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High Court of Australia |
STATE ELECTRICITY COMMISSION OF VICTORIA v. McWILLIAMS [1954] HCA 28; (1954) 90 CLR 552
Acquisition of Land
High Court of Australia
Dixon C.J.(1), Webb(2) and Kitto(1) JJ.
CATCHWORDS
Acquisition of Land - Power of statutory corporation for the purposes of its Act - Pursuant to direction by Governor in Council - Statement of purpose by Governor in Council - Conclusiveness - Scheme by corporation for setting up new township - To house employees and persons supplying services etc. to employees - Acquisition for - Validity - State Electricity Commission Act 1928 (Vict.) (No. 3776), s. 15 (1).
HEARING
Melbourne, 1953, October 8, 9, 12, 13;DECISION
April 7, 1954.2. The land in question is an area of about twenty-three acres, part of a larger area of about fifty-four acres which the respondent owned. It is situate about three and a half miles from Yallourn, a township established by the commission in a district in which it carries on extensive activities in performance of its functions under the State Electricity Commission Acts (Vict.). A brief account must be given of those Acts and of what had been done under them when the events occurred which gave rise to this litigation. (at p560)
3. On 7th January 1919, the Royal assent was given to the first Act passed to enable the brown coal area in the vicinity of Morwell in southern Victoria to be developed for the generation and supply of electricity. This was the Electricity Commissioners Act 1918 (No. 2996), which provided for the constitution of a body corporate consisting of three electricity commissioners (s. 3), to administer the Act subject to ministerial control (s. 8), and also to administer the Electric Light and Power Act 1915 (Vict.) governing the supply of electricity generally (s. 9). The commissioners were required as soon as practicable to prepare and submit to the minister a scheme, with all necessary plans, specifications, estimates and particulars, for a coal mining and electrical undertaking to be undertaken by them in the neighbourhood of Morwell and the distribution of electricity therefrom; and the Governor in Council was authorized, upon receipt of a report upon the scheme, to approve of the undertaking (s. 10), which would then be an electrical undertaking as defined in the Act (s. 2). It was provided that subject to the Act, the commissioners might on behalf of His Majesty (inter alia) construct, maintain and work any electrical undertaking as defined in the Act, supply electricity to any Commonwealth or State government department or any public body or institution, supply electricity in bulk to any undertaker or statutory corporation, and in connection with any such undertaking carry on any business normally associated with such an undertaking (s. 12). Their powers included a power to encourage and promote the use of electricity and especially the use thereof for industrial and manufacturing purposes (s. 11(b)). For the purposes of the Act they were empowered to acquire and take for the Crown by agreement or compulsorily such lands in the township of Morwell or within a radius of twenty miles therefrom as the Governor in Council should from time to time by order direct: and it was provided that all lands so acquired and taken should thereupon become and be deemed to be unalienated lands of the Crown (s. 13(1)). A general power was also given to the commissioners to purchase by agreement or take compulsorily any land which they were authorized to acquire and take under the Act or which was required for the purposes of the Act (s. 28(1)). The Lands Compensation Act 1915 (Vict.) (which provides machinery for the acquisition of land and regulates the purchase money or compensation payable) was incorporated with the Act subject to certain adaptations (s. 28(2)); but, (doubtless because it was considered the only practicable way of ensuring that compensation payable for land acquired in the Morwell district should not be increased by reason of the passing of the Act or anything done or expected to be done thereunder) it was provided that, notwithstanding anything in the Lands Compensation Act, the purchase money or compensation payable for or in respect of any lands taken under s. 13(1) (that is, the lands in or within twenty miles of Morwell) should not exceed the value thereof on the day of the commencement of the then present session of Parliament, with such addition to such value as should be due to substantial and permanent improvements effected after that day, and that no addition should be made by reason of any actual or propsective expenditure by the electricity commissioners (s. 13(2)). In addition to a wide variety of powers which need not be mentioned in detail, power was conferred upon the commissioners to open, establish, supervise, operate and maintain State coal mines (s. 26), and to do all such acts, matters and things as should be necessary or incidental to the execution and discharge of their powers, duties and authorities under the Act (s. 27). (at p561)
4. Two years later there was passed the State Electricity Commission Act 1920 (Vict.) (No. 3104), which re-constituted the body corporate, altered its name to the State Electricity Commission of Victoria (s. 5), and conferred express power to open, establish, supervise, operate and maintain open-cut workings for the production of raw brown coal, briquetting works and by-product recovery works (s. 9). It would seem probable that the scheme for a coal-mining and electrical undertaking had been prepared pursuant to s. 10 of the 1918 Act, (though perhaps it had not been approved by the Governor in Council, for the 1928 Act contained a special provision (s. 12) declaring it to have been so approved); but at least the Governor in Council had made orders directing the acquisition of lands in or within twenty miles of Morwell under s. 13 of the 1918 Act and these orders had been acted upon, for the Act validated any such orders and provided that the subject lands should be deemed to have been duly acquired and taken for the Crown and to have become unalienated lands of the Crown (s. 10). According to the affidavit of Mr. Price (par. 2(c)), this was considered necessary because the orders had not all stated that the acquisitions were to be "for the Crown". But the most important feature of the 1920 Act for present purposes is that it contained a group of new provisions (ss. 11 to 14 inclusive) which provided for the preparation by the commission of a general plan and description of a scheme for the erection and establishment by the commission of a township at Morwell. The Governor in Council was authorized, if he approved the scheme, by order to specify the boundaries of the area to be included in the scheme and declare that such area should cease to form portion of the municipal district of any municipality in which the area was theretofore included. The commission was given a variety of powers for the purpose of the erection and establishment of a township in accordance with the scheme or with any modification thereof, modifications being thereby authorized (s. 11(8)). It was given the care and management of all public highways etc., within the area, and the Governor in Council was authorized to extend to the area many of the provisions of the Local Government Act 1915 (Vict.) with such alterations, modifications and substitutions as might be necessary or expedient. (at p562)
5. Some other Acts having been passed which are of no present materiality, the law relating to the commission was consolidated in the State Electricity Commission Act 1928 (No. 3776). The scheme for an electricity undertaking in the neighbourhood of Morwell was declared, as has already been mentioned, to have been approved by the Governor in Council (s. 12). In fact the undertaking had already been established, together with open-cut workings for the production of raw brown coal and briquetting works. For the accommodation of employees, houses and other buildings had been erected, there being until then no habitation in the area except the dwellings of a few farmers. The need for housing must have been constantly growing, for the works were greatly extended from time to time. But the scheme contemplated by the 1920 Act for the erection and establishment of a new township at Morwell had not yet, it seems, been approved by the Governor in Council. The 1928 Act accordingly provided that as soon as that scheme should be approved, and the area to be included in it specified and declared, the area should cease to form a portion of any municipal district in which it was formerly included (s. 20(1)). Other provisions were made which were similar to those which had appeared in ss. 11 to 14 of the 1920 Act. The general power of acquisition and the incorporation and adaptation of the Lands Compensation Act, which had first appeared in s. 28 of the 1918 Act, were repeated in s. 44. The special power of acquisition with respect to lands in the township of Morwell or within twenty miles therefrom, and the limitation of compensation for such lands by reference to 1918 values re-appeared in s. 15, the actual date (9th July 1918) being given instead of the reference to the day of commencement of the relevant session of Parliament. The power to do all necessary or incidental acts, matters and things was found in the new s. 43. (at p563)
6. In due course the new township was established and became known as Yallourn. The only subsequent Act which need be noticed here is the State Electricity Commission (Yallourn Area) Act 1947 (Vict.) (No. 5219), which came into force by proclamation on 24th September 1947. It provided (s. 13) for the definition by proclamation of the Yallourn works area, described as the area occupied by the works of the commission at Yallourn, and for the definition, also by proclamation, of a portion of the Yallourn works area as the Yallourn town area. For the latter area the Act set up the Yallourn Town Advisory Council with limited powers to make by-laws and to make recommendations to the commission; and in relation to the Yallourn works area it made a new provision by way of substitution for s. 20 of the 1928 Act. The new s. 20 excluded not only, like its predecessor, the township, but the whole Yallourn works area from any municipal district. It provided that for the purposes of certain Acts the area should be deemed to be a borough, and that in respect of the area the commission should be deemed to be a municipal council or a local authority; and it constituted the commission the sole authority in relation to works of every description (except roads under the control of the Country Roads Board) in the area, with the powers of a municipal council of a borough as if the area were its municipal district. In addition, the commission was expressly given wide powers with respect to (inter alia) the provision, construction and maintenance of buildings, houses, streets, electricity and gas supplies, sewerage and drainage works, and other like works and services in the Yallourn works area, and power to beautify any part of the area and make any part suitable for recreation and other public purposes: sub-s. (4). The Governor in Council was empowered by proclamation to re-define the Yallourn works area from time to time by proclamation: sub-s. (5). (at p563)
7. By March 1950 a serious problem had arisen. The report of a Royal Commission in 1947 had strongly advocated a vast increase in the capacity of the commission's undertaking for the generation of electricity, in order to meet a mounting demand which was anticipated in view of the rapidly expanding industries of Victoria. The commission was engaged in extending its enterprise accordingly. It was planning substantial extensions to its generating station; it was about to erect a second briquetting plant; and it proposed to establish an additional open-cut coal mine. All this necessitated a greatly increased supply of labour, and labour could not possibly be attracted and held unless adequate housing were provided. The district is remote from the large centres of population, and the housing available in the existing townships including Yallourn was far from sufficient. It had become apparent, moreover, that the Housing Commission, to which repeated and urgent requests for assistance had been made, was quite unable to meet the need, though it had erected a large number of homes and planned to erect many more. The seriousness of the position is indicated by the fact that a report made in July 1949 by the commission's property officer stated the number of unsatisfied applications for homes as 450, which represented an increase of 132 in six months. (at p564)
8. In this situation, the commission turned to a course of self-help. It ordered pre-cut homes from England, and selected a tract of land for the laying out of a new settlement, to be called the Newborough settlement, in the nature of a dormitory suburb of Yallourn. It adopted a subdivisional plan which provided for streets, parks, and sites for dwellings, shops, schools, churches, recreation facilities and other amenities. It proposed to erect buildings appropriate to the sites, to construct the necessary watermains, drains and electric mains, and to let the dwellings to the commission's employees engaged at Yallourn and others whom it might be necessary to have in the area. A small portion of the tract chosen for the settlement was within the Yallourn works area, but the greater part of it fell outside that area. This was unavoidable, as all other vacant land within the area either contained coal which the commission intended to mine in the future or was unsuitable for the purposes of a housing area by reason of its height or other physical characteristics. The whole of the land to be subdivided, however, was land to which the power of acquisition conferred by s. 15 of the 1928 Act extended, for it was less than twenty miles, and indeed less than eight miles, from Morwell. (at p564)
9. The respondent was the registered proprietor under the Transfer of Land Act 1928 (Vict.) of about fifty-four acres of land outside but closely adjacent to the Yallourn works area, and about twenty-three acres of this land, being the portion south of a line described as the southern boundary of the land required for the Moe-Yallourn railway line, was included in the commission's subdivisional scheme for the Newborough settlement. On 3rd March 1950, the commission served the respondent with a notice to treat relating to this twenty-three acres, and its officers and servants then entered upon and took possession of that area. The Governor in Council, however, had not yet given any direction under s. 15 which applied to the respondent's land. Such a direction was given for the first time on 7th March 1950, when it was directed that "the State Electricity Commission of Victoria may for the purposes of the State Electricity Commission Acts acquire and take for the Crown (by agreement or compulsorily) an estate in fee simple in the land described in (a schedule), being land in the township of Morwell or within twenty miles therefrom". No further notice to treat was given to the respondent until 26th September 1951; but on that date he was served with the second notice to treat. Each notice to treat informed the respondent that his twenty-three acres would be required by the commission for the purposes of the State Electricity Commission Acts, and that in the exercise of the powers conferred upon the commission by those Acts it was the commission's intention to enter upon, take and use the land referred to. It also stated the commission's willingness to treat for the purchase of the land and as to the compensation to be made to the respondent, and it otherwise complied with the requirements of s. 9 of the Lands Compensation Act 1928 (Vict.). (at p565)
10. It is not disputed that, if the acquisition of the respondent's land was within the authority conferred by s. 15(1) of the State Electricity Commission Act 1928, the second notice to treat, given, as it was, after an appropriate direction by the Governor in Council, was effectual as a notice to lead to the acquisition of the land for the Crown by the commission by virtue of the provisions of the Lands Compensation Act as incorporated with adaptations in the State Electricity Commission Acts. The question for decision therefore turns in the main upon the provisions of s. 15(1) which is in these words:- "15.(1) For the purposes of this Act the Commission may acquire and take for the Crown by agreement or compulsorily such lands in the township of Morwell or within a radius of twenty miles therefrom as the Governor in Council from time to time by Order directs; and all lands so acquired and taken shall thereupon become and be deemed to be unalienated lands of the Crown". The foundation of the respondent's case is a submission that the purposes for which the commission desired his land are not purposes of the Act within the meaning of s. 15, and that the commission therefore had no power of acquisition under the section. With this contention Dean J. felt constrained to agree. The learned judge held that the crucial question was whether the purpose of the intended acquisition could fairly be regarded as incidental to or consequential upon the purposes directly authorized by the statute. That question his Honour answered in the negative because he took the view that, although it was reasonably incidental to the main purposes of the Act to provide homes for the commission's employees and the employees of persons contracting with the commission, and also for shopkeepers and others who might provide services for such employees, it was going beyond the limits of the reasonably incidental to acquire tracts of country, to lay out and construct streets according to the commission's own design, to provide water, electricity, drainage and other services, and to set aside land for schools, churches, playgrounds, parks and recreation reserves as had been done on the land embraced in the commission's Newborough scheme of settlement. This conclusion his Honour considered to be fortified by a consideration of s. 20 of the State Electricity Commission Acts, as enacted by the 1947 Act. (at p566)
11. The learned judge was clearly right in holding that in the circumstances the provision in the manner proposed of homes for employees and persons ministering to the ordinary needs of employees was fairly incidental to the effectuation of the purposes for which the Acts provided. Indeed, it is not too much to say that in the situation proved to have existed in the Morwell district in 1950, it was painfully clear that an adequate performance of the commission's statutory functions over the next few years would be impossible unless housing on the scale contemplated by the commission were provided. But that entailed, as a matter of practical necessity, the establishment of a new settlement. The object in view, to attract and retain, by means of suitable housing provision, a large body of employees close to a scene of expanding industrial activity in a country district, simply could not be achieved unless the living conditions to be provided conformed to a reasonable extent with the accepted standards of life in a modern community. The orderly arrangement and convenience of access which planned streets provide, the lighting, heating and drainage services which are now regarded as necessities, reasonable facilities for education, recreation and religious observance - all these things were inevitably involved in the provision of the kind of housing which employees would be likely to regard as acceptable. It was submitted on behalf of the respondent that, while the provision of houses for employees may be reasonably incidental to the conduct of such an undertaking as the commission had at Yallourn, to add the amenities of a town is (as it was put) only incidental to the incidental, and is too remote from the conduct of the undertaking to be regarded as incidental to it. But it is quite an untenable proposition that in a case such as this the frontiers of the incidental are reached when a house is built. The short answer to it in this case is that, in the circumstances which are proved to have confronted the commission, the establishment of the Newborough settlement, as a whole and with all its features, was an appropriate means, and the means which practical considerations were reasonably considered to dictate, for providing the living conditions without which the commission could not hope to obtain the labour force necessary for its purposes. (at p567)
12. Dean J. thought that confirmation for the view he took was to be found in a consideration of the specific provisions which the legislature had made with respect to the township of Yallourn. He gathered from s. 20 that the express power to establish Yallourn was subject to two limitations: it was exercisable only in respect of land within the Yallourn works area, and the land utilized was excluded from its existing municipal district so that no conflict could arise between the commission and a municipality by reason of duality of authority. His Honour inferred that there could not be an implied power to do the same or similar things in respect of land lying outside the Yallourn works area and within a municipal district. If the acquisition of the respondent's land were held to be valid there could be no need, he said, to re-define the Yallourn works area in order to enable the commission to exercise similar powers outside the area as at present defined. The commission could disregard the area at will, and the exercise of the powers of the municipality concerned would be seriously affected. (at p567)
13. It will be remembered that the statutory provisions which authorized the establishment of the township of Yallourn were s. 11 of the 1920 Act and the original s. 20 of the 1928 Act, and that it was not until a new s. 20 was substituted by the 1947 Act that the Yallourn works area was provided for. It is true, however, that first the township area, and ultimately the whole works area, were removed from the authority of the local municipality, and that the commission was made in respect of them the repository of local government powers and responsibilities, and was expressly given wide powers of a kind appropriate for the construction of new settlements. It is also true that if, before the commission took steps to found the Newborough settlement, the Governor in Council had re-defined the Yallourn works area so as to include in it the land chosen for the settlement, these general powers and responsibilities and these specifically conferred powers would have extended to that land. But it does not by any means follow that there should be attributed to the legislature by implication an intention to deny to the commission a power to provide housing by the establishment of new townships in areas outside that in which it is made the local government authority. It is easy to see strong practical reasons why it might be thought desirable to exclude the ordinary form of municipal government from the township which the commission had built as the centre of its local administration, and indeed from the whole area of the Yallourn works, and to make the commission autonomous with respect to local matters within these geographical limits. But although, as the evidence shows, the commission in exercise of its powers, has established thermal and hydro-electrical undertakings in other country districts of Victoria, the legislature has not seen any reason to interfere with the ordinary forms of local government elsewhere than within the area of the works at Yallourn. There is no sufficient ground for inferring from s. 20 or from the considerations to which his Honour adverted, an intention to restrict in any way the powers of the commission in places outside that area. (at p568)
14. The foregoing reasons suffice to entitle the commission to succeed on this appeal. It is desirable, however, to refer to an independent ground upon which the commission claimed to be entitled to the judgment of the court, namely that on the true construction of s. 15(1) the direction given by the Governor in Council should be accepted as establishing conclusively that the purpose of the acquisition was a purpose of the Act. It may be accepted that if the direction given by the Governor in Council in the present case had stated a particular purpose falling within the purposes of the Act there would have been an end of the matter. Cases such as Baiada v. Baulkham Hills Shire Council [1951] HCA 70; (1951) 83 CLR 344 must be put on one side as dealing with a different type of legislation, under which a body such as a municipal council is given power to acquire land, and the power is made subject to the two conditions that the purpose for which the body desires the land is a purpose of the Act and that the Governor's approval of the acquisition is obtained. This Court has held on several occasions that legislation of that kind has not made the proclamation or other expression of the Governor's approval conclusive as to the purpose in fact entertained by the acquiring body. But under s. 15 the decision to acquire is the decision of the Governor in Council. He does not approve, he directs. The acquisition is an acquisition "for the Crown", and its effect is that the land becomes unalienated land of the Crown. The commission obtains no title itself, unless by virtue of a subsequent grant from the Crown: (s. 16(2)). The provision is that the commission "may" acquire and take the lands for the Crown, but a duty to do so is to be gathered from the nature of a direction, especially as it is a direction by the Governor in Council to a statutory body which is subject to executive control in its administration of the Act (s. 10) and is established to perform functions on behalf of the Crown (s. 14). While it is doubtless true that in practice the initial selection of land for acquisition will be made by the commission, the acts which the commission has to do under s. 15 are procedural only, and the commission is but the instrument chosen to carry out the decision of the Governor in Council. In view of these considerations, the introductory words of the section. "For the purposes of this Act", must be intended to be applied to the purposes actuating the Governor in Council, and not to the purposes of the commission. If a direction of the Governor in Council specifies a purpose as being the purpose of the acquisition, no court will go behind the statement, for the good faith of the Governor in Council cannot be questioned in the courts. The only question as to purpose which then remains for judicial decision is the question of law, whether the specified purpose is a purpose of the Act: W.H. Blakeley & Co. Pty. Ltd. v. The Commonwealth [1953] HCA 12; (1953) 87 CLR 501, at p 521 . In the present case, however, the direction given did not refer to any particular purpose, but directed the acquisition "for the purposes of the State Electricity Commission Acts". It must be taken from this that the direction was given for a purpose which the Governor in Council considered to be within the purposes of the Act; but the document gives no information as to the nature of that purpose so as to enable the courts to decide whether the view taken as to the scope of the purposes of the Act was correct. The only material from which the actual purpose may be inferred consists of the evidence already discussed, as to the situation which had arisen and the manner in which an endeavour was made to cope with that situation. The commission's contention that the direction of the Governor in Council precludes investigation of the purpose of the acquisition cannot be upheld. (at p569)
15. The appeal should be allowed, and it follows that the cross-appeal, which relates only to the damages to be awarded to the respondent in the event of the acquisition being held invalid, should be dismissed. The judgment below should be set aside, and in the action there should be judgment for the defendant. (at p570)
WEBB J. With great respect, I think that the learned trial judge, having held that the erection of houses was necessary should have held further that the provision of modern lighting, drainage, sewerage, streets, schools and churches was also necessary to attract the required labour force. This was because not only one or two houses but whole blocks of houses were necessary in the reasonable judgment of the commission: and they were required immediately. The educational and spiritual needs of the workers and their families are not the concern of the commission: but schools and churches may well be essential if the necessary labour is to be secured and retained. Further, without lighting, drainage and streets, the houses would be little better than slums, which there certainly is no occasion or power to create. The expressio unius rule which his Honour applied because a township with local government was expressly authorized for Morwell might have prevented the constitution of a local government for this particular area; but it did not prevent the provision of houses, as indeed his Honour held. But, as Mr. Gowans perceives, if houses were authorized, so too were drainage, streets and the rest, and so he attacks the judgment as going too far. His argument is that the employment of labour is necessarily incidental to the operations of the commission, but that the provision of houses for employees is merely incidental to what is incidental and so beyond power. But Mr. Gowans also relies on the express provisions for Morwell. However it is only a township in the full sense of the term - the composite conception with its local government - that the expressio unius rule negatives, if it applies, which I doubt. After all, it is only a question of legislative intention. Did the special authority for Morwell indicate that the legislature intended necessary works in this and other areas outside Morwell not to be undertaken or to be abandoned if a modern housing settlement or even a township were required for their completion? In my opinion, clearly not. Moreover, needs vary with time, place and circumstances. What was required for Morwell could also be required elsewhere sooner or later. (at p570)
2. The full provision made for Morwell is, I think, an indication of what the legislature thought to be the extent of the commission's needs; and what was necessary for Morwell could become necessary in other places. In the circumstances the legislative affirmation in respect of Morwell did not amount to a legislative denial in respect of other places, regardless of the needs of the commission in those places. I would allow the appeal and necessarily dismiss the cross-appeal. (at p570)
3. As to the cross-appeal, however, his Honour found the resumption invalid: but gave judgment for damages to be assessed as from the date of the trespass and not as at the date of the judgment. In the latter case, the damages would be based on the knowledge of the commission's activities in the locality and be greater for that reason. His Honour's reasons for so doing appear to be based on the nature of the terms of an appropriate injunction in the particular circumstances; but I cannot see how the terms of any appropriate injunction against the commission could properly have influenced the choice of the critical date. (at p571)
4. After hearing further argument on 20th May 1954 the Court made the following order. (at p571)
ORDER
June 2.(1) Order and adjudge that the plaintiff in respect of the defendant's entry and trespass upon the lands mentioned in par. 3 of the statement of claim on and from 3rd March 1950 until 26th September 1951 rendered unlawful by the absence aforesaid of such prior direction do recover from the defendant damages to be assessed.
(2) Direct that such damages be assessed by a judge of the Supreme Court.
(3) Refer it to the Taxing Master of the Supreme Court:- (a) to tax the
costs of the plaintiff of the action up to
the date of this order of the High Court except so
far as they are increased by the inclusion therein
of causes of action and claims to relief other than
the cause of action in respect of the defendant's
said entry and trespass on and from 3rd March
1950 until 26th September 1951 rendered unlawful
as aforesaid by the absence of such prior direction
and the claim for damages for such entry and
trespass,
(b) to tax the costs of the defendant of the action up to
the date of this order of the High Court so far as
they are occasioned by the inclusion of such causes
of action and claims to relief.
(4) Order that such costs when taxed be set off and that the Taxing Master certify the balance due to the party entitled thereto and that judgment for the recovery of the amount of such balance be entered in favour of such party accordingly. For the purposes of such taxation let the costs include the costs of pleadings and discovery and the costs of the attendances in chambes on 18th February 1953 and 30th March 1953, each such attendance to be certified as a matter proper for the attendance of counsel.
(5) Liberty to apply to the Supreme Court.
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