Olde English Tiles Australia Pty Ltd v Transport for New South Wales

1. [1]

   WARD P: I agree with Basten AJA.

2. [2]

   GLEESON JA: I agree with Basten AJA.

3. [3]

   MITCHELMORE JA: I agree with Basten AJA.

4. [4]

   BASTEN AJA: On 9 February 2018, Roads and Maritime Services (an earlier name for the respondent) published an acquisition notice with respect to a parcel of land on Parramatta Road at Camperdown, upon which the appellant, Olde English Tiles Australia Pty Ltd, carried on a business. The whole of the land, with an area of 1,731 m2 was thereby compulsorily acquired. Offers of compensation were made pursuant to the terms of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW)) (“Land Acquisition Act”) to both the registered owners, Antonino and Carmel Gaudioso, and to the appellant. Both challenged the compensation offered by proceedings in the Land and Environment Court. On 27 August 2021, Duggan J, who heard both proceedings concurrently, handed down judgment in each matter. In the Gaudioso matter, compensation was determined in the sum of $10,781,707.60. [1] The bulk of that figure was for the market value of the acquired land, with further amounts allowed on account of legal costs and valuation fees. In the matter involving the appellant, the proceedings were dismissed: Olde English Tiles Australia Pty Ltd v Transport for New South Wales. [2]

5. [5]

   The proceedings were dismissed on the basis that the appellant was not a person entitled to compensation under Pt 3 of the Land Acquisition Act. That was because it did not have an interest in land within the meaning of that phrase in s 4 of the Land Acquisition Act. It lacked such an interest because its occupation of the land for the purpose of carrying on its business was terminable at will by the registered owners. The appellant challenges that conclusion.

6. [6]

   In reaching that determination, Duggan J relied upon the reasoning of this Court in Dial A Dump Industries Pty Ltd v Roads and Maritime Services of New South Wales. [3] Dial A Dump, in turn, followed and applied the reasoning adopted by this Court in 1997 in Hornsby Council v Roads and Traffic Authority of New South Wales. [4] If those cases are not distinguishable, the appellant acknowledges that it can only succeed if the legal principles for which they stand are overturned. For that reason, the Court hearing the appeal was constituted by a five-judge bench.

7. [7]

   The circumstances in which this Court would overturn an earlier decision are limited. First, it must be comfortably satisfied that the earlier decision was wrong. [5] Even if it were so satisfied, there are circumstances in which it would not intervene. These include the fact that the Land Acquisition Act has been amended on a number of occasions since 1997, without the legislature seeking to overturn the decision in Hornsby Council. The Act has also been amended since the decision in Dial A Dump without overturning the reasoning in that case.

8. [8]

   For reasons explained below, while a different reading of the definition of “interest” in land may be available, the reading adopted in Hornsby Council was not clearly wrong, but rather the preferable reading. Even if that were not so, as the reasoning of the High Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [6] affirmed, it would be “a strong thing” for this Court to depart from its earlier authority in circumstances where the Parliament has had occasion to revisit the Act to make “substantial amendments” to its provisions, but has not altered the effect of the earlier decision. [7]

9. [9]

   It follows that the appeal must be dismissed with costs.

Background circumstances

1. [10]

   For the purposes of this appeal, the background circumstances prior to the acquisition may be stated succinctly. The appellant operated a business of manufacturing and selling a range of tiles and mosaics for both retail and commercial purposes at the premises known as 182-186 Parramatta Road, Annandale. Mr and Mrs Gaudioso, the registered proprietors of the land, were the sole directors and shareholders of the appellant and controlled the company. The company occupied the land in accordance with a bare licence; there was not, at the date of acquisition, and appears never to have been, a lease conferring possession on the appellant. It occupied the land at the pleasure of the Gaudiosos.

2. [11]

   In the proceedings in the Land and Environment Court, the appellant claimed compensation for loss attributable to disturbance. No claim was made for the market value of the land; the appellant had no interest in the land having any commercial value. The loss attributable to disturbance was particularised as legal costs, valuation fees and financial costs incurred in connection with the relocation of the business, including loss of profits. It also claimed stamp duty payable on the purchase of other land from which to operate the business.

3. [12]

   The details of the amounts claimed are of no present consequence, although the heads of loss relied upon will, as explained below, have a bearing on the nature of the interest in land on which the appellant relied.

Reasoning of trial judge

1. [13]

   The reasoning of the trial judge may also be summarised briefly. The key conclusions, which were identified as the subjects of challenge in the notice of appeal, should be set out.

2. [14]

   The first passage, challenged in ground 1 of the notice of appeal read as follows:

3. [15]

   Applying authorities of this Court which were undoubtedly binding on her, the trial judge then stated (challenged by ground 2 in the notice of appeal):

4. [16]

   As the trial judge correctly noted, the foregoing findings were sufficient to dispose of the application. However, she took the further step of considering whether the right, power or privilege asserted by the appellant was “capable of alienation by way of sale or transfer”. On the basis that that was a condition which the appellant needed to satisfy, the trial judge concluded that it was not satisfied:

5. [17]

   Although the notice of appeal challenged the finding that the right of occupation was not alienable (ground 3), that challenge was not pressed at the hearing of the appeal. Rather, the appellant contended that alienability was not an essential element of a compensable interest in land for the purposes of the Land Acquisition Act.

6. [18]

   There is little reason to doubt that the findings of the trial judge faithfully applied principles established by this Court. Indeed they are principles which this Court would also apply if not comfortably satisfied that they were wrong and that it was appropriate for the Court now to depart from them. Because the appellant expressly challenged the correctness of those decisions, it is appropriate to have regard to the principles underlying the construction of the Land Acquisition Act, being the only basis upon which such a challenge could properly be mounted. Thereafter, it will be appropriate to have regard to the stream of authority to consider whether any error has been identified which warrants reconsideration of the earlier decisions.

7. [19]

   While the registered owners of the land obtained compensation for the market value of the land, being an amount which might allow them to obtain alternative premises and relocate the business which had operated on the acquired land, because they did not operate the business, they did not obtain the costs of relocation of the business. There is no challenge to that decision.

Statutory scheme

1. [20]

   The appellant’s case that it had a compensable interest in the acquired land rested on a specific phrase in the definition of “interest” in land. However, to address that case, it is necessary, as the appellant recognised, to have regard to the scheme of the legislation. There are a number of sections, not all directly engaged, to which it is necessary to refer.

2. [21]

   Part 1 of the Land Acquisition Act relevantly contains the objects of the Act and critical definitions. It is convenient to delay reference to the definitions until the operative provisions have been set out. The primary objects may be identified here:

3. [22]

   Part 2 deals with acquisition of land by compulsory process. It provides that an authority may not acquire land unless it has given the owners of the land written notice of its intention to do so: s 11(1). Those to whom notice must be given are identified in s 12(1):

4. [23]

   Acquisition is provided for in Pt 2, Div 2 and is effected by publication of a notice in the Government Gazette describing the land being acquired: s 19. The effect of such a notice is set out in s 20:

5. [24]

   In certain circumstances, an owner may initiate acquisition of land but, pursuant to s 22, the process is only available to a person who has a fee simple estate in the land or “a person who has become entitled to exercise a power of sale of the land”. A person entitled to exercise a power of sale is a person having an interest in the land.

6. [25]

   There is provision in s 34(1) for a former owner to occupy land until compensation is paid:

7. [26]

   Compensation is provided for in Pt 3, which sets out the entitlement to compensation, relevantly in s 37:

8. [27]

   The entitlement to just compensation is provided by s 54(1):

9. [28]

   Section 55 lists the matters to be taken into account in assessing compensation, and requires that the assessment is to be undertaken having regard “only” to the matters listed. Although the parties did not address the operation of s 55, nor the potentially available heads of compensation, the basis on which compensation may be payable has been considered in a number of earlier authorities in this Court to which attention must be paid in addressing the appellant’s submissions. Section 55 and the relevant provision dealing with disturbance, being s 59(1), read as follows:

10. [29]

    Finally, it is appropriate to note the terms of s 62 dealing with specific examples of rights in and powers over land:

11. [30]

    Against this background, it is convenient to turn to the relevant definitions in s 4:

Operation of Land Acquisition Act

1. [31]

   The focus of the appellant’s submissions was on the definition of “interest”, and in particular par (b). The appellant asserted that its interest in land was a “privilege over, or in connection with, the land”.

2. [32]

   Four aspects of that assertion should be noted. First, although the appellant identified the term “privilege” as properly describing the nature of its interest in land, it did not particularise the attributes or characteristics which were said to constitute the privilege. Rather, it relied on the Macquarie Dictionary, definition (3) of “privilege”, as “a prerogative, advantage or opportunity enjoyed by anyone in a favoured position (as distinct from a right)”. [8] However, that definition provided no assistance in identifying the relevant attributes or characteristics which might constitute the appellant’s “privilege” in the present case.

3. [33]

   Secondly, the use of the Macquarie Dictionary was selective: the first two limbs of the definition were not adopted. If part of a definition is to be rejected as inapposite or irrelevant, it is important to identify why that is so, apart from the fact that one part suits the case of the party relying on it and the other parts do not. In principle, that can only be done by reference to the statutory context. As is often the case, the dictionary fell short of providing useful assistance. [9]

4. [34]

   Thirdly, it follows from the last point that the term “privilege”, used in the statute to define an interest in land, may be expected to have a legal meaning which is not to be found in a dictionary providing examples of ordinary usage. As Hohfeld explained a century ago, the term “privilege” is a jural concept: the terms “privilege” and “no-right” were identified by Hohfeld as jural correlatives signifying “one’s freedom from the right or claim of another”. [10] (He identified “privilege” and “duty” as jural opposites.)

5. [35]

   Fourthly, even focusing on the statute, it is by no means clear that the meaning of “privilege” is to be found in a single word in the statutory definition. It is necessary also to consider the relational terms, “over, or in connection with” the land. In that part of the definition, the reference to “the land” should be understood as a reference to a physical feature of the surface of the Earth having particular spatial boundaries. A person may be lawfully present on particular land without having anything which might be described as an interest over or in connection with the land.

6. [36]

   In addressing the nature of its interest, the appellant sought to distinguish between two tasks, namely, first, the identification of the interest, and, secondly, the assessment of compensation for deprivation of the interest. The appellant conceded that the result of the former exercise may be relevant to the second exercise, but nevertheless the exercises remained separate. There are, however, practical reasons to doubt whether that is a helpful approach in the context of the legislation. Thus, in Dial a Dump, Leeming JA noted that the appellant did not enjoy “a valuable contractual right”. [11] He continued:

7. [37]

   Thus, the permission or sufferance which allowed the appellant in that case to occupy the premises may have been a “privilege” within the ordinary meaning of that term, but not a privilege “over or in connection with” the land for the purposes of the Land Acquisition Act. Seen from a different perspective, the liability to termination at will without notice prevented the applicant having a relevant interest in land. The same analysis can be applied to the present case. Senior counsel for the appellant agreed that he needed to demonstrate that this analysis was clearly wrong. [12] However, there is reason to think that, while not definitive, the contextual approach engaged by identifying a compensable interest is helpful. While the appellant conceded that it held no interest having a market value, there is a question, to which it will be necessary to return, as to whether any other compensation is available where the interest is said to have no market value. One conclusion based on this concession is that there is no compensable interest.

8. [38]

   First, it is significant that the guarantee provided by s 3(1)(a) is of compensation “not less than the market value of the land”. In the present case, it is conceded that the appellant’s interest has no market value. There will of course be cases (perhaps most cases) in which the sum of the amounts available after taking into account the matters identified in s 55 will exceed the market value of the land. Nevertheless, it is at least an implicit assumption of the guarantee contained in s 3(1)(a) that the compensable interest has some market value.

9. [39]

   Secondly, the statute uses the language of ‘ownership’ consistently in relation to acquired land. The appellant submitted that (i) that factor was neutral, as the Act defined “owner” of land to mean any person who “has an interest in the land”, and (ii), even if the language of ownership gave colour to that which was owned, it was inappropriate to treat that terminology as a constraint on the otherwise broad language of the definition of “interest”.

10. [40]

    Thirdly, and a factor of more substance, is the effect given to the acquisition. Section 37 refers to “an interest in land which is divested, extinguished or diminished by an acquisition notice”. Thus, the acquiring authority does not necessarily obtain the interest of the prior owner: that interest might merely be extinguished. Section 37, which confers a right of compensation, is not in the same language as s 20, which describes the effects of the acquisition notice. Section 20 (set out at [23] above) describes the effects on “the land described in the notice”, which may be a specific interest in land or the fee simple of land identified by reference to cadastral boundaries. In any event, that from which the land is “freed and discharged”, according to s 20(1)(b), is an expansive list, not limited to the terms used in the definition of “interest” in s 4, although it includes the term “interests”. The subjects of discharge include “trusts, restrictions, dedications, reservations” and “rates and contracts”, none of which terms appear in the definition of “interest”. On the other hand, s 20(1) does not refer to “power or privilege”, language which appears in the definition of “interest”.

11. [41]

    These provisions must be read together so as to work harmoniously. On one view, the terms “power” and “privilege” appear to stand without reference to a source. Each may be found in an easement, a charge, a trust or a contract. In other words, each is capable of referring to a legally recognised concept which will, in appropriate circumstances, be enforceable. A power of sale may be found in a mortgage or in a trust. If there were powers or privileges which were not divested, extinguished or diminished by the notice of acquisition, there would be, on one view, a lacuna in the operation of s 20. On that approach, the phrase “power or privilege” should be understood, when referring to such a thing “over, or in connection with” land, as something to be found in a legally enforceable instrument or other enforceable arrangement.

12. [42]

    The alternative reading must be that someone can own an interest in land which is not legally enforceable and need not be extinguished by a notice of acquisition because it could not, in any event, be enforced against the acquiring authority. But if it is not something which is extinguished by the acquisition notice, it is not an interest for which compensation must be paid pursuant to s 37.

13. [43]

    It follows that the definition of “interest” in land refers to a legally enforceable interest of the kind discharged under s 20. This reading is consistent with the general law understanding that there are personal interests which may arise between individuals and are enforceable in, or in connection with, property. It is a reading which is consistent with the legal language of ownership of an interest in land.

14. [44]

    Although the appellant contended that an interest in land could be identified without regard to the provisions for assessment of compensation, that is to ignore the primary object of the statute and to deny the importance of reading the statute as a coherent whole.

15. [45]

    The primary purpose, as noted, is to guarantee compensation assessed as the market value of the land. Other matters referred to in s 55 are by way of addition to that amount. Each of the matters set out in s 59(1) involves costs or fees reasonably incurred by, as described in par (a), “the persons entitled to compensation in connection with the compulsory acquisition of the land”. In subsequent paragraphs, the persons are identified by the shortened phrase of “those persons”. Thus, in relation to the costs of relocation which may be recovered under par (c), such costs are those incurred by persons entitled to compensation. Where a business has no interest with a market value, or any other value, the fact that the business happens to require relocation following compulsory acquisition should not be understood as giving it a freestanding right to recover the costs of relocation. Nor can it claim stamp duty payable because it, or someone on its behalf, purchases land on which to recommence the business.

16. [46]

    Read coherently, the holder of a bare licence or permission to occupy land, terminable at will by the owner, has no foundation or interest on which to build a claim for compensation for losses attributable to disturbance under s 59.

17. [47]

    It is convenient next to turn to the case law, which uniformly supports this conclusion.

Case law

1. [48]

   The principle articulated above is consistent with the reasoning of the High Court in The Minister v The New South Wales Aerated Water and Confectionery Company Ltd. [13] The resumption in that case was governed by s 117 of the Public Works Act 1900 (NSW) which required a jury to assess “the value of such lands, estate or interest” at the time the notice of resumption was given. The lessee company was held to have an entitlement to the value of the unexpired term of its lease, but no entitlement based on an expectation that the lease would be extended because the lessor held the bulk of the shares issued by the lessee. As explained by Griffith CJ, the relationship between the lessor and the lessee was not a matter “depending upon the nature and circumstances” of the land itself and was therefore not to be taken into account in valuing the unexpired term of the lease. [14]

2. [49]

   The earliest of the cases in this Court which addressed the terms of the Land Acquisition Act was Hornsby Council. The land in question was Crown land reserved from sale and lease for the purpose of public recreation. Although, by statute, the Council had “control” of certain public reserves, as Mason P observed, that described a responsibility or a statutory governmental function, and was “entirely outside the field of rights occupied by the group comprising the definition of ‘interest’”. [15]

3. [50]

   Meagher JA reasoned in similar terms. Noting a submission with respect to par (b) of the definition of “interest” in s 4, to the effect that the words “were extraordinarily wide and should be interpreted literally”, Meagher JA responded: [16]

4. [51]

   Powell JA agreed with both Mason P and Meagher JA. [17]

5. [52]

   Before turning to more recent authorities which have applied the reasoning in Hornsby Council, it is convenient to refer to the decision of a five-judge bench of this Court in Leichhardt Council v Roads & Traffic Authority of NSW. [18] The case considered whether “community land” held by a council, and not available for sale by the council, had a discounted market value taking into account the restriction on sale or disposal. As Spigelman CJ observed, s 56(1) of the Land Acquisition Act provides “an objective test to which considerations entirely personal to the owner are not material”. [19] He therefore held, other members of the Court agreeing:

6. [53]

   As the Chief Justice further noted, the definition of market value hypothesised a sale on the basis of “the statutory hypothesis… that the land is able to be sold”. [20]

7. [54]

   In 2015 this Court considered whether the rights of a purchaser under an uncompleted contract for the sale of land constituted an “interest” in land for the purposes of the Land Acquisition Act: Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd. [21]

8. [55]

   Emmett JA identified the nature of the purchaser’s interest by reference to “four equities”, although noting that the extent to which they might be enforceable depended upon the time at which enquiry was made:

9. [56]

   Golden Mile thus provides illustrations of the kinds of interest, recognised in law, which may fall within and give work to, par (b) in the definition of “interest” in land without resort to non-legal usage.

10. [57]

    More specifically in addressing the scope of par (b) in the definition, Emmett JA repeated the reasoning of Meagher JA in Hornsby Council and concluded: [24]

11. [58]

    In 2017, the Court gave judgment in Dial A Dump, the reasoning in which is challenged by the appellant. Dial A Dump Industries carried out activities on land at St Peters in Sydney which had been acquired for the purposes of the WestConnex motorway. The registered owner of the land was Alexandria Landfill Pty Ltd; a lease of part of the land had been executed in favour of Boiling Pty Ltd, although the lease was not registered. Dial A Dump asserted a compensable interest in the land the subject of the lease to Boiling, as it had permission to use and occupy the land to operate a waste business which included separation of waste, recycling and use in landfill. In the Land and Environment Court, Preston CJ of LEC determined that Dial A Dump had no interest in land for the purposes of the Land Acquisition Act. That decision was upheld on appeal. The primary reasons were given by Beazley P who addressed par (b) of the definition of “interest” in land, commencing with the separate reasons of Mason P and Meagher JA in Hornsby Council. [25] The President also noted the caution identified by Brownie AJA in Minister for Education and Training v Tanner, [26] to the effect that the language used by Meagher JA in Hornsby Council was properly understood as illustrative of the scope of par (b) and not a substitute for the words of the statute. In Tanner, a further right was identified as capable of constituting an interest within the definition, namely the common law right of an owner of land adjoining a highway to have access to the highway, which was accepted to be “a right over or in connection with the public road adjoining his or her land”. [27]

12. [59]

    There can, of course, be no suggestion that Meagher JA in Hornsby Council was intending, or should be taken as proposing, language in substitution for the statute. However, the value in identifying possible interests which fell within par (b), expanded upon in Golden Mile, lies in giving content to the language of the definition, so as to avoid the accusation that a restrictive approach to the statutory language may give particular terms no work to do.

13. [60]

    In Dial A Dump, after a careful analysis of the authorities, the President accepted that the scope of par (b) “is not as confined as was found in Hornsby Council”. [28] It is clear that, whatever element of confinement the President had in mind, they did not affect the present considerations. She continued, identifying two requirements in the legislation, namely:

14. [61]

    The President then stated:

15. [62]

    McColl JA agreed with the President in relation to this reasoning, as did Leeming JA subject to some further observations with respect to the definition of “interest” in land. Having rejected the contentions that (pursuant to par (a) of the definition) Dial A Dump had a legal interest in land by reason of its exclusive possession of the site or an equitable interest in land because the relationship between it and the registered owner and lessee were capable of supporting equitable remedies, Leeming JA turned to par (b). He noted what was, in effect, a challenge to the reasoning in Hornsby Council:

16. [63]

    After noting a submission based on the decision of the Queensland Court of Appeal in Sorrento Medical Service v Chief Executive, Department of Main Roads, [29] Leeming JA continued:

17. [64]

    The pithy analysis in this last passage is applicable in the analogous circumstances of the present case. The appellant’s submission that it was clearly wrong should not be accepted: on the contrary, no reason was identified to doubt its correctness.

18. [65]

    Before leaving the authorities, it is convenient to note the reasoning of a second five-judge bench of this Court in Roads and Maritime Services v United Petroleum Pty Ltd. [30] United Petroleum carried on a service station business on land acquired for the purpose of upgrading the Pacific Highway. It made a claim for disturbance under s 59(f), which was the focus of the reasoning in that case. I stated:

19. [66]

    That reasoning continued:

20. [67]

    Macfarlan and Payne JJA agreed with this reasoning. Sackville AJA wrote separately, but to similar effect in addressing the claim under s 59(f) [31] :

21. [68]

    Preston CJ of LEC by similar reasoning found that the loss of future profits from the business that had been conducted on the acquired land was not a “direct and natural consequence” of the acquisition. [32]

22. [69]

    Consistently with the reasoning in these cases, it may be said that the appellant had a permissive occupancy, terminable at will by the registered owners of the land. It was, concededly, not an interest with a market value. Nor was it an interest which gave rise to any right to compensation for “loss attributable to disturbance”. In particular, the claim for loss of profits appears to be directly inconsistent with the ruling in United Petroleum. As Payne JA stated:

23. [70]

    These authorities establish that a permissive occupancy, terminable at will by the registered owner of the land, and dependent for its continuation on the personal relationship between the occupier and the owner, is not a relevant (compensable) interest in land for the purposes of the Land Acquisition Act. This review of the case-law reveals no basis to conclude that either the outcomes or the reasoning is incorrect.

The relevance of subsequent amendments

1. [71]

   This conclusion is fortified by the reasoning in Probuild that it would be a “strong thing” for this Court to overturn earlier authority in circumstances where the Act had been the subject of substantial subsequent amendment, without any variation to the effect of that authority.

2. [72]

   There have been some quite limited amendments to the Land Acquisition Act since Hornsby Council, such as amendments dealing with native title, [33] and changes to s 59 with respect to valuation fees. [34] More importantly, the Land Acquisition (Just Terms Compensation) Amendment Act 2016 (NSW) made substantive amendments, including (i) the omission from s 4 of the definition of “solatium” and the insertion of “disadvantage resulting from relocation”, with concomitant changes to ss 55 and 60; (ii) changes to the minimum period of negotiation for acquisition by agreement (inserting s 10A); (iii) changes to the minimum period of notice under s 13; (iv) new provisions for dealing with hardship applications (s 27A); (v) an amendment to s 34, dealing with a former owner’s right to occupy land until compensation is paid; (vi) procedural changes to the role of the Valuer General in assessing compensation; (vii) amendment of s 56 to make provision for the market value of the land where there is no general market for the land; (viii) inserting a new detailed mechanism for disposing of land not required for the acquired purpose (s 71A); and (ix) a new Sch 1A to allow for indexed changes to the maximum amount allowed by way of compensation in respect of disadvantage resulting from relocation.

3. [73]

   The 2016 amendments were substantive and material changes to the Land Acquisition Act. In making provision for compensation for disadvantage resulting from relocation, they had a direct effect on circumstances in which such compensation was available, but no change allowed for some broader set of interests to engage the right to compensation for relocation. This legislation clearly engaged the principles stated in Probuild, militating against departure from the earlier decision of this Court in Hornsby Council, were that otherwise being considered.

4. [74]

   There have been other less significant subsequent amendments. [35] Finally, there was a variation subsequent to the decision of this Court in Dial A Dump, which addressed part of the definition in s 4 of “authority of the State”. [36] That amendment, taken alone, might not have engaged the Probuild principle. However, Dial A Dump expressly engaged with and applied the construction of “interest” in land adopted in Hornsby Council. While it recognised that there might be interests beyond those which had so far been identified, it did not challenge the conclusion that what was required was an interest of the kind recognised by law “over or in connection with” land, as explained in Tanner. It is therefore sufficient to rely upon the amendments, which were of substance, made by the 2016 Amendment Act as engaging the relevant principle of statutory interpretation.

Conclusions

1. [75]

   The appeal must be dismissed for three broad reasons.

2. [76]

   First, the submission that the approach to the definition of “interest” in land accepted in earlier judgments of this Court is wrong should be rejected. The proposition that words such as “privilege” may be extracted from the statutory context and given their ordinary English usage should be rejected. The definition of “interest” in land encompasses a wide range of interests, but they are all in, over or in connection with land; they do not include interests which are dependent upon the personal relationship between the occupier and the owner. The distinction between personal and proprietary interests has long been recognised in the general law. Whilst the statutory definition should not be given any narrow or constrained reading, the statutory context is not consistent with a reading which encompasses an obligation to compensate for interests based on personal relationships. Accordingly, the Court cannot be comfortably satisfied that the earlier authorities were wrongly decided; rather, the general approach adopted in those cases is correct.

3. [77]

   Secondly, the purpose of the legislation, namely to provide compensation where a government authority compulsorily acquires land for public purposes, as has been held in a number of recent decisions of this Court, does not encompass providing compensation for a permissive occupancy terminable at will. Although these decisions have turned on the provisions relating to the assessment of compensation, they are coherent with and reflect the approach taken to the definition of “interest” in land.

4. [78]

   Thirdly, the fact that the Parliament has legislated to make substantial amendments to the Land Acquisition Act in 2016 without overturning, or making amendments inconsistent with, the earlier decisions of this Court is a factor militating strongly against this Court overturning any earlier decisions as to the scope and operation of the Land Acquisition Act.

Orders

1. [79]

   The Court should make the following orders:

   1. (1)

      Dismiss the appeal from the judgment of the Land and Environment Court delivered on 27 August 2021.

   2. (2)

      Order that the appellant pay the respondent’s costs in this Court.

2. [80]

   PRESTON CJ of LEC: I agree with Basten AJA that the appeal should be dismissed with costs for the reasons he gives.