The Court of Appeal in Victoria has allowed an appeal against a trial judge’s decision that had held that a landowner had an implied ‘right to be heard’ after being served with a Notice of Intention to Acquire (NOITA) during a compulsory acquisition.
In Caligiuri v Attorney-General (Vic) [2019] VSC 365, Justice Garde had held that as a matter of procedural fairness and in interpreting the minimum statutory two month period between the service of a NOITA and the service of a Notice of Acquisition (NOA) as set out in the Land Acquisition and Compensation Act, a landowner had an implied ‘right to be heard’ after being served with a NOITA.
According to Justice Garde, the ‘right to be heard’ entailed a right for the landowner to make written submissions to the acquiring authority in the period after the landowner is served with a NOITA, but before the landowner is served with a NOA.
On appeal in Melbourne Water Corporation v Caligiuri [2020] VSCA 16, the Court of Appeal unanimously rejected Justice Garde’s proposition.
In a joint judgment, Whelan, Niall and Emerton JJA held at [78] that:
we consider the fact emphasised by the judge that the notice of acquisition cannot be published less than two months after the service of the notice of intention does not signal that the legislature intended that interested persons be given an opportunity to be heard between those two steps. That two month period of time gives recipients of the notice of intention time to gather the information requested. It also gives them time to consider whether to proceed by way of agreement rather than compulsory acquisition.
Conclusion
The Court of Appeal of Victoria has adopted a conservative approach to statutory interpretation of the Land Acquisition and Compensation Act 1986 (LAC Act) and has demonstrated an aversion to implying matters of procedural fairness into the LAC Act where such matters are not made explicit.
How can we help you?
HWL Ebsworth Lawyers acts on behalf of a variety of clients, including landowners and responsible authorities in a range of planning, environment and government matters including compulsory acquisition matters. If you would like to discuss how this judgment affects a proposed compulsory acquisition, or any other matter, please do not hesitate to contact us.
This article was written by James Lofting, Partner and James Nunez, Solicitor.
