With a legislative history spanning just under two years, the decision of the
The power of five words - "special is refused with costs" - should not be underestimated.
Background
In 2018, land in Camperdown owned by Antonio and
In the primary proceedings, Olde English Tiles conceded they did not have a market value claim for their occupancy right. However, they nonetheless claimed compensation for disturbance under section 59(1)(c) of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act).
The crux of the matter fell to the interpretation of 'interest' in land as defined under section 4(1)(b) of the Just Terms Act. An applicant must prove they have an interest which constitutes a 'right, power, or privilege over, or in connection with' the land. Without this, an applicant is not entitled to compensation.
The Land and Environment Court held that Mr and
The Applicant appealed the decision.
The five-Judge bench of the
- An interest in land must be legally enforceable and capable of being divested, extinguished or diminished by the acquisition (section 20 of the Just Terms Act).
- The right to claim compensation under section 55(d) and section 59(1) of the Just Terms Act is contingent upon having a right to claim compensation for the market value of the interest divested.
- It is inappropriate to overturn the decisions of
DADI andHornsby Council , when it was those decisions that promptedParliament to legislate substantial amendments to the Just Terms Act in 2016. Those decisions have helped clarify the scope and operation of the Just Terms Act and gives the Court even more reason not to overturn them.
Following the
The High Court's decision on the special leave application
On
Although short, the line of questioning from the
Counsel for Olde English Tiles submitted that the issue with Hornsby was that it implied there must be a limitation to the definition of interest, arguing that a contextual meaning of the words should be adopted instead.
Edelman J of the
In this case, Mr and
Edelman J noted that the arrangement with Mr and
Again, as in the LEC and the
Counsel argued that Hornsby was silent on the proper meaning of the expression as defined in section 4(1)(b) in the Just Terms Act; namely:
An easement, right, charge, power or privilege over, or in connection with the land
Edelman J continued to press for details as to the limitation of the definition - that is, whether any contractual right, terminable by will or not, would have to be compensated if land was compulsorily acquired.
Counsel could not answer this without considering the terms of those contractual rights, but went on to say that there was a lack of instrument, and that no 'perfect legal carpentry' to expressly support that interest should capture those terminable by will. He turned to the statute title, 'Just Terms', to suggest its plain and beneficial purpose.
Counsel went on to suggest that the word 'privilege' in section 4(1)(b) of the Just Terms Act should include the many forms of non-contractual (and therefore, terminable at will) occupancies, which immunise one against the claim of trespass.
This was a common term referred to in Counsel's submissions - immunisation against the claim of trespass - suggesting that this is simply what was missing in the definition, and what was needed to open the door to a claim for disturbance for privileges or rights which may not have a defined 'legal interest'.
Why is this important?
The effects of this case on the future of compulsory acquisition claims cannot be understated. By dismissing the special leave application, the
There are two readings we can take from this:
- The special leave refusal solidifies the judgment of the
Court of Appeal , and also has the potential to reiterate the intention and purpose of the Just Terms Act. It will be interesting to see the creativity of applicants in trying to circumvent the judgment:
- if they do not have a defined 'legal interest' pursuant to the definition; or
- if they do have a defined 'legal interest', but no market value claim.
- The second reading is that 'no market value means no compensable interest' is obiter dicta and acquiring authorities are to continue negotiations as usual. Even if acquiring authorities adopt this approach, we anticipate that whilst an interested party may try to negotiate compensation absent a market value claim, they are less likely to appeal to the Land and Environment Court.
It may take another case to go through the Court dealing with this issue directly before we see a change, however, given the number of current acquisitions by state authorities, it may only be a matter of time before we see the effects of this decision playing out.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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