Dial A Dump Industries Pty Ltd v Roads and Maritime Services

BEAZLEY P: On 19 December 2014, land at St Peters, described as Lot 2 in DP168612, having a street address of 10-16 Albert Street, St Peters and known as the Alexandria Landfill (Lot 2) was compulsorily acquired for the purposes of the WestConnex Motorway by notice published in the New South Wales Government Gazette No 126 pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (the Act), ss 19 and 20. Upon its compulsory acquisition, the land vested in the WestConnex Delivery Authority.

Immediately prior to its compulsory acquisition, Alexandria Landfill Pty Ltd (ALF) was the registered owner of the estate in fee simple of Lot 2. Boiling Pty Limited (Boiling) was the lessee of Lot 2 pursuant to an unregistered lease dated 7 February 2014. Each was therefore an owner of an interest in the land and thereby entitled to be paid compensation consequent upon the compulsory acquisition: see s 37 of the Act.

The appellant, Dial A Dump Industries Pty Ltd (Dial A Dump), also claimed an entitlement to compensation on the basis that it had an interest in the land, being permission to use and occupy Lot 2 to operate a waste landfill and to carry out crushing, grinding and separating works on the land. Its claim for compensation was rejected by the WestConnex Delivery Authority.

Dial A Dump appealed to the Land and Environment Court pursuant to s 67(1) of the Act against rejection of the claim: Dial A Dump Industries Pty Ltd v Roads and Maritime Services [2016] NSWLEC 39. On 29 October 2015, the Court ordered that the following separate question be heard and determined:

On 8 April 2016, Preston CJ of LEC answered that question “no” and ordered that the proceedings be dismissed.

Dial A Dump appealed against his Honour’s decision. Pursuant to the Land and Environment Court Act 1979 (NSW), s 57(1), the appeal is on a question of law. As was explained in ISPT Pty Ltd v Valuer General (2009) 165 LGERA 25; [2009] NSWCA 31, Allsop P (as his Honour then was) summarised the nature of an appeal on a question of law as follows, at [3]:

In Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720, Samuels JA, considering the text of s 54 of the Government and Related Employees Appeal Tribunal Act 1980 (Cth), explained, at 725, that:

Dial A Dump, by its notice of appeal, contended that the decision of the court below was made in error on a question of law:

Dial A Dump identified its interest in land as being: first, a legal interest arising from its exclusive possession of Lot 2; secondly, an equitable interest as the beneficiary of a lease held by Boiling on trust pursuant to a written declaration of trust; and thirdly, an interest by way of a right, power or privilege over or in connection with Lot 2. Dial A Dump accepted that the interest in land for which it contended was co-extensive with the interests claimed by Boiling. It submitted that there was no impediment to it seeking a finding that it held an interest in land in circumstances where Boiling’s claim for compensation had not yet been determined.

The Act provides, relevantly:

As the activities carried on on Lot 2 required the person carrying on those activities to be the holder of a licence under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), the following provisions of that Act are also relevant:

The primary judge, at [12]-[49], set out the relevant facts for the purposes of determining the separate question. Dial a Dump relied in particular upon the following facts as found by his Honour (the following paragraphs being taken directly from his Honour’s judgment):

It was not in dispute that ALF and Boiling each held a licence in respect of Lot 2. As the primary judge observed, at [31]:

Between 1 July 2007 and 30 June 2008, a number of what might be described loosely as ‘internal corporate arrangements’ were put in place. Boiling was licenced to use the trademark name “Dial A Dump”, then owned by Mr Malouf, ALF’s director and principal shareholder, in connection with carrying on “the business of rubbish removal, plant hire and skip bin services”. On 22 May 2008, ALF resolved to incorporate the company which became Dial A Dump. At the same time, and inconsistently with the arrangement with Boiling, ALF resolved that, when incorporated, Dial A Dump should enter into an agreement with Mr Malouf to use the trademark “Dial A Dump”. Nothing was made of this inconsistency on the issues raised for determination on the appeal from the primary judge’s answer to the separate question. On 12 June 2008, Dial A Dump became a wholly owned subsidiary of ALF.

On 30 June 2008, ALF held a meeting, attended by Ian Malouf, Director, and Christopher Briggs, Solicitor. The minutes of that meeting recorded the following:

At trial and in the primary judgment, the contents of the minutes were referred to as “a resolution” of ALF. However, as the document is a record of matters other than the passing of resolutions, I will refer to the document as either the minutes of 30 June 2008, or the resolution of 30 June 2008, as appears most appropriate. As will become apparent, the terms of the resolution are central to the determination of the appeal.

The directors of Boiling also met on 30 June 2008 and passed resolutions (the Boiling resolution) in respect of the cessation of business conducted by Boiling and the nomination of Dial A Dump as a beneficiary of the Trust. Boiling also resolved that:

Arrangements were made for the sale of trucks and bins from the waste collection business carried on by ALF to Dial A Dump. Customers of the businesses of ALF and Boiling were advised by letter from Dial A Dump dated 1 August 2008 that the two operations had been merged and their ongoing account relationship had been assigned and transferred to Dial A Dump. Dial A Dump thereafter invoiced customers under its name.

The primary judge made no finding as to whether the 30 June 2007 lease was renewed or held over as lessee. But in any event, on 1 January 2014, ALF granted a new lease of Lot 2 to Boiling for a one year term with an option to renew. This lease was also not registered. Clause 3 of Annexure A to the lease acknowledged that the lessor, ALF, was the licence holder of EPL 4627, which authorised landfilling on the property, and the lessee, Boiling, was the licence holder of EPL 12594, which authorised resource recovery on the property.

It is important to note in passing that Dial A Dump did not at any time become the holder of an environmental protection licence in respect of either of the activities carried on on Lot 2. The licences to carry on those activities continued at all times to be held by ALF and Boiling respectively. According to the Boiling resolution, Boiling’s licence had become Trust property: see [17]. Whether the licence issued under the POEO Act was capable of being held on trust was not put in issue.

Based on these factual findings, the primary judge rejected the argument that Dial A Dump had a legal, equitable or other right, power or privilege over or in connection with the land.

The primary judge held, at [94], that Dial A Dump had not established, as at the date of acquisition, that it had a legal interest in the land flowing from any permission to occupy Lot 2 to carry out commercial operations. His Honour’s reasons for so finding may be summarised as follows.

According to his Honour, at [95], Dial A Dump had not established who had granted it permission to occupy Lot 2, how any such permission was granted or what were the terms of any such permission. His Honour held, at [95], that the evidence did not establish that Boiling or ALF granted Dial A Dump the right to exclusive possession of Lot 2, so as to give it a legal interest. His Honour held that any permission Dial A Dump had to occupy Lot 2 was purely personal.

In reaching those conclusions, his Honour first looked at the position of Boiling. His Honour noted, at [96], that Boiling was the lessee of Lot 2, first under the lease commencing 1 July 2007 and then under the lease commencing 1 January 2014, and that under the terms of each lease, Boiling was granted the right to exclusive possession of Lot 2 and thereby had an interest in the land.

His Honour referred to the terms of the resolution passed by Boiling on 30 June 2008 that:

His Honour noted that each of the leases to Boiling contained a covenant against assigning, subletting, sharing or parting with possession of the whole or any part of the leased premises: see cl 27.1 of the 2007 lease; cl 10.7 of the 2014 lease. His Honour observed, at [100], that Boiling had not complied with cl 27.1 of the lease, ALF having parted with possession. This was so regardless whether Dial A Dump was or was not a related business. If it was a related business, notice that Boiling had parted with possession was required to be given to ALF as the lessor and there was no evidence that such notice had been given. If it was not a related business, the consent of ALF as lessor was required and, again, there was no evidence that consent had been given.

His Honour noted, at [101], in relation to the lease of Lot 2 commencing 1 January 2014, that no resolution had been passed equivalent to that passed by Boiling on 30 June 2008. In other words, no resolution had been passed that the January 2014 lease was held on trust for Dial A Dump, nor was there any evidence of an assignment or sublease of Lot 2 to Dial A Dump, nor any evidence of an agreement relating to possession. His Honour concluded, at [102], that:

His Honour, at [103]ff, next dealt with the legal position created by or recorded in Boiling’s resolution of 30 June 2008, noting, at [104], that none of the notes in the minutes “evidence any grant of or intention to grant a legal interest in Lot 2 to [the appellant]”.

His Honour stated, at [107], that while it might be thought that ALF, by note 4 in the resolution of 30 June 2008, impliedly permitted Dial A Dump to carry out the landfilling previously conducted by ALF pursuant to EPL 4627, such implied permission would not necessarily carry with it any proprietary interest. As his Honour observed at [108], “[t]o permit a person to use and occupy land does not necessarily involve parting with possession”, citing Lam Kee Ying Sdn Bnd v Lam Shes Tong [1975] AC 247 at 256; Australian Mutual Provident Society v 400 St Kilda Road Pty Ltd [1990] VR 646 at 663; and Akici v LR Butlin Ltd [2006] 2 All ER 872 at 880 [37]-[42].

His Honour considered, at [108]ff, that the evidence indicated that ALF had not parted with possession of Lot 2. In his Honour’s view, six factors pointed to this.

First, as at 30 June 2008, ALF could not give exclusive possession to Dial A Dump, as under the 2007 lease to Boiling, Boiling had exclusive possession of Lot 2: see at [109].

Secondly, the minutes of 30 June 2008 recorded that Dial A Dump would carry on the activities on the land “for and on behalf of the Alexandria Landfill Consolidated Tax Group”. Such permission did not give any permission to Dial A Dump to carry on the activities on the land for itself. His Honour pointed out that “Dial A Dump would not be carrying on commercial operations or waste facility on Lot 2 as principal but rather as agent”: see at [110]. His Honour, at [110], added that:

Thirdly, ALF remained the holder of the licence EPL 4627 and, as recorded in the minutes of 30 June 2008, ALF, as holder of the licence, was required by the EPA to demonstrate that it exercised control over the licenced premises. His Honour concluded, at [111], that the right in ALF to control the possession of the premises was inconsistent with it having parted with possession of the premises: see at [111].

Fourthly, his Honour observed that ALF had not granted a lease to, or otherwise given Dial A Dump exclusive possession of Lot 2, either by written or oral agreement: see at [112]. His Honour concluded that, on the basis of the indicators to which he had referred and in the absence of evidence of any written or oral agreement:

Fifthly, his Honour observed, at [113], that even if ALF had parted with possession on 30 June 2008, that did not survive the grant of the new lease to Boiling commencing 1 January 2014, whereby ALF granted exclusive possession of Lot 2 to Boiling.

Finally, his Honour added, at [114], “for completeness”, that Dial A Dump itself had not recorded that it had been granted a proprietary interest, the letter of 1 August 2008 in relation to the new billing arrangements not necessarily stating that was the position nor evidencing any grant of a proprietary interest in Lot 2. See above at [18].

His Honour at [120], considered that the financial arrangements between ALF, Boiling and Dial A Dump were equivocal as to whether Dial A Dump had a proprietary interest in Lot 2. For example, his Honour was of the view, at [118], that Dial A Dump paid levies imposed under the licence on behalf of ALF and Boiling and did certain work required to be done under the licence, such as “volumetric surveying and monitoring and environmental management” which indicated that Dial A Dump was carrying on the scheduled activities on Lot 2 for and on behalf of ALF and Boiling. Likewise, his Honour considered that the fact that ALF continued to be the client of utilities that provided services to Lot 2 and the fact that Boiling, through the Trust, provided the labour used to carry on the commercial operations on Lot 2 were equivocal.

Dial A Dump accepted that it had the onus of demonstrating a right to possession. It submitted that the primary judge erred in examining whether it could show an expressly documented right to exclusive possession conferred by ALF or Boiling. It submitted that a legal interest could be created other than by way of an express grant and that its legal interest arose by way of exclusive possession of the land.

Recognising that as the appeal was on a question of law and his Honour’s primary findings of fact were not susceptible to challenge, Dial A Dump did not challenge any of the primary judge’s central findings. Rather, it contended that it had established that it had a legal interest in land on the primary judge’s findings of fact and that its occupation and use constituted the essential elements of factual possession sufficient to give it a legal interest in land. Dial A Dump also contended that the receipt of revenue or rents and profits was itself a mode of possession and also put in issue whether his Honour had made a finding that there was an agency relationship between it and ALF and Boiling respectively.

In support of its argument on possession, Dial A Dump submitted that it had been “dealing with the land as an occupying owner might be expected to deal with it and no one else has done so” and, accordingly, it had good title at law against the whole world except someone who could show better title. According to Dial A Dump, someone could be in possession by permission or consent or authority and provided the quality of the possession was sufficiently exclusive, this could be capable of generating a good title by possession. It did not matter, on Dial A Dump’s submission, that an interest so created was subject to immediate defeasance. It contended that even a trespasser may be in possession: see Clissold v Perry (1904) 1 CLR 363 (as affirmed by the House of Lords in Perry v Clissold (1906) 4 CLR 374).

Dial A Dump also submitted that even if it were in breach of the POEO Act by conducting operations on Lot 2 without a licence, that did not affect the fact that, by carrying on commercial enterprises on the land, it was in possession of the land.

Dial A Dump submitted that the principles stated in Perry v Clissold applied both at general law and under the Real Property Act 1900 (NSW) and that the procedural provisions of the legislation in Perry v Clissold resembled those in the instant case.

On RMS’ construction of para (a) of the definition, “interest in land” required a party to have a registered legal interest. RMS submitted, however, that whether that was correct did not need to be decided, as Dial A Dump did not have exclusive possession of the land such as to give it a legal interest in the land. RMS accepted that the appellant had permission to operate a business on Lot 2, but submitted that this was no more than a permission to use and occupy the land and did not involve the grant or right of exclusive possession. Rather, according to RMS, the findings of the primary judge supported a finding of concurrent occupation consonant with an agency arrangement. Indeed, RMS contended that his Honour had made a finding of agency, and in the absence of any other evidence, the fact of agency prevented Dial A Dump from establishing that it had an exclusive right to possession of Lot 2.

RMS submitted that Perry v Clissold was distinguishable from the facts in this case. It contended that, contrary to Dial A Dump’s argument, Dial A Dump did not have exclusive possession of the acquired property because Lot 2 was leased to Boiling as at the date of acquisition. In this regard, it pointed out that it could not be overlooked that Boiling had lodged a claim for compensation in its own right. RMS also submitted that, unlike the position in Perry v Clissold, Lot 2 was not a vacant parcel of land “without an apparent owner”. In addition, RMS pointed out that parts of Lot 2 had been licenced to third parties at the date of acquisition.

RMS submitted that Dial A Dump’s submission that it had a legal interest in Lot 2 involved a “slide” from the fact that it had occupation and use of Lot 2 to a claim that it had exclusive possession. RMS also pointed out that the primary judge made a finding of fact that Dial A Dump was not in possession of Lot 2, and as a consequence Dial A Dump’s contention should not be entertained, given that the appeal was on a question of law and also given that his Honour’s finding had not been challenged.

RMS also contended that it ought not be inferred that Dial A Dump and the other group members would order their affairs in a way that involved the commission of an offence by Dial A Dump operating the businesses conducted on Lot 2 when it was not licenced to do so. RMS pointed out that Dial A Dump did not contend before the primary judge, for obvious reasons, that it did not matter, for the purposes of establishing exclusive possession, that an offence was being committed in its doing so.

RMS also pointed out that the 2014 lease did not fall within the terms of Boiling’s 30 June 2008 resolution but submitted that even if it did, a leasehold interest held on trust for a beneficiary does not give that beneficiary a right to possession of the property so as to create in the beneficiary a legal interest.

Although the arguments of Dial A Dump were somewhat wide ranging, it seems to me that the following issues are raised by the submissions of both parties:

As to the first issue, in Perry v Clissold, Griffith CJ stated, at 377, that possession was “good against all the world except the real owner” and was “a saleable and devisable interest”. Perry v Clissold involved Old System land and to that extent is not directly on point. However, it is established law in New South Wales that a party can have a legal interest in Torrens title land other than a documented title, the right to exclusive possession being sufficient as against all but the lawful owner: see Spark v Whale Three Minute Car Wash (1970) 92 WN (NSW) 1087 at 1104-1105. See also Brendan Edgeworth et al, Sackville & Neave: Australian Property Law (9th ed, 2013, LexisNexis) at 135 [2.64], which states that:

Spark v Whale Three Minute Car Wash was distinguished by this Court in Refina Pty Ltd v Binnie [2010] NSWCA 192. However, that case concerned a claim for a possessory interest in land as against the registered proprietor whereas, as pointed out by Allsop P, Spark v Whale Three Minute Car Wash was a case concerned with parties other than the registered party.

In Spark v Meers [1971] 2 NSWLR 1 Hope J observed, at 13, that the right of a party in possession is a right to bring an action in ejectment against a dispossessing party, being someone other than the registered proprietor. Hope J’s observation was approved in Refina Pty Ltd v Binnie at [10]. See also Newington v Windeyer (1985) 3 NSWLR 555 at 563 where McHugh JA (as his Honour then was) stated that “[a] person who is in possession of land adverse to the true owner has a legal interest in the land”.

But in any event, it is well recognised that an unregistered short term lease is a legal interest in land.

As to the second issue, contrary to Dial A Dump’s submission, the primary judge did not confine his consideration of Dial A Dump’s claim to a legal interest in land by reference only to a documented interest. His Honour’s finding, at [95], [121]-[122], that Dial A Dump did not have a legal interest in Lot 2, was not based solely on the absence of an expressly documented right of exclusive possession. His Honour found, at [112]-[113], that there was no evidence of any written or oral agreement giving Dial A Dump a legal interest in land. Apart from the evidence, principally sourced in the terms of the resolution of 30 June 2008, that Dial A Dump had taken over the respective operations of ALF and Boiling that were conducted on and from Lot 2, Dial A Dump did not point to any evidence of an agreement or arrangement, documented or otherwise, whereby it was given exclusive possession of the land.

That leads to the questions raised by third to sixth issues identified above, which are conveniently dealt with together.

RMS contended in its submission, and Dial A Dump resisted the argument, that his Honour had made a finding of agency. None of his Honour’s reasoning at [103]ff, which related to the question whether Dial A Dump acquired a legal interest in Lot 2 from ALF, was subject to any significant challenge and, in my opinion, cannot be assailed. However, his Honour’s reference to an agency relationship requires further consideration, that being a significant focus of Dial A Dump’s oral submissions

When regard is had to the manner in which the primary judge constructed his reasons, Dial A Dump may be correct in asserting that his Honour did not make a finding of agency. His Honour’s approach was to consider the various factual circumstances relevant to the question whether Dial A Dump had established that it had an interest in land and, relevantly for the present argument, a legal interest in land. His Honour considered that the factual circumstances either indicated or pointed against there being a legal interest in land, or at best were equivocal.

Accepting, or at least assuming for Dial A Dump’s benefit that his Honour did not make a positive finding of agency, I am nonetheless of the opinion that no other conclusion is tenable on the facts found by his Honour. As G E Dal Pont explains in Law of Agency, (3rd ed, 2014, LexisNexis) at 6 [1.4], the relationship of agency necessarily involves:

Dal Pont continues, in a passage which well illustrates the point in this case:

The terms of the resolution of 30 June 2008 were that Dial A Dump was “to act on behalf of ALF and Boiling” in the respects referred to in the document. Dial A Dump had no independent right to carry on the businesses itself. Dial A Dump’s letter of 1 August 2008 to customers was only consistent with Dial A Dump carrying on the businesses on behalf of the two companies and was a representation of the capacity in which it was acting.

Once that is accepted, it is apparent that Dial A Dump’s reliance upon the fact that it occupied the premises and received revenue for doing so and paid certain expenses does not establish that it had any legal interest in the land. Occupation of land is a different concept from possession. As Toohey J said in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 212, “[p]ossession is a conclusion of English law … Occupation on the other hand is a question of fact”. His Honour went on to explain, at 212-213, that:

Given the circumstances, and in particular ALF’s legal title and Boiling’s leasehold interest and their continued holding of the POEO licences, Dial A Dump’s occupation did not constitute legal possession such as to constitute an interest in land.

That answers Dial A Dump’s contention that it had a legal interest derived from either ALF or Boiling. It is necessary, however, as a matter of completeness to deal with Dial A Dump’s reliance upon Perry v Clissold.

Perry v Clissold concerned the Lands for Public Purposes Acquisition Act 1880 (Vic). Pursuant to s 10 of that Act, the owners of land or the persons who, but for the operation of the Act, would have been such owners, were entitled to receive compensation for the land if it was acquired by the State. At the time that the notice of acquisition was published, the land was in the possession of a Mr Frederick Clissold. Notice of the resumption was given to Mr Clissold, who died shortly thereafter. The executors of his estate claimed compensation.

Mr Clissold had entered into possession of the land in 1881. The land at that time had been vacant and Mr Clissold had fenced it and, since that time, had let it to different tenants, received rent and paid rates and taxes. The Minister argued, however, that Mr Clissold had been a mere trespasser without any estate or interest in the land.

The High Court at 376, referred to the principle of statutory construction that a statute was not to be construed, if possible, so as to interfere with vested rights and noted that Mr Clissold “was entitled to possession of the land as against anyone except the real owner, and could have asserted that right by an action of ejectment”, including as against the resuming authority were it not for the notice of acquisition. The Court continued:

On appeal to the Privy Council in Perry v Clissold (1906) 4 CLR 375, the Minister’s argument was also rejected. Lord Macnaghten said at 377:

At 378, his Lordship concluded:

Perry v Clissold involved a very different factual situation from the position here. Not only did Boiling have a documented entitlement to exclusive possession of Lot 2 in accordance with the terms of each of the 2007 and 2014 leases, ALF at all times exercised its right of ownership including its right to exclusive possession, subject only to the leases that it had granted to Boiling. Its grant of each of the leases to Boiling is irrefutable evidence of this.

In short, this was not a case where the true owner, or any other party with a right to the land, was unknown. Nor was it a case, as has already been pointed out, where there was any evidence that Dial A Dump had been granted a right to exclusive possession.

The primary judge, at [117], considered that, having regard to the requirements of the POEO Act, the fact that ALF and Boiling continued to hold the environment protection licences and that Dial A Dump did not “would be consistent with [Dial A Dump] carrying on the scheduled activities on Lot 2 for and on behalf of ALF and Boiling”. Integral to his Honour’s consideration were the provisions of the POEO Act, ss 48 and 258 and the fact that ALF and Boiling continued to hold the licences in respect of the activities carried on on Lot 2, from which his Honour considered it could be inferred that they were the occupiers of Lot 2, such occupation not being consistent with Dial A Dump occupying the premises in its own right.

There is another consideration of importance. If Dial A Dump’s submission were correct, it would, as occupier of the premises at which the landfill and waste operations were carried on, be committing an offence contrary to s 48 of the POEO Act, the terms of which are set out above at [11]. If a choice is to be made between a party acting legally rather than acting illegally, then in the absence of any evidence of the latter, it is appropriate to proceed on the basis that the party is or was conducting itself lawfully. There was no evidence to contrary effect. Indeed, all the evidence pointed to ALF and Boiling not only being aware of their obligations under their licences, but structuring all of their dealings on that basis. The terms of the resolution of 30 June 2008 and the leases are evidence that they did so.

Although senior counsel eschewed any such argument, much of what Dial A Dump contended in relation to the legal title for which it argued required an assumption that the three entities, ALF, Boiling and Dial A Dump, did not in fact conduct themselves in accordance with the legal structures that they had erected. The “careful” recording of how the three entities would operate and the formal granting of leases from ALF to Boiling make any such assumption untenable, just as the terms of each of the leases, pursuant to which Boiling was granted exclusive possession of Lot 2, make Dial A Dump’s submission that it had exclusive possession untenable.

There was no error of law in his Honour finding that Dial A Dump had not established that it had a legal interest in the property.

His Honour held, at [84], that Dial A Dump had not established that it had an equitable interest flowing from any rights it had in relation to the Dial A Dump Industries Trust. In summary, his Honour’s reasons were as follows.

His Honour held that Dial A Dump did not have any equitable interest in the lease of Lot 2 and noted, at [85], that it had not been established that the lease of Lot 2 commencing on 1 January 2014, which was on foot at the date of acquisition of Lot 2, was part of the trust fund. Even assuming that the lease commencing 1 January 2014 was part of the trust fund, his Honour, at [86], considered that Dial A Dump did not have any beneficial interest in Lot 2 or in any other trust property. As his Honour explained:

His Honour, at [87], considered that the Dial A Dump Industries Trust could be described as a discretionary trust, and found, at [88], that Dial A Dump, as the object of a bare power of appointment:

His Honour observed, at [89], that this “interest” was incapable of assignment, and that this in turn pointed against it being a proprietary interest.

His Honour concluded, at [90], that Dial A Dump, as at the date of acquisition of Lot 2, did not hold any beneficial interest in the whole or any part of the trust property, including in the lease of Lot 2, and therefore could not have had any equitable interest in the land.

His Honour, at [92], rejected Dial A Dump’s submission that it had an equitable interest in land by reason of its right to enforce the due administration of the trust. Although accepting that Dial A Dump had such a right and that this right would have extended to having the trust property properly managed, his Honour held that the availability of an equitable remedy in respect of trust property does not confer an interest in any part of the trust property.

Dial A Dump contended that his Honour erred in seeking to trace the interest that it claimed through a discretionary trust where no appointments had been made. It submitted that its equitable interest arose by reason of a simple written declaration of trust contained in Boiling’s resolution of 30 June 2008.

Dial A Dump further submitted that whether or not it had an equitable interest in Lot 2 on the acquisition date should not have been determined only by reference to whether the resolution of 30 June 2008 was effective to vest it with beneficial ownership in Lot 2. It submitted that a number of aspects of the relationship between it and ALF and Boiling were capable of supporting equitable remedies to enforce its possession and control over Lot 2.

First, Dial A Dump argued that its ability to seek remedies against ALF and Boiling did not wholly depend on its status as an object of the power of appointment under the Dial A Dump Industries Trust. It contended that the resolution of 30 June 2008, together with Dial A Dump taking steps to enter into possession and to engage in the operations on Lot 2, before and after the entry into the 2014 lease, would have made it unconscionable for ALF or Boiling to deny that it had an interest in Lot 2 on the acquisition date.

Secondly, Dial A Dump submitted that if the resolution of 30 June 2008 was effective as a declaration of trust over the leasehold interest for Dial A Dump’s benefit, the parties conducted themselves until the date of acquisition as though the situation was unchanged. It contended that despite the absence of a resolution in relation to the 2014 lease, or other declaration of trust, that lease was also held on trust for it on the basis of the principles stated in Keech v Sandford (1726) Sel Cas Ch 61; (1726) 25 ER 223 and Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36. The appellant acknowledged that it had not claimed any equitable interest based on the principles in Keech v Sandford in the court below, but nonetheless submitted that the question whether the leasehold estate was held on trust for the appellant was “in play” before the primary judge.

Dial A Dump acknowledged that the fact that a lease is held on trust for a beneficiary does not entitle that beneficiary to occupation of the land. However, it submitted that the Trust Deed in this case entitled the trustee to place the appellant in possession of the land.

RMS submitted that the Trust Deed having established a discretionary trust, the beneficiaries did not have an interest in the property of the Trust. RMS also pointed out that the Trust was still in existence such that any property it owned was held on trust in accordance with the terms of the Trust Deed. RMS accepted that the right of a beneficiary, including a discretionary beneficiary, to insist on due administration of the trust was a form of “property”, but was not the type of property that could be the subject of acquisition pursuant to ss 19 and 20 of the Act.

RMS submitted that without any control of, or rights in relation to, the alienability of the land, there was not the necessary connection “over” or “in connection with” land, within the meaning of s 20 of the Act. RMS contended that, without that connection, it could not be said that the right of a discretionary beneficiary to insist on the proper performance of a trust created an interest in land.

Further, RMS submitted that the equitable right of a person who is the object of a power of appointment does not depend on, or give rise to, that person having a beneficial interest in the whole of or part of the trust property. It submitted that regardless of whether the appellant could claim an equitable remedy, or whether it would be unconscionable for ALF or Boiling to deny the appellant the ability to occupy Lot 2, neither of those amounted to an equitable interest for the purposes of the Act.

Finally, RMS objected to the appellant raising a contention based on Keech v Sandford in the context of the 2014 lease, in circumstances where that matter was not argued before the primary judge.

In my opinion, Dial A Dump has not established that it has an equitable interest in the property.

As is apparent from its submissions, Dial A Dump argued its case essentially in two alternate ways. First, it contended that as a beneficiary under the Trust it had an equitable interest in Lot 2 on the basis that it has rights as a beneficiary to seek the due administration of the trust and further rights to seek relief against ALF and Boiling for unconscionable conduct should it seek to deny that it had an equitable interest in Lot 2, or injunctive relief against others should there be an attempted interference with its activities on Lot 2.

Secondly, it contended that Boiling had declared on 30 June 2008 that it had held all leases on trust for it (see above at [17]). In raising this argument, Dial A Dump submitted that his Honour had erred in determining the question of whether it had an equitable interest in land by reference only to the rights of an object of a power of a discretionary trust.

I do not propose to set out the terms of the Trust Deed. His Honour, at [85], observed that the Trust could be described as a discretionary trust. Neither party took issue with that characterisation. Further, as his Honour found at [86], at the date of acquisition of Lot 2, Boiling had not appointed any of the corpus or the income of the Trust Fund, to any person or beneficiary of the Trust, including Dial A Dump.

In my opinion, his Honour was correct, at [87], in finding that Dial A Dump’s status was as the object of a power of appointment under the Trust Deed and was not a beneficiary in the traditional sense of that word: see Gartside v Inland Revenue Commissioners [1968] AC 553 at 607; Kennon v Spry; Spry v Kennon (2008) 238 CLR 366; [2008] HCA 56 at [125]; J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis) at 41 [3-14] and 569 [23-15]; Brady Street Developments Pty Ltd v M E Asset Investments Pty Ltd [2013] NSWSC 1755 at [53]. It followed that Dial A Dump did not have a beneficial interest in the trust fund including any individual assets in it, including the lease of Lot 2.

That does not mean that Dial A Dump, as an object of the power of appointment, was devoid of rights in relation to the Trust. It had standing to bring an action against the Trustee requiring it to duly administer the Trust. However, a right to seek equitable relief in relation to the due administration of a trust does not create an interest in an asset of the trust. Likewise, the fact that Dial A Dump may have a claim for unconscionable conduct, or for injunctive relief, does not create an interest in land. Any such right is a chose in action personal to Dial A Dump to bring proceedings. It is not a right in rem. I should add that it is not readily apparent that the facts would support any such claim.

Dial A Dump also submitted that the Trust Deed authorised Boiling as trustee to put it in possession of the land. Assuming this was so, the first question is whether the power was exercised and, if so, what were the implications of its exercise.

Dial A Dump relied upon the fact that it carried on a significant commercial operation on the land as evidence of the fact that it had been given possession of the land. The concepts of occupation and possession have been discussed above. ALF and Boiling as holders of the EPO licences in respect of the businesses carried on on the land were required to exercise control over the land. That is not consistent with Dial A Dump having an interest in possession in Lot 2.

Further, when regard is had to the terms of the resolution of 30 June 2008 as to the business relationship between ALF and Boiling on the one hand and Dial A Dump on the other, that business relationship gave Dial A Dump no rights in respect of the property. It was a relationship that existed at the will of ALF and Boiling and could be terminated at any time. In my opinion, any rights that Dial A Dump had in respect of Lot 2, therefore, were correctly found by his Honour to be purely personal.

Dial A Dump’s submission that its equitable interest arose from a simple declaration of trust arising out of Boiling’s resolution of 30 June 2008 must also be rejected as it suffers from a fundamental flaw. As his Honour found at [85], Boiling’s resolution was made in respect of leases then on foot and thus could only apply to the 2007 lease. The 2014 lease, which created a new leasehold interest in the property in favour of Boiling, was the existing lease and therefore Boiling’s only interest in land as at the date of acquisition. Boiling’s resolution of 30 June 2008 did not govern or deal with the 2014 lease.

To overcome this hurdle, Dial A Dump relied on the rule in Keech v Sandford, in support of the proposition that it had an equitable interest in land under the 2014 lease. Keech v Sandford concerned a lease held on trust for the benefit of a minor. On expiry of the lease, the trustee sought renewal on behalf of the beneficiary, however, the lessor refused. The trustee then sought, and was granted, the lease for his own benefit. Lord King LC held that the trustee held the lease on trust, despite clear evidence of the lessor’s refusal to grant it for the benefit of the beneficiary. He considered, at 62, that:

The principle in Keech v Sandford was considered by Deane J in Chan v Zacharia, describing the principle in terms that “a trustee of a tenancy who obtains a renewal of the lease for himself holds the interest in the renewed lease as part of the trust estate”. His Honour noted, at 200, that:

Deane J turned his attention to whether the principle was an independent doctrine of equity relating to trustees of a tenancy or a “mere manifestation” of the general principle governing the liability of a fiduciary to account for personal benefit or gain. His Honour concluded, at 201, that it should not be seen as either:

Deane J further observed in relation to the renewal of a lease by a trustee that the principle “depends partly on the nature of leasehold property and partly on some fiduciary relationship or duty … towards the persons who seek to have the trust declared”: see Griffith v Owen [1907] 1 Ch 195 at 203, where Parker J observed that a trustee was never allowed to rebut the presumption that a renewed leasehold interest was held on trust, whereas, for example, a mortgagee may do so. Deane J, at 201, thus stated that the principle creates:

Chan v Zacharia concerned a renewal of a lease that had been held by the partnership of which the appellant was a partner. The appellant refused to renew the lease and subsequently obtained a new lease in his own name. It was held that the appellant held the new lease as a constructive trustee for the partnership, in circumstances where the appellant held two roles in respect of the rights under the lease, one as trustee and one as a former partner, and both roles involved a fiduciary obligation.

If Dial A Dump’s submissions based on Keech v Sandford and Chan v Zacharia were permitted to be raised for the first time on the appeal, Dial A Dump would be required to establish that Boiling was in a fiduciary position to it in respect of the 2014 lease.

The principles in relation to raising a new issue on the appeal are well established. As this Court stated in TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at [165], it is not sufficient for an appellant to merely assert that a new point of law raised on the appeal could not have been met by evidence. It is also necessary for the appellant to demonstrate that the respondent would not have conducted the case differently at trial: see Sze Tu v Lowe (2014) 89 NSWLR 318; [2014] NSWCA 462 at [315]-[316].

Dial A Dump did not attempt to demonstrate that the case would not have been conducted differently if this argument had been raised in the court below. The submission went no higher than that his Honour should have applied the principle to the facts as found.

For its part, RMS submitted that it had conducted its cross-examination on the basis that no attempt had been made by Dial A Dump to assert an equity arising out of the 2014 lease. The only case made below was that because it was a beneficiary of a trust administered by Boiling and had a beneficial interest in the assets of the trust, including the 2009 lease of Lot 2, it had a beneficial interest in the land.

That there was no cross-examination relating to the 2014 lease is of particular importance in this case. Cross-examination may have resulted in additional relevant facts being found by the trial judge. As I explained in Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 at [10]:

For these reasons, Dial A Dump should not be permitted to raise this point on appeal. It did not discharge its onus of demonstrating that the case would not have been conducted differently had the point been raised at first instance. The very fact that Dial A Dump was required to prove that Boiling was in a fiduciary position to it in respect of the 2014 lease of itself demonstrated that there may have been facts relevant to that issue that were not proved or explored at first instance, as RMS’ submission indicates.

Further, as Leeming JA, at [169] below indicates, it may be that an appellant in this Court will face a considerable hurdle in establishing an error of law in an appeal limited to a question of law, if the matter was not argued below. See, for example, Boele v Rinbac (2014) 88 NSWLR 381; [2014] NSWCA 451 at [14] per Basten JA and at [90] and [100] per Sackville AJA, although it is to be observed that the comments in that case were made in the context of judicial review and jurisdictional error.

As Dial A Dump acknowledged, the fact that a lease is held on trust for a beneficiary does not entitle that beneficiary to occupation of the land. In my opinion, no other equitable interest in land has been established. Dial A Dump has not demonstrated that his Honour erred in law in rejecting its contention that it had an equitable interest in land.

His Honour held, at [123], that Dial A Dump had not established that, at the date of acquisition of Lot 2, it had, within the meaning of para (b) of the definition of “interest” in land, any “right, power or privilege” over or in connection with Lot 2 flowing from either any permission to carry on commercial operations on Lot 2 or the environmental protection licences held by ALF and Boiling.

His Honour, at [124], referred to his earlier holding that any permission given to the appellant to use or occupy Lot 2 was personal in nature and did not give rise to a proprietary interest. His Honour considered that such a permission was not a “right”, “power”, or “privilege” over or in connection with Lot 2 for at least the following five reasons.

First, his Honour held that the rights within para (b) needed to be proprietary or quasi-proprietary in nature, citing Hornsby Council v Roads and Traffic Authority of New South Wales (1997) 41 NSWLR 151 per Mason P (with whom Powell JA agreed) at 152; Meagher JA at 155 (with whom Mason P and Powell JA also agreed); and Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd (2015) 89 NSWLR 237; [2015] NSWCA 100 per Emmett JA (with whom Macfarlan and Gleeson JJA agreed) at [107].

Secondly, in his Honour’s view, this was supported by the nature of the rights that are listed in para (b): see the observation of Mason P in Hornsby Council v Roads and Traffic Authority at 152 that the context in which para (b) needs to be construed includes “the colour which each part of the overlapping definition takes from its associates”. His Honour instanced, at [132]-[133], as examples of such rights: profits à prendre and profits à rendre; rights in the nature of profits à prendre, where, for example, an owner of land grants a licence to enter the land coupled with an interest in the land; and rent charges. His Honour pointed out, at [136], that a licence to carry out an activity on land gives the holder only a personal right whereas an easement or profit over or in connection with the land binds the land.

Thirdly, his Honour, at [140], considered that the conclusion, that rights within para (b) needed to be rights in the land of another was emphasised by the reference to “land” at the end of para (b), which indicated that there had to be an inherent relationship with the corporeal hereditament. His Honour considered that the personal permission that Dial A Dump had, did not have this inherent relationship with Lot 2.

Fourthly, his Honour, at [141], stated that the rights in para (b) must be capable of being owned. This, on his Honour’s view, was central to the scheme of the Act, given that pursuant to s 37, only a person who is an “owner” of land is entitled to compensation. His Honour considered that the requirement of ownership of an interest in land limited the rights that fell within the definition of “interest in land” to those that were capable of ownership, citing Hornsby Council v Roads and Traffic Authority per Mason P at 152. His Honour observed, at [142], that the notion of “ownership”, did not readily apply to a personal permission to occupy the land of another.

Finally, his Honour observed, at [143], that a person is not entitled to compensation unless that person is an owner of “an interest in land which is divested, extinguished or diminished by an acquisition notice”: see s 37 of the Act. His Honour noted that in order for a right to be “divested, extinguished or diminished” by an acquisition notice published in the Gazette pursuant to s 37, the interest specified in the notice had to be one which had an inherent relationship with the land and this necessitated that the right be proprietary rather than personal.

Dial A Dump had also argued that it had an “interest in land” based on its permission to use the environment protection licences held by ALF and Boiling, which gave the appellant the “privilege” of carrying out what would otherwise be illegal activities. His Honour, at [146]-[150], did not accept that contention. His Honour considered that, under the relevant statutory scheme, ALF and Boiling could not grant permission to the appellant to use either of the environment protection licences and the appellant could not acquire the privilege of carrying on activities on Lot 2 without itself being the holder of a licence authorising those activities. His Honour concluded, therefore, that the appellant did not have any privilege falling within para (b).

Dial A Dump contended that his Honour misconstrued the meaning of “interest in land” in para (b) in the definition in s 4 of the Act. It submitted that the defined term, “owner”, is given content by the statutory scheme and not the common law concepts of property or ownership. To this end, it was relevant, on Dial A Dump’s submission, that an “interest in land” within para (b) includes “a right, … power or privilege over, or in connection with, the land”. Dial A Dump submitted therefore that for the purposes of s 37, the “owner” is the “person that has that right, power or privilege”. It contended that its rights, powers and privileges over Lot 2 were manifested in its possession of Lot 2 and its physical use of the property.

Dial A Dump also submitted that para (b) could extend to a merely personal right. The submission was made in the following terms:

Dial A Dump accepted that there would have to be some limitation placed upon a personal right being an “interest in land” within the meaning of para (b) such that there would have to be attached to such personal interest “qualities … that are within the purposes of the legislative”. Dial A Dump contended, however, that a broad interpretation was required, but reiterated that the interest would have to be “within the compensation objectives of the Act”.

Dial A Dump submitted that its activities in conducting its business with the active support of those with an acknowledged interest, namely, ALF and Boiling, were sufficient to give it a right, power or privilege in respect of the land. Dial A Dump contended that its construction of the definition in para (b) was in accordance with the scope, purpose and objects of the statutory scheme, the clear purpose of which was to make land available, free of impediment, to the acquiring authority. It was, Dial A Dump said, inconsistent with this purpose for any prior arrangement to survive the acquisition.

Dial A Dump also submitted that the words “divested”, “extinguishes” or “diminished” in s 37 of the Act were not terms connoting transfer, and thus the primary judge’s construction of the scheme as depending on an alienable interest was not consistent with the scope, purpose and objects of the Act. Further, it submitted that the court has in the past found interests in land that are not alienable: see Minister for Education and Training v Tanner (2003) 128 LGERA 281; [2003] NSWCA 164 at [15].

Dial A Dump submitted that there was a clear identity between the words used in s 37 of the Act and those used in s 20(1)(b). Section 20(1)(b) provides that land described in an Acquisition Notice is discharged from all “estates, interests, trusts, restrictions, dedications, reservations, easements, rights, charges, rates and contracts in, over, or in connection with the land”. Dial A Dump submitted that the acquiring authority is thereby able to carry out the public purpose unimpeded. The corollary of this, on Dial A Dump’s submission, was that the extinguishment of all possible impediments comes at a cost to the State, by way of the requirement for compensation.

Dial a Dump submitted that the approach of the primary judge impermissibly limited the ambit of para (b) of the definition of “interest” to proprietary and quasi-proprietary interests. Dial A Dump submitted that this approach did not recognise the breadth of the language of para (b). Dial A Dump also contended that the primary judge placed a gloss on the words of the definition of “interest in land” in para (b), which limited the scope of the definition and thus many of the operative provisions of the Act. Dial A Dump submitted that having regard to the statutory context and the principles of statutory construction regarding legislation that substantially interferes with property rights, limitations should not readily be read into words of wide import.

Dial A Dump submitted that the language of para (b) of the definition of “interest in land” is broad enough to encompass the activities that Dial A Dump carried out on Lot 2 as at the date of acquisition. It contended that the absence of a documented right of exclusive possession only meant that Dial A Dump could not establish a legal estate in Lot 2 for the purposes of para (a) of the definition of “interest in land”. It stated that to repeat that test in respect of para (b) would give para (b) no work to do.

Dial A Dump also submitted that the primary judge failed to deal with its claim that it had “privileges” over Lot 2 by reason of it being able to carry out waste disposal and recycling operations by reference to the environment protection licences held by ALF and Boiling. Dial A Dump contended that the primary judge misstated its contention that it was able to use Lot 2 for its commercial purposes by reference to those licences.

Finally, Dial A Dump challenged the primary judge’s reliance on Hornsby Council v Roads and Traffic Authority in order to find that it had only a “mere permission” to be present on Lot 2 and was thus outside the terms of para (b). Dial A Dump submitted that in Hornsby Council v Roads and Traffic Authority the process of reasoning used was so as to dispose of the unusual matter in issue. Further, relying on Minister for Education and Training v Tanner at [11], Dial A Dump further contended that Meagher JA’s remarks in that case were not a substitute for the terms of the statute.

Dial A Dump submitted that what was said in Minister for Education and Training v Tanner may be sufficient to confine Hornsby Council v Roads and Traffic Authority to its particular facts. Dial A Dump also argued that there were aspects of the reasoning in Hornsby Council v Roads and Traffic Authority that were either wrong or incomplete. It contended that in making reference to s 37, Mason P did not address the fact that “owner” is a defined term, and that the approach taken by Meagher JA to statutory interpretation was incorrect. Dial A Dump also submitted that Meagher JA’s concern with the negative effects on the machinery provisions of notifying holders of interests if a wide approach to the definition was adopted ignored the effect of s 12, which governs to whom a notice of acquisition must be given, and s 53, which relates to the position where compensation is paid to a former owner of land.

Dial A Dump also relied upon Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [2007] 2 Qd R 373; [2007] QCA 73 to submit that, contrary to what had been held in Hornsby Council v Roads and Traffic Authority, a contractual right was sufficient to constitute an “interest in land” within para (b). Dial A Dump submitted that the Court should accept, on the uncontested evidence, that it was in possession of Lot 2 and was carrying out a substantial commercial enterprise on that land with the approval and permission of the landowner and tenant and thereby had an interest in Lot 2 as at the acquisition date.

In oral submissions, Dial A Dump resisted the proposition that it was carrying on its activities on behalf of a group rather than operating on its own behalf. Dial A Dump submitted there was not a ‘group’ in the “legal entity sense” and it could not have been said to have been acting as an agent of an unidentified entity without a legal personality. Dial A Dump submitted that no agency relationship between ALF and/or Boiling and itself should be imposed or imputed. This submission was consistent with its earlier submission that no finding of “agency” had been made by the primary judge. Dial A Dump also contended that there was, in fact, no agency relationship between it and ALF or Boiling. It submitted that the primary judge approached the fact-finding exercise by asking the wrong question: it contended that the primary judge asked whether the appellant could show a grant by ALF or Boiling of exclusive possession of Lot 2 or whether it could establish beneficial ownership by reference to documents. Dial A Dump contended that in so doing, the primary judge disregarded significant facts concerning the actual use of the site. Dial A Dump submitted that this led to the “absurd” result that despite the breadth of ss 20(1)(b) and 37 of the Act, his Honour’s approach meant that nothing occurred on the acquisition of Lot 2 that affected Dial A Dump.

RMS pointed out that Dial A Dump bore the onus of establishing it was an “owner” of an “interest in land” at the date of the acquisition. It submitted that the personal permission that the primary judge held Dial A Dump had to use the land did not satisfy the definition of “interest in land” in para (b) of the definition. RMS submitted that to conflate every bare permission to a category of rights which were alienable and compensable was not what the statutory scheme was directed to. RMS further submitted that a permission is not a privilege because it cannot be asserted against another or used to achieve an immunity or advantage of a kind not available to others.

RMS supported the primary judge’s approach to the construction of para (b) and submitted that it related only to proprietary or quasi-proprietary rights. Drawing on a number of authorities, RMS submitted that the following factors are significant in the characterisation of an interest as proprietary or quasi-proprietary: that the right-holder has significant control over the thing, including typically the right to use and enjoy the thing, and to exclude others; that it is definable and identifiable; that is has some degree of permanence and stability; that it is capable of being transmitted to another; and that it can be recovered by legal action, rather than merely obtaining compensation, and that these rights extend and apply against third parties holding the thing.

RMS submitted that there is a category of legal rights which may be proprietary or quasi-proprietary, which fall within para (b) but not para (a) of the definition, but which have a more “solid” character than a bare permission to enter or occupy. RMS did not accept that an interest in land within para (b) encompassed the interest for which Dial A Dump contended.

RMS further submitted that there was no conflict between the decisions in Hornsby Council v Roads and Traffic Authority and Minister for Education and Training v Tanner. It contended that acceptance of Dial A Dump’s submission in respect of Hornsby Council v Roads and Traffic Authority would amount to a finding that Meagher JA’s remarks, at 155, were plainly wrong on the basis that those comments formed part of the ratio of the decision. RMS submitted that the observations were correct or were, at the very least, not plainly wrong. RMS further submitted that there was no conflict between Hornsby Council v Roads and Traffic Authority and Sorrento Medical Service v Chief Executive, Department of Main Roads given the different statutory context under consideration in the latter case.

RMS also submitted that the present case is a poor one to test the limits of an “interest in land” in para (b) because all that is involved is a mere permission rather than a contractual right as was the case in Sorrento Medical Service v Chief Executive, Department of Main Roads. RMS pointed out that although described as a licence, the right in that case was a licence obtained for consideration in the context of a leasehold interest.

RMS further argued that there are textual indicia in the Act suggesting that the statutory scheme was not intended to extend to personal agreements or bare permissions. RMS supported the primary judge’s approach contended that the requirement of “ownership” of an interest was significant, as was stated by Mason P in Hornsby Council v Roads and Traffic Authority. That is, the interest must be capable of ownership. RMS further submitted that the interest must be capable of divestment, extinguishment or diminishment by an acquisition notice: see s 37. Finally, it contended that the words “right” “power” and “privilege” must be read as standing with “easement” and “charge”, which are things with a known and tangible legal character. RMS submitted that a personal right or permission does not possess these characteristics.

It is convenient to commence the consideration of the question whether Dial A Dump had an “interest in land” within the meaning of para (b) of the definition of “interest in land” by reference to the authorities that were in contention on the appeal commencing with Hornsby Council v Roads and Traffic Authority.

Hornsby Council v Roads and Traffic Authority concerned ss 4, 37 and 48 of the Act in the context of the compulsory acquisition of a portion of Observatory Park in Pennant Hills. The question that arose was whether the appellant Council was an “owner of an interest” in the park.

Meagher JA at 155 said, in the context of para (b) of the definition of “interest in land”:

Mason P agreed with Meagher JA and made some additional remarks at 152:

Powell JA agreed with both Mason P and Meagher JA.

In Minister for Education and Training v Tanner, Brownie AJA, (Beazley and Santow JJA agreeing), said, at [11]:

In Minister for Education and Training v Tanner, the respondent owned land in Balmain adjoining a public road. The appellant acquired the land on which the public road ran, but did not acquire any of the respondent’s land. The outcome of the acquisition was that the respondent no longer enjoyed access from the road to his land and vice versa. The Court held that the interest held by the respondent fell within the ambit of s 4 of the Act. In coming to that determination, the Court relied upon the common law right of an owner of land adjoining a highway to access the highway from any part of the land: see Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104 at 108-109 and cases cited therein. Brownie AJA observed at [15]:

In Golden Mile Property Investments v Cudgegong Australia, Emmett JA (Macfarlan and Gleeson JJA agreeing), at [107], approved the approach taken to the meaning given to “interest in land” in Hornsby Council v Roads and Traffic Authority, in that “they must be limited iura in re aliena, proprietary or quasi-proprietary rights less than a fully fledged estate, that is, easements, charges, profits à prendre, profits à rendre, licences coupled with interests, etc”. His Honour added:

In Sorrento Medical Service v Chief Executive, Department of Main Roads, the Queensland Court of Appeal considered the Acquisition of Land Act 1967 (Qld) and its application to land over which the appellant had car parking rights for its medical centre. The appellant had a lease of portion of the building on which the car park was located. It had been a term of the development consent for carrying on the medical practice that car parking be provided for patients and for doctors.

The relevant portion of the Acquisition of Land Act, s 12(5), was relevantly in the following terms:

“Interest in relation to land or other property” was defined in the Acts Interpretation Act 1954 (Qld), s 36 to mean:

McMurdo P (Chesterman J concurring in allowing the appeal), considered that the appellant was entitled to compensation. Her Honour remarked at [14]:

Her Honour observed that other compensation statutes in Australian jurisdictions had specifically adopted a comparable definition and expressly referred to the terms of s 4 of the New South Wales statute. It might be remarked here that the definition in s 36 of the Queensland Act did not include the words “easement, right [or] charge” as appears in the New South Wales legislation. However, leaving that to one side, her Honour observed that the contractual right to use the resumed land for parking, part of that right being exclusive to the appellant, was an apparently valuable right. This was in circumstances where it had been a term of the development consent for the use of the property that off-site parking be provided.

Her Honour concluded, at [14]:

Chesterman J, in allowing the appeal, referred to Meagher JA’s remarks in Hornsby Council v Roads and Traffic Authority at [67] and said, at [68]:

At [71], his Honour remarked:

There was no challenge to the decisions in Minister for Education and Training v Tanner or Golden Mile Property Investments v Cudgegong. Having regard to those authorities, it might be thought that there has been some development in the law since Hornsby Council v Roads and Traffic Authority such that interests which may not strictly be quasi-proprietary in nature, as described by Meagher JA in that case, fall within para (b) and thus constitute an “interest in land” as defined in the Act. This would be all the more so if Sorrento Medical Service v Chief Executive, Department of Main Roads has any persuasive force in respect of the New South Wales legislation, a question which is not necessary to decide.

Accepting that, on the basis of the New South Wales authorities, an “interest in land” within the meaning of para (b) is not as confined as was found in Hornsby Council v Roads and Traffic Authority, including on the view of Mason P, there remain two requirements in the legislation which are fundamental to the determination whether Dial A Dump had an “interest in land” within the meaning of para (b). The first requirement is that the power or privilege” must be “over or in connection with the land”. The second requirement is that there must be an “owner” of the power or privilege such as to be entitled to compensation: see s 37.

Dial A Dump did not have any power “over or in connection with the land”. “Power” involves an ability to control or direct. There was no evidence that Dial A Dump had any such power and indeed the evidence was to the contrary. Dial A Dump had no power to control or direct the grant of leases or licences over the land. That power remained in ALF and in Boiling subject to the terms of its lease. Dial A Dump’s function was to conduct two particular businesses on behalf of the owners of those businesses. It could thus determine how the businesses were carried on, but it could not otherwise control or direct what went on on the land, except “on behalf of the Alexandria landfill group” as recorded in the minutes of 30 June 2008.

It is arguable that a permission to use land could constitute a “privilege in, over or in connection with land” within the meaning of para (b) of the definition of “interest in land”. Whether that could be so would depend on the terms of the permission. Dial A Dump’s permission to be on the land was for the purposes of the businesses that it was carrying on for ALF and Boiling. It was, on his Honour’s finding, a permission personal to it. ALF and Boiling at all times had control of Lot 2, as owner, lessee and pursuant to their obligations as the holders of the POEO licences. Dial A Dump, at the most, had no more than the rights of an agent or a licensee to be on the property for the purposes of carrying on the business. I do not consider that that right gave it an interest in land as defined.

I am also of the opinion that for there to be a power or privilege within the meaning of para (b), that power or privilege must be capable of alienation. Otherwise, the concept of ownership as part of the statutory scheme, especially in s 37, would be superfluous insofar as a power or privilege over or in connection with the land was concerned. Dial A Dump had nothing that it could sell or transfer. Its rights were, as I have stated, no greater than its obligation to conduct the two businesses on behalf of ALF and Boiling for so long as those entities permitted it to do so.

My view on this is reinforced by the terms of s 20 and the balance of the terms of s 37. Section 20 provides that on the date of publication of the acquisition notice the land described in the notice is vested in the acquiring authority. There was no interest by way of a power or privilege over or in connection for which Dial A Dump contended that could vest in the Authority: such permission as Dial A Dump had to be on the land to carry on the businesses terminated when those businesses ceased operation on the land. That occurred when the land was compulsorily acquired. For the same reason, insofar as Dial A Dump was concerned, there was nothing that was “divested, extinguished or diminished”.

It follows that the appeal should be dismissed with costs.

McCOLL JA: I have had the benefit of reading Beazley P’s reasons in draft. I agree with the orders her Honour proposes and, subject to what appears below, with her Honour’s reasons.

In this Court, Dial A Dump sought to raise an argument not relied upon before Preston CJ at LEC, that, applying Keech v Sandford, [1] it had an equitable interest under the 2014 lease. As the President has explained, [2] if permitted to raise that argument, Dial A Dump would be required to establish that Boiling was in a fiduciary position to it in respect of the 2014 lease.

Dial A Dump’s appeal from the Land and Environment Court’s decision is confined to an appeal “against an order or decision … of the Court on a question of law” pursuant to Land and Environment Court Act 1979 (NSW), s 57(1). The preeminent authority for determining the ambit of such an appeal is Metropolitan Water Sewerage and Drainage Board v Histon. [3] Although that case considered s 54 of the Government and Related Employees Appeal Tribunal Act 1980 (Cth), Samuels JA’s analysis of the jurisdiction such a provision confers upon the Court of Appeal extends to provisions such as s 57(1) is well accepted. [4]

As his Honour explained, “the natural meaning of the relevant words … is that an appeal lies against any decision which the tribunal makes on a question of law … the ordinary meaning of this language is that an appeal lies against any decision of the tribunal which is a decision on a question of law”. [5] It logically follows, that s 57(1) confers “judicial power to examine for legal error” [6] what has been done by the Land and Environment Court. The question of law is “not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself”. [7]

The effect of this, in my view, is that it is necessary that Dial A Dump identify a decision or order of Preston CJ at LEC on such a question, to enable this Court to exercise its appellate jurisdiction. It is not open to it to raise a fresh question on appeal. The principles in cases such as Suttor v Gundowda Pty Ltd [8] and Coulton v Holcombe [9] have no application at the jurisdictional stage.

Although the comments Basten JA and Sackville AJA made in Boele v Rinbac Pty Ltd, [10] were made in the context of judicial review and jurisdictional error, they have a compelling logic in the present context. On an appeal confined as in the present case, the appellant cannot identify a decision of the nature referred to in the previous paragraph as, obviously, Preston CJ at LEC did not “consider a point not raised before [him]”. [11]

Further, if Dial A Dump was permitted to take the course it sought to pursue, s 57(1) potentially becomes an avenue by which persons aggrieved by the Land and Environment Court’s decision could seek to engage this court’s s 75A, Supreme Court Act 1970 (NSW) jurisdiction. That is not only “conducive to the orderly and efficient conduct of litigation”, [12] but contrary to the language of s 57(1) as I have sought to explain and, in any event, inconsistent with authority. [13]

LEEMING JA: I agree with the orders proposed by Beazley P, and, subject to what follows, with her Honour’s comprehensive reasons for those orders. I will not repeat the references to the factual background, the findings of the primary judge or the parties’ submissions. Although some of Dial A Dump’s submissions traversed the evidence, and advanced matters which had not been put at first instance, it is to be recalled that the appeal to this Court is confined by s 57(1) of the Land and Environment Court Act 1979 (NSW) to a question of law, and that there will seldom be an error of law if the primary judge failed to address a submission which has not been put.

Dial A Dump submitted that on the facts as fully found, the primary judge erred in not finding that it had a legal interest in the land, by reason of its exclusive possession of the site.

The primary judge framed his findings in terms of failing to be satisfied that Dial A Dump had the relevant interest. His Honour said at [121]-[122] that:

That reflected the somewhat exiguous nature of the evidence relied on. The legal conclusion for which Dial A Dump contended was either inconsistent with the contemporaneous documents, or (at best) was less than clearly established by those documents. For example:

A related difficulty is that some of the contemporaneous documents are expressed a little informally. Thus:

Finally, it seems clear that at least some of the documents have been drafted with an accounting or tax treatment in mind, rather than with a view to precisely defining the legal relations between ALF, Boiling and Dial A Dump. In particular, the restructuring appears, on its face, designed to avoid a stamp duty liability concerning a proposed buy in transaction (“The new structure facilitates a ‘buy into’ the Alexandria landfill Group by Swire. [If Swire cannot buy the bin business from the trust there will be stamp duty liability for Swire]”) (Blue 273P).

All of those matters sustain the primary judge’s finding that Dial A Dump had not established primary facts sufficient to sustain a legal interest in the land. In short, I do not consider that there is an error of law in failing to be satisfied that Dial A Dump lacked exclusive possession, given the nature of the documents and the consequence that if it did, Boiling was in breach of its lease and ALF and Boiling were in breach of their environmental licences.

Dial A Dump maintained that it had an equitable interest in the land (either under a trust, or because aspects of the relationship between it and ALF and Boiling “were capable of supporting equitable remedies to enforce [Dial A Dump’s] possession and control over Lot 2”).

In its submissions in reply, Dial A Dump said that:

I agree with what Beazley P has said in relation to this ground. Without detracting from her Honour’s reasons, I note the following difficulties with this submission.

In support of the third way in which an interest was asserted, based on there being a right, power or privilege relating to the land, Dial A Dump pointed to its claimed possession and the activities it was said to be carrying out on the land. It submitted that there was no requirement to find a proprietary or quasi-proprietary interest in the land, contrary to what had been held in Hornsby Council v Roads and Traffic Authority of New South Wales (1997) 41 NSWLR 151 at 155.

Dial A Dump invited this Court to follow the Queensland Court of Appeal decision, by majority, in Sorrento Medical Service Pty Ltd v Chief Executive, Dept of Main Roads [2007] 2 Qd R 37; [2007] QCA 73. It is not necessary to reach a firm conclusion, but the following matters tell against Dial A Dump’s submission.

But it is not necessary, in order to resolve this appeal, finally to determine this point. There was no error of law in finding that Dial A Dump did not enjoy a valuable contractual right. It was not a contractual right, because its possession of the land came about by reason of permission or sufferance of either or both of the owner or lessee of the land. It was not a valuable right, because the right was terminable without notice at any stage. Dial A Dump made no response, nor could a response be made, to the submission that such rights which Dial a Dump enjoyed were terminable at will by act of the sole director and shareholder of its parent company ALF. It is therefore unnecessary to seek to resolve such conflict as exists between the decisions of this Court and of the Queensland Court of Appeal.

The orders proposed by the President should be made.