The Supreme Court of New South Wales in Cappello v Roads and Maritime Services [2019] NSWSC 439 has held that 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 were authorised by law and within the power of RMS.
Background
The notices 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 in connection with the construction, operation and maintenance of the 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, by order published in the New South Wales Gazette, 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.
Landowners’ submissions
The landowners claimed that the notices were of no legal effect because RMS did not have the power to acquire their land. Their submissions were, broadly, as follows (at [20]-[24]):
- The power of acquisition for “any of the purposes” of the Roads Act in s 177 was a power of acquisition for the express objects of the Roads Act as set out in s 3 of the Roads Act only and those objects extended to public roads only, and to existing public roads only. This construction of s 177 was supported by the protection which the law generally afforded rights of private property.
- Section 71 of the Roads Act which authorises 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 not an alternative source of power to acquire the land because the proposed road was not a public road; road work did not extend to work on a tollway; and the power to carry out roadwork on any other land under the road authority’s control referred to land already under the authority’s control and not to land which it was yet to acquire.
Decision
Campbell J of the Supreme Court observed that the power of RMS to acquire land under s 177 of the Roads Act, although limited by the phrase “for any of the purposes of this Act”, extended to acquiring land “for the purpose of opening, widening or constructing a road or road work” as well as to acquiring “land that forms part of, or adjoins or lies in the vicinity of” the land necessary to be acquired for the performance of the road work (at [39]).
His Honour, having regard to the primary object of statutory construction which is to construe the provision in question so that it is consistent with the language and purpose of all the provisions of the statute, said that the construction of s 177 propounded by the landowners significantly read down the ordinary meaning of s 177 and treated the objects provision in s 3 as a constraint on the meaning, operation and application of, not only s 177, but of each provision of the Roads Act (at [40]).
His Honour further said that the objects provision in the Roads Act expressed the objects of the Roads Act in very general terms or at a high level of abstraction and was not to be regarded as an exhaustive statement of the purposes of the Roads Act even though the language of the objects provision was definitive rather than inclusive. His Honour also said that the objects should not be read as controlling the meaning to be given to the other, operative provisions of the Roads Act (at [41]-[42]).
His Honour then went on to say, after having regard to various authorities, that the expression “for … the purposes of this Act” in s 177 did not mean ‘only for any one or more of the objects expressed in s 3 of this Act’ and that, while “objects” and “purposes” could be synonyms, construed in context, “the purposes of this Act” as used in s 177 was referring to the general statutory purposes to be gleaned from all of the provisions of the Roads Act including:
- the objects provision;
- the nature of the functions conferred upon the Minister, RMS or a council by the Roads Act; and
- the powers conferred by the operative provisions (at [49]; see also [43]).
Adopting this approach, his Honour was satisfied that RMS had power to acquire private land either by agreement or by compulsory process in accordance with the Just Terms Act for the construction of a proposed road declared by the Minister under s 52 of the Roads Act to be a tollway, on land to be owned by RMS. His Honour said that the references to any proposed road and land to be owned by RMS in s 52 of the Roads Act showed that the Minister’s power to declare a tollway related equally to existing roads (whether public or private) or new roads proposed to be constructed and that there was no question on the agreed facts in the case that the land sought to be acquired would be owned by RMS (at [50]-[51]).
His Honour also said that the express terms themselves of s 52 of the Roads Act indicated that a purpose of the Roads Act was that RMS acquire necessary land for the construction of new roads which the Minister might declare to be a tollway and that s 54 of the Roads Act enhanced this conclusion because, under that section, the Minister could not make an order classifying a road except on the recommendation of RMS (at [52]).
Finally, his Honour indicated that ss 63 and 64 of the Roads Act were important markers of the purposes of the Roads Act and fortified the conclusion that s 177 empowered RMS to acquire private land for the purpose of the construction of tollways. His Honour’s reasoning was as follows (at [53]-[56]):
- Section 64(1A) empowered RMS to exercise the “functions” of a roads authority with respect to the proposed tollway “for the purposes of the carrying out of a project approved” as State significant infrastructure under the Environmental Planning and Assessment Act, of which the tunnel formed part. The conferral of the functions of a roads authority on RMS for the purpose of the project indicated that the discharge of that function by RMS was a purpose of the Roads Act referred to in s 177 on its proper construction, as well as being an object of that Act in the narrower sense insofar as s 3(f) applied. [Section 3(f) states that an object of the Roads Act is to confer certain functions (in particular, the function of carrying out road work) on RMS and on other road authorities.]
- Section 64(1) expressly empowered RMS to exercise the functions of a roads authority with respect to any “classified road” (the definition of which included a tollway) whether or not it was the roads authority for that road and whether or not the road was a public road. Under s 71 of the Roads Act, a roads authority could “carry out road work on any public road for which it is the roads authority and on any other land under its control.” “Road work” was defined to include the roadway itself and the tunnel while “carry out road work” was defined to include carrying out any activity in connection with the construction of a road work. Thus, the function of a roads authority which RMS could exercise under s 64(1) in relation to any tollway included constructing the tollway “on any … land under its control” under s 71. Facilitating the exercise of this function was a purpose of the Roads Act and so RMS was empowered by s 177 to acquire the land.
- Pursuant to s 63, ministerial directions had directed that all of the functions of a roads authority were, to the fullest extent possible, to become the responsibility of RMS with respect to the project. This indicated that the carrying out of these functions by RMS, as directed, was a purpose of the Roads Act. And s 177 gave power to RMS to acquire private land in accordance with the Just Terms Act for that purpose.
Accordingly, his Honour concluded that the proposed acquisition notices were authorised by law and within the power of RMS.
