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Where am I now? Lawlink > Law Reform Commission > Publications > Land and Valuation Court
Report 23 (1975) - Land and Valuation Court
Land and Valuation Court
The Honourable J. C. Maddison, B.A., LL.B., M.L.A.,
Attorney General and Minister of Justice,
Department of the Attorney General and of Justice, Sydney
PART 1.-INTRODUCTION
1.1 By letter dated 26th March, 1975, you referred to us a proposal for the replacement of the Land and Valuation Court by the Supreme Court. The circumstances referred to in your letter indicated a degree of urgency in relation to the matter. We have accordingly given priority to our consideration of this proposal and now submit our Report.
PART 2.-SUMMARY OF RECOMMENDATIONS
2.1 Our recommendations, and the reasons therefor, are set out in this Report and are expressed in legislative form in the Draft Bill annexed. The main recommendations may be summarized as follows-
(a) that the Land and Valuation Court, constituted by the Land and Valuation Act, 1921, be abolished;
(b) that the jurisdiction now exercised by that Court be conferred-
(i) as regards appeals to that Court pursuant to section 118 of the Local Government Act, 1919, on the District Court;
(ii) as regards all other matters, on the Supreme Court.
PART 3.-A SHORT HISTORY OF THE LAND AND VALUATION COURT
3.1 The Crown Lands Act of 1884 established local land boards to decide and to report to the Minister upon various matters assigned to the boards by that Act. Parties to any proceedings before a local land board were given a right to. appeal from any adjudication or decision of the board to the Minister for Lands, who was directed to hear and determine the appeals as in open court.
3.2 The Crown Lands Act of 1889 substituted for this ministerial court a Land Court consisting of three members appointed by the Governor, one of whom was made the President. The Land Court heard all appeals and all matters referred to it by the Minister or by a local land board, making orders or awards which were conclusive on the parties and had the force of a common law judgment of the Supreme Court. Questions of law arising in cases in the Land Court could be referred to the Supreme Court in the form of a stated case, on the request of any party or of the Court’s own motion.
3.3 The Crown Lands Consolidation Act, 1913, abolished the Land Court and constituted the Land Appeal Court consisting of three members, one of whom was the President. The jurisdiction of the Land Appeal Court was similar to that of its predecessor, the Land Court, and again provision was made for the stating and submitting of a case for the decision of the Supreme Court on any question of law.
3.4 The death of the President and the advancing ages of the two members of the Land Appeal Court furnished a suitable opportunity in 1921 for recasting the constitution of that court. This was effected by the Land and Valuation Court Act, 1921, which dissolved the Land Appeal Court and constituted the Land and Valuation Court.
3.5 The new Court was constituted by a judge having the same rank, title, status, and precedence and the same salary and rights as judges of the Supreme Court. Jurisdiction was conferred on the Court to hear and determine matters which had previously been within the jurisdiction of the Land Appeal Court and in addition the Court was given jurisdiction to. hear objections to and appeals against valuations of land, the levying of rates or charges and the assessment of rateable property under various Acts, and claims made for compensation by reason of the acquisition of land under the Public Works Act, 1912, where such claim exceeded £100. The right of appeal by way of case stated for the decision of the Supreme Court was retained.
3.6 The Land and Valuation Court has been invested with additional jurisdiction under many statutes 1 and has been divested of some of its jurisdiction under others. Important changes were as follows:
(1) In 1937 jurisdiction was conferred on the Court to hear appeals in relation to the value of land resumed under the Closer Settlement Acts. 2
(2) In 1945 the Court was substituted for the District Court as the appellate tribunal to bear appeals from local councils regarding applications to erect buildings, to open new public roads and to subdivide land. 3
(3) In 1945 the Court was made the tribunal to hear claims for compensation exceeding £100 made in espect of the operation of prescribed planning schemes and to hear planning appeals from councils exercising functions as responsible authorities under such schemes. 4
(4) In 1958 Boards of Appeal were substituted for the Court as the tribunals to hear appeals from councils on building and subdivision applications leaving only a right of appeal from a Board to the Court by special case on a question of law. 5
(5) In 1962 valuation boards of review were constituted to hear objections against valuations of land made under the Valuation of Land Act, 1916, that were formerly heard by the Court, 6 saving however a right of appeal from and reference by a valuation board to the Court.
(6) In 1972 the Local Government Appeals Tribunal was constituted to hear planning and development appeals formerly heard by the Court. 7
3.7 The first judge of the Court was the Honourable Mr Justice Pike, who held office from 21st December, 1921 to 24th May, 1937. The present judge of the Court is the Chief Justice the Honourable Mr Justice L. W. Street, who was appointed Judge of the Court on 28th October, 1974. He succeeded the Honourable Mr Justice Else-Mitchell who retired on lst October, 1974. The Honourable Mr Justice Waddell was appointed an additional Judge of the Court for a period of 6 months on 28th October, 1974, and this period has been extended for a further 6 months.
PART 4.-THE PRESENT BUSINESS OF THE COURT
4.1 During the year 1973 and until his retirement on 1st October, 1974, the Honourable Mr Justice Else-Mitchell was the sole Judge of the Court. In addition to his other duties, in that period he delivered forty-two Judgments relating to thirty-six matters in the Court. These matters comprised ten claims for compensation for resumption of land, twelve appeals or references from local land boards under the Crown Lands Consolidation Act, 1913, the Western Lands Act of 1901 and the Public Roads Act, 1902, eight appeals and references from valuation boards of review, four appeals pursuant to the Local Government Act, 1919 (three under section 133 and one under section 118 of that Act), one claim for compensation made pursuant to section 342AC (1) (f) of the Local Government Act, 1919, and one arbitrations. 8
4.2 New matters listed in 1975 and awaiting hearing in the Court on 29th April, 1975, indicate a recent change in the nature of the business of the Court. They comprise 181 appeals lodged pursuant to the Local Government Act, 1919 (177 under section 118 and four under section 133), seven claims for compensation for resumption, eight appeals lodged pursuant to section 38 of the Valuation of Land Act, 1916, from valuation boards of review, two claims for compensation lodged pursuant to -section 342AC (1) of the Local Government Act, 1919, and ten references under the Crown Lands Consolidation Act, 1913, by the Minister from local land boards. The appeals lodged pursuant to section 118 of the Local Govemment Act, 1919, all appear to involve the determination of a factual issue, namely whether the land, the subject of the appeal, is wholly or mainly used by the occupier for carrying on one or more of the agricultural pursuits set out in the section.
PART 5.-LAND AND VALUATION COURTS IN OTHER AUSTRALIAN STATES AND NEW ZEALAND
5.1 No consistent pattern is evident in the legislative provisions of other States and New Zealand.
5.2 In Victoria, disputes about compensation for, or valuation of land acquired by an authority, and appeals following objections to valuations for rating and taxing purposes are heard by either a Land and Valuation Board of Review or the Supreme Court, depending on the amount of compensation claimed or the amount of the disputed valuation.
5.3 In South Australia the Land and Valuation Court is a division of the Supreme Court. It exercises the jurisdiction conferred on it under certain listed Acts and any additional jurisdiction under other Acts with all the powers and authority of the Supreme Court.
5.4 In Western Australia disputed claims for compensation for resumption of land are dealt with by a Compensation Court presided over by a Supreme Court Judge or a stipendiary magistrate depending on the amount of the claim.
5.5 In Tasmania the Land Valuation Court, constituted by commissioners, one of whom is appointed chairman, has jurisdiction to hear objections to valuations. This, however, a right of appeal to the Supreme Court by way of rehearing by a judge. In certain circumstances objections may also be summarily removed into the Supreme Court by order of the Supreme Court or a Judge thereof.
5.6 In Queensland the Land Court hears matters relating to Crown land and objections to valuations made by the Valuer-General. The Land Appeal Court, consisting of a Supreme Court Judge and two members of the Land Court (excluding the member whose decision is the subject of the appeal), hears appeals from the Land Court by way of rehearing. More than one Judge may sit (with two members of the Land Court) at the one time to hear appeals.
5.7 In New Zealand a Land Valuation Court was established in 1948. In 1968, however, this Court was abolished and its jurisdiction was transferred to the Administrative Division of the Supreme Court.
PART 6.-THE NEED FOR A SPECIAL COURT
6.1 Advantages of having a special court to deal with land and valua-tion matters have been said to be-
(a) greater consistency of decisions; 9 and
(b) greater efficiency by reason of a developed expertise of the judge of the court in the complexities of land laws and principles of valuation. 10
6.2 The main disadvantage of a special court appears to us to be lack of flexibility in its ability to handle its workload. Insufficient work for the court means that an expensive public utility is not being fully used. Too much work may cause serious hardship to litigants through delays. A single court, for example, can only hear one urgent case at the one time. 11 The great fluctuations in the volume of business of the court over the years demonstrates the seriousness of tbis criticism.
PART 7.-OUR RECOMMENDATIONS AND REASONS THEREFOR
7.1 In our view the advantages of consistency of decisions and expertise of the judge of the Land and Valuation Court may be retained otherwise than by the retention of a separate court. If the Supreme Court were invested with the jurisdiction and the work assigned to a Division, a judge of that Division would ordinarily deal with the work and would be available for other work when there was insufficient land and valuation business. On the other hand if there were more urgent land or valuation work than he could manage he would be able to call on other judges for assistance. In our view this would result in better use of judicial time and also of court staff. 12
7.2 Accordingly, we recommend the abolition of the Land and Valuation Court and the transfer of jurisdiction exercised by that Court to the Supreme Court, with one exception.
7.3 The exception is the hearing and determination of appeals pursuant to section 118 of the Local Government Act, 1919, against decisions of local councils that land is not “rural land” for rating purposes. At present the Act gives a right of appeal to the nearest court of petty sessions where the value of the land does not exceed $10,000 and a right of appeal to the Land and Valuation Court where it exceeds that sum. The issue involved in these appeals is usually a factual one. The determination of the appeals does not require any special expertise and there is no special need for consistency beyond that which might be expected generally from court decisions. In addition, as we have pointed out, they have recently become numerous. In our view the right of appeal to the Land and Valuation Court in these matters should be transferred to the District Court without, however, interfering with the right of appeal to petty sessions courts. There is at present a right of appeal to the Supreme Court on questions of law from petty sessions courts hearing appeals under section 118 of the Local Government Act, 1919, and we recommend that this right be also available in relation to appeals to the District Court under the section.
7.4 In addition to the appeals under section 118 of the Local Government Act there are, in our opinion, a number of matters now dealt with by the Land and Valuation Court that are more appropriate for an inferior court than the Supreme Court. These are, however, not susceptible of easy classification and we include recommendations in relation to them in a later report.
7.5 The Draft Bill annexed to this report proposes amendments to a number of Acts, including the Public Works Act, 1912, dealing with resumption of land. We have read a report of a departmental committee set up to consider procedures for land acquisition 13 and we agree with that committee on the need for improvement in those procedures. However, we regard a consideration of measures for improvement as being outside the terms of our reference except in so far as they relate to court procedure. We note that our recommendation to the effect that the jurisdiction to hear and determine disputed claims for compensation following a resumption of land be vested in the Supreme Court, is in accord with the views of that committee. However, we also recommend that a petty sessions court constituted by a stipendiary magistrate be given jurisdiction to hear and determine such claims where the amount of the claim does not exceed $500. 14 We also recommend amendments to the Public Works Act, 1912, relating to procedure with which the committee appears to agree in principle. They involve-
(a) widening the powers of the court hearing a compensation claim; 15
(b) repealing -the special cost provisions in the Public Works Act (and the State Coal Mines Act, 1912) under which a claimant, even though successful in being awarded by the court more compensation than he, had been offered, is nevertheless usually entitled only to portion of his legal Costs. 16 In our view a claimant whose land has been resumed and who has been compelled to seek the assistance of the court to establish the full measure of his entitlement should be in no worse position than any other successful litigant.
7.6 Section 12 of the Land and Valuation Court Act, 1921, gives the Crown a right to appear before the court in any case in which the public interest or any right or interest of the Crown may be affected or involved. The section had its origin in s. 8 of the Crown Lands Act of 1889 under which the Crown was given a right to appear in all proceedings in the Land Court “in which its rights, interests, or revenues may be concerned”. The importance of decisions of the Land Court in relation to revenue and land tenure was no, doubt much greater in 1889 than is now the case but even if this were not so we see no logical reason for continuing the Crown’s absolute right of appearance in all matters dealt with by the Land and Valuation Court and not granting the Crown a similar right in all private litigation the result of which may affect or involve the public interest or the interest of the Crown. We therefore do not recommend the re-enactment of s. 12 on transfer of jurisdiction of the court to the Supreme Court and District Court. We do not anticipate that this will occasion much concern since, so, far as we are aware, the right has been exercised infrequently.
PART 8.-TRANSITION
8.1 The Draft Bill provides for the tern:iination of the appointment of the Judge and the additional Judae of the Court. Their other appointments as Chief Justice and as a puisne judge of the Supreme Court respectively, are preserved.
8.2 The Draft Bill also provides for the termination of appointment of the officers of the Court who are-
(a) the Registrar, who is also the Prothonotary of the Common Law Division and the Registrar of the Admiralty Division of the Supreme Court and the Registrar of the Court of Criminal Appeal; and
(b) the Deputy Registrar, who is also the Deputy Registrar of ,the Court of Appeal, a Deputy Prothonotary of the Common Law Division and Deputy Registrar of the Admiralty Division of the Supreme Court and Deputy Registrar of the Court of Criminal Appeal.
The other appointments of these officers will not be affected.
8.3 Office staff of the Court comprises a clerical officer and a typist, both of whom will be absorbed in the Supreme Court staff.
8.4 Records of pending proceedings are required by the Bill to be handed over to and filed in the court invested with jurisdiction under the Bill.
8.5 Rules will need to be made under s. 124 of the Supreme Court Act, 1970, and s. 161 of the District Court Act, 1973, to provide for procedure relating to the new jurisdiction conferred on the Supreme Court and District Court under the Bill. The Bill therefore provides that the commencing date of the Act shall be appointed by the Governor and notified in the Gazette.
8.6 The references in the Schedule to the Draft Bill are to legislation enacted before 1st January, 1975.
C. L. D. MEARES
Chairman
R. F. LOVEDAY
Commissioner
30th June, 1975.
FOOTNOTES
1. See the various Acts referred to in the Schedule to the Draft Bill.
2. The Closer Settlement (Amendment) Act, 1937.
3. The Local Government (Amendment) Act, 1945.
4. The Local Government (Town and Country Planning) Amendment Act, 1945. Claims for compensation for injurious affection which were lodged in large numbers were however mostly abandoned following upon the decision of the Court in Baker v. Cumberland County Council (1 L.G.R.A. 321).
5. The Local Government (Amendment) Act, 1958.
6. The Valuation of Land and Local Government (Further Amendment) Act, 1961. The boards did not function until 1964. Appeals against valuations of land not valued under the Valuation of Land Act, 1916, are still dealt with by the Court pursuant to Schedule 3 of the Local Government Act, 1919. An objection may only be referred at the request of a person appearing and the Valuer General.
7. The Local Government (Appeals) Amendment Act, 1971.
8. These figures relate to contested matters.
9. Differences in the views of District Court judges regarding valuation standards was the main reason for transferring objections to valuations to the Land and Valuation Court in 1921-see Legislative Assembly Debates 1921, p. 1372.
10. See, for example, South Australian Legislative Council Debates (1969) p. 2481.
11. The Land and Valuation Court Act, 1921, provides for the temporary appointment of additional judges by the Governor but there are practical limitations to this procedure.
12. This was the objective of the abolition of the New Zealand Land Valuation Court and the transfer of the Court’s business to the Administrative Division of the Supreme Court on the retirement of the Judge of the Court. See New Zealand Parliamentary Debates 1968, p. 3090.
13. Interim Report of Committee set up to consider procedures for the resumption of land and related issues made to the Public Service Board, April, 1970.
14. Petty sessions courts presently have such jurisdiction, provided the claim does not exceed $200. The limit we recommend, $500, is the limit of jurisdiction fixed under the Courts of Petty Sessions (Civil Claims) Act, 1970. See generally the amendments to the Public Works Act, 1912, and to the Growth Centres (Land Acquisition) Act, 1974, noted in the Schedule to the Draft Bill.
15. Except in relation to “Growth Centre” acquisitions the Land and Valuation Court has no jurisdiction to determine whether the plaintiff is entitled to the interest he is claiming. The court assesses the amount of compensation and refers its order back to the Supreme Court where judgment is signed. The claimant must, however, still prove his title. The wider powers we propose will enable the court to determine the nature of the claimant’s estate or interest and will also enable the court to make orders that will overcome many of the difficulties posed as a result of the decision of the High Court in Rosenbaum v. The Minister (114 C.L.R. 424). The wider powers are similar to those given the court determining the amount of compensation payable pursuant to the Growth Centres (Land Acquisition) Act, 1974.
16. The Public Works Act, 1912, s. 106, and the State Coal Mines Act, 1912, s. 9.
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