The New South Wales Court of Appeal in Cappello v Roads and Maritime Services [2019] NSWCA 227 has now delivered its reasons for upholding the validity of proposed acquisition notices given by Roads & Maritime Services (“RMS”) in respect of an underground stratum of land which RMS intended to compulsorily acquire for the purpose of constructing a road tunnel. The Court of Appeal had earlier dismissed the appeal from a decision of a judge of the Supreme Court of New South Wales in Cappello v Roads and Maritime Services [2019] NSWSC 439 (summarised by K Ottesen on 14 May 2019) which had held that the notices were authorised by law and within the power of RMS.
Background
The notices in question were given under s 11 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (“Just Terms Act”) which prevents an authority of the State from acquiring land by compulsory process unless the authority has given the owners of the land written notice of its intention to do so. By s 7 of the Just Terms Act, the authority is not empowered by that Act to acquire land if it does not have the power (apart from that Act) to acquire the land.
The notices made it clear that RMS was purporting to acquire the land by exercising power under s 177 of the Roads Act 1993 (NSW). Section 177 empowers the Minister, RMS or a council to acquire land for “any of the purposes of this Act”. By s 178, land that is authorised to be acquired may be acquired by agreement or by compulsory process in accordance with the Just Terms Act. The notices indicated that the acquisition of the land was for the “purposes of the Roads Act 1993 in connection with the construction, operation and maintenance of WestConnex M4-M5 Link tunnels.”
Planning approval for the carrying out of the WestConnex M4-M5 Link had been granted under the Environment and Planning Assessment Act 1979 (NSW). Pursuant to s 52 of the Roads Act which enables the Minister, by order published in the Gazette, to declare to be a “tollway” any road proposed to be constructed on land owned or to be owned by RMS, the Minister had declared the proposed road to be constructed in the main tunnel to be a tollway. It was common ground that the tollway when constructed would be a private road under the Roads Act. Pursuant to s 63 of the Roads Act, which empowers the Minister to direct that some or all of the functions of a roads authority with respect to a classified road are to become the responsibility of RMS, ministerial directions had been made directing that all of the functions of a roads authority were to become the responsibility of RMS with respect to the project.
Central issue
The central issue in the appeal was whether the purposes identified in the notices, being “purposes of the Roads Act 1993 in connection with the construction, operation and maintenance of WestConnex M4–M5 Link tunnels”, were within the scope of the purposes of the Roads Act.
Court of Appeal
In finding that the identified purposes were within the scope of the Roads Act, Payne JA (Brereton JA and Emmett AJA agreeing) made the following points (at [39]-[56]):
- The landowners’ argument that the “purposes” of the Roads Act referred to in s 177 were limited only to the “objects” set out in s 3 of the Roads Act was not correct. The scope of the expression “the purposes of this Act” in s 177 was to be determined by reference to the provisions of the Roads Act read as a whole and the “purposes” included the exercise and achievement of particular purposes of the Roads Act identified in the powers granted by the Roads Act.
- As to the landowners’ argument that the objects of the Roads Act extended to public roads only, s177 itself made plain that the power of acquisition extended beyond the acquisition of land for public roads. Furthermore, the power to acquire land under s 177 of the Roads Act together with the Just Terms Act gave RMS the power to acquire such land compulsorily.
- No general assumption against the acquisition of private property applied. In any event, this was a case where the legislative intent to interfere with private property rights for the purposes of the Roads Act was manifest. The acquisition of private property by RMS to construct a road was clearly within the contemplated exercise of power.
- Even if attention was confined only to the objects in s 3 of the Roads Act, those objects did not expressly or impliedly exclude the performance of road work in relation to a private road. The power to acquire land to build a road fell within s 3(f). It provided that one of the objects of the Roads Act was to “confer certain functions (in particular, the function of carrying out road work)” on RMS and s 52(1)(b) of the Roads Act specifically contemplated that the Minister could declare to be a “tollway” (which, by definition, was a private road) a road proposed to be constructed on land to be owned by RMS.
- The landowners’ argument that the power of a roads authority to carry out road work under s 71 of the Roads Act which authorised a “roads authority” to “carry out road work on any public road for which it is the roads authority and on any other land under its control” was limited to the carrying out of road work on an existing public road failed to recognise that there was a distinction between the appointment of RMS as the roads authority with respect to a “public road” by operation of s 7 of the Roads Act, and the conferral or exercise of the functions of a roads authority on RMS with respect to other types of road by the operation of other provisions of the Roads Act.
- When ss 64(1A), 64(1) or 63 of the Roads Act conferred the functions of a roads authority upon RMS in relation to a road, one of the functions conferred was the carrying out of “road work”, an expression which was very widely defined and included the construction or installation of any kind of work, including a roadway and tunnel on or in the vicinity of a road for the purpose of facilitating its use as a road. Conferral of that function included the power to carry out the function including the power to construct a new road. The power to carry out road work included the power to construct a tollway.
- The main WestConnex tunnel had been approved as State significant infrastructure under the Environmental Planning and Assessment Act and the effect of that approval under s 64(1A) of the Roads Act was to enable RMS to exercise the functions of a roads authority with respect to any road for the purposes of carrying out the WestConnex project. Thus, the clear purpose of s 64(1A) was to confer on RMS the functions of a roads authority in relation to a road where RMS was not the roads authority for that road under s 7.
- To limit the function in s 71 when conferred on RMS by operation of s 64(1A) to the carrying out of road work on an existing public road for which RMS was the roads authority would add nothing to what s 71 already conferred on RMS in its direct application when RMS was the roads authority for that road.
- That this was how s 64(1A) should be construed was confirmed by s 52 which expressly contemplated that a “tollway” might be a road to be constructed by RMS on land to be owned by it in the future and was consistent with the Roads Act otherwise authorising RMS to undertake that expressly contemplated construction activity.
- Accordingly, by operation of s 64(1A), the function of carrying out the construction of the road for the purposes of the WestConnex project was conferred on RMS. Thus, construction of the road for the purposes of the WestConnex project was a purpose of the Roads Act within the meaning of s 177 and the acquisition of the landowners’ land for this purpose was permitted by s 177.
- Although not necessary to decide given the clear operation of s 64(1A), the same conclusion could be reached by operation of ss 63 and 64(1) of the Roads Act. A ministerial direction had been given pursuant to s 63, the effect of which had been that all of the functions of a roads authority with respect to the proposed tollway became exercisable by RMS. Under s 64(1), RMS could exercise the functions of a roads authority with respect to any classified road whether or not that road was a public road. This included the road in question which had not been classified as a public road but as a tollway.
