Cappello v Roads and Maritime Services & Anor.

1. [1]

   The first and second plaintiffs are the registered proprietors of land located at XXXXXXXX, Haberfield. The second plaintiff is also the registered proprietor of adjoining land in XXXXXXXX, Haberfield. I will refer to the plaintiffs as “the landowners”. They challenge the validity of proposed acquisition notices in respect of each parcel of land issued by Roads & Maritime Services (RMS) under s 11 Land Acquisition (Just Terms) Act 1991 (NSW) (“Just Terms Act”). Each notice was issued on 18 January 2019. By s 13 of the Just Terms Act, a proposed acquisition notice must be given at least 90 days before the land is compulsorily acquired. After the expiration of that period, the relevant authority of the State, here RMS, must, as soon as practicable, either acquire the land by compulsory process or agreement, or withdraw the Proposed Acquisition Notice: s 14 Just Terms Act.

2. [2]

   The landowners argue that the Proposed Acquisition Notices are of no legal effect because the RMS does not possess the statutory authority to acquire their land. Section 7 of the Just Terms Act makes clear that the Just Terms Act does not empower an authority of the State to acquire land if it does not otherwise have that power. From the proposed acquisition notices it is clear that RMS is purporting to acquire the land by exercising power under s 177 of the Roads Act 1993 (NSW). This question of whether RMS has power (or authority) to acquire the land is the sole issue that has been litigated before me.

3. [3]

   The Registrar-General under Real Property Act 1900 (NSW) is named as second defendant. The relief sought against that statutory office holder relates to the validity of the registration by the Registrar-General of a deposited plan which describes that portion of the landowners’ land which RMS seeks to acquire. The Registrar-General filed a submitting appearance. However, the landowners do not press the prayers for relief against the Registrar-General in paragraphs 4 and 5 of the amended summons filed on 25 March 2019.

4. [4]

   Because the minimum statutory period of notice under the Just Terms Act expires on 18 April 2019, Wright J on RMS’s Notice of Motion filed on 18 March 2019 granted expedition of the hearing of the summons. Pursuant to that order, the matter came on before me for hearing on 15 April 2019. In those circumstances I have expedited the giving of my decision. By doing so I hope I have not failed to give the detailed arguments of learned counsel their due.

Agreed facts

1. [5]

   The factual background to the legal dispute is contained in the statement of Agreed Facts (Exhibit A; Tab 3). From those agreed facts, I provide the summary that follows.

2. [6]

   The land described in the proposed acquisition notices is the land in DP 1247934 registered by the Registrar-General on 19 October 2018. The Deposited Plan demonstrates that RMS seeks to compulsorily acquire a proportion of the sub-stratum of each parcel of land owned by the landowners for the purpose of having road tunnels and ancillary works constructed from Haberfield to St Peters (referred to as the main tunnel). This project is stage 3A of WestConnex. The proposed acquisition notices state that the acquisitions are for the purpose of constructing, operating and maintaining the WestConnex M4 – M5 link.

3. [7]

   It is apparent that the land of very many other landowners may be similarly affected and the present case is something of a “test case”, although it was not presented in those express terms.

4. [8]

   Given that the portion of the land affected is in the sub-stratum, it is the RMS’s contention that the land owners use and enjoyment of the land is unaffected and their legal interest undiminished. For this reason RMS states in the proposed acquisition notices that no compensation is in fact payable under the Just Terms Act. I assume the landowners regard this contention as contestable. This is not an issue for me to decide and I merely note it in passing.

5. [9]

   On 17 April 2018, planning approval for the carrying out of the WestConnex M4 – M5 Link was granted pursuant to s 5.19 of the Environment and Planning Assessment Act 1979 (NSW) (Exhibit A; Tab 5).

6. [10]

   RMS has executed a Deed known as WestConnex M4 – M5 Link Project Deed (Exhibit A Tab 4) under which two prosaically named, related corporations are respectively engaged, in broad terms, to design and construct the main tunnel from Haberfield to St Peters. One company is referred to the Project Trustee and the other as the Asset Trustee. They have different functions under the Deed which it is unnecessary to expand upon.

7. [11]

   Clause 2 of the Deed under the heading Grant of Concession is important. It is in the following terms:

8. [12]

   Subject to other provisions of the Deed, on the last day of the term, the trustees must “peaceably surrender and yield up to RMS, the Motorway and the Motorway Stratum … in a fully functional condition…” (Exhibit A; Tab 4; p. 282).

9. [13]

   Part of the main tunnel, the subject of the approval, comprises an underground on-ramp tunnel that will connect the remainder of the main tunnel to Wattle Street, Haberfield. Part of this on-ramp tunnel will be located under the landowners’ land.

10. [14]

    On 17 August 2018, pursuant to s 52(1) of the Roads Act, an order was published in the gazette declaring the proposed road to be constructed in the main tunnel including the on-ramp tunnel, to be a “tollway” (Exhibit A; Tab 6; p. 400).

11. [15]

    On a date not presently known because the document is undated a direction was made pursuant to s 63 of the Roads Act that all of the relevant functions of a “roads authority” under the Roads Act with respect to the main tunnel were to become the responsibility of RMS (Exhibit A; Tab 7; p. 413 and 414). The landowners do not accept that direction was validly made. However it is not separately impugned.

12. [16]

    The road which will be constructed in the main tunnel including the on-ramp tunnel have not at any time been dedicated as or declared to be a “public road” for the purpose of the Roads Act. It is common ground that the tollway when constructed will be a private road under the Roads Act.

The submissions of the landowners

1. [17]

   I wish to acknowledge the great assistance I have received from the written submissions of the parties. Mr B Coles QC, who appears for the plaintiffs with Mr G Farland and Mr N T Keene, provided 20 pages of written submissions in chief and 11 pages in reply. Mr N Owens SC, who appeared for RMS with Mr L Waterson and Ms L. Johnston, provided 11 pages of written submissions.

2. [18]

   Given the time constraints for arriving at a decision, having regard to the expiration of the proposed acquisition notices on 18 April 2019, I will not summarise the very detailed arguments I received. Rather I will, of necessity, confine myself to their broad outline.

3. [19]

   I repeat that it is common ground, because the Minister by order under s 52 Roads Act published in the New South Wales Gazette declared the proposed main tunnel and tunnel on-ramp to be a tollway, the proposed road is not a public road, but is a private road under the Roads Act. The dictionary incorporated in the Roads Act by s 4 defines “private road” as meaning any road that is not a public road. It is relevant to record that s 52 of the Roads Act includes a provision that “the Minister may declare to be a tollway … any road proposed to be constructed on land owned or to be owned by RMS”.

4. [20]

   The landowners says that the power conferred, inter alia, on RMS to acquire land by s 177 (set out below) of the Roads Act is limited by the expression “any of the purposes of this Act” appearing at the end of sub-section (1). The landowners equate “purposes” in that context with the express statement of “objects” set out in s 3 of the Roads Act (“the objects provision”). It is their contention, with the possible exception of s 3(d), that each of the objects should be construed as extending to public roads only. There is no express mention of private roads in the statement of objects. It is also submitted that “public roads” in context are limited to roads already in existence. As there is no direct or separate “object” expressly referring to the exercise of the s 177 power, that power is constrained by the express “objects”.

5. [21]

   The landowners say this construction is supported by the protection the law generally affords rights of private property; in the case of ambiguity s 177 should be construed to favour private property rights over an extended power of acquisition. This is so notwithstanding that s 178 provides that land that is authorised to be acquired is to be acquired in accordance with the Just Terms Act.

6. [22]

   The landowners say that it follows from this construction that it is a precondition of the exercise of the power to acquire land under s 177 that engagement with a specified object in the objects provision must be demonstrated objectively. That is to say, identification of objective satisfaction of a specified purpose is a jurisdictional fact which must be established before the statutory power may be exercised.

7. [23]

   The landowners also argue that s 71 of the Roads Act which authorises a “roads authority” to “carry out roadwork on any public road for which it is the roads authority and on any other land under its control” does not provide an alternative source of power to acquire land. Quite clearly the proposed main tunnel and tunnel on-ramp is not a public road; it is a tollway. Nor does the very broad definition of “road work” extend expressly to work on a tollway, even if it does cover the excavation of a tunnel.

8. [24]

   The so-called “second limb” of s 71 authorising a road authority to carry out roadwork “on any other land under its control” clearly refers to land already under its control rather than land it is yet to acquire. Section 71 authorises the performance of roadwork, it does not authorise the acquisition of land.

9. [25]

   RMS argues that the power conferred by s 177 is not limited to the particular objects stated in the objects provision which are necessarily expressed at a very high level of generality. The purposes referred to in s 177 are informed not only by the objects provision but also by the terms of the particular provisions of the Roads Act and the nature of the functions it imposes on RMS and other road authorities. In any event, an object expressed in the objects provision is to provide for the classification of roads (s 3(d)). Part 5 is entitled “Classification of Roads”. It includes s 52 providing for classification as a tollway. Moreover the objects provision, in s 3(f), speaks of conferring “certain functions on RMS”.

10. [26]

    The language of s 177, in any event makes, clear that the power to acquire land it confers extends beyond the power to acquire land for the purpose of an existing public road. Section 177(2) is explanatory in this regard. Paragraph (b) makes clear that RMS may acquire:

11. [27]

    This last point is reinforced by the consideration that under s 52(1)(b) the Minister may declare a road a tollway, that is a “road proposed to be constructed” on “land … to be owned by RMS”. This is by definition a private road. On this argument the purposes of the Roads Act clearly extend to the construction by RMS of a proposed tollway on land that is not yet, but is to be, owned by RMS.

12. [28]

    Section 63, s 64(1) and s 64(1)(A) are important provisions because where they apply, RMS is empowered to carry out the functions of a roads authority in respect of roads for which it may not otherwise be the roads authority. RMS argues that under these provisions there is a distinction between exercising the function of a roads authority and having the status of the road authority for a particular road. Importantly s 64(1) directly authorises RMS to exercise the functions of a roads authority with respect to any classified road, whether or not it is the roads authority for that road and whether or not the classified road is a public road.

13. [29]

    RMS emphasises that under s 178 Roads Act, land authorised to be acquired under, inter alia, s 177 may be acquired by compulsory process in accordance with the Just Terms Act. This RMS says it has sought to do by the issue of the Proposed Acquisition Notices. By this means the rights of property owners have the necessary protection. It is unnecessary to read s 177 down for that purpose.

The legislation

1. [30]

   It is necessary to set out some, but not all of the provisions referred to by Counsel. The objects provision, as I have said, is s 3 which is in the following terms:

2. [31]

   Section 7 identifies the government agencies which are roads authorities for the purpose of the Act. It is sufficient to recognise that “[a] roads authority has such functions as are conferred on it by or under this or any other Act or law”: s 7(5).

3. [32]

   Section 177 is in the following terms:

4. [33]

   As I have recorded in the summary of counsel’s submissions, land authorised to be acquired under Division 1 of Part 12 of the Act may be acquired by compulsory process in accordance with the Just Terms Act: s 178(1).

5. [34]

   Part 5 of the Roads Act is concerned with the classification of roads. A classified road is a defined expression in the dictionary extending to 9 classifications which include “a tollway”. I have set out parts of s 52 above, but for clarity I will set out the whole of it now:

6. [35]

   Section 54 it needs to be borne in mind. Under it the Minister may not make an order classifying a road “otherwise than on the recommendation of RMS.” By s 54(2) an order under Division 1 of Part 5 “may be made in relation to a proposed road”. Section 54(3) is in the following terms:

7. [36]

   Section 63 provides:

8. [37]

   Section 71 is within Part 6 of the Roads Act which is entitled Roadwork, s 71 is in the following terms:

9. [38]

   Section 213 is as follows:

Decision

1. [39]

   Section 177, rather than s 71, is the logical starting place for a decision about the power of RMS to acquire land. Obviously the power is limited by the concluding words of s 177(1), “for any of the purposes of this Act”. But whatever its limits, it extends to acquiring land “for the purpose of opening, widening or constructing a road or road work” (my emphasis). Moreover, the power extends beyond the acquisition of the land that is necessary for that purpose. RMS is also empowered to acquire “land that forms part of, or adjoins or lies in the vicinity of” the land necessary to be acquired for the performance of the roadwork: s 177(2)(b).

2. [40]

   Central to the landowners’ argument is the idea that the power of acquisition for the purposes of the Roads Act should be read as a power of acquisition for the objects of the act as expressed in the objects provision only. And that those objects should be read as concerned with the performance of administrative and other action in relation to existing public roads only. This approach significantly reads down the ordinary meaning of s 177. And it treats the objects provision as a constraint on the meaning, operation and application of, not just s 177, but of, virtually, the whole of the Roads Act and each provision of it. I say this because it is well established by high authority binding on me that:

3. [41]

   Although, unlike a preamble, the objects provision is part of the Roads Act, it expresses the objects of the Roads Act in very general terms. I would not regard them as an exhaustive statement of the purposes of the legislation, acknowledging at the same time, in grammatical terms, the language of the objects provision is definitive rather than inclusive. Nor would I regard the objects expressed as controlling the meaning to be given to the other, operative provisions of the legislation. It is not a fair reading of the expression “for the purposes of the Act” to equate those purposes with the objects expressed in the objects provision. The purposes of the Act, in accordance with Project Blue Sky, are to be found in “all the provisions of the statute”.

4. [42]

   Semantically, the word “purposes” may be taken to be a synonym of the word “objects”: Darkingung Pty Ltd v Darkingung Local Aboriginal Land Council [2006] NSW SC 1008; (2006) 203 FLR 394 at [88]. But it does not follow that the purposes of the Act are confined by the objects provision. These are pitched at a high level of abstraction. As Isaacs J (albeit in dissent) pointed out in James v Cowen (1929 – 1930) 43 CLR 386 at 410 – 12 the phrase, “the purpose of the Act” may be employed to denote only the general objects sought to be achieved by the legislation. On the other hand there is a distinction between “purpose” in this general sense and the “direct purposes” of the Act. In the course of his discussion his Honour said (at p 411):

5. [43]

   Considering the Roads Act as a whole. The operation of s 177 is not confined or constrained by the objects provision. The purposes of the Roads Act are to be found in all of the objects in the objects provision; the nature of the functions conferred upon the Minister, RMS and other roads authorities; and the express powers conferred by operative provisions.

6. [44]

   Senior Counsel for both parties cited Municipal Officers Association of Australia v Lancaster (1981) 54 FLR 129. The legislation there in question was s 140(1)(c) of the Conciliation and Arbitration Act 1904 (Cth) prohibiting the rules of an industrial organisation imposing obligations which were unreasonable “having regard to the objects of this Act”. Evatt and Northrop JJ said (at 152):

7. [45]

   Their Honours also observed (at p. 153) that where there is no express provisions setting out the objects of an Act, a Court is not prevented “from determining the policy or purpose of the legislation by consideration of the legislation itself, or in other words determining the object of the legislation from a consideration of the provisions of the legislation”. It is obvious notwithstanding the express objects provision, their Honours went on to consider whether the impugned rule purportedly made under the Act contravened the objects provisions by a consideration of “the method by which the legislature has implemented” the objects. This involved a consideration of the provisions of the Act beyond the objects provision.

8. [46]

   These authorities, in my opinion, demonstrate that even in the presence of an express objects provision, it is appropriate to look beyond s 3 of the Roads Act in the present case to determine the content of the expression “for the purposes of this Act” in s 177 in accordance with the Project Blue Sky method.

9. [47]

   I appreciate, as Mr Coles argued, that there are differences between s 140(1)(c) of the Conciliation and Arbitration Act and s 177(1) of the Roads Act. In particular the reference in the objects provision in the former to the “chief objects”, compared to, simply, “objects’ in the latter. And, importantly the prepositional phrase “having regard to” in the former tolerates a wider connection with the stated objects, than the preposition “for” in the latter.

10. [48]

    Mr Coles also referred to the judgment of Spigelman CJ in Zang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [71] – [77] and the authorities referred to there. I am not satisfied that the statutory context there is the same as here. Zang and the other authorities referred to by Spigelman CJ were concerned with the making of a purely discretionary administrative decision by having regard to statutory mandatory considerations, as well as other relevant factors. That is not this context, which is concerned with the exercise of administrative power “for the purposes of this Act”. There is no question of evaluation or assessment involved.

11. [49]

    I am not satisfied that the expression “for the purposes of this Act” in s 177 means “only for any one or more of the objects expressed in s 3 of this Act”. Although “objects” and “purposes” may be synonyms, in context I am of the view that “the purposes of this Act” when used in s 177 is a reference to the general statutory purposes to be gleaned from all of the provisions of the Act including the objects provision, the nature of the functions imposed upon the Minister, RMS or a Council by the Roads Act, and the powers conferred by the operative provisions.

12. [50]

    Taking this approach, I am satisfied that RMS is empowered to acquire private land either by agreement or otherwise in accordance with the Just Terms Act for the construction of a proposed road declared by the Minister under s 52 of the Roads Act to be a tollway, on land to be owned by RMS.

13. [51]

    The references to, in substance, proposed road and land to be owned, by RMS in s 52 of the Roads Act demonstrate that the Ministerial power, which has been exercised in this case, to declare a tollway relates equally to existing roads (public or private) or new roads proposed to be built. Nor is there any question in this case, on the agreed facts, that the land sought to be acquired will be owned by RMS. Under s 20 of the Just Terms Act, on the date of publication in the Gazette of an acquisition notice, the land described in the Notice is by force of the Just Terms Act vested in the authority of the State acquiring the land, in this case, RMS. There is nothing in the terms of the WestConnex M4 – M5 Link Project Deed which suggests other than RMS will be the owner of the land on which the tollway, including the main tunnel, is to be constructed. Under s 213 of the Roads Act RMS is expressly empowered to both lease the operation of the tollway, and lease the collection of tolls and charges on the tollway. There is nothing to suggest it may not lease the land on which the tollway is constructed and operated. By Clause 2 of the Deed RMS grants the Project Trustee and the Asset Trustee the right to carry out the project; leases the operation of the motorway to the Project Trustee; and grants the M4 – M5 Link leases to the Asset Trustee. By Clause 342 at the expiration of the term of these leases, that is to say, on its last day in 2060, if not terminated, or extended, earlier, the Trustees (lessees) are to surrender and yield up to the RMS “the motorway and the motorway stratum”, inter alia. Motorway is defined in the Deed in a way which includes the main tunnel and motorway stratum, to include the main tunnel motorway stratum. The Latter expression is itself defined as meaning the stratum of real property to be the subject of the main tunnel lease as agreed or determined under the Deed.

14. [52]

    I am satisfied that the express terms of s 52 themselves indicate that it is a purpose of the Act that RMS acquire necessary land for the construction of new roads which the Minister may declare to be a tollway. Nothing in the general provisions of s 54 derogates from this. Indeed they enhance that conclusion. The Minister may not make an order classifying a road except on the recommendation of RMS. An order may be made in relation to a proposed road; and the order takes effect only when the land (my emphasis) to which it relates is open to the public as a road. As I have observed, a tollway may be “opened to the public as a road” upon condition of the payment of toll by those members of the public who use it, and yet remain private road, at least for the purpose of the Roads Act. Section 54(3) is not confined to public roads.

15. [53]

    My conclusion that s 177 empowers RMS to acquire private land for the purpose of the construction of tollways is enhanced by the engagement of ss 63 and 64 of the Roads Act. Perhaps s 64 (1A) is the logical starting point. This provision empowers RMS to carry out the “functions” of a roads authority with respect to the proposed tollway “for the purposes of carrying out the project approved” as State significant infrastructure under the Environmental Planning and Assessment Act 1979, of which the mainline tunnel forms part: Exhibit A; Tab 5. Perhaps RMS could carry out the functions of a roads authority in respect of the project without acquiring any land. Even were that so, in my judgment the conferral of the functions of a roads authority on RMS for the purpose of carrying out the project is indicative of the discharge of that statutory function by RMS being a purpose of the Act referred to in s 177(1) in the sense I have discussed. It is also an object of the Act in the narrower sense in as much as s 3(f) applies.

16. [54]

    Section 64(1) is also an important marker of a statutory purpose of the Roads Act in that by the express words of that provision RMS is empowered to exercise the functions of a roads authority, with respect to any classified road (which it will be recalled includes a tollway) whether or not it is the roads authority for that road (under the Roads Act) and whether or not the road is a public road.

17. [55]

    Section 71 empowers a road authority to carry out roadwork on any public road for which it is the roads authority and on any other land under its control (my emphasis). Mr Owens referred to the emphasised words as “the second limb” of s 71. Road work is defined very widely by the dictionary in the Roads Act. It includes the roadway itself, and, relevantly for present purposes, a tunnel. The phrase “carry out roadwork” includes carrying out any activity in connection with the construction of a roadwork. To state what may be obvious, the function of a roads authority which RMS may exercise under s 64(1) with respect to any tollway includes constructing the tollway “on any … land under its control” under s 71. In my judgment facilitating the exercise of this function is a purpose of the Roads Act and accordingly for this reason too, RMS is empowered by s 77 to acquire the land owners land.

18. [56]

    Finally, s 63 applies in this case. As I have already indicated, the ministerial directions in the present case (Exhibit A; Tab 7) direct that all of the functions of a roads authority are, to the fullest extent possible, to become the responsibility of RMS with respect to this project. Likewise, this consideration indicates that the discharge of that function by RMS, as directed, is a purpose of the Roads Act. And RMS is empowered by s 177 to acquire private land in accordance with the Just Terms Act for that purpose.

19. [57]

    I am satisfied that the proposed acquisition notices given for the purpose of s 11 of the Just Terms Act (Exhibit A; Tab 11 and 12) are authorised by law and within the power of RMS. It is unnecessary to make any declaration in that regard.

20. [58]

    My orders are:

    1. (1)

       Refuse the relief sought in the Amended Summons filed on 25 March 2019;

    2. (2)

       Dismiss the proceedings;

    3. (3)

       Order the plaintiffs to pay the first defendant’s costs;

    4. (4)

       No order as to the Registrar-Generals costs.