the Just Terms Act in a material respect.

41. [187]

    Sections 15(a) and (f) and 39(2) make it clear that a PAN must follow one of two forms, either that prescribed by regulation or, if no such form is prescribed, a form approved by the Minister. There is, and has never been, a form prescribed by regulation. It follows that a PAN must be in a form approved by the Minister.

42. [188]

    An authority of the State does not have open slather. If the compulsory processes under the Just Terms Act are to be invoked, they must be invoked in the mode which the grant of power imposes.

43. [189]

    The Minister’s power to approve a form is limited to approving one which complies, and is not inconsistent with, the Just Terms Act. It is a power [25] to be exercised to serve the purpose for which the power is conferred; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 71-72 [46]. A PAN which departs from a valid form approved by the Minister will be invalid.

44. [190]

    In my opinion, the amendments to the Just Terms Act had the effect that the Approved Form ceased to be a form which, if used, would validly invoke the machinery of the Act.

45. [191]

    As at the time of the PAN the Minister had not approved a form taking account of the amendments to the Just Terms Act discussed earlier. Why, is not revealed in the evidence.

46. [192]

    It is not necessary to intrude into whether there was a deliberate decision not to approve a general form after the amendments to the Act, or whether there was ministerial mistake.

47. [193]

    Sections 15(a) and 39(2) do not require a ‘one form fits all’ approach. The Minister could have approved forms ad-hoc for particular cases. The Minister did not do that here despite the fact that the Approved Form was manifestly out of step with the Just Terms Act.

48. [194]

    On 10 April 2018, whilst this judgment was reserved, I was informed that on 15 March 2018, by Government Gazette No. 31, the Minister approved a new PAN form. I was informed that the parties agreed that this fact has no bearing on the issues in the proceedings and that no further submissions concerning it were appropriate. I observe that the new form makes no reference to public purpose, and no provision for one to be identified.

49. [195]

    RMS argued that s 80(1) of the Interpretation Act saves the PAN because it is in substantial compliance with the Approved Form. As I have earlier said, in my view, there has not been substantial compliance. However, and in any event, by virtue of s 5(2) of the Interpretation Act, s 80(1) has no application because the contrary intention, that there be strict compliance, appears in the Just Terms Act. Apart from the use of the word must, and the other matters dealt with earlier in relation to the requirement for compliance as a pre-condition to validity, there are other factors which indicate the requirement for strict compliance.

50. [196]

    Section 16(1) permits an authority to withdraw a proposed acquisition notice by a further notice with a requirement for payment of compensation to an owner under s 69. Section 16(3) makes provision to correct clerical errors and obvious mistakes.

51. [197]

    Questions of severance do not arise. To sever the reference to solatium does not have the consequence that a PAN can be given referring to something different, namely disadvantage resulting from relocation. Only a regulation or the Minister can approve a form which includes such a reference.

52. [198]

    In this context, s 80 of the Interpretation Act also has no application. There was no form because there was no validly prescribed or Approved Form.

53. [199]

    If I am wrong in my conclusion that there was at the time of the PAN no valid Approved Form, the form of the PAN in this case departs sufficiently from the Approved Form to render it invalid in any event. [26]

54. [200]

    The PAN is of no statutory effect because it was not in Approved Form.

PUBLIC PURPOSE

1. [201]

   Desane argues that the PAN is invalid because the Just Terms Act, by implication, requires that it identify the public purpose for which the Property is to be acquired, and it does not do so.

2. [202]

   Sections 15(b) to (e) specify what is to be contained in a PAN. There is no express requirement for a form prescribed by regulation or approved by the Minister expressly to specify the public purpose.

3. [203]

   Desane argues that the Minister’s power to approve a form (and for that matter, the power of the Governor to make a regulation prescribing a form) under s 15(a) is one to approve a form which properly serves the purposes of the Just Terms Act. It argues that a form which does not inform the recipient of the public purpose for which the land is to be acquired; but states that it is for a public purpose, without identifying that public purpose, does not properly serve the purposes of the Just Terms Act and is invalid as beyond power.

4. [204]

   Desane argues that the text, in particular s 15, is to be construed in light of what it says is a general precept, that a land owner who is compulsorily dispossessed of his land has a right to know precisely for what it is needed as a public purpose.

5. [205]

   This precept it says, was identified and applied by the High Court in Jones v Commonwealth (1963) 109 CLR 475 (Jones), a decision concerning the validity of an acquisition notice under the provisions of the Land Acquisition Act 1955-1957 (Cth) (Land Acquisition Act).

6. [206]

   Section 10(1) of the Land Acquisition Act provided that the Minister (the Minister of State for the Interior) could recommend to the Governor-General that land or any interest in land be acquired by the Commonwealth by compulsory process. Sections 10(2) and (3) provided:

7. [207]

   Section 10(4) provided that upon the publication of the notice in the Gazette, the land to which the notice applies was, by force of the Act, vested in the Commonwealth. Section 10(6) provided that an authorization by the Governor-General under sub-section (2) shall not be invalidated or called in question by reason of any failure to comply with any of the provisions of the Act.

8. [208]

   The Minister caused to be published in the Gazette a notice of acquisition of the plaintiff’s land by the Commonwealth under the Act, which declared that the land had been acquired by the Commonwealth ‘for the following public purpose approved by the Governor-General:– the Australian Broadcasting Commission at Ripponlea, Victoria.’ The plaintiff brought an action, averring that the notice of acquisition was invalid because it had to, but did not, state the public purpose. The Commonwealth defendant demurred to the statement of claim. The High Court overruled the demurrer.

9. [209]

   At 482 to 483, Dixon CJ said:

10. [210]

    At 487, Kitto J (with whom Owen J agreed) said:

11. [211]

    Desane argues that the following considerations provide textual and contextual support for its contention:

12. [212]

    RMS argues that there is no implied requirement in the Just Terms Act for the PAN to specify the public purpose for which the land is to be acquired.

13. [213]

    It argues that s 15 specifies what information must be included in a PAN and what must accompany it, but otherwise does not limit the Minister’s discretion as to what form the PAN will take. It argues that the Parliament specifically turned its mind to what a PAN must include and it is to be inferred that the particulars are limited to those in ss 15(b)-(f). It puts that if the PAN was required to specify the public purpose, s 15 would have so provided and that there is no warrant for reading such a requirement into the section. It puts that such a requirement could have been inserted into the Regulations pursuant to s 15(a), and that its absence tells against making the implication called for by Desane.

14. [214]

    It draws attention to the fact that s 10A(2) requires the authority of the State to make a genuine attempt to acquire the land by agreement for at least six months before giving a PAN. It argues that this counts against an implication that a PAN identify the public purpose for which the land is to be acquired, presumably on the assumption that the State authority will have disclosed that purpose in the negotiations.

15. [215]

    RMS puts that Jones concerned a different statutory scheme and an instrument which effected an acquisition, whereas the PAN is a notice of intention which is not intended to set out the reasons for seeking to acquire the land, but rather which alerts the owner to compensation rights and is merely a procedural step in the process of acquisition.

16. [216]

    RMS cited The Baptist Union of NSW v Georges River Council (2017) 221 LGERA 373 at [66] (Baptist Union), in which Lonergan J said of the Just Terms Act:

17. [217]

    Finally, RMS puts that if the PAN had to specify the public purpose this was effectually done in the letter dated 26 May 2017 under cover of which the PAN was given, which indicated that the Property was to be acquired for ‘WestConnex Stage 3 M4-M5 Motorway Link.’ [27]

18. [218]

    A PAN must comply with the requirements of s 15. Those requirements include that it be in the regulated or ministerially Approved Form. If there is an implied requirement that a PAN specify the public purpose for which the land is intended to be acquired, there must be an implied requirement that the regulated or ministerially Approved Form provide that information. This would not limit what the regulated form or Approved Form might convey, it would be a positive requirement in addition to all other requirements. [28]

19. [219]

    Whether such a requirement is to be implied into s 15 (read with s 11(1)) is to be resolved having regard to the accepted guides to legislative intention.

20. [220]

    The question of whether an implication should be found within the express words of an enactment depends on whether it is proper or legitimate to find the implication in arriving at the legal meaning of the enactment, having regard to the accepted guides to legislative intention. It is for the court to decide whether a suggested implication is 'proper'. This may involve a consideration of the rules of language or the principles of law, or both together. Where the point is doubtful it will, as always in interpretation, call for a weighing and balancing of the relevant factors; F A R Bennion, Statutory Interpretation (2nd ed, 1992, Butterworths), p 367. [29]

21. [221]

    Whether it is proper or legitimate to find such an implication requires consideration of the words used in the provisions in their context, including the general purpose and policy behind them, the general scheme of the Act, the outcomes it seeks to achieve or the mischief it seeks to remedy. Historical considerations may, in an appropriate case, be relied on; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; see too, Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd & Anor [2018] HCA 4 at [35] and following.

22. [222]

    Desane’s contention should be upheld.

23. [223]

    In my view, there is a clear statutory necessary intendment or implication that when an owner of land is informed by an authority of State of its intention to take it, the notice will state the public purpose for which the land is proposed to be acquired. A prescription by regulation or approval by the Minister of a form which does not make provision for this, will, in a substantial way, not serve the purpose for which the power to prescribe or approve a form is conferred.

24. [224]

    The Just Terms Act, read together with s 177 of the Roads Act and other provisions concerning the relevant purposes of the Roads Act referred to in s 177, are statutes which permit interference with private property rights by their compulsory acquisition.

25. [225]

    Sir Owen Dixon’s aphorism in Jones, that the landowner who is compulsorily dispossessed of his land would seem to have a right in point of justice to know precisely for what it was needed as a public purpose, provides powerful guidance for the approach to be taken here. It reflects the interpretative approach by which statutory entitlements compulsorily to acquire private property rights have historically been hedged by common law protections. It is an approach which is reflective and protective of stable and enduring structural principles or systemic values which can be taken to be respected by all arms of Government; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd & Anor at [58] per Gageler J.

26. [226]

    I respectfully differ from Lonergan J’s view in Baptist Union, that the Just Terms Act is directed to just compensation and prompt action after gazettal for land acquisition and to ensure the maintenance of rights of persons to claim compensation after land acquisition had occurred, taken as an expression of the universe of matters to which that statute is directed. It may be directed to those matters, but it is directed to much more. It provides protections to land owners from interference with their private property rights in the first place. It puts significant brakes on the ability of an authority of State compulsorily to acquire, amongst others, by obliging the authority of the State to genuinely attempt to acquire the land by negotiation for at least six months. [30] It prohibits compulsory acquisition unless a PAN is given [31] and restricts the ability to give a PAN if a previous PAN is withdrawn or taken to have been withdrawn. [32] By no means is it directed only to the matter of just compensation. Even less, it does not envisage that compensation suffices as redress for land unlawfully taken.

27. [227]

    It is correct, as RMS points out, that the statutory structure under consideration in Jones differed from the structure here. In Jones, the entitlement to compulsorily acquire and the procedure to bring about acquisition were provided for in one enactment, whereas here the statutory structure involves both the Roads Act (which gives RMS the foundational legal entitlement to acquire) and the Just Terms Act (which gives protections to the land owner and provides machinery for the compulsory acquisition to be effected). Jones concerned an acquisition notice in the Gazette. This controversy concerns a PAN, a species of instrument for which there was no equivalent in the Land Acquisition Act.

28. [228]

    There are significant differences between the provisions of the Land Acquisition Act and the equivalent provisions in the Roads Act and the Just Terms Act dealing with acquisition notices. However, these differences, together with the fact that PAN was a species unknown to the Land Acquisition Act, ultimately support, rather than undermine, Desane’s contentions. In my view, they drive to the conclusion that the legislative intention is not that the public purpose be specified in an acquisition notice but rather that it be specified earlier in the PAN.

29. [229]

    Section 10(1) of the Land Acquisition Act provided for the Minister to recommend to the Governor-General that land be acquired by the Commonwealth by compulsory process. By s 10(2) the Governor-General was given the power on the recommendation of the Minister to authorise the acquisition of land by compulsory process for a public purpose approved by the Governor-General. By s 10(3) the Minister was empowered then to cause to be published in the Gazette the acquisition notice by the Governor-General, and in the notice to declare that the land was acquired for the public purpose approved by the Governor-General.

30. [230]

    In contrast, absent from s 177(1) of the Roads Act, read with s 19(1) of the Just Terms Act, is any requirement for the acquisition notice to inform of the Governor’s approval or to declare the acquisition to be for the public purpose approved by the Governor. This is despite the fact that such approval must undoubtedly exist and be one for acquisition by the authority of State for a legitimate public purpose.

31. [231]

    The requirement in the Land Acquisition Act for the acquisition notice to give notice of the Governor-General’s authorisation, and to declare the land to be acquired for the public purpose approved by the Governor-General, were significant factors in the High Court’s reasoning in Jones.

32. [232]

    At p 482, Dixon CJ said that under the law it is necessary that a notice of acquisition should show the public purposes for which the land is acquired. His Honour referred to the fact that under ss 10(3) and (4) of the Land Acquisition Act the Minister may cause to be published in the Gazette notice of the authorization by the Governor-General and, in the notice, declare that the land is acquired under the Act for the public purpose approved by the Governor-General.

33. [233]

    At p 487, Kitto J reasoned that it necessarily followed that a purpose must be specified on the face of the notice from the facts that there must have in the first instance existed a purpose sufficiently formulated to be stated and made the subject of a recommendation to the Governor-General, and have been specifically considered by him as a public purpose and approved as such and the notice had to so define the purpose as to give the acquisition which results from its publication the inherent quality of being in truth an acquisition for a public purpose.

34. [234]

    For an acquisition notice under s 19(1) of the Just Terms Act to be validly given, there must undoubtedly be a public purpose, for example, that described in s 177(1) of the Roads Act, sufficiently formulated to be stated and made the subject of the Governor’s approval. But, s 19(1) does not require, as did s 10(3) of the Land Acquisition Act notice of that authorisation to be given and the notice to declare that the land is acquired for the public purpose approved by the Governor.

35. [235]

    Section 19(1) requires merely a declaration of acquisition. There must be approval by the Governor, but no notice of that approval is required to be part of the declaration.

36. [236]

    Section 10(6) of the Land Acquisition Act, which provided that an authorization by the Governor-General under sub-section (2) shall not be invalidated or called in question by reason of any failure to comply with any of the provisions of the Act, had a much narrower operation than does s 33 of the Just Terms Act. The former provision saved merely the Governor- General’s authorisation. Section 33 of the Just Terms Act saves the acquisition from any failure to give notice or subsequent failure to comply with any requirement of the Act relating to acquisition. A failure to specify the public purpose in an acquisition notice would have no effect on the acquisition.

37. [237]

    I conclude that it is not part of the legislative intention, with respect to the Just Terms Act, that the public purpose necessarily be specified in an acquisition notice. Such a requirement would have little utility because of s 33 of the Just Terms Act.

38. [238]

    If a land owner compulsorily to be dispossessed is entitled to know precisely what the land is needed for a public purpose, that entitlement must stem from elsewhere. If there is no such entitlement, the land owner might never learn why his land is to be taken, an outcome which would be dissonant with the right in point of justice articulated by Dixon CJ.

39. [239]

    Section 3(1)(b) of the Just Terms Act identifies one of the objects of the Act as, to ensure compensation on just terms for the owners of land that is acquired by an authority of the State when the land is not available for public sale. Ignorance on the part of the owner of the public purpose for which the land is proposed to be acquired would put the owner at significant disadvantage in any sale negotiation or contest as to compensation. If an object of the Act is to ensure compensation on just terms, the provision of such knowledge is essential. Its withholding would be inimical to one of the fundamental objects of the Just Terms Act.

40. [240]

    RMS put that the negotiations envisaged by s 10A is the occasion upon which the public purpose will be communicated to the landowner. I do not accept this submission. It is untenable because s 10A(7) provides that nothing in the section gives rise to, or can be taken into account in, any civil cause of action.

41. [241]

    In my view, the only formal occasion envisaged by the Just Terms Act where this information is to be, and must be, given is upon giving a PAN.

42. [242]

    There are other compelling specific indications in the Just Terms Act that the recipient of a PAN will know the public purpose for the acquisition.

43. [243]

    A PAN must be accompanied by the form for a claim for compensation prescribed by regulation or approved by the Minister.

44. [244]

    The matters to which regard must be had in determining the amount of compensation are set out in s 55. One of those matters is the market value of the land, another is any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired.

45. [245]

    A PAN is required to request an owner who wishes to claim compensation for the acquisition to lodge with the authority of the State or the Valuer-General a claim for compensation within the period specified in the notice (being not less than 60 days after the notice is given to the owner). The PAN, para 4, requested return of the compensation form not later than 31 July 2017.

46. [246]

    Sections 56(1)(a) and (1)(b) provide that market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid) any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, and any increase in the value of the land caused by the carrying out by the authority of the State, before the land is acquired, of improvements for the public purpose for which the land is to be acquired.

47. [247]

    These provisions give rise to the clear implication that the recipient will know the public purpose for which the land is to be acquired.

48. [248]

    The PAN, para 5, states ‘If you do not return the notice of claim the Valuer General will value your interest without the benefit of your assistance.’

49. [249]

    Plainly, the claim for compensation is to be lodged before an acquisition notice. Equally plainly, the entitlement to provide assistance to the Valuer-General is an important one.

50. [250]

    The form for a claim for compensation, which accompanied the PAN given to Desane, has provision in para 6(f) for Desane to indicate the amount claimed for any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired.

51. [251]

    There is tension within the Approved Form itself. How could Desane be in a position to specify such an amount without knowing the public purpose for which the land is to be acquired in advance of the acquisition notice and at least by the time its claim for compensation is to be lodged? In this context, it is to be observed that the definition of market value is expressed to be as ‘at any time.’

52. [252]

    The statement of a public purpose is a requirement which is not only in the interest of the land owner. Market value is to disregard any increase in the value of the land caused by the carrying out by the authority of the State, before the land is acquired, of improvements for the public purpose for which the land is to be acquired. This is to avoid the mischief of the land owner gaining a windfall at the expense of the State.

53. [253]

    I reject the contention that if the covering letter specified with sufficient particularity the public purpose for which the land identified in the PAN was to be taken, the PAN would be saved. In support of its submission that it is possible to look beyond the PAN when considering the purpose for which the Property is being acquired, RMS cited Roads and Transport Authority of NSW v Perry (2001) 52 NSWLR 222 which relevantly concerned a contest as to the market value of land under s 56(1). The decision is authority for the proposition that s 56(1)(a), where it requires identification of the public purpose for which the land was acquired, generally requires identification of the scheme for the purposes of which the acquisition was made and then any variation in value caused by the carrying out or proposal to carry out the scheme is to be disregarded. No doubt the trier of fact can have regard in that endeavour to evidentiary material outside the pertinent PAN or acquisition notice. That is not the issue here.

54. [254]

    The requirement in the Approved Form and the statement in the PAN that the land is required ‘for a public purpose’ clearly does not suffice. It is not a statement of the purpose. The recipient is left to guess.

55. [255]

    The bland descriptor ‘a public purpose’ has the additional vice that that term is defined in the Just Terms Act to mean any purpose for which land may by law be acquired by compulsory process under this Act, [33] which covers a very wide field of operation. As Menzies J remarked in Jones at p 488; it could be speculatively implied that this could be any one of a number of purposes.

56. [256]

    The recipient’s state of knowledge otherwise is immaterial; Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271 at 275. A covering letter, whatever its terms, does not cure the difficulty.

57. [257]

    To follow the Approved Form is to fail to comply with the requirements of the Just Terms Act.

58. [258]

    It is not necessary to consider the level of detail which a PAN must provide as to the public purpose. However, it is to be observed that in Jones the acquisition notice stated the public purpose as the ‘Australian Broadcasting Commission at Ripponlea, Victoria.’ This was held not to be a statement of public purpose. Later, in Jones v The Commonwealth of Australia [No 2] (1965) 112 CLR 206, the High Court considered a subsequent acquisition notice Gazetted by the Commonwealth, which described the public purpose as the ‘the provision of broadcasting and television studios and offices for the Australian Broadcasting Commission in accordance with the Broadcasting and Television Act 1942-1962.’ This description was held to be meet the requisite degree of definition. Earlier, in Tinker Tailor Pty Ltd v Commissioner for Main Roads (NSW) (1960) 105 CLR 334 (Tinker Tailor), albeit in a slightly different statutory context, a description ‘for the purposes of the Main Roads Act 1924-1925’ was held to suffice.

59. [259]

    Desane conceded, presumably on the basis of Tinker Tailor, that a description in a PAN ‘for the purposes of the Roads Act 1993 no 33’ would have sufficed. The concession has no field of operation in this case because the PAN does not extend even to that level of detail and no challenge was made to the efficacy of the 3 May 2017 Governor’s approval.

60. [260]

    I think that there is detectable tension between Tinker Tailor on the one hand and Jones and Jones (No 2) on other as to the level of specificity required in the description of public purpose. The test applied in Jones was whether there was sufficient formulation to be specifically considered by the Governor-General as a public purpose and approved as such. Where the statute in play (such as the Roads Act here) comprehends a range of possible uses which could be a public purpose, it seems to me that a significant question arises as to whether a description which refers merely to the purposes of the Roads Act is specific enough to be considered as disclosing a public purpose and approved as such. This question is one which may arise in the not too distant future and may ultimately be thought to be appropriate for consideration by the High Court.

61. [261]

    I conclude that the PAN of no statutory effect for failure to state the public purpose for which the Property is to be acquired.

62. [262]

    Having determined, for reasons explained earlier, that the PAN is invalid, it is not necessary to determine whether, if the PAN were not otherwise invalid, it would be invalid for the reason that it was given for a purpose beyond and extraneous to the power relied on by RMS to give it.

63. [263]

    However, it is appropriate to deal with these questions because they entail making primary factual findings, including findings by inference; Fuller-Lyons v New South Wales (2015) 89 ALJR 824.

THE PARTIES’ CONTENTIONS

1. [264]

   Desane puts that RMS’ dominant purpose was to acquire the Property to create open space and green parkland, which purpose was improper because it is not one for acquisition under the Roads Act.

2. [265]

   Desane puts that as at the date of the PAN the state of uncertainty with respect to any purpose of RMS to use the Property as a construction site was so uncertain as not to qualify for the description of a proposal for acquisition of land, within the meaning of ss 10(1) and 10A of the Just Terms Act, for any of the purposes of the Roads Act. [34]

3. [266]

   The two contentions are closely connected because if there was no legally cognisable purpose to use the Property as a construction site, RMS’ only legally cognisable purpose would have been to create open space and green parkland. Also, if there is more than one purpose, the relative strength (or weakness) of each is a relevant factor in assessing the dominant position (or otherwise) of each such purpose. The less defined, or the more flimsy, the purpose, the weaker its influence.

4. [267]

   As to the absence of any proposal for acquisition for the purposes of the Roads Act, Desane points to the following facts:

5. [268]

   Desane argues that RMS’ improper purpose should be inferred, principally, from:

6. [269]

   It was not in issue that an acquisition of land by RMS for the purpose of creating open space and green parkland in its own right or to be redeveloped as part of the Bays Precinct Transformation Plan are not purposes of the Roads Act.

7. [270]

   RMS argues that there was a proposal for acquisition for the Property to be used as part of a roads construction site.

8. [271]

   It argues that the Property adjoins or lies in the vicinity of other land which is proposed to be acquired for the purpose of opening, widening or constructing a road or road work as contemplated by s 177(2) of the Roads Act.

9. [272]

   It argues that although the specific intended use of the Property may have changed over time as the design of Stage 3B evolved, the designs which ‘were eventually settled on by RMS all encompassed the use of the Property.’ It puts that it has throughout been contemplated that there would be a construction site encompassing the Property, which site would facilitate construction of various aspects of road works not limited to any one particular aspect of Stage 3B or the WHT. It argues that the construction site is at least in the vicinity of the Property and, at a minimum, includes the railway land that adjoins the Property.

10. [273]

    It points to:

11. [274]

    It argues that:

INITIAL OBSERVATIONS

1. [275]

   A number of initial observations are appropriate.

2. [276]

   RMS’ power under s 177(1) of the Roads Act is defined by reference to purposes; Tinker Tailor at p 342.

3. [277]

   Sections 10(1) and 10A(1) of the Just Terms Act refer to a proposal for acquisition.

4. [278]

   In Minister for Public Works v Duggan (1951) 83 CLR 424 at 445, the High Court agreed with a remark made by Roper CJ in the Court a quo that if the proposal is so ill defined that the resumption might be effected for purposes which are proper or for purposes which are improper, then the proposal is improper at that time.

5. [279]

   In Alusta Pty Ltd v Duncan [1973] 2 NSWLR 182 at 184 Street CJ in Eq adopted observations made by Helsham J in D.N.T Properties Pty Ltd v Knox (unreported 15 September 1972) that the word ‘proposal’, in the context of a clause in a sale contract which referred to a proposal for re-alignment, widening or siting of a road by a competent authority, meant an intention which has been given force by adoption of a resolution by some other process which gives the intention some operative effect; see too Taluja v Ardino [2001] NSWSC 566 at [37].

6. [280]

   At the time it gave the PAN, RMS’ purposes for acquisition had to be sufficiently formulated to be the subject of a proposed acquisition and approval of the Governor and to be specifically considered by the Governor as a public purpose. The purposes must be those of RMS.

7. [281]

   A statutory power must be used only for the purposes for which it is given. In this case, the power to acquire is for the purposes of the Roads Act. The requirement to give the PAN is imposed by the Just Terms Act. In this case, the power to give a PAN is likewise to be exercised only for the purposes of the Roads Act.

8. [282]

   If RMS’ purpose in giving the PAN (as part of the process of acquiring the Property) was an ulterior one, there will be an ostensible, but not a real, exercise of the power. The attempted exercise of power will be vitiated even if the ulterior purpose was not the sole purpose of the acquisition. It will be an abuse of RMS’ powers if the ulterior purpose is a substantial purpose in the sense that no attempt would have been made to acquire the land if it had not been desired to achieve the unauthorised purpose; Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678 at 679.

9. [283]

   Whether a power is exercised for an improper purpose is a question of fact; LHRC v Deputy Commissioner of Taxation (No 3) (2015) 326 ALR 77 at 111-112.

10. [284]

    Evidence is to be assessed according to the ability of a party to bring it; Hampton Court v Crooks (1957) 97 CLR 367 at 371-372. RMS, but not Desane, is fully able to bring direct evidence of RMS’ own purposes, intentions and motivations.

11. [285]

    RMS did not call any person who, on its behalf, or functioning as its executive organ, had the avowed purpose. It did not call the person who signed the PAN. Instead, it called only witnesses who were either not in a position to, or did not, provide direct evidence on that topic. It may be inferred that it took a forensic decision to do so.

12. [286]

    No resolution of the RMS Executive disclosing purpose was put in evidence.

13. [287]

    RMS called Peter Gemell, RMS’ acting Executive Director Motorways at the time of the PAN. Gemell reported to the Chief Executive. He sat on the Executive, which consisted of the Chief Executive, Chief Financial Officer, the Chief of Staff, Office of the Chief Executive, and up to seven Executive Directors. According to Gemell, the Executive sets the strategic direction and oversees the operations of RMS.

14. [288]

    No person who was a guiding mind of RMS gave evidence that without the presence of the purpose of providing open space and green parkland, the acquisition of the Property would nevertheless proceed. The absence of such evidence does not, of course, establish improper purpose, but an inference is to be drawn that the evidence of such persons would not have assisted RMS; Jones v Dunkel (1959) 101 CLR 298.

15. [289]

    An improper purpose will not lightly be inferred. Where the subject matter of the decision falls squarely within the terms of the statutory provision, then, in the absence of evidence establishing improper purpose or evidence displacing all possible permitted purposes, it must be accepted, simply because of the absence of such evidence, that the decision was made for a purpose for which such decisions might properly be made; Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 671-672 per Gaudron J.

16. [290]

    The subject matter of the decision is the acquiring of land. This subject falls squarely within the terms of s 177(1) of the Roads Act, which empowers RMS to acquire land for any of the purposes of the Act. The purposes of the Roads Act include carrying out road work. RMS is the roads authority for all freeways.

FINDINGS

1. [291]

   I make the following findings.

2. [292]

   As at 26 May 2017, RMS had, and still has, the contemplation that if the construction of the Rozelle Interchange eventually goes ahead, the Property will be used in some or other yet to be identified way or ways as a construction site in connection with that construction.

3. [293]

   RMS’ intentions are ill defined. They may never be realised. The Concept Design envisages construction activities consisting of launching the tunnelling machines, stockpiling and removal of extracted material, workforce carparking, offices and amenities, as well as infrastructure required to support the construction of the tunnels such as sedimentation ponds. Given all of the imponderables and uncertainties, these are no more than possibilities. The question is whether there is sufficient definition of the intended use to support the existence of a proposal for acquisition for the purposes of the Roads Act, as at the date of the PAN. If more is required than the general use as a construction site without any specification of particular uses there is insufficient definition. However, I consider that general use as a construction site is sufficient to sustain the existence of a proposal in the present context.

4. [294]

   In contrast to its somewhat amorphous purpose for acquiring the Property to be used as a construction site, from at least 21 July 2016 RMS has had the unqualified and fixed purpose to acquire the Property to provide 10 hectares of open space and green parkland as publicly committed to by the Government. The PAN was given to effectuate that purpose. That purpose is ulterior to the purpose for which the PAN could properly have been given.

5. [295]

   I find that absent the purpose to provide the open space and green parkland, the PAN would not have been given and the acquisition would not have proceeded.

REASONING

1. [296]

   The first significant reference to the acquisition of the Property appears to be in March 2016 when SMC identified it as a strategic land acquisition for WHT.

2. [297]

   The Cabinet Submission dated 18 April 2016 recommended acquisition on the basis that there was then no feasible scenario for providing connectivity for WHT other than by use of this land. On this footing, the Cabinet approved funding for the acquisition of the Property.

3. [298]

   By this time, various designs had been bought into existence but feedback was being sought from the public. No WHT final business case had been published.

4. [299]

   There appears to have been no suggestion at this time that the provision of open space and green parkland, comprehending the Property or at all, was part of RMS’ purpose. To the contrary, designs in existence at this time contemplated the destruction of the Property for tunnel portals.

5. [300]

   RMS’ acquisition file was opened on 2 June 2016 and the Minister was briefed on 29 June 2016 about the commencement of property acquisitions.

6. [301]

   The parkland and public open space idea appears to have made its debut in mid-2016. The idea was clearly seen as pivotal, so much so that it warranted a dedicated Government announcement with an artist’s impression on 21 July 2016. The announcement referred to the space as ‘park ready.’

7. [302]

   It is not in dispute that the green space in the artist’s impression covers the Property.

8. [303]

   The announcement referred to the area to be made into parkland as an ‘inaccessible eyesore.’

9. [304]

   I suspect that Desane would have taken issue with this description of the Property. Acquisition to eliminate an inaccessible eyesore would, I think, not be a purpose contemplated by the Roads Act.

10. [305]

    Manifestly, construction, and its implications, of the Rozelle Interchange is a matter of public importance and sensitivity. So too is the provision of public open space and green parkland, especially in the context of a significant infrastructure project which may be thought to be controversial.

11. [306]

    On 26 July 2016, the Cabinet approved a tunnel re-alignment and revised Rozelle Interchange that would deliver around 10 hectares in a park ready solution over the top of the road infrastructure at the Western half of the Rozelle site and noted that the WHT Final Business Case would include options for the provision of significant further additional public open space at the Rozelle site.

12. [307]

    The 7 November 2016 Kanofski briefing to the Minister recognised that property acquisitions would commence before planning documents were placed on public display and before planning approval, which may increase the likelihood of adverse media articles and political representations.

13. [308]

    The November 2016 review of environmental factors for Site Management Works, made reference to the possibility of the M4-M5 Link project not proceeding.

14. [309]

    Design of the Rozelle Interchange had not yet even reached concept stage. It was far from certain that the Rozelle Interchange would proceed, and the form it might ultimately take and the footprint it might cover were speculative.

15. [310]

    Yet, the Government made a public and unequivocal commitment to provide 10 hectares of open space and green parkland, in an area which included the Property.

16. [311]

    To use the words of the erstwhile Premier of this State, this was ‘a game-changer.’ The game had changed because the provision of public open space had become a driver for the design of the Rozelle Interchange and for the acquisition of the Property.

17. [312]

    Consistently with this, Kanofski’s briefing to the Ministers on 22 September 2017 states that the final design of the ‘New Rozelle Park must include 10 hectares of green space as agreed by Cabinet and outlined in the M4-M5 Environmental Impact Statement.’ It also states that if ‘the preferred design for the WestConnex M4-M5 Link works does not result in the final motorway and utilities footprint being within the agreed ‘permanent land take area’, Roads and Maritime will work (sic) include a priced option in the final contract prior to execution, that provides for utilities to be relocated outside the development area as part of the works by the Stage 3B contractor.’ Kanofski was not called.

18. [313]

    Critically, if the Property turned out not to be required as a construction site, it was still going to be available to meet the public commitment.

19. [314]

    Thus, RMS contemplated that the Property might not be in the final motorway and utilities footprint because of the necessity to use it to provide open space, for which purpose it would nevertheless be acquired.

20. [315]

    It is not necessary to divine whether the Rozelle Interchange will one day proceed. Despite its complexity and the many imponderables, including finding someone to design and construct it and finding someone to buy the Government’s 51% stake of SMC to fund it, Powrie’s view was that it will.

21. [316]

    What is significant is that RMS intends to acquire the Property even if the Rozelle Interchange does not go ahead, and thus has a purpose to acquire the land even if the Roads Act is to play no role.

22. [317]

    Any purpose of RMS under the Roads Act lacks the degree of significance for RMS that without it the acquisition would not proceed.

23. [318]

    By contrast, the acquisition will nevertheless proceed even if any purpose under the Roads Act becomes incapable of realisation. An acquisition in those circumstances would be to provide open space and green parkland or to develop it under the Bays Precinct Transformation Plan. These are not purposes of the Roads Act.

24. [319]

    Supportive of the conclusion that the parkland had become a driver is the following evidence given by Jones:

25. [320]

    The Montrones met Brien and other RMS officers on 27 July 2016. Remarkably (or perhaps unremarkably given the state of design or lack of design of the project), Brien was unable to provide any meaningful information as to how and why the project would impact the Property. At this point, Phil Montrone suggested a lease.

26. [321]

    Much later, on 3 July 2017, Kanofski briefed the respective Ministers for Westconnex and Roads, Maritime and Freight in connection with this possibility, rejecting it. His briefing was that the M4-M5 Link infrastructure would occupy most of the sub-surface of land, albeit that landscaping would be provided to mitigate environmental impacts. Somewhat contradictorily, he went on to say that the final infrastructure would need to be determined by the successful design and construct tenderer. Desane did not have the opportunity to cross-examine Kanofski.

27. [322]

    At this time, the Community Feedback Report stated that suggestions would be considered as part of the design process.

28. [323]

    Attachment A to the 31 March 2017 briefing identifies the Property as required for WHTBL enabling works.

29. [324]

    Unsurprisingly, or perhaps inevitably, shortly thereafter, the necessity (or desirability) of moving the permanent and temporary footprints of WHT emerged. After all, the presence of tunnel stubs on the Property would not – to say the least – have sat easily with the provision of open space.

30. [325]

    A Rozelle Interchange reference design, at this time, showed the surface of the Property as being impacted to the extent of a sliver identified as a utilities corridor (this was also the extent of the direct impact in the AECOM designs of 13 April 2017). A proposed WHT site plan also produced did not indicate impact on the Property in any way.

31. [326]

    Also supportive of the conclusion that the parkland provision had become a driver for the acquisition of the Property are the email exchanges amongst Jones, Kennedy and Powrie in June 2017, in the context of Desane’s request to seek an alternative solution to full scale acquisition, which reflect the fact that without the Property there would be difficulty in meeting the 10 hectare commitment. [35]

32. [327]

    At the time of the Concept Design, feedback was still being sought from the community and other stakeholders.

33. [328]

    This fluidity, and the fact that no tunnel portals or significant surface infrastructure on the Property was in the Concept Design, does not sit easily with any of:

34. [329]

    Kanofski’s statement in the 3 July 2017 briefing paper that, due to significant engineering issues, it was not expected that there would be any residual land available post construction sits uneasily with the public commitment to provide the very same land as open space and green parkland. But, as has been mentioned before, Kanofski did not give evidence.

35. [330]

    The circumstances as at the date of the PAN, 26 May 2017, were that:

36. [331]

    I consider that the inference is properly to be drawn that RMS’ purpose in acquiring the Property, and without which it would not have moved to do so, was (and remains) the provision of open space and green parkland, and that this was its dominant purpose on 26 May 2017, and it remains so.

37. [332]

    After the PAN, and supportive of this inference:

38. [333]

    RMS’ contemplation that the Property will be used as a construction site is connected, as things stand, with its purpose to provide open space and green parkland. But the provision of open space is not inextricably bound with the road component as RMS would suggest. If the Rozelle Interchange goes ahead, the Property might well first be used as a construction site in some way and then converted into parkland. But if the Rozelle Interchange does not go ahead, RMS will acquire the Property for the Bays Precinct Transformation Plan anyway.

39. [334]

    Finally, what appears to be the most developed plan at the time of the PAN shows only a use of a sliver of the Property for a utilities corridor. An easement would no doubt have sufficed to achieve this requirement absent the parkland commitment. The same can be said of any works deep beneath the Property. In my view, it is improbable that RMS would have sought to acquire the entirety of the Property (which it currently values at over $20 million) where only a sliver of it would be used, but for its open space and green parkland purpose. RMS has throughout known that Desane wished to negotiate a solution which obviated the necessity for the permanent taking of the whole of the Property.

40. [335]

    In a case of alleged improper purpose, which is not lightly to be inferred, the absence of any evidence from any relevant guiding mind of RMS as to its purposes provides a layer of comfort that my conclusion, which is adverse to RMS’ interest, is justified.

41. [336]

    RMS’ contention that the PAN is valid because the Property adjoins or lies in the vicinity of other land proposed to be acquired is unsustainable. First, RMS specifically pleads in its Commercial List Response [44] that its purpose in acquiring the Property is for the purpose of constructing Stage 3 of the WestConnex project and that this is an acquisition for the purposes of the Roads Act. It does not plead that the acquisition of the Property is because it is within the vicinity of other land proposed to be acquired. Second, RMS did not precisely identify the other land proposed to be acquired for the purpose of opening, widening or constructing a road or road work, envisaged in s 177(2)(b) (it could not be the Rozelle Rail Yards because that land had been acquired beforehand). Third, there is no reference in any of the evidentiary material which refers to or discloses any such purpose. Finally, the power given by s 177(2)(b), whether it is part of the power given by s 177(1) or in addition to it, can also only be exercised for purposes of the Roads Act. I have found that RMS was motivated by improper purpose.

42. [337]

    All of the above considerations drive to the conclusion that the PAN would be invalid as having been given for an improper purpose.

43. [338]

    Ultimately, this count, although not formally abandoned, was very faintly argued.

44. [339]

    Given that the PAN is invalid, relief under the Australian Consumer Law, even if misleading or deceptive conduct were to have been made out, would be of no utility.

45. [340]

    If the PAN were otherwise valid, the nature and substance of the complaints of misleading or deceptive conduct, even if they were made out, are not such as to warrant any declaratory relief under the Australian Consumer Law.

46. [341]

    The proposed acquisition notice given by the second defendant to the plaintiff on 26 May 2017 is of no statutory effect, and the Court will so declare.

47. [342]

    The parties are to bring in short minutes reflecting this outcome and finalising the proceedings against the first and third defendants.

48. [343]

    I will hear the parties on costs, should this be necessary, and on any other issues that need to be resolved.

49. [344]

    The exhibits are to be returned.