When you have been doing Government related legal work a long time the cyclicarity of issues in government and the reality of the above French maxim come home to roost.

The decision in April 2018 in Desane Properties Pty Limited v State of New South Wales [2018] NSWSC 553 (the Desane Decision) immediately brought those words back to my mind.

The decision involved a challenge to a compulsory acquisition under the Land Acquisition (Just Terms) Compensation Act 1991, by the roads authority in connection with certain freeway works to the inner west of Sydney, with the land in question being at Rozelle..

The works in question are but a part of a much larger complex of freeway works being organised by the State government but effectively built by the private sector.

Under the Roads Act 1993, ss 177 the authority has power to compulsorily acquire land in connection with relevant road related projects where a consensual negotiated purchase arrangement cannot be agreed.

The roadway projects in question have been the subject of much public and political discussion and refinement which led to a certain fluidity and uncertainty in intentions of the roads authority at a particular time that it gave the notice of intention to acquire under the Land Acquisition (Just Terms) Compensation Act 1991.

The Court concluded that the particular piece of land was actually intended, long-term, for use as parks and gardens adjacent to the relevant roadworks but that, at the relevant time, its intended use was not sufficiently roadworks related to be a valid compulsory acquisition under the law.

In coming to this conclusion, the Court cited the old case of Samrein Pty Limited v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678 at 679 upon which I have had to advise from time to time over the years.

That case laid down the principle that an attempted exercise of power by a statutory authority will be voided even if a challenged ulterior or tangential purpose was not the sole purpose of the acquisition. In the Desane decision, the Court said “it will be an abuse of RMS’ powers of the ulterior purpose is a substantial purpose in the sense that no attempt would have been made to acquire the land if it did not been desired to achieve the unauthorised purpose”. ( Hammerschal J at paragraph 282 of the Desane Decision.

The case reinforces the need, when considering any exercise of power by a government authority, for the actual purpose of the acquisition to be compared to the source of power at the time of exercise to ensure compliance with both the letter and spirit of the law.