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Commonwealth v Morison [1972] HCA 39; (1972) 127 CLR 32 (25 July 1972)

CATCHWORDS

HEARING

DECISION

2. Proceedings against the appellant were brought by the respondent in the Supreme Court of Victoria under the Lands Acquisition Act 1955-1966 (Cth). The Supreme Court of Victoria gave judgment for the respondent for $44,412. Of this sum, $22,802 was awarded for the depreciation, by reason of the proposal to carry out extensions to the airport, in the value of the lands remaining in the respondent's hands. The appellant in this appeal challenges the basis on which the Supreme Court arrived at this sum. (at p35)

3. The purpose of the resumption was not merely to do work on the resumed land but to extend the aerodrome so as to fit it for a use not hitherto possible, or at any rate not possible on the scale which the extension has enabled it to be used. The work done on the land acquired from the respondent was the paving of an extension of the south-west runway for some eighty or ninety feet, with a further 200 feet as a "premature touch down area", the placement on the land of navigational aids and the construction of a new main taxiway. These works had no utility if not used in conjunction with the existing aerodrome and its facilities. But so used, a considerable increase in the depreciatory effect of the existing aerodrome and its use was clearly to be expected. There can be no doubt that the use of the airport as a jet airport has had a depreciatory effect on the retained land, its proximity effecting privacy, its noise reducing attractiveness, pleasantness and general amenity. (at p35)

4. The primary judge held that, under s. 23 (1) (c) of the Lands Acquisition Act, he could award compensation for the depreciation in the value of the respondent's land caused by the use of the aerodrome for jet aircraft at the level of operations made possible by the extension of the aerodrome. (at p36)

5. In his reasons for judgment, the primary judge said that :

"It emerged quite clearly from the evidence of the Commonwealth
witnesses that the purpose of the extension of Mangalore
Airport, to enable it to be used for the training of pilots in jet
aircraft would involve a substantial increase in number of
total daily plane movements as well as the advent of extensive
use by jet aircraft which at present use Mangalore Airport
relatively infrequently . . . I find that substantially increased
use of jets at Mangalore Airport will be likely very considerably
to increase noise levels affecting 'Mangalore Park' and more
importantly, that an intending purchaser of 'Mangalore Park'
would, on the balance of probabilities, discount the value of
'Mangalore Park' because of its proposed use on a larger
scale and with the introduction of frequent jet movements."

"It is for the foregoing reasons that I reject this second
contention urged by the Commonwealth as to the proper
interpretation of s. 23 (1) (c). In my view of the proper
application of the subsection to the present case it is necessary
only to ascertain in relation to retained land what was the
effect, in terms of land value at the date of acquisition, of the
proposal to carry out the public purpose here in question,
described in the relevant gazetted authorization as 'extensions
to airport at Mangalore'. I am not concerned to dissect the
total effect and seek to attribute a part of it either to
construction work alone on the acquired land or to the effect of
use of that part of the facility when constructed which is
constructed on acquired land. I am satisfied that the whole
of the depreciation represented by Mr. Maloney's assessment
of $22,802 does in fact consist of depreciation in value of
'Mangalore Park' by reason of the proposal to carry out
extensions to Mangalore Airport." (at p36)

6. The appellant, however, claims that only the effect on the value of the retained land of the work actually done on the resumed land and of the use of that work can be reflected in an award of compensation for depreciation under s. 23 (1) (c). (at p36)

7. Section 6 (1) of the Lands Acquisition Act authorizes the Commonwealth to acquire land for a public purpose by agreement or by compulsory process. "Public purpose", in s. 5 (1), is relevantly defined to mean "a purpose in respect of which the Parliament has power to make laws". The legislative powers of the Commonwealth are not expressed in terms of purpose, though the ambit of at least one of the powers has been treated by the Court as ascertainable in terms of purpose. Thus, in general, the power of acquisition under the Lands Acquisition Act is limited to the acquisition of land in order to achieve by its use some result the achievement of which could be authorized by legislation of the Parliament. Whether a stated purpose is a public purpose as defined is a matter to be resolved in the last resort by this Court. But the statement of the purpose by the Governor-General in the notification of acquisition, if sufficiently specific, is conclusive that the stated purpose is the actual purpose of the acquisition. W. H. Blakely & Co. Pty. Ltd. v. The Commonwealth [1953] HCA 12; (1953) 87 CLR 501 . (at p37)

8. However, neither the validity of the notification of acquisition nor its effectiveness to divest the respondent of the described land is in question in this case. The extension of Mangalore Aerodrome is undoubtedly a "purpose" within Commonwealth legislative power, and the statement of it in the notification of acquisition sufficiently specific. (at p37)

9. Section 23 of the Lands Acquisition Act provides for the matters to be considered in determining the amount of compensation payable in respect of the acquired land. The area of dispute in this appeal relates solely to the amount of compensation to be included in the total for the depreciation of the respondent's land proximate to the extended aerodrome which remained in his ownership at the date of acquisition. The appeal thus turns on the meaning and application of s. 23 (1) (c). (at p37)

10. Section 23 (1) (c) provides that, in determining compensation for the acquisition of land, regard shall be had to -

". . . the enhancement or depreciation in value of the interest
of the claimant, at the date of acquisition, in other land adjoining
or severed from the acquired land by reason of the carrying
out or the proposal to carry out the public purpose for which
the land was acquired." (at p37)

11. A submission, earlier made in the Supreme Court and by it rejected, has not been repeated in this Court, namely, that the compensation to which s. 23 (1) (c) relates is "limited to depreciation in value of retained land caused only by the construction, and not by the subsequent use, of the facility for which the Commonwealth has acquired the land". The correctness of the Supreme Court's decision, in this respect was conceded, and, in my opinion, rightly conceded, by the Solicitor-General for the Commonwealth in the argument of this appeal. (at p37)

12. Further, there is no attack in this appeal upon the assessment made by the Supreme Court of the depreciation in value of the retained land if the construction and application of s. 23 (1) (c), upon which the Supreme Court acted, is correct. If, however, it is incorrect, the appellant requests that the matter be remitted to the Supreme Court for reassessment, it being said that there is insufficient material before this Court to enable it to make its own assessment of the depreciation in value of the retained land upon the basis which the appellant claims to be correct. (at p38)

13. As I have indicated, the appellant's submission is that the compensation for depreciation in value of the respondent's land adjoining the extended aerodrome must be limited to the depreciation caused by the construction and use of the works constructed on the acquired land. That, according to the appellant, means that the effects produced in relation to the retained land by the use of the whole of the extended aerodrome are to be ignored : only the depreciatory effect exclusively traceable to the construction and use of the works constructed on the acquired land may be reflected in the amount of compensation. (at p38)

14. The Solicitor-General supported this submission, first, by treating the basis of compensation under the Lands Acquisition Act as the same as that for which s. 63 of the Lands Clauses Consolidation Act, 1845 (U.K.) provides ; and then regarding the decisions upon that section as definitive of what may be awarded under s. 23 (1) (c) in this case for depreciation in value of the retained land. (at p38)

15. So far as presently relevant, s. 63 of the Lands Clauses Consolidation Act provides that in awarding compensation for acquired land regard should be had -

". . . to the damage, if any, to be sustained by the owner of
the lands by reason of the severing of the lands taken from the
other lands of such owner, or otherwise injuriously affecting
such other lands by the exercise of the powers of this or the
special Act, or any Act incorporated therewith."

16. Where the work to be done in carrying out the statutory powers, and the stated public purpose, are, in each case, wholly confined to the acquired land, little difference in my opinion, can exist in the application, vis-a-vis the assessment of compensation, of the two provisions, i.e. s. 63 and s. 23 (1) (c). But where the accomplishment of the stated public purpose involves the use of other land in conjunction with the acquired land, divergence of result might possibly arise in the application of s. 23 (1) as compared with the application of s. 63 in identical circumstances, particularly if the statutory powers to which that section refers are limited to the use of the acquired land. It seems to me that the formulae of s. 63 and s. 23 (1) are not identical and that s. 23 (1) is not an attempt to re-express the provisions of s. 63. But that does not mean, in my opinion, that the principle which underlies each provision is not the same or that the decisions so far made on s. 63 are irrelevant in all cases to the application of s. 23. It is, in my opinion, a sound principle in the application of s. 23 that the depreciation in value of retained land for which compensation is to be given is the depreciation caused by the use of the constructions placed on the acquired land. In a case in which it is possible to isolate the depreciatory factors to the work done upon or to the use of work done upon the acquired land, it would be proper, in my opinion, to confine the depreciation in value to the effect of those factors. After all, it is the fact of acquisition of his land which alone gives to the claimant any right of compensation for the use by government, or an authorized person or body, of any facility adjoining his land. But it does not follow, in a case such as the present, that because the acquisition is the source of the right to compensation for depreciation in value, the compensable depreciation may not include the effect of the use of the constructions on the acquired land in combination with other land and the constructions thereon. In a real sense the results of the use of constructions on the combined areas can properly be said, in my opinion, to flow from the use of the constructions on the acquired land, once it is clear that it is not possible to refer any part of such results exclusively to the use of the constructions on the acquired land. After much consideration, I see no practical way in which in the facts and circumstances of this case, the effect of the use of the constructions on the acquired land could be isolated so that it related exclusively to such use. (at p39)

17. However, before further discussing that aspect of the appellant's submissions, I should briefly refer to some of the decisions on s. 63 on which the Solicitor-General relied. A list of them appears at the end of these reasons. (At p. 42).(at p39)

18. In none of these cases, with the possible exception of Edwards v. Minister of Transport (1964) 2 QB 134 , was the Court deciding the case faced with a set of facts comparable with the facts of the present case or with the precise legal problem which it is said that this case presents. I need make no detailed reference to these cases. It is sufficient to say that in some of them the contest was whether any work of a depreciatory nature had been done on the acquired land and it was held that it had not. In other cases it was held that it had. In yet other cases, questions arose whether injury had been caused by the works on the acquired land or their use, as, for example, in Cowper Essex v. Local Board for Acton (1889) 14 App Cas 153 . Only in Edwards v. Minister of Transport (1964) 2 QB 134 was there a case where the depreciatory effect of work done, or use made of work done, on acquired land might have been said to be dependent upon work done on other land not derived from the claimant in pursuance of the same statutory power as that which was exercised in the taking or the use of the acquired land. But that case was presented to the Court on the footing that a separate and identifiable depreciatory effect could be attributed exclusively to the work done and the use made of the work done on the acquired land. How this was perceived and quantified in the circumstances has for me elements of mystery with which I need have no present concern. On this footing the claim of the dispossessed owner, as seen by the Court of Appeal, is expressed by Harman L.J. (1964) 2 QB, at p 148. Referring to the judgment of Crompton J. in In re The Stockport, Timperley and Altringham Railway Co. (1864) 33 LJ QB 251, a foundation decision in this area, his Lordship said :

"That decision had a somewhat chequered career. It was
a good deal criticized from time to time, but has stood the test,
and in the end, as will appear by a speech of Lord Macnaghten,
it was declared to be right. That is only to show that if some
of my land be taken I may claim compensation for the deterioration
of my land which is left by what is done on the part which
has been taken. The tribunal goes farther than that and says
you may also get compensation for what is done under the
powers of the Act whether on the land taken or no. That is
the point at which the shoe pinches in this case."

19. Here, as the brief recital I have made of the use made by the Commonwealth of the acquired land shows, the depreciatory factors, deriving from the use of the extended aerodrome as a jet airport, were the result of work done on the acquired land and its use in conjunction with other land and the works thereon. Apparently no evidence was tendered in the case as to any method of ascertaining, or any calculation of, the depreciation exclusively deriving from the works on the acquired land and their use. Nor, as I have said earlier, can I conceive in practical terms of any such method or calculation. But one thing at least is certain : the aerodrome could not be used for jet aircraft to the same extent it can now be used without the works carried out on the acquired land and by the use of them. I think that, in practical terms, it could be concluded that the whole depreciation in value due to the use of the extended aerodrome as a jet airport was referrable in the circumstances to the works constructed on the acquired land and their use. Such a conclusion on the facts and circumstances of this case is not, in my opinion, contrary to any of the decided cases. It is in line with the tendency of decision in American courts. (at p41)

20. It is said in the Corpus Juris Secundum, in relation to the assessment of compensation for injurious affection, that whilst the basic rule is that "the damages", i.e. to the retained land,

". . . should be limited to those accruing from the improvement
on the land condemned . . . some courts have modified
this rule, stating that where a part of an owner's land is taken
for a public improvement, and the use of the part taken constitutes
an integral and inseparable part of a single use to
which the land taken and other adjoining land is put, the
owner is entitled to recover the full damage to his remaining
property due to such public improvement, even though portions
of the public improvement are located on land taken from
surrounding owners, although where the use of the part taken
is found to be separable consequential damages should be
allowed only for the use of the part taken" : Corpus Juris
Secundum vol. 29A "Eminent Domain", par. 139, pp. 588-589. (at p41)

21. In my opinion, whilst the formula of s. 23 (1) (c) is not in identical terms with that of s. 63 of the Lands Clauses Consolidation Act, the principle that the dispossessed owner is only entitled to compensation for the depreciation in value of his retained lands adjoining or severed from the acquired land which is due to the work done on the acquired land or to the use of that work is applicable to assessments made under s. 23. But the fact that the depreciation results from those works or that use in combination with works on other land or their use does not lessen the compensation payable for the depreciation in fact suffered by reason of the use of the constructions on the acquired land unless it is possible to separate entirely the depreciation due to the works on the acquired land and their use. Consequently, although I would not regard s. 23 as a mere attempt to reproduce s. 63, I am not prepared, because of the difference in the expression of the two provisions, to regard the decisions upon s. 63 as necessarily inapplicable to the assessment of compensation under s. 23. It is perhaps worth noting that Lord Macnaghten, when referring in Cowper Essex v. Local Board for Action (1889) 14 App Cas 153 to compensation under s. 63, combined the notions of the exercise of statutory powers and the accomplishment of the purposes of a public undertaking. He speaks of lands "taken under the powers of the Act for the purposes of a public undertaking" (1889) 14 App Cas, at p 176. (at p42)

22. In my opinion, the primary judge came to a right conclusion in his application of s. 23 (1) (c) to the facts and circumstances of this case. It follows that this appeal must be dismissed. (at p42)

23. (Appendix. List of decisions relied on by the Solicitor-General :

In re Stockport, Timperley and Altringham Railway Co. (1864) 33 LJ QB 251. Cowper Essex v. Local Board for Acton (1889) 14 App Cas 153. Horton v. Colwyn Bay and Colwyn Urban Council (1908) 1 KB 327. Sisters of Charity of Rockingham v. The King (1922) 2 AC 315. Edwards v. Minister of Transport(1964) 2 QB 134 Cohen v. Commissioner for Main Roads(1968) 15 LGRA 423. Laycock v. Victorian Railways Commissioners(1917) VLR 556. Brell v. Penrith City Council(1965) 11 LGRA 156. In re Smith and Minister for Home and Territories [1920] HCA 1; (1920) 28 CLR 513. Adelaide Fruit and Produce Exchange Co. Ltd. v. Adelaide Corporation(1961) [1961] HCA 20; 106 CLR 85 ; 7 LGRA 58. City of Glasgow Union Railway Co. v. Hunter(1870) LR 2 HL (Sc) 78. Duke of Buccleuch v. Metropolitan Board of Works (1872) LR 5 HL 418. Rainey v. North Down Rural District Council (1959) NI 161. Seller v. Minister of Public Works(1934) NZLR 988. Konowalow v. Minister for Works(1961) WAR 40.) (at p42)

MCTIERNAN J. I agree in the conclusion reached by the Chief Justice. (at p42)

MENZIES J. The decision of this appeal from the Supreme Court of Victoria (Stephen J.) turns upon the meaning to be attributed to s. 23 (1) (c) of the Lands Acquisition Act 1955-1966 (Cth). It is in these terms:

"23. (1) In the determination of the amount of compensation
payable in respect of land compulsorily acquired under
this Act, regard shall be had to -

. . .

(c) the enhancement or depreciation in value of the interest
of the claimant, at the date of acquisition, in other land
adjoining or severed from the acquired land by reason of
the carrying out or the proposal to carry out the public
purpose for which the land was acquired." (at p43)

2. The respondent, whom I shall call "the owner", was the owner of a grazing property at "Mangalore Park" of about 900 acres adjoining the Commonwealth airport at Mangalore. The Commonwealth decided to extend the Mangalore airport so that it could accommodate jet aircraft. About sixty-five acres of Mangalore Park was acquired from the owner for this purpose. The owner attempted to find out the actual use to which the land taken would be put in the extended airport but, if this was known at the time of the acquisition, it was not disclosed. The use actually made of the land was (1) for eighty to ninety feet of paved runway, (2) for 200 feet of "premature touchdown area", (3) for the purpose of a taxiway, and (4) for navigational aids. (at p43)

3. In assessing compensation Stephen J. construed s. 23 (1) (c) as an authority to have regard to depreciation in value of that part of "Mangalore Park" which was not taken by reason of the fact that it would for the future adjoin an airport capable of use, and intended for use, for the take-off and landing of jet aircraft. The contention of the Commonwealth was and is that the depreciation to which regard is had should be confined to that resulting from the actual use of the sixty-five acres taken, without regard to the use of the airport as a whole for the purpose of accommodating jet aircraft. If the construction adopted by the learned judge be correct a valuer would simply be instructed to determine the depreciation in value of the remaining land by reason of the extension of Mangalore airport to take jet aircraft, i.e. "the proposal to carry out the public purpose for which the land was acquired". If the construction for which the Commonwealth contends were to be adopted, however, the instruction would be to determine the depreciation in value of what was left of "Mangalore Park" by reason only of the use of the land taken in the carrying out of the proposal. (at p43)

4. To the construction for which the Commonwealth contends there are a number of obvious objections. In the first place, at the time of the acquisition - the date as at which compensation is to be assessed - it might not have been determined to what particular use of the land acquired from one landowner would be put in the carrying out of the public purpose proposed. If it be supposed that part of the land of each of a number of land owners be taken to establish a new airport, such as Tullamarine, it cannot be assumed that, at the time of acquisition, it has been determined what is to be the particular use to be made of each parcel of land taken, but, if the Commonwealth's construction be correct, it would, of course, be necessary to know this to determine and calculate any depreciation in value to be allowed to a landowner in respect of retained land. This objection, however, merely introduces what seems to me a more fundamental objection. (at p44)

5. If each landowner from whom land was taken retains land adjoining the airport, the land not taken will depreciate in value similarly. Nevertheless the construction for which the Commonwealth contends would make compensation for depreciation in the value of each piece of retained land depends upon the particular use to be made of the piece of land taken, so that, if land taken from one owner were to be used as open space adjoining a runway, the depreciation in value of that owner's remaining land would be minimal, whereas, if the piece of land taken from another landowner were to be used as part of the runway, there would be some basis for allowing some depreciation of retained land but such depreciation in value as would result from the use of the land taken from that landowner. I suppose, indeed, that if land taken from one owner were used for the purpose of a rose garden it could be, on the Commonwealth's contention, that compensation for that land should be reduced by virtue of the enhancement in value of the land retained from the presence of a rose garden in its vicinity. (at p44)

6. I do not think this section requires artificiality of the sort that the Commonwealth construction would demand. Regard is to be had to the depreciation in value of retained land by reason of the proposal to carry out the public purpose for which land taken was acquired and the natural sense of this provision requires that regard should be had to the whole purpose for which land was acquired and not merely to so much of the purpose as is to be fulfilled upon the land taken from a single land owner. (at p44)

7. The Solicitor-General, however, argued that the matter is concluded in favour of the Commonwealth by longstanding authority, including decisions of the House of Lords and Privy Council. He cited, among other authorities, In re Stockport, Timperley and Altringham Railway Co. (1864) 33 LJ QB 251; City of Glasgow Union Railway Co. v. Hunter (1870) LR 2 HL (Sc) 78 ; Sisters of Charity of Rockingham v. The King(1922) 2 AC 315, and Edwards v. Minister of Transport (1964) 2 QB 134. In the last-cited case the earlier authorities were exhaustively reviewed and, in accordance with those authorities, it was decided that, under s. 63 of the Lands Clauses Consolidation Act, 1845 (U.K.), the only compensation payable for injurious affection in relation to land retained is in respect of activities on land taken from that owner, and if damage arises, partly from the use of that land and partly from the use of other land, the owner cannot obtain the whole damage but only that part of it which he could attribute to the activities on what formerly was his land. If s. 23 (1) (c) were in pari materia with the English section, these authorities might be of overwhelming weight, but it is not. No good purpose would be served by discussing the language of s. 63 of the Lands Clauses Consolidation Act. It is sufficient to say that its language is quite different from that to be found in s. 23 (1) (c). Accordingly, I cannot regard the authorities relied upon by the Solicitor-General as determining the construction of the Commonwealth statute. (at p45)

8. The construction of s. 23 (1) (c), unencumbered by authorities upon different statutes, is not, I think, in doubt. It is as Stephen J. construed it. (at p45)

9. Accordingly, I would dismiss this appeal. (at p45)

WALSH J. The question in dispute in this appeal from a decision of the Supreme Court of Victoria (Stephen J.) concerns the proper construction and the operation in the circumstances of the case of s. 23 (1) (c) of the Lands Acquisition Act 1955-1966 (Cth) (herein called the Act). Land belonging to the respondent was acquired by the appellant. It formed part of a grazing property. The Act empowers the Commonwealth to acquire land for a public purpose by compulsory process: see ss. 6 and 10. The stated public purpose for which the respondent's land was acquired was the making of extensions to an existing airport at Mangalore in the State of Victoria. The extensions were designed to enable the airport to be used by jet aircraft. (at p45)

2. The only question argued in this appeal is whether the depreciation in the value of the interest of the respondent in the adjoining land which he retained, to which regard may be had under s. 23 (1) (c), is depreciation resulting solely from the use of the land taken from the respondent, leaving out of account any depreciation caused by the use of the airport as a whole by jet aircraft. The submission on behalf of the appellant, as stated in the reasons for judgment of the learned judge of first instance, was that compensation for the depreciation must be confined "to whatever depreciation in value can be attributed to the proposed use of the actual land acquired, as distinct from the proposed use of the airport as a whole to the extent to which that use is for the first time made possible by the acquisition". The learned judge rejected that submission. He decided that he was not bound to endeavour to dissect the total effect of the additional disturbance or anticipated disturbance affecting the appellant's retained land by reason of the conversion of the airport into an airport used by jet aircraft, in order that account should be taken only of that part of it which could be found to be attributable to the use of the part of the airport actually constructed on the land acquired from the respondent. (at p46)

3. If the matter be considered without regard to authority, I think that the conclusion of the learned judge should be held to be correct. The public purpose was described, when the land was being acquired, as "extensions to Mangalore Airport". It would be unreal, in my opinion, to say that the public purpose for which the land was acquired was nothing more than the purpose of enabling aircraft to traverse an additional length of runway to be constructed on the land acquired from the respondent and the purpose of providing some incidental facilities, such as navigational aids. The purpose of the acquisition was to extend the airport in such a way that the jet aircraft could operate. Later in these reasons, I shall set out some details as to the use which was to be made of the extended runway and of other features of the alterations in the airfield. The facts of the case, as found by the learned judge, were such that in my opinion, any depreciation in the value of the adjoining land which could be found to have come about "by reason of the carrying out of or the proposal to carry out" the purpose of using the airport in a different manner and to a different extent and, in particular, of using it for the operation of jet aircraft, was depreciation which was included within the scope of the statutory provision. (at p46)

4. But it was argued that there are authorities which the Court should follow and by which it is required to take a different view from that which I have just stated. One of those authorities is Edwards v. Minister of Transport(1964) 2 QB 134 and in that case many earlier decisions were reviewed. But most of them do not bear directly upon the precise question with which this case is concerned. Of the cases decided in England, those to which particular attention should be given are Edward's Case(1964) 2 QB 134 itself and Sisters of Charity of Rockingham v. The King(1922) 2 AC 315. In those two cases many earlier authorities, which included In re Stockport, Timperley and Altringham Railway Co.(1864) 33 LJ QB 251; Cowper Essex v. Local Board for Acton(1889) 14 App Cas 153; and Duke of Baccleuch v. Metropolitan Board of Works(1872) LR 5 HL 418 were discussed, but when attention is given to the questions which arose in the latter cases for decision, I think they do not really throw much light on the problem which must here be resolved. The same is true, I think, of the decision in Laycock v. Victorian Railways Commissioners(1917) VLR 556. (at p47)

5. Some cases have been decided on the basis of a finding that whatever injury was done to the retained land of the claimant did not result (either in whole or in part) from acts done on land which has been acquired from him. That being so, then although his retained land was injuriously affected by reason of the undertaking carried on by the statutory authority by which part of his land had been acquired, he was in no different position from any other person whose land had been so affected, but from whom no land had been taken. Therefore, he was not entitled to compensation in respect of the injurious affection of his retained land. That was the view of the facts taken in Horton v. Colwyn Bay and Colwyn Urban District Council(1908) 1 KB 327 and in Laycock's Case(1917) VLR 556. At the other end of the scale, depreciation of retained land may be found to be caused wholly by what is done on land which has been taken from the claimant. I think that the case of Cowper Essex v. Local Board for Acton (1889) 14 App Cas 153 is an illustration of that. The question with which we are concerned in this appeal arises only in cases which differ from both the foregoing classes of case, in that the activities which are the cause of depreciation in the value of the retained land take place, or are expected to take place, partly of land taken from the claimant and partly on other land. (at p47)

6. In Sisters of Charity of Rockingham v. The King (1922) 2 AC 315 the principal matters in dispute were a claim based on a right of way (which was rejected) and a claim (which was upheld) that the appellants were entitled to compensation because their property on the weatern side of a railway had been injuriously affected by the construction of a work on the eastern side of the railway, for which some land of the appellants on the eastern side had been taken. This latter claim had been rejected entirely in the Canadian courts, apparently upon the ground (see (1922) 2 AC, pp 317, 318) that for all practical purposes the injury occasioned to the appellants was an injury caused wholly by the operation of works on land other than lands taken from the appellants. But in the Privy Council it was held that the appellants were entitled to compensation for damage which could be shown to result from the apprehended use of the lands taken from them, which had been taken for the construction of a shunting yard. Their Lordships said(1922) 2 AC, at p 328 that although the shunting yard had been laid out before the hearing of the case and the actual use of land taken from the appellants was inconsiderable, actual user at the time of the assessment of compensation was not the proper basis for its assessment. The appellants were entitled to claim compensation for depreciation "due to the anticipated legal use of authorized works" which may be constructed upon their land. Their Lordships added that the limitation of the amount of compensation to the anticipated construction of authorized works upon lands actually taken from the appellants had a special importance in a case where the shunting yard had been largely laid out on land not taken from them. Their Lordships said (1922) 2 AC, at p 329 that the problem of applying those principles could be settled only by a consideration of all the circumstances of a particular case. The enactment upon which this case was decided provided for a claim against the Crown for damage to property "injuriously affected by the construction of any public work". Such a provision is to be treated, as is shown by the Sisters of Charity Case(1922) 2 AC 315 and by other cases, as not being confined to damage resulting from the actual physical construction of the work but as extending also to its anticipated use. A contention to the contrary on behalf of the appellant was rightly rejected by the learned primary judge and has not been repeated in this Court. It appears to me that the provision, thus understood, although not identical with s. 23 (1) (c) of the Act, does not differ greatly from it. There is not a great difference between damage consisting of depreciation "by reason of the carrying out or the proposal to carry out the public purpose for which the land was acquired" and damage to property consisting of its being "injuriously affected by the construction of any public work". Those two provisions may be thought perhaps to resemble each other more closely than do s. 23 (1) (c) and the provision contained in s. 63 of the Lands Clauses Consolidation Act, 1845, with which the English cases have been concerned. The latter provision refers to damage sustained by an owner of land by reason of the severing of the lands taken from the other lands of such owner, "or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special Act or any Act incorporated therewith". However, the Canadian provisions considered in the Sisters of Charity Case(1922) 2 AC 315 were regarded as not being materially different from those in the English legislation : see (1922) 2 AC, at p 322. (at p49)

7. The learned primary judge considered that the provision which he had to apply was significantly different from the provisions of the Canadian and of the English legislation and held that he was not required by the English authorities to confine the allowable depreciation to that which resulted solely from the use of land taken from the respondent. To me the textual differences between the Act and the other statutes to which I have referred appear less significant than they did to his Honour. I think, however, that a measure of support for his view that they are distinguishable is to be found in the judgment of Powers J. in In re Smith and the Minister for Home and Territories [1920] HCA 1; (1920) 28 CLR 513 to which the primary judge referred. Powers J. had to deal with a question as to the enhancement in value of other land of a landowner, whose claim for compensation his Honour heard as an arbitrator. In his judgment (1920) 28 CLR, at pp 528-529 his Honour appears to indicate a view that the provisions of the Lands Acquisition Act, 1906 (Cth), corresponding to those of s. 23 of the present Act, should not be construed as limited in the manner for which the appellant contends in this appeal, but should be treated as warranting the making of an allowance for the whole of the enhancement in value resulting from the construction and use of the work in connection with which land is acquired. If it could be inferred with confidence that in enacting s. 23 of the Act in terms not different from those of the 1906 Act the Parliament was accepting, notwithstanding the intervening decision of the Privy Council in the Sisters of Charity Case (1922) 2 AC 315, an interpretation of the provisions of the local Act by which an allowance for depreciation or for enhancement should take account of the whole of the effects of the construction and use or anticipated use of the intended works and not merely the effects resulting or expected to result from operations actually occurring on the land acquired from the claimant, then there would be little doubt that the wider interpretation should be adopted. But the judgment of Powers J. does not demonstrate how the principle which he stated was applied to the facts in arriving at his ultimate conclusion and it would be unsafe, I think, to assume that the enactment of the present Act, some thirty-five years after that decision, constituted a legislative endorsement of a judicial exposition of the meaning and effect of the relevant provision. (at p50)

8. In Edwards v. Minister of Transport (1), the Court of Appeal decided that a claimant who sought damages for injurious affection of his retained land should recover only that part of the damages suffered as he could attribute to the activities on what was formerly his own land. It had been agreed between the parties that the amount by which the claimant's property was diminished in value by the construction and use of a new trunk road (also described in the report as a by-pass road) was Pound4,000. It had been agreed that the amount of damage suffered by the claimant, if that damage were confined to acts done upon the land taken from the claimant, was Pound1,600. The Court considered that to allow the full claim would be contrary to the authority of the Sisters of Charity Case (2) and of other cases. (at p50)

9. Both in the Sisters of Charity Case (2) and in the Edward's Case (1) the relevant "work" was the establishment of a new undertaking. In the former case there had been an existing railway but the undertaking which caused the disturbance to land in the neighbourhood, in respect of which the claim was made, was a new shunting yard. In both cases it was only to a small extent that the land taken from the claimants was to be used for the purpose of the undertaking. In the former case it was considered to be possible, although it might be difficult, to determine how much of the damage to the land of the appellants would be caused by the use of the land formerly owned by them, which was a small part of the land to be occupied by the shunting yard. In the latter case it had to be regarded as possible to determine how much of the damage would be caused by the use of the land taken from the claimant, because this had been determined by agreement. Harman L.J. (3) remarked that this had been done "by some alchemy" which he did not understand at all. (at p50)

10. The facts in the present case are different. Before the acquisition of the respondent's land an airport had been established and was in use. The public purpose for which the land was acquired was not the establishment of an airport but was the extension of it in order that it might be used for the operation of jet aircraft and the training of pilots. In the achievement of that purpose the use of the land acquired from the respondent was not intended to play a minor part in comparison with the use of other land. On the contrary it was solely or primarily by the use of the respondent's land that the purpose of extending the airport so as to permit the desired operational changes was to be accomplished. (at p51)

11. It is desirable to quote some extracts from the findings of fact of the primary judge. His Honour said :

"The facts as to the proposed extension of the runway and
the proposed use of the extended runway are not in doubt.
Mr. Huggett, the principal airport engineer of the Department
of Civil Aviation and who was called as a witness for the
Commonwealth, said that the purpose of extending the runway
on to the plaintiff's acquired land was thereby to render
Mangalore Airport capable of use as a major domestic training
airport for the two Australian domestic airlines, using jet
engined D.C. 9 and 727 aircraft, as well as propeller driven
aircraft, and also for any light aircraft training which required
better facilities than those available at Moorabbin Airport,
near Melbourne.

The area acquired from the plaintiff, while relatively complex
in shape, may conveniently, for present purposes, be described,
as to the greater part, as roughly rectangular with its longer
axis running north-east/south-west. On the southern side of
this rectangle is also a narrow strip also running north-east/
south-west, which adds to the width of the rectangle and
continues a considerable distance to the north-west beyond
the north-eastern end of the rectangle, thus increasing the
width of the existing runway.

Mr. Huggett said that at the north-eastern end of the
rectangle, adjoining the south-western end of the existing
runway, some eight feet or ninety feet would be paved as
an actual extension of the runway to the south-west, the next
two hundred feet would form a 'premature touch-down area'
and the balance of the rectangle would be used as the site for
navigational aids, including an aerial array eighty feet long,
ten feet wide and twenty feet high. In addition an entirely
new main taxiway would be constructed on the narrow strip
parallel to and to the south of the existing runway as extended
and connected to it by a short north-west - south-east
connecting taxiway."

"It emerged quite clearly from the evidence of the Commonwealth
witnesses that the purpose of the extension of Mangalore
Airport, to enable it to be used for the training of pilots in jet
aircraft, would involve a substantial increase in number of
total daily plane movements as well as the advent of extensive
use by jet aircraft which at present use Mangalore Airport
relatively infrequently." (at p52)

12. The appellant has not made available to this Court the evidence given at the hearing of the claim. Our knowledge of the evidence is confined to what is stated in the judgment. We were invited to decide a question of principle and, if the appellant's contention were upheld, to remit the case for a further hearing, if the parties could not agree upon an amount calculated in accordance with the Court's decision. That approach appears to involve an assumption that if the decisions upon which the appellant relies are accepted as being capable of applying to the Act now being considered, it must follow that in every case in which depreciation results from activities to be carried out in part, but not wholly, upon land acquired from a claimant, an amount less than the whole of that depreciation must be determined and awarded to meet that claim. In my opinion, the assumption is not warranted. If the circumstances are such that it is not possible to ascertain an amount by which a decrease in value can be found to have resulted solely from so much of the harmful activities as will take place upon the particular parcel of land acquired from the claimant, the decisions should not be taken, in my opinion, to require the tribunal assessing compensation to adopt some arbitrary process of computing an amount to be awarded, e.g., by taking that proportion of the total depreciation which the area of the land taken bears to the whole area upon which the activities are conducted. Nor do the decisions require that where a real dissection of the total amount of depreciation is not possible the claimant should receive nothing for depreciation of his retained land. (at p52)

13. Where it is not possible separately to ascertain the damage caused to the remainder of the claimant's land by the taking and the proposed use of part of it, that use being an inseparable part of a single use to which that land and other adjoining land are put, it has been held in American decisions that the landowner is entitled to recover the full amount of the damage caused to his retained land: see City of Crookston v. Erickson(1955) 69 NW 2d, 909 at pp 913-914 and Campbell v. United States of America [1924] USSC 207; (1924) 266 US 368 (69 Law Ed 328). In my opinion the English decisions do not deny the validity of the application of a similar rule to the statutes upon which those decisions were given and do not require the denial of its validity in this case. The decisions do not lay down an inflecible rule that the tribunal assessing compensation in such cases must always fix separately the amount of depreciation caused by activities taking place on the land taken from the claimant. They do not assert that the tribunal must do this even if it is not possible to do it. The decisions do indicate, I think, that the tribunal should make an appropriate dissection of the total amount of damage where this can be done, although that may be a difficult task. But they cannot go any further than that. (at p53)

14. As I have said the evidence is not before this Court. We were told that learned counsel, who appeared at the hearing for the appellant, stated that there was material upon which the learned judge could have given effect to the view for which the appellant contends, if he had held that he should make a dissection of the total depreciation. We were not told what the material was upon which he could have done that. Perhaps counsel may have had in mind evidence which I mentioned above that, when landing, the aircraft would frequently taxi along the land taken from the respondent, after having already completed the actual landing. But it seems clear from his Honour's judgment that the valuers called on behalf of the appellant did not apportion and could not have apportioned the depreciation of the retained land between what would be caused by activities on the land taken and what would be caused by activities on other land comprised within the airport. Both those witnesses gave evidence that no depreciation at all resulted from the proposal to extend the airport. It does not appear from the material before this Court whether the valuers called for the respondent were asked to attempt any such dissection as would be required by the appellant's submissions. But it does appear that the appellant did not provide directly by evidence called by it any assessment of the amount of depreciation which it contends should have been allowed, and it is conceded that the material before this Court would not enable it to quantify the amount of the depreciation which, in accordance with the appellant's contention, should have been awarded. (at p53)

15. In the circumstances to which I have referred, I am of opinion that it is not necessary to decide in this case whether or not the decisions discussed above should be applied in dealing with claims under s. 23 (1) (c) of the Act, when the facts are such that it is possible to apply them. We are not hearing a case stated on a question of law, but an appeal from a judgment of the Supreme Court. In my opinion we should not set that judgment aside unless satisfied that it was for an excessive amount. We should not set it aside to enable the appellant to present further evidence at another hearing. Even if one assumes in favour of the appellant that the learned judge was in error in finding material differences between the English and Canadian provisions on the one hand, and those of s. 23 (1) (c) of the Act on the other hand, and in the view that because of those differences the decisions on the former provisions are not applicable, it does not follow in my opinion that he was in error in his ultimate conclusion which he expressed by saying that he was "not concerned to dissect the total effect and seek to attribute a part of it either to construction work alone on the acquired land or to the effect of use of that part of the facility when constructed which is constructed on acquired land". In my opinion it has not been shown that in the circumstances of this case his allowance of the whole of the depreciation, in accordance with the assessment of it made by the valuer whose evidence he preferred, as erroneous. (at p54)

16. For the reasons which I have stated I am of opinion that the appeal should be dismissed. (at p54)

GIBBS J. The respondent was the owner of a grazing property of about nine hundred acres at Managalore adjacent to an airport. On 11th December 1969 the Commonwealth, in the exercise of its powers under the Lands Acquisition Act 1955-1966 (Cth) ("the Act"), acquired about 65 acres of that property for the purpose of extensions to the airport. The respondent sued in the Supreme Court of Victoria to recover from the Commonwealth compensation under the Act in respect of the land compulsorily acquired and abtained judgment for $44,412. That sum included an amount of $22,802 which was awarded under s. 23 (1) (c) of the Act in respect of the depreciation in value of the interest of the respondent in the land remaining in his ownership after the resumption. The purpose of the extension of the airport was to render it suitable for use in the training of pilots of jet aircraft, and the probable result of the extension was that the total use of the airport would be substantially increased and that it would be extensively used by jet aircraft which had previously used it only infrequently. The learned trial judge found that the substantial increase in the use of jets at the airport would be likely very considerably to increase noise levels affecting the grazing property and that an intending purchaser of that property would probably discount its value because of the proposed use of the airport on a larger scale and the introduction of frequent jet movements there. He held that $22,802 was the proper assessment of the depreciation in value of the retained land by reason of the proposal to carry out extensions to the airport and rejected the Commonwealth's contention that compensation for depreciation must be restricted to the depreciation in value caused by the proposed use of the land acquired, as distinct from the proposed use of the airport as a whole to the extent to which that use was for the first time made possible by the acquisition. On this appeal, which is brought by the Commonwealth against the judgment, the sole question is whether the learned trial judge was right in assessing compensation under s. 23 (1) (c) on this basis ; if he was, the quantum assessed is not challenged - the question is entirely one of principle. (at p55)

2. Section 23 (1) of the Act provides that in the determination of the amount of compensation payable in respect of land compulsorily acquired under the Act, regard shall be had to -

"(c)the enhancement or depreciation in value of the interest
of the claimant, at the date of acquisition, in other land
adjoining or severed from the acquired land by reason
of the carrying out or the proposal to carry out the public
purpose for which the land was acquired."

3. The submission on behalf of the Commonwealth appears at first sight to be opposed to the words of s. 23 (1) (c). They entitle a claimant to compensation for the depreciation in value of his interest in the retained land by reason of the proposal to carry out the public purpose for which the land was acquired and are not expressly limited to the depreciation caused by the proposal to carry out on the land acquired the public purpose for which the land was acquired. In the present case the public purpose for which the land was acquired was stated to be the extension of the airport. The learned trial judge has awarded compensation for the depreciation in value of the retained land caused by the extension of the airport, that is, by its proposed increased use when extended. This appears to be in complete conformity with the words of the section, unless they are read subject to a qualification which they do not themselves express. In his submission the Solicitor-General relied on decisions given on s. 63 of the Lands Clauses Consolidation Act, 1845 (U.K.) which provided that in estimating compensation, regard should be had to "the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special Act, or any Act incorporated therewith". In the decisions on that section, which are reviewed in Edwards v. Minister of Transport (1964) 2 QB 134, it has been held that its concluding words refer only to damage due to the exercise of powers on the land acquired from the claimant, and it has been held to follow, to use the words of Harman L.J. (1964) 2 QB, at p 155,

". . . that where damage arises partly on the claimant's land
and partly off it, he cannot claim the whole damage which has
arisen but only that part of it which he can attribute to
activities on what formerly was his own land." (at p56)

4. In my opinion, the words of s. 63 of the Lands Clauses Consolidation Act (U.K.) upon which the English decisions were given are materially different from those of s. 23 (1) (c) of the Act. The "exercise of the powers" referred to in s.63 appears to mean the particular exercise of statutory powers by which the land in question was taken. Since the section referred to injurious affection resulting from the exercise of the powers to take the land, it is understandable that it was held to limit compensation to the damage resulting from what was done or expected to be done on the land actually taken. In other words, it is natural to confine damage resulting from the exercise of a power of resumption to damage caused by activity on the land resumed. However, depreciation caused by carrying out the public purpose for which land was acquired may be more extensive than depreciation caused by the use of the land acquired, because the public purpose may involve the use of the land acquired in conjunction with other land, and in carrying out the public purpose use may be made of land other than that resumed. (at p57)

5. Particular reliance was placed by the Commonwealth on Sisters of Charity of Rockingham v. The King (1922) 2 AC 315, where the Judicial Committee held that a Canadian statute which gave a right to compensation for damage to property "injuriously affected by the construction of any public work" entitled the claimants to compensation for damage to the lands which they retained in so far as the damage arose from the apprehended use of the lands taken from them. The material words of the Canadian section were substantially similar to those of s. 68 of the Lands Clauses Consolidation Act but the Canadian Act did not reproduce the words of s. 63. Their Lordships accepted that the Canadian courts had followed the English decisions under the Lands Clauses Consolidation Act and appear to have regarded the English decisions on s. 63 as applicable in the construction of the Canadian statute (see (1922) 2 AC, at p 322 ). However, the provisions of the Canadian statute also are distinguishable from those of s. 23 (1) (c). The decision in Sisters of Charity of Rockingham v. The King (1922) 2 AC 315, does not directly govern the present case, and in my opinion it does not lay down any principle of construction that would require the words of s. 23 (1) (c) to be given any other than their natural meaning or to be restricted in their application only to a public purpose to be carried out on the land resumed. (at p57)

6. We were also referred to some decisions on Australian and New Zealand statutes dealing with injurious affection : Laycock v. Victorian Railways Commissioners [1917] VicLawRp 84; (1917) VLR 556(where the provision in question followed s. 63 of the Lands Clauses Consolidation Acts) ; Sellers v. Minister of Public Works(1934) NZLR 988 (where the section required the court in assessing compensation to take into account "the extent to which any lands in which the claimant has an interest are or are likely to be injuriously affected . . . by the nature of the works in question") ; Konowalow and Felber v. Minister for Works (1961) WAR 40(where the statute referred to the damage sustained "by reason of such other lands being injuriously affected by the taking") ; and Cohen v. Commissioner for Main Roads (1968) 15 LGRA 423 (where under the statute the claimant was entitled to compensation for damage caused "by the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other lands"). All of the statutory provisions considered in those cases are distinguishable from s. 23 (1) (c). (at p58)

7. It was submitted that the history of the Commonwealth legislation threw some light on the meaning of s. 23 (1) (c). The first Commonwealth statute that dealt with the compulsory acquisition of property, the Property for Public Purposes Acquisition Act 1901 (Cth), provided by s. 19 (1) that in estimating the compensation to be paid, regard should be had to the damage, if any, caused -

"(a) by the severing of the land taken from other land of the
claimant ; or
(b) by the exercise of any statutory powers by the Minister
otherwise injuriously affecting such other land."

"Provided also that the valuators or the Justice in
estimating such compensation shall take into consideration by
way of set-off or abatement any enhancement in the value
of the interest of the claimant in any land adjoining the land
taken, or severed therefrom, by the carrying out of the public
purpose for which the land is taken."

8. The Act of 1901 was repealed by the Lands Acquisition Act 1906, which by s. 28 (1) provided that in determining compensation, regard should he had, inter alia, to

"(c) the enhancement or depreciation in value of other land
adjoining the land taken or severed therefrom of the
person entitled to compensation by reason of the carrying
out of the public purpose for which the acquired land
was acquired."

"I hold that I am required to find to what extent the rest
of the adjoining lands of the claimants is enhanced in value
by reason of carrying out the public purpose for which the
land in question was acquired, namely, for the construction
and use of a railway from Port Augusta to Kalgoorlie."

"I determine . . . that the claimants are not entitled to any
compensation in respect of the four portions of land acquired
by the Commonwealth by compulsory process . . . on the
ground that the other lands of the claimants adjoining the
lands acquired are enhanced in value by the carrying out of
the public purpose - the railway from Port Augusta to Kalgoorlie
- to the extent of Pound2,271.10.0 at least, and because I
hold that the Commonwealth is entitled to set off that sum
against the Pound2,271.10.0 I would have otherwise determined
the claimants were entitled to as compensation in respect of
the lands above-mentioned."

9. The ordinary and grammatical meaning of the words of s. 23 (1) (c) is in my opinion that the depreciation to be considered is that caused by reason of the carrying out or the proposal to carry out the public purpose for which the land was acquired. It is not implicit in their meaning that the public purpose should be carried out, or should be proposed to be carried out, on the land acquired. As I have said, land may be acquired for a public purpose which is to be carried out upon that land and other lands as well. (at p61)

10. For these reasons, I consider that s. 23 should not be given the restricted construction for which the Solicitor-General contended. It is unnecessary to consider how the provisions of the section would operate in other circumstances. In the present case the learned trial judge gave the provision its true effect and applied it correctly to the facts of the case. (at p61)

11. I would dismiss the appeal. (at p61)

ORDER