C C Auto Port Pty Ltd v Minister for Works [1965] HCA 55; (1965) 113 CLR 365 (5 November 1965)

HIGH COURT OF AUSTRALIA

C. C. AUTO PORT PTY. LTD. v. MINISTER FOR WORKS [1965] HCA 55; (1965) 113 CLR 365

Resumption of Land

High Court of Australia
Kitto(1), Taylor(1) and Menzies(1) JJ.

CATCHWORDS

Resumption of Land - Validity of resumption - Exercise of statutory power - Good faith - Expressed purpose of "Street Widening and other purposes" - Acquisition of land additional to that required for street widening - Intention to sell balance of land to finance cost of work - Whether real purpose of resumption to implement central city development project - Exercise of less appropriate of two powers of resumption - Notice of intention to resume - Notice of resumption - Sufficiency of statements of purposes - Validity - Local Government Act, 1960-1963 (W.A.), ss. 282, 301 (g) - Municipality of Fremantle Act, 1925 (W.A.), ss. 2, 3 - Public Works Act, 1902-1961 (W.A.), s. 17.

HEARING

Perth, 1965, September 16, 17;
Sydney, 1965, November 5. 5:11:1965
APPEAL from the Supreme Court of Western Australia.

DECISION

November 5.
THE COURT delivered the following written judgment:-
This is an appeal from an order of the Supreme Court of Western Australia declaration that the compulsory acquisition of its land in the city of Fremantle for "Street Widening and other Purposes" was invalid. Consequential relief in the form of an injunction restraining the second-named respondent (hereinafter referred to as the council) from selling, leasing or otherwise dealing with the said land or any part of it was also sought. (at p374)

2. The appellant's land, comprising approximately 50 perches, was part of a city block of four acres bounded on the western side by Cantonment Street, on the east by Adelaide Street, on the south by Queen Street and on the north by the Fremantle Boys' School. The appellant's land had a frontage to Adelaide Street of 99 feet and a depth of 140 feet. The grounds upon which the appellant claimed the relief which it sought in the action was that the resumption was not made bona fide and, further, that the notice of intention to take or resume its land, as required by s. 17 (2) (b) of the Public Works Act, 1902 (as amended) (W.A.), did not comply with the requirements of that section and that the notice of resumption, provided for by sub-s. (1) of that section, was defective in a particular to which reference will be made later. (at p374)

3. The allegation of the absence of good faith on the part of the council was the subject of particulars and, substantially, the appellant's case on this aspect of the matter rested upon three propositions. The first was that the real purpose of the resumption was not as alleged, road widening, but, rather, the carrying into effect of what was called the Fremantle Central City Development Project and that the expressed purpose was merely a cloak to hide the real purpose. Alternatively, it was contended that the purpose of the acquisition of the block as a whole, including the appellant's land, was to enable the council to sell the bulk of the land at a profit and so meet the costs incurred in the work of road widening. Additionally, it was said that even if the resumption could otherwise be said to be justifiable for the purposes of road widening it could not be said to be a valid exercise of power because, in the circumstances, the matter was one which could be more appropriately dealt with, and should have been dealt with, by the exercise of the powers conferred by the Town Planning and Development Act, 1928-1961 (W.A.). We do not recognize this last proposition as going to the question of the bona fides of the council. Assuming that a local authority has a qualified power to resume land for specified purposes and that it exercises its power honestly for one or more of those purposes there can be no objection merely on the ground that the resumption might have been effected pursuant to some other power which it is suggested, or thought, might have been more appropriately exercised. (at p375)

4. As far as the first proposition is concerned it is conceded that if at the relevant time the council had no purpose of street widening to pursue, or, if the real purpose of the acquisition was the development of a city retail shopping block with some incidental or consequential street widening, the allegation of a lack of good faith would, in law, be made out. (at p375)

5. The city block which has been briefly described was not the subject of the notice of resumption already mentioned. The block contained thirteen town lots and a number of these were acquired over a period of a few years, some by purchase and others by resumption. There were negotiations for the purchase of the appellant's land after the publication of a notice of intention to resume its land and on 10th April 1963 a somewhat informal objection to the resumption of the appellant's land was lodged by it. We say "informal" because no ground of objection was stated; all that appeared under the heading "Grounds of Objection" was the note "Providing agreeable compensation is provided for this freehold property, there are no objections to the resumption". It was only after negotiations for the purchase of the appellant's land had failed that the notice of resumption was published under the hand of the Governor on 6th March 1964. (at p375)

6. The initial resolution of the council resolving to acquire the whole of the land in question had been passed on 19th June 1961. It was then resolved: "That the City of Fremantle decides it is necessary and expedient and that the City of Fremantle takes the necessary steps to acquire land as shown in the plan signed by the Mayor and Town Clerk for identification and dated 19th June 1961, by compulsory acquisition under s. 220 of the Municipal Corporations Act, 1906 and Amendments, for the purpose of opening footways and further increasing the width of roadway and footways in Cantonment Street, Queen Street and Adelaide Street. Further that the City of Fremantle by compulsory acquisition acquire land on the south-east side of the proposed widening of Cantonment Street roadway and footway, the land on the north-west side of the proposed widening of Adelaide Street roadway and footway, the land on the north-east side of the proposed widening of Queen Street roadway and footway to the depth and the extent shown on the said plan". (at p376)

7. The plan referred to showed that the land the subject of the resolution was the whole of the city block previously described and it depicted in green ten feet margins on the frontages to the three streets mentioned which it was proposed should actually be used in road widening whilst the residue of the block, shown in grey with red hatching, was said to be the subject of a proposed resumption for "other purposes". (at p376)

8. The steps which were taken in the course of the resumption were, in general, in conformity with s. 282 of the Local Government Act, 1960 which reproduced s. 220 (formerly s. 219) of the Municipal Corporations Act, 1906. That section provides that "A council may, with the consent of the Governor, take land within the district compulsorily under and subject to the provisions of the Public Works Act, 1902, for the purpose of carrying out a work or undertaking which it is authorized by law to carry out". It is, perhaps, unnecessary to mention that the widening of streets is such a work or undertaking (Local Government Act, 1960, s. 301 (g)). It is not, however, suggested that the resumption of the whole of the appellant's land, viewed, as it must be, as the resumption of part of the whole block, could be supported under these provisions. Indeed, it is conceded that the whole of the land in question was not actually required for the purpose of road widening. What is said is that the provisions to which we have referred, in conjunction with s. 2 of the Municipality of Fremantle Act, 1925, clearly authorized the resumption. That section and s. 3 of the same Act, which it is now convenient to set out, are in the following terms:

"2. Whenever the Municipal Council of Fremantle
(hereinafter
referred to as "the Council") may decide that it is
necessary or expedient to acquire land under the provisions
of section two hundred and seventeen, section two hundred
and nineteen, and section four hundred and thirty-eight,
subsection (1), of the Municipal Corporations Act, 1906
(hereinafter referred to as the principal Act), for the purpose
of opening, extending, diverting, altering, or increasing the
width of any streets or footways, the Council shall not be
confined to the acquisition of such land as is actually required
for such purpose, but it shall be lawful for the Council to
acquire or take land on either side or on both sides of the
proposed new street, or extended or widened street, for such
a depth as the Council shall think fit.

3. The Council may in respect of any land acquired by it
under authority of this Act, or the principal Act, do all or
any of the following things:-

(a) Demolish or repair any buildings or works thereon;
(b) Construct new buildings or erections thereon;
(c) Close, alter, widen, extend, or divert any existing public
way thereon;
(d) Construct and open any new public way thereon;
(e) Alter the levels of such land, and alter existing drains,
and construct new drains and stormwater sewers thereon;
(f) Generally alter, remodel, and improve such land and
buildings in such manner as the Council may think fit;
(g) Sell the whole or any portion of such land, in one or more
lots, on such terms and conditions (including power to take
securities for any balance of purchase money) as the
Council may think fit;
(h) Lease the whole or any portion of such land for such
periods, and on such terms and conditions, as the Council
may think fit." (at p377)

9. There can be no doubt that the effect of s. 2 is to extend the powers of acquisition of the council when resuming land for the purpose of street widening. It seems clear that apart from that section the authority of the council would be confined to the taking of such land as is actually required for that purpose. But legislation authorizing the compulsory taking of land for particular purposes has frequently authorized the taking of additional land not strictly required for any such purpose. An example is s. 16 of the Sydney Corporation Act, 1905 (N.S.W.) (as amended by Act No. 16 of 1906) which is referred to in Criterion Theatres Ltd. v. Sydney Municipal Council [1925] HCA 9; (1925) 35 CLR 555 . That section, in effect, provided that the council might resume "all lands required for the opening of new public ways or the widening, enlarging, or extending of public ways in the city, and all lands of which those required for such purposes form part". A further example was the subject of discussion in Thompson v. Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87 and Minister for Public Works v. Duggan [1951] HCA 29; (1951) 83 CLR 424 when this Court was called upon to consider the operation of s. 535 of the Local Government Act, 1919. This section, which is in wide terms and which is not confined to the case where land is being taken for the purpose of road making or widening, is as follows: "Where the council proposes to acquire land for any purpose it may also acquire other land adjoining or in the vicinity". Concerning this section the Court in Thompson's Case [1950] HCA 33; (1950) 81 CLR 87 said: "Its operation is to confer powers which may be exercised with respect to land when purchased or resumed for a purpose authorized elsewhere in the Act. Section 535 authorizes a council, where it proposes to acquire land for any purpose, also to acquire other land adjoining or in the vicinity. The language of s. 535 is in terms very wide. But the section can only operate where the council proposes to acquire land for any purpose. It is therefore not an independent but an incidental power and this indicates that some limits must be placed on its meaning. It does no more, we think, than confer a power to acquire land adjoining or in the vicinity of land authorized to be acquired by s. 532 whenever the acquisition of such adjoining or proximate land is reasonably incidental to the carrying out of the purpose for which the land is authorized to be acquired under that section" (1950) 81 CLR, at pp 103, 104 . (at p378)

10. In Duggan's Case [1951] HCA 29; (1951) 83 CLR 424 the Court saw no reason to depart from this construction when it had before it the question of the validity of steps taken for the purposes of resuming some 119 acres of land which it was proposed to acquire "for the purpose of the improvement and embellishment of the area". It appeared that of the land proposed to be resumed, 84 acres were to be used for park lands, 17 acres for new roads, and the balance of 17 acres was to be acquired simply in order that they might be resold and the proceeds applied towards the cost of the scheme. In the result, an appeal against an order of the Supreme Court of New South Wales granting an injunction restraining the appellants from taking any further steps towards the resumption of the land was dismissed. (at p378)

11. There is no doubt, and it is not contested, that the resumption in the present case related to more land than was actually necessary for street widening, or, that the appellant's land was wholly resumed because it was part of the city block and because it was the intention and purpose of the council to resell so much of the block as was not required for street widening or for its own use in order to meet, as far as possible, the cost of the work of street widening which it proposed to carry out. In this situation the appellant strongly relied on Duggan's Case [1951] HCA 29; (1951) 83 CLR 424 but there are, in our view, important and vital differences between s. 535 of the Local Government Act (N.S.W.) and s. 2 of the Municipality of Fremantle Act. The latter section, though wide in terms, is not as wide as the former. At the same time it is more precise and the reasoning which led the Court to construe s. 535 as it did cannot, with anything like the same force, be applied to it. It will be observed that it provides that "the Council shall not be confined to the acquisition of such land as is actually required for such purpose, but it shall be lawful for the Council to acquire or take land on either side or on both sides of the proposed new street, or extended or widened street, for such a depth as the Council shall think fit". It is therefore impossible to say, as may be said of s. 535, that "It does no more . . . than confer a power to acquire land adjoining or in the vicinity of land authorized to be acquired . . . whenever the acquisition of such adjoining or proximate land is reasonably incidental to the carrying out of the purpose for which the land is authorized to be acquired" (1950) 81 CLR, at p 104 . The acquisition of land on one side of a street which it is proposed to widen by work done on the other side could never be said to be reasonably incidental to the carrying out of the purpose of road widening. Yet this is what s. 2 expressly authorizes. Further, s. 535 of the Local Government Act is a provision of general application and may be invoked when any local authority proposes to acquire land for any authorized purpose. Section 2 of the Municipality of Fremantle Act is, however, a provision which may be invoked in the City of Fremantle only when land is being resumed for the purpose of opening, extending, diverting, altering, or increasing the width of any street or footways. It may, we think, well be thought to be a provision dealing with a special problem found to exist in a particular area. We, perhaps, should mention that the Act was passed less than twelve months after the decision in the Municipal Council of Sydney v. Campbell (1925) AC 338 in which the Judicial Committee denied the authority of the council to acquire land not, itself, required for the extension of Martin Place in Sydney, "but, solely, for the purpose of appropriating the betterments arising from the extension". Section 2, however, presents itself to us as a provision designed to enable the council, within limits, to resume land additional to that which is required for the purpose of opening, extending, diverting, altering or increasing the width of any streets or footways and, by such means, to obtain for its ratepayers the benefits arising from the carrying out of any such work. That this was the reason for the acquisition of the additional land is not open to question but, in view of the terms of s. 2, this circumstance does not constitute a valid objection to the resumption. (at p380)

12. There remains for our consideration the first ground upon which it is said that the council, in resuming the appellant's land as part of the block in question, did not act bona fide. To us, in the circumstances of the case, the substance of this contention is that the paramount purpose of the council in effecting the resumption was the carrying into effect of the so-called Fremantle Central City Development Plan and that the work of widening Cantonment Street, Adelaide Street and Queen Street was merely incidentally involved in the main purpose. In the words of the learned trial judge the contention was "that the expressed purpose 'Street Widening' was a sham, which did not express the true or real purpose but was used as a cloak to hide the real purpose, which was the development project" (1965) WAR, at p 151 . In the course of his reasons his Honour traversed the evidence in the case pointing out that by Australian standards Fremantle was an old city with narrow streets and with most of its buildings constructed right up to the street building lines. It is unnecessary to repeat all that his Honour said but it is beyond question and, indeed it was not contested, that over a number of years the council had become increasingly concerned with the necessity for the acquisition of land within its area to meet the requirements of modern forms of transport. Almost immediately after the last war it was said to be "faced with the problem of finding an adequate terminal for passenger buses, where they can be turned around to commence their outward journey" (1965) WAR, at pp 152, 153 . His Honour refers to proposals in 1947 and between 1950 and 1952 to meet this requirement but after investigation it was not found practicable to proceed with them. Then in 1960 a proposal was made that Cantonment, Adelaide and Queen Streets should be widened by some ten feet and a 'bus terminal provided in those streets. But the cost was found to be prohibitive "because there were a number of buildings in this block erected right up to the building line, some of them two storeys, and two of these in particular being structurally sound and well maintained" and "to take ten feet from these would result in the virtual destruction of the buildings and in exorbitant compensation" (1965) WAR, at p 153 . However, shortly after this possibility was considered the idea was conceived of resuming the whole block and using the land not actually required for street widening for the development of a modern retail shopping site. Briefly the proposal recommended to the council by its Town Planning Committee was that the whole block should be resumed, that all building lines in Cantonment Street, Queen Street and Adelaide Street should be set back to provide for a 'bus terminal and departure points, that Point Street should be closed and that Goldsbrough Street should be projected to Adelaide Street and that the balance of the area not required for street widening should be redesigned as a site for a modern retail shopping centre. It was estimated that the acquisition of the land would cost in the vicinity of 330,000 pounds and that the resale value of the residue of the land not required for the purpose of street widening and for any other purpose of the council would be in the vicinity of 300,000 pounds. The proposal was adopted in principle and out of this grew what came to be called the Central City Development Project. Naturally enough, the planning of this project became of considerable importance and the details of the manner in which it was to be carried into effect called for considerable investigation and discussion. So much so that the importance which the project assumed has led the appellant to allege that it was the paramount purpose of the resumption. But once it had been decided to widen the streets in question and for, or in association with, that purpose to acquire the whole block it was essential to decide upon the most suitable method to be employed in disposing of the land surplus to the work of road widening. In these circumstances it is not surprising that consideration of this question overshadowed discussion concerning the necessary road-widening work. We have given consideration both to the documents in the case and to the oral evidence and we are satisfied that the development of the residue of the land resumed as a modern retail shopping centre was not an end in itself; it was, perhaps it may be said, part of a means to an end. But that end was the widening of the three streets and this was, in our view, both the initiating and the abiding purpose of the resumption. On the view that we hold of s. 2 of the Municipality of Fremantle Act we agree with the learned trial judge that the allegation of the lack of good faith on the part of the council was not made out. (at p381)

13. The next objection is that the notice of intention to resume the appellant's land did not comply with s. 17 (2) (b) of the Public Works Act in that it did not include "a statement of the nature of the work proposed to be carried out". The statement in the notice of the work proposed to be carried out was "Street Widening and such other purposes authorized by s. 3 of the Municipality of Fremantle Act, 1925". To us it is apparent that the notice would not have been objectionable if it had simply stated that the nature of the work proposed to be carried out was "Street Widening" notwithstanding the fact that the whole of the land was not actually required for that purpose. We do not see anything in the subsection which necessitates the conclusion that if the whole of the land the subject of a notice pursuant to its terms is not, in fact, actually required for the specified proposed work the notice is ineffective. It may be, of course, that a purported resumption in such circumstances would, in general, be ineffective but in the present case the authority of the council was extended by the provisions of s. 2 of the Municipality of Fremantle Act. The question then is whether the addition of the words "and such other purposes authorized by s. 3 of the Municipality of Fremantle Act" operates to destroy the efficacy of the notice. In strictness these words do not amount to a statement that it is proposed to carry out any works upon the land. At the most they constitute a statement which indicates, by reference to s. 3 of the Act, that the council will, in respect of so much of the land that is not actually required for street widening, exercise some or all of its powers under s. 3. To our minds this in no way impairs the efficacy of the notice. (at p382)

14. The final question is concerned with the actual notice of resumption pursuant to s. 17 (1) of the Public Works Act. This sub-section is in the following terms: "Whenever any land is required for any public work, the Governor may, subject to the provisions of subsection (2) of this section, by notice published in the Government Gazette, declare that the land has been set apart, taken, or resumed under this Act for the public purpose therein expressed, and that a plan and more particular description of such land may be inspected at a convenient place to be stated in such notice." However the notice published in respect of the appellant's land stated that it had been "compulsorily taken and set apart for the purposes of the following public work, namely: City of Fremantle - Street Widening (Adelaide Street) and other purposes". On this aspect of the case the respondents submitted that the decision of this Court in Criterion Theatres Ltd. v. Sydney Municipal Council [1925] HCA 9; (1925) 35 CLR 555 was authority for the proposition that since the notice stated a public purpose which supported the taking of the whole of the appellant's land it could not be said to be ineffective and that the presence of the words "and other purposes" was of no consequence. But that case is not in point for, as was pointed out by Higgins J. in the course of his reasons, the legislation under which the resumption was effected did not make any statement of purpose in the notice of resumption essential to the validity of the resumption. Here, the public purpose or purposes must be stated for s. 17 (1) provides that the "Governor may . . . by notice . . . declare that the land has been set apart, taken, or resumed under this Act for the public purpose therein expressed". Further, the specification of a public purpose is of importance in view of the provisions of s. 29 of the Act which makes general provision for the disposal of land not required for the public work for which it had been resumed. But as regards the additional land a different question arises, for the general provisions of s. 17 (1) of the Public Works Act must be accommodated to the special provisions of s. 2 of the Municipality of Fremantle Act, 1925. The significant feature of the latter section is that it gives an additional power of acquisition not dependent upon the fact that it is required for any public work or public purpose within the meaning of the Public Works Act. No doubt there is an implication that a logical connexion of some sort must exist between the object the council has in view in acquiring the additional land and the public purpose of the acquisition initially determined upon. But the requirement of s. 17 (1) of the Public Works Act as to expressing the public purpose simply does not fit an acquisition under s. 2. The proper accommodation of the sections to one another, it seems to us, is obtained by construing s. 2 as meaning that an additional acquisition under the power it confers may be effected in the same manner as the principal acquisition, but without the necessity of specifying a purpose. If this be so, while it is true that a notice of acquisition partly for street widening and partly under s. 2 would be inaccurate if it described the whole acquisition as being for street widening, the notice nevertheless satisfies the statutory provisions if it shows that the acquisition as a whole is of land fronting a street and is partly for the purpose of street widening (so as to be supported under s. 282 of the Local Government Act, 1960) and, as to the rest, is authorized, not by the existence of a specific purpose, but by the physical situation of so much of the land as is not actually required for street widening, that is to say, its situation on what will be a side of the widened street. The notice of acquisition in question here does express the public purpose of street widening as the purpose of the acquisition of at least some of the land. Then by the use of the words, "and other purposes", it shows that not all the land is required for that purpose, and it goes on to describe the whole of the land in such a way as to show that the portion not required for street widening will necessarily abut upon the widened street. In our opinion that is enough to make it an effective notice of acquisition supported partly by s. 282 of the Local Government Act and for the rest by s. 2 of the Municipality of Fremantle Act. (at p384)

15. For these reasons the appeal should be dismissed. (at p384)

ORDER

Appeal dismissed with costs.