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Supreme Court of Queensland SUPREME COURT OF QUEENSLAND CITATION: Astway P/L v Council of the City of the Gold Coast [2007] QSC 205 PARTIES: ASTWAY PTY LTD ACN 010 768 662 (plaintiff) v COUNCIL OF THE CITY OF THE GOLD COAST (defendant) FILE NO: BS 2825/04 DIVISION: Trial Division PROCEEDING: Trial DELIVERED ON: 8 August 2007 DELIVERED AT: Brisbane HEARING DATE: 7, 8 March 2007 JUDGE: Wilson J ORDER: CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – section 41 of the Acquisition of Land Act 1967 (Qld) provides that where an authority has acquired land under the Act and, seven years after the acquisition the authority “no longer requires” the land, it must be offered for sale to the original owner – interpretation of “no longer requires” RESUMPTION OR ACQUISITION OF LAND – POWERS OF RESUMPTION – UNDER STATUTE – CONDITIONS AND LIMITATIONS – PARTICULAR STATUTES – QUEENSLAND – section 41 of the Acquisition of Land Act 1967 (Qld) provides that where an authority has acquired land under the Act and, seven years after the acquisition the authority “no longer requires” the land, it must be offered for sale to the original owner – whether the Council “no longer require[d]” the land Acquisition of Land Act 1967 (Qld) reprint 1, s 5 Acquisition of Land Act 1967 (Qld) reprints 3(rv)-3B(rv), s 41 Attorney-General v Horton [1999] 2 NZLR 257, cited Attorney-General v Hull [2000] 3 NZLR 63, considered Estates Development Company Pty Ltd v Western Australia (1952) 87 CLR 126, considered Hooper v Bourne (1880) 5 App Cas 1, considered 2 Macfie v Callander and Oban Railway Co [1898] AC 270, cited Minister for Public Works v Duggan (1951) 83 CLR 424, cited Sydney MC v Campbell [1925] AC 338, cited Thompson v Randwick Corporation (1950) 81 CLR 87, cited COUNSEL: J A Griffin QC and C J Carrigan for the plaintiff M D Hinson SC and N Andreatidis for the defendant SOLICITORS: Short Punch & Greatorix for the plaintiff Corrs Chambers Westgarth for the defendant [1] Wilson J: In 1994 the plaintiff was the owner of 16.75 hectares of land at Molendinar described as lot 241 on RP 844822. The land was taken by the Council of the Shire of Albert pursuant to s 5 of the Acquisition of Land Act 1967 (Qld) (“the Act”) on 16 December 1994 “for rubbish depot”.1 In this proceeding the plaintiff seeks – (a) a declaration that prior to 16 December 2001, the defendant “no longer require[d]” lot 241 within the meaning of that term in s 41(1) of the Act; (b) a declaration that the defendant was obliged to offer lot 241 to the plaintiff at a price determined as at 10 November 2000 by the Chief Executive of the Department in which the Valuation of Land Act 1944 (Qld) is administered. Compulsory acquisition 2 [2] Land may be compulsorily acquired only for a stated, prescribed purpose. Section 5 of the Act3 provided – “Purposes for which land may be taken 5.(1) Land may be taken under and subject to this Act— (a) where the constructing authority is the Crown, for any purpose set out in Schedule 2; or (b) where the constructing authority is a local authority— (i) for any purpose set out in Schedule 2 which the local authority may lawfully carry out; or (ii) for any purpose, including any function of local government, which the local authority is authorised or required by a provision of an Act other than this Act to carry out; or (c) in the case of a constructing authority other than the Crown or a local authority— 1 Proclamation (Exhibit 1, p 87). 2 s 5. 3 Acquisition of Land Act 1967, reprint 1, in force as at 16 December 1994. 3 (i) for any purpose set out in Schedule 2 which that constructing authority may lawfully carry out; or (ii) for any purpose which that constructing authority is authorised or required, by a provision of an Act other than this Act, to carry out. (2) The power to take, under and subject to this Act, land for a purpose (the “primary purpose”) includes power to take from time to time as required land either for the primary purpose or for any purpose incidental to the carrying out of the primary purpose. (3) The Governor in Council, pursuant to any powers under the Land Act 1962, to resume land, at the request of a constructing authority other than the Crown, may take on its behalf any land comprised in a holding or any easement on a holding within the meaning of Division 11 of Part 10 of that Act required by such constructing authority for a purpose for which it may take under and subject to this Act land or an easement on land granted in fee simple.” [3] Lot 241 was compulsorily acquired by the Albert Shire Council for “rubbish depot”, which was among the purposes in the schedule and a function of local government within s 5(1)(b). The resumption was effected by Proclamation published in the Government Gazette.4 The land vested in the Albert Shire Council absolutely, not subject to any trust or other obligation.5 Section 41 6 [4] Section 41 of the Act provided – “41 Disposal of land (1) Notwithstanding any provision of any other Act, where land has been taken either pursuant to an agreement under section 15 or by compulsory process under this Act and, within 7 years after the date of taking, the constructing authority no longer requires the land, then the constructing authority shall offer the land for sale to the former owner at a price determined by the chief executive of the department in which the Valuation of Land Act 1944 is administered. (1A) Unless sooner accepted by the former owner the offer shall lapse at the expiration of 28 days after it is made. (2) In this section— 4 Acquisition of Land Act 1967, reprint 1, s 9(6). 5 Acquisition of Land Act 1967, reprint 1, s 12(1)(a), (5). 6 Acquisition of Land Act 1967, reprints 3 (revised version) to 3B (revised version), in force as at November 2000 – December 2001. 4 “the former owner” in relation to land means— (a) where only 1 person had an interest in the land at the date of acquisition and that person is still alive or, in the case of a corporation, in existence—that person; or (b) in any other case—such person or persons (if any) as the Minister, in the Minister’s absolute discretion, having regard to the interest that existed in the land at the date of acquisition, considers to be fairly entitled to the benefit of this section. (3) A person contracting or otherwise dealing with the constructing authority is not concerned to inquire whether the requirements of this section have been complied with, and the title of such a person to land acquired from the constructing authority is not affected by any failure to comply with those requirements.” Questions for determination [5] The critical questions in this litigation are – (a) the true meaning of “no longer requires the land” – a question of law; (b) whether the defendant no longer required the land within seven years after 16 December 1994 – a question of fact. In order to resolve the question of fact it will be necessary to rule upon the admissibility of evidence relating to matters occurring after 16 December 2001 – the retrospectant evidence question. [6] The plaintiff bears the onus of establishing affirmatively that within seven years after 16 December 1994 the defendant “no longer require[d] the land” within the meaning of s 41 of the Acquisition of Land Act.7 Identity of defendant [7] In 1995 the Albert Shire Council and the Gold Coast City Council were abolished, and a new local government called Gold Coast City Council was made the successor of the abolished councils.8 Thus the plaintiff has sought relief against the Gold Coast City Council (the defendant). Applicable principles [8] Depending on the context, “require” may signify “need” or it may signify a mere “desire or want”.9 Senior counsel for the defendant submitted that the expression “no longer requires the land” in s 41 means “does not want the land”. He relied on Hooper v Bourne10 and Attorney-General v Hull.11 7 Hooper v Bourne (1880) 5 App Cas 1, 9. 8 Further Amended Statement of Claim, [10]; Second Further Amended Defence, [6]. 9 See the Shorter Oxford, which gives these definitions (among others): “Ask or wish for (a thing) as a favour; desire or request”; “Need (a thing or person) for a particular purpose; depend on for success or fulfilment”. See also the Macquarie Dictionary: “To have need of”; “To wish to have”. 10 (1880) 5 App Cas 1, 14. 11 [2000] 3 NZLR 63, 77. 5 [9] Senior counsel for the plaintiff submitted that as a matter of construction, “the word ‘required’ should be read as having the same meaning in the Act, whenever it appears.”12 But it became clear in the course of oral argument that the term is used in quite different senses in different parts of the Act. For example, senior counsel for the defendant drew attention to s 14 which provides that “[t]he Registrar of Titles may … require a person … to deliver up … the instrument in question”; failure to comply is an offence. In that section “require” is used in the sense of “compel”.13 By contrast, the sections of the Act which provide for the compulsory acquisition of land refer to “the particular purpose for which the land to be taken is required”.14 On distillation senior counsel for the plaintiff’s submission was that “requires” in s 41 is used in the same sense as it is used in earlier sections about the land’s being required for a particular purpose, and in this context he referred to a number of cases in which Courts have restrained local authorities from acquiring 15 land not required for an authorised purpose.
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