Australia: NSW Government Bulletin - 31 August 2016

Tunnel to nowhere? Azizi v Roads and Maritime Services [2016] NSWLEC 97

The recent Land and Environment Court (LEC) decision of Azizi v Roads and Maritime Services [2016] NSWLEC 97 (Azizi) is the first to consider s62(2) of the Land Acquisition (Just Terms) Compensation Act 1991 (JT Act) which sets out when compensation is payable where subsurface land is acquired for the purposes of constructing a tunnel.

The case is of interest because it had the potential to have far reaching implications. If the LEC had concluded that the applicant landowner was entitled to compensation, the decision was likely to have enlivened claims for compensation by landowners for the sub-surface acquisition of land for tunnels. As explained in this article however, the LEC found that no compensation was payable to the applicant landowner.

Background

In Azizi, the LEC considered a preliminary question of whether the compulsory acquisition of substratum land at Beecroft as part of the Northconnex project (Land) was compulsorily acquired for the purposes of constructing a tunnel within the meaning of s62(2) of the JT Act. If the answer was "yes", no compensation was payable to the landowner.

The Northconnex project involves the construction and operation of northbound and southbound twin dual carriageway road tunnels connecting the Hills M2 Motorway at West Pennant Hills to the F3 Freeway (M1) at Wahroonga (Project).

Relevantly, subsections 62(1) and (2) provide that:

  1. If the land compulsorily acquired under this Act consists only of an easement, or right to use land, under the surface for the construction and maintenance of works (such as a tunnel, pipe or conduit for the conveyance of water, sewage or electrical cables), compensation is not payable except for actual damage done in the construction of the work or caused by the work.
  2. If land under the surface is compulsorily acquired under this Act for the purpose of constructing a tunnel, compensation is not payable (subject to subsection (1)) unless:
    1. the surface of the overlying soil is disturbed, or
    2. the support of that surface is destroyed or injuriously affected by the construction of the tunnel, or
    3. any mines or underground working in or adjacent to the land are thereby rendered unworkable or are injuriously affected.

The landowner submitted that:

  1. The purpose of the acquisition is the commercial venture comprising the various components of the Project and therefore goes well beyond the construction of tunnels. Therefore, RMS needs to demonstrate that the words "constructing a tunnel" mean "constructing and using a tunnel".
  2. Sections 62(1) and 62(2) must be read together. A narrower construction of "tunnel" in s62(2) is in line with the meaning of "tunnel" in s62(1) (limited to tunnels for the housing of passive service installations) and should be preferred to a wider construction which includes not only the "construction" of the tunnel but its "use".
  3. A distinction should be made between passive and non-passive uses of a tunnel. This should be applied to section 62 so that, for example, "passive" service installations and tunnel construction should be read as being distinct and separate from the "use" of a tunnel.

Findings

The LEC largely agreed with RMS' submissions and held that no compensation was payable to the landowner. In particular, the LEC found that:

  1. The purpose of the Project (and therefore the purpose of the acquisition) is for the construction of two tunnels. After construction, the tunnels will be used as a dual carriageway for highways. The primary purpose is not altered by the fact that the management and financial delivery of the Project will be through a private consortium which will operate the highways as toll roads.
  2. It is clear that s62(1) and s62(2) address different circumstances. The first is directed to the acquisition of an easement or right to use land. The second applies to the acquisition of land for the purposes of constructing a tunnel. There is no statutory basis for construing the word "tunnel" in subsection (2) by reference to subsection (1) and the description in the parentheses of service installations.
  3. It would lead to an absurd result if s62(2) only applied to construction and not use of the tunnel. The LEC also considered such an interpretation to be troubling given the public resources at stake.
  4. There is no distinction between "passive" and "non-passive" uses of a tunnel. Just as the conveyance of sewage, water or electricity is a use, so is the use of a tunnel as a roadway.
  5. The LEC did not find the need to consider the second reading speech or extrinsic material which can be given weight in the event of ambiguity. The LEC held that the language of s62(2) is clear and unambiguous.

The case is a good example of the application of a well-established principle of statutory construction - the plain meaning of the text must be considered. Here, the LEC held that the words of s62(2) were clear and unambiguous in specifying that compensation is not payable for the construction of a tunnel unless the circumstances in s62(2)(a)-(c) arise. The case also provides clarity for public authorities acquiring substratum land, particularly in the context of not only the Northconnex but also Westconnex and future infrastructure projects.

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In the media

ICAC: NSW Liberal figures and businessmen tried to evade political funding laws, report finds

The New South Wales Director of Public Prosecutions should consider charges against former Labor minister Joe Tripodi and former Liberal minister Chris Hartcher, the state's corruption watchdog says.

ICAC: NSW Liberal figures and businessmen tried to evade political funding laws, report finds

Operation Spicer: Larceny charges recommended against former minister Chris Hartcher

Former NSW Liberal minister Chris Hartcher faces potential larceny charges and former Labor minister Joe Tripodi has been found to have engaged in serious corrupt conduct by the Independent Commission Against Corruption following its investigation into political fundraising.

Operation Spicer: Larceny charges recommended against former minister Chris Hartcher

New Laws to ease NSW District Court Backlog

The NSW Government is making justice faster, fairer and more accessible with new laws introduced today by Attorney General Gabrielle Upton designed to reduce delays in court, under the Crimes Procedure Amendment (Summary Proceedings for Indictable Offences) Bill 2016 (25 August 2016).

New Laws to ease District Court Backlog

A Police Force for the Future in NSW

Deputy Premier and Minister for Justice and Police Troy Grant and NSW Police Commissioner Andrew Scipione today announced the first phase of a new and enhanced executive structure which will see the creation of five executive positions reporting directly to the Commissioner (25 August 2016).

A Police Force for the Future

NSW Parliament pressed to reform 'archaic' abortion laws

A group of lawyers are calling on the NSW Parliament to pass a bill to reform abortion laws, which they say have hampered women's access to health services and violated fundamental human rights for too long (25 August 2016).

More (Lawyers Weekly)...

Backpacker sues NSW Police accusing force of cover-up over alleged bashing

A backpacker who was allegedly the victim of a serious assault is suing NSW Police accusing the force of an institutional cover-up over the failure to investigate or discipline an off-duty officer involved (24 August 2016).

Backpacker sues NSW Police accusing force of cover-up over alleged bashing

AFP successfully applies for suppression order in Curtis Cheng criminal case

Parts of the criminal case against four men charged over the fatal shooting of NSW Police accountant Curtis Cheng could be heard in secret after the Australian Federal Police successfully applied for a suppression order (24 August 2016).

AFP successfully applies for suppression order in Curtis Cheng criminal case

Court awards $3.3m compensation payout in historic native title rights case

More than 20 years after the Mabo decision, the Federal Court for the first time determines how to award compensation to traditional owners who have lost their rights to native title due to infrastructure being built on the land (24 August 2016).

Court awards $3.3m compensation payout in historic native title rights case

Another $3 million boost to target NSW bikie networks

The Minister for Justice Michael Keenan announces an additional $3 million investment from the Commonwealth Government to extend the work of the New South Wales National Anti-Gang Squad (NAGS) Strike Team targeting drug trafficking, money laundering, extortion, firearms offences and acts of high level violence) (24 August 2016).

Another $3 million boost to target NSW bikie networks

Unis to survey students on sexual harassment and assault

Universities Australia chair Professor Barney Glover says the survey will help institutions address the "serious concerns" expressed about safety on campuses (23 August 2016).

Unis to survey students on sexual harassment and assault

Universities partner on sexual assault survey

A nation-wide survey to assess the extent of sexual assault and sexual harassment of university students will be launched today by the Australian Human Rights Commission and Universities Australia (23 August 2016).

Universities partner on sexual assault survey

In practice and courts

IPC NSW: NSW Information Commissioner publishes new resource to assist regulated sectors to comply with the GIPA Act

The NSW Information Commissioner has published a new fact sheet to provide guidance to entities regulated by the Government Information (Public Access) Act 2009 (GIPA Act). This fact sheet provides guidance on when wholly-owned subsidiaries of agencies are captured under the GIPA Act.

NSW Information Commissioner publishes new resource to assist regulated sectors to comply with the GIPA Act

ICAC statements and alerts

Operation Spicer report furnished 30 August 2016 - The ICAC furnished its investigation report into Operation Spicer to the President of the Legislative Council on Tuesday 30 August 2016 (30 August 2016).

Prohibited donations, fund channelling and non-disclosures exposed in NSW Liberal Party 2011 state election campaign - The NSW Independent Commission Against Corruption (ICAC) Operation Spicer investigation has exposed prohibited donations, fund channelling and non-disclosures in the NSW Liberal Party's 2011 state election campaign (30 August 2016).

Operation Scania witness list - Witness list for the remainder of the Operation Scania public inquiry. Updated Friday 26 August 2016. Please note that witness lists are subject to change (26 August 2016).

Prosecution briefs with the DPP and outcomes - Briefs with the DPP and outcomes of ICAC-related prosecutions. Last updated 23 August 2016 (23 August 2016).

Public inquiry into corruption allegations concerning Western Sydney Regional Illegal Dumping Squad officer starts Monday

The ICAC public inquiry to be held as as part of the Operation Scania investigation into corruption allegations concerning Craig Izzard, a former enforcement officer with the Western Sydney Regional Illegal Dumping Squad, will start next Monday (19 August 2016).

NSW Law Society of NSW Submissions

August 2016 - Productivity Commission Inquiry into Data Availability and Use

Cases

Casenote: Balancing public and private interests in the exercise of judicial discretion

Government lawyers, and private lawyers who act for government bodies, will often face arguments which centre around the interests of private citizens generally being of greater importance than those of public bodies, as in the recent case of Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97 24 August 2016.

Balancing public and private interests in the exercise of judicial discretion

Stuart v O'Connor as Acting Deputy Secretary of the Department of Justice and State of New South Wales [2016] NSWSC 1179

ADMINISTRATIVE LAW – "lockout laws" - declarations sought - whether improper subdelegation of regulation-making power by cls 53Y(1)(d) and 53Z(1)(d) of the Liquor Regulation 2008 – whether cls 53Y(1)(d) and 53Z(1)(d) ultra vires – construction of s 116I of the Liquor Act 2007 ADMINISTRATIVE LAW - whether decision of the first defendant unreasonable – whether decision made for an improper purpose – unnecessary to consider ground.

https://www.caselaw.nsw.gov.au/decision/57bd5b31e4b058596cb9ec97

Kinloch v Newcastle City Council [2016] NSWLEC 109

JUDICIAL REVIEW: Instrument of Delegation – whether Council assessing officer required to refer the decision-making function to Development Assessment Committee of Newcastle City Council consistent with Instrument of Delegation – relevant test for delegation to the Development Assessment Committee – conflicts with Council's adopted objectives and policies more than minor – whether strict compliance unreasonable or unnecessary – development consent declared invalid – consequential restraining orders made.

https://www.caselaw.nsw.gov.au/decision/57bceeede4b0e71e17f53925

Burke v Health Education and Training Institute [2016] NSWCATAD 194

GOVERNMENT INFORMATION – Information concerning workplace investigation - Public interest considerations in favour of disclosure – Whether disclosure of the information could reasonably be expected to reveal or substantiate misconduct or negligent, improper or unlawful conduct – Whether alleged breaches of procedural fairness constitute public interest consideration in favour of disclosure - Tribunal not to undertake collateral review of merits or validity of official action GOVERNMENT INFORMATION – Public interest considerations against disclosure – Disclose information provided in confidence – Prejudice the effective exercise by an agency of its functions – Prejudice the conduct of an investigation – Meaning of "conduct" of an investigation – Reveal personal information and contravene privacy principle – To discharge burden, respondent must identify relevant privacy principle and explain why there would be reasonable expectation of contravention – Balancing of public interest considerations.

https://www.caselaw.nsw.gov.au/decision/57bcedcce4b058596cb9ec05

CNM v Commissioner of Victims Rights [2016] NSWCATAD 193

The decision of the Senior Assessor dated 14 August 2014 is set aside. Administrative Review – Victims Rights and Support – Act of violence – Recognition payment – Internal review sought out of time – Application made within a reasonable time of the administratively reviewable decision – Protection of the applicant's interests – Failure to provide reasonable assistance to Police – Reduction in amount of recognition payment.

https://www.caselaw.nsw.gov.au/decision/57bbcd17e4b058596cb9eb90

Dr David Amos v Western New South Wales Local Health District [2016] NSWSC 1162

ADMINISTRATIVE LAW – visiting medical officer received Warning Letter – subject of adverse findings in report – consideration of suspension – possible report under s 99A of Health Services Act 1997 – status of visiting medical officer – whether position created under or regulated by statute – issue of Warning Letter – whether amenable to judicial review – whether step taken under and for purposes of Health Services Act 1977 – whether apt to affect interest of visiting medical officer – HELD – no obligation to afford natural justice in relation to Warning Letter – external expert engaged to provide report – whether report is step taken under and for purposes of Health Services Act – whether report apt to affect interest of plaintiff – HELD – no obligation to afford procedural fairness prior to making report – suspension decision – whether injunction should issue to restrain suspension – whether plaintiff demonstrated sufficient likelihood that breach of natural justice will occur – HELD – likelihood of breach not established – summons dismissed.

https://www.caselaw.nsw.gov.au/decision/57ba36bee4b058596cb9ea80

Ku-ring-gai Council v NSW Department of Premier and Cabinet [2016] NSWCATAD 181

Government Information (Public Access) Act – access to Cabinet information – reasonable grounds for claim that information is Cabinet information – earlier decision of Tribunal making the same finding in relation to the same documents on substantially the same affidavit material – comity between Tribunal members – decision followed – independently came to same conclusions.

https://www.caselaw.nsw.gov.au/decision/57ad2658e4b058596cb9e5b8

Legislation

Proclamations commencing Acts

Courts Legislation Amendment (Disrespectful Behaviour) Act 2016 No 26 (2016-535) — published LW 26 August 2016.

Law Enforcement (Powers and Responsibilities) Amendment Act 2014 No 31 (2016-536) — published LW 26 August 2016.

Regulations and other miscellaneous instruments

Children (Criminal Proceedings) Regulation 2016 (2016-555) — published LW 26 August 2016.

Civil and Administrative Tribunal (Amendment No 4) Rule 2016 (2016-532) — published LW 26 August 2016.

Court Security Regulation 2016 (2016-541) — published LW 26 August 2016.

Guardianship Regulation 2016 (2016-556) — published LW 26 August 2016.

Law Enforcement (Powers and Responsibilities) Regulation 2016 (2016-544) — published LW 26 August 2016.

Legal Aid Commission Regulation 2016 (2016-545) — published LW 26 August 2016.

Powers of Attorney Regulation 2016 (2016-548) — published LW 26 August 2016.

Security Industry Regulation 2016 (2016-557) — published LW 26 August 2016.

Sheriff Regulation 2016 (2016-550) — published LW 26 August 2016.

Smoke-free Environment Regulation 2016 (2016-558) — published LW 26 August 2016.

Supreme Court (Amendment No 429) Rule 2016 (2016-534) — published LW 26 August 2016.

Young Offenders Regulation 2016 (2016-560) — published LW 26 August 2016.

Bills introduced Government – 19 August 2016

Criminal Procedure Amendment (Summary Proceedings for Indictable Offences) Bill 2016

Bills revised following amendment in Committee – 19 August 2016

Local Government Amendment (Governance and Planning) Bill 2016

Bills passed by both Houses of Parliament – 19 August 2016

Greyhound Racing Prohibition Bill 2016

Local Government Amendment (Governance and Planning) Bill 2016

Proclamations commencing Acts – 19 August 2016

Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 No 33 (2016-513) — published LW 19 August 2016.

Regulations and other miscellaneous instruments

Coroners Amendment (Domestic Violence Death Review Team) Regulation 2016 (2016-514) — published LW 19 August 2016.

Terrorism (Police Powers) Regulation 2016 (2016-520) — published LW 19 August 2016.

New Commencement for Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 (NSW)

On 22 August 2016, Schedule 2 of the Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 (33 of 2016) [NSW] was proclaimed by Regulation 513 of 2016. The Act makes miscellaneous amendments to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and Chapter 9A of the Coroners Act 2009 (NSW) to give effect to the recommendations arising from the statutory reviews of that Act and Chapter; and for other purposes. More...

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