Astway Pty Ltd v Council of the City of the Gold Coast [2008] QCA 73 (2008) 159 LGERA 335

SUPREME COURT OF QUEENSLAND CITATION: Astway P/L v Council of the City of the Gold Coast [2008] QCA 73 PARTIES: ASTWAY PTY LTD ACN 010 768 662 (plaintiff/appellant) v COUNCIL OF THE CITY OF THE GOLD COAST (defendant/respondent) FILE NO/S: Appeal No 7790 of 2007 SC No 2825 of 2004 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 4 April 2008 DELIVERED AT: Brisbane HEARING DATE: 26 February 2008 JUDGES: Holmes JA, Mackenzie AJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDERS: 1. Appeal dismissed 2. The appellant to pay the respondent’s costs of and incidental to the appeal to be assessed CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – where land was acquired by the Albert Shire Council for a rubbish depot – where Acquisition of Land Act 1967 (Qld), s 41 provides that where an authority has acquired land under the Act and seven years after the acquisition the authority “no longer requires” the land it must be offered for sale to the original owner – where interpretation of “no longer requires the land” is a question of law – whether the Council no longer required the land within seven years is a question of fact – meaning of the phrase “no longer requires” RESUMPTION OR ACQUISITION OF LAND – POWERS OF RESUMPTION – UNDER STATUTE – CONDITIONS AND LIMITATIONS – PARTICULAR STATUTES – QUEENSLAND – where land was acquired by the Albert Shire Council for a rubbish depot – where Acquisition of Land Act 1967 (Qld) provides that where an authority has -- 1 of 14 -- 2 acquired land under the Act and seven years after the acquisition the authority “no longer requires” the land it must be offered for sale to the original owner – whether Council “no longer require[d]” the land Acquisition of Land Act 1967 (Qld) Attorney-General v Edmonds & Ors [2006] NZCA 146, cited Attorney-General v Horton [1999] 2 NZLR 257, cited Attorney-General v Hull [2000] 3 NZLR 63, considered Attorney-General v Morrison [2002] 3 NZLR 373, cited Clissold v Perry (1904) 1 CLR 363; [1904] HCA 12, cited Clunies-Ross v The Commonwealth (1984) 155 CLR 193; [1984] HCA 65, cited Estates Development Co Pty Ltd v State of Western Australia (1952) 87 CLR 126; [1952] 42, cited Hobbs v Midland Railway Co (1882) 20 Ch D 418, cited Hooper v Bourne (1880) 5 App Cas 1, considered MacDonald v SA Railways Commissioner (1909) SALR 135, cited Macfie v Callander and Oban Railway [1898] AC 270, cited Melchior v Cattanach & Anor [2001] QCA 246, cited Minister for Public Works v Duggan (1951) 83 CLR 424; [1951] HCA 29, distinguished R v N [2006] VSCA 111, cited Thompson v Randwick Corporation (1950) 81 CLR 87; [1950] HCA 33, cited COUNSEL: J A Griffin QC, with C J Carrigan for the appellant M D Hinson SC, with N Andreatidis for the respondent SOLICITORS: Short, Punch & Greatorix for the appellant Corrs Chambers Westgarth for the respondent [1] HOLMES JA: I agree with the reasons of Atkinson J and the orders she proposes. [2] MACKENZIE AJA: The appellant sought to activate the obligation under s 41(1) of the Acquisition of Land Act 1967 (Qld), by proving that, within seven years after the date of taking the land, the respondent Council no longer required the land for the purpose for which it was acquired. For the reasons given by Atkinson J, it has failed to do so. [3] That conclusion can comfortably be reached on the evidence of events prior to the expiration of seven years from the taking of the land. The learned trial judge did not find it necessary to rely on the “retrospectant evidence” to find that the respondent had still, at all relevant times, required the land for the purpose for which it was acquired. It is equally unnecessary to rely on that evidence here to reach the conclusion that the learned trial judge was correct. -- 2 of 14 -- 3 [4] Retrospectant evidence is a form of circumstantial evidence. In this case, the purpose for which the respondent relied on it was to assist in establishing whether or not there was continuity of conduct from which it could be inferred that there was a continuous requirement throughout the seven year period, on the part of the respondent Council, for the land for the purpose for which it was acquired. In a case of this kind, it would be open to either party to rely on such evidence provided it was logically probative. In my view, the retrospectant evidence in this case is capable of confirming the view, able to be reached on the evidence of what happened in the period up to the expiry of seven years, that the proposition upon which the appellant relied, that the constructing authority no longer required the land for the purpose for which it had been acquired, had not been made out. [5] I agree with the orders proposed by Atkinson J. [6] ATKINSON J: The appellant, Astway Pty Ltd (“Astway”), sought to have set aside a judgment made in the Supreme Court on 8 August 2007 dismissing a claim in which it sought two declarations:- (1) A declaration that prior to 16 December 2001, the defendant, Council of the City of Gold Coast, (“the Council”) “no longer require[d]” land compulsorily acquired by it being land described as 16.75 hectares of land at Molendinar, Lot 241 on RP 844822 (“the land”) within the meaning of that term in s 41(1) of the Acquisition of Land Act 1967 (“the Act”); and (2) A declaration that the defendant was obliged to offer the land to the plaintiff at a price determined as at 10 November 2000 by the Chief Executive of the Department in which the Valuation of Land Act 1944 (Qld) is administered. [7] If the first declaration were not granted then it would follow that the second declaration would also fail. It was accepted by both parties that the learned trial judge correctly crystallised the critical questions in the litigation as being: (1) the true meaning of “no longer requires the land”, which is a question of law; and (2) whether the Council no longer required the land within seven years after 16 December 1994, which is a question of fact. [8] It was not disputed that, as the learned trial judge held, the plaintiff bears the onus of establishing affirmatively that within seven years after December 1994 the defendant “no longer required [d] the land” within the meaning of s 41 of the Act.1 1 Hooper v Bourne (1880) 5 App Cas 1 at 9, Attorney-General v Edmonds [2006] NZCA 146 at [31]. -- 3 of 14 -- 4 Acquisition of the land [9] The land, which at that time was being used as a quarry, was acquired by the Council of the Albert Shire Council2 pursuant to s 5 of the Act on 16 December 1994 for use as a “rubbish depot”.3 Section 5(1) of the Act provided:4 “Purposes for which land may be taken (1) Land may be taken under and subject to this Act – … (b) where the constructing authority is a local authority – (i) for any purpose set out in Schedule 2 which the local authority may lawfully carry out; or (ii) For any purpose, including any function of local government, which the local authority is authorised or required by a provision of an Act other than this Act to carry out;…” [10] There was no dispute that the acquisition of the land for “rubbish depot” purposes was among the purposes in the schedule and was a function of local government and that the acquisition of the land by the Council was carried out lawfully. This was not a case like Minister for Public Works v Duggan,5 where land was acquired which it was known was not required for the purpose for which it was said be acquired but rather to be subdivided and sold to defray the costs of developing the roads and parks which was the lawful purpose for which some of the land was acquired.6 [11] The questions at the trial and on the appeal rather concerned whether or not the Council had complied with s 41(1) of the Act relating to the disposal of the land. Section 41(1) provided:-7 “Notwithstanding any provision of any other Act, where land has been … taken by compulsory process under this Act and, within seven years after the date of taking, the constructing authority no longer requires the land, then the constructing authority shall offer the land for sale to the former owner at a price determined by the Chief Executive of the department in which the Valuation of Land Act 1944 is administered.” [12] If the Council no longer required the land at any time within seven years of acquiring it, the Council was required to offer to sell the land to the person from whom it was acquired. As Lord Hoffman observed in Attorney-General v Horton8 2 In 1995, the Albert Shire Council and the Gold Coast City Council were abolished and a new local government called the Gold Coast City Council was made the successor of the abolished Councils. 3 Government Gazette (Qld) (No 96, 16 December, 1994) p 1672. 4 Acquisition of Land Act 1967 (Qld) Reprint 1. 5 (1951) 83 CLR 424. 6 See also Thompson v Randwick Corporation (1950) 81 CLR 87. cf Estates Development Co Pty Ltd v State of Western Australia (1952) 87 CLR 126 where the State Housing Commission resumed more land for a housing estate that it thought it would ultimately require. It was planning for future needs and recognised that once a specific scheme was worked out it would sell that part of the land, which was then known not to be needed, back to its original owners. 7 Acquisition of Land Act 1967 (Qld) Reprint 3 to Reprint 3B. 8 [1999] UK PC 9 at [6]; [1999] 2 NZLR 261 at 10. -- 4 of 14 -- 5 this is “the expression of a strong legislative policy to preserve the rights of an owner subject only to the continuing needs of the State.” In Attorney-General v Edmonds & Ors9 the New Zealand Court of Appeal said: “The legislative context is clear. The underlying policy is to increase the protection to the rights of property holders when land is taken.” This is consistent with the presumption of the common law that the legislature does not intend, in the absence of a clear indication to the contrary, to interfere with vested property rights.10 Meaning of “no longer requires the land” [13] With regard to the first question for determination, that is the true meaning of “no longer requires the land”, the learned trial judge held that land is “no longer require[d] within the meaning of s 41 when it is no longer needed. It will be required if it is still needed, even though there remains no need to use it immediately.”11 In support of that conclusion, the trial judge referred to the dictionary meaning of the word “require” as well as authorities which confirm the relevant dictionary meaning in this context. [14] The meaning of the word “require” depends on the context in which it is used. The relevant meaning in this context is that found in the Oxford English Dictionary 2nd ed., 1989, (“OED”) paragraph 6b which defines “requires” as “to need for some end or purpose.” This is similar to the first meaning given by the Macquarie Dictionary 3 rd Edition which is “to have need of; need”. The meaning of “no longer requires the land” therefore means “no longer has need of the land” or “no longer needs the land for some end or purpose”. In the context of the legislation it cannot mean any end or purpose but rather, as the learned trial judge held, the end or purpose for which it was acquired. Requires: “needs” or “wants”? [15] The appellant accepted that “no longer needs” was an appropriate meaning to be given to the phrase “no longer requires”. The respondent argued that it has a wider meaning in two respects: firstly, that the word “requires” connotes not just “needs” but “wants” and secondly that the purpose for which it is required may include any lawful purpose for which the land could be acquired and not just the purpose for which it was acquired. [16] In this context, it is tolerably clear that “required” is used in the sense of “needed” rather than merely “wanted”. To define “require” to mean “want” does not resolve any ambiguity because “want” is itself a word with a number of different meanings. The word “want” can refer to a requirement or alternately it may refer to something one wishes to have (as opposed to what one needs or requires): OED. In the twentieth century, the word has been more often used to connote desire rather than 9 [2006] NZCA 146 at [60]. 10 The Honourable JJ Spigelman AC Chief Justice of the Supreme Court of New South Wales “The Common Law Bill of Rights” (Speech delivered at the 2008 McPherson Lectures “Statutory Interpretation and Human Rights”, University of Queensland, Brisbane, 10 March 2008) at 24 citing, inter alia, Clunies-Ross v The Commonwealth (1984) 155 CLR 193 at 201. 11 Astway P/L v Council of the City of Gold Coast [2007] QSC 205 at [14]. -- 5 of 14 -- 6 requirement. The example given by the OED12 is from J. Barzen Stroll with W. James (1983) at 280: “He did not fall into the trap of supposing that a child’s needs are the same as his wants.” This is an example of where “wants” is used in contradistinction to “needs” and where the “needs” are requirements but the “wants” are not. In this context, “want” and “require” have different meanings so that meaning of “want” cannot be within the meaning of “require” in the Act. [17] If the word “wants” is used in the sense of “needs” or “requires” then it is an apt meaning but takes the matter no further. Indeed that is now a less common meaning of “want” and may therefore be liable to confuse rather than elucidate. Even in the time of Jane Austen, the ambiguities in the meaning of the word “want” were used to amusing effect. She begins her novel Pride and Prejudice with the immortal words “It is a truth universally acknowledged, that a single man in possession of a good fortune, must be in want of a wife.” “Want” may have the same meaning as “require” when it is used in the sense of “need”. It does not if it is used to mean “desire” or “wish to have”. It therefore adds nothing, and is potentially confusing, to say that “requires” means “wants” in the context of this statute. In my view the learned trial judge was correct in concluding that the meaning of “requires” in s 41 of the Act is “needs”. [18] This view is amply supported by authority particularly in New Zealand where a similar phrase is used in the relevant legislation: see e.g. Attorney-General v Edmonds & Ors at [29]. Required for what purpose? [19] The second difference pressed by the respondent from the meaning of “require” in the section found by the trial judge was that it is not limited to purpose for which it was acquired: but applies to whenever the land is required for any lawful purpose. This interpretation would lessen the protection which the section offers to a land owner whose land is compulsorily acquired. The land may only be acquired for a specific lawful purpose.13 In Clunies-Ross v The Commonwealth, the High Court held that the phrase “acquire land for a public purpose” was prima facie limited “to an acquisition of land which is needed or which it is proposed to use, apply or preserve for the advancement or achievement of that purpose.”14 If it is no longer required for that purpose within seven years of its acquisition, the legislature has provided that it must be offered for sale back to the original owner. [20] It would be inconsistent with the restriction on the land’s acquisition, that is that it must be acquired for a specific purpose, to hold that immediately after compulsory acquisition, the protection given to former owners would no longer apply if the land was needed by the acquiring authority for any purpose. It is also consistent with the 12 Definition of “want” n 2 5b. 13 cf Municipal Council of Sydney v Campbell [1925] AC 338 at 343; MacDonald v SA Railways Commissioner (1909) SALR 135. 14 At 198 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ. -- 6 of 14 -- 7 rule of statutory construction referred to earlier in these reasons that statutes of this type “are not to be construed as interfering with vested interests unless that intention is manifest.” 15 Did the Council no longer require the land? [21] The appellant argued that, although the learned trial judge correctly determined the meaning of the section, her Honour misapplied the section to the facts in deciding that the Council still “needed” or “required” the land. [22] If the land or some of it has not yet been used for the purpose for which it was acquired, it is a question of fact whether or not it is so required. The way in which the court may approach that question of fact was considered by the New Zealand Court of Appeal in Attorney-General v Hull.16 It is an approach which, in my view, can be usefully adopted. It may be found that the land is no longer required: (1) when there is an affirmative decision by the acquiring authority that it no longer requires the land for the purpose for which it was taken and that decision continues in operation; or (2) when it can safely be inferred from the conduct of the acquiring authority that it in fact no longer requires the land. This is an objective test. [23] There was no affirmative decision by the Council that it no longer required the land. Could it safely be inferred from the conduct of the Council that it in fact no longer required the land? [24] As I have previously said, the onus is on the former owner to show that the acquiring authority no longer requires the land for the purpose for which it was acquired. An analysis of the relevant case law shows that it is not necessary that the land has yet been used for the purpose or even that there are precise plans for its future use. [25] Many of the earlier cases concern the great nineteenth century enterprise of building railways.17 In closely settled communities like England, such enterprise required the acquisition of land, often compulsorily, for the greater public good. The compulsory acquisition was often balanced by legislative provisions enabling the land to revert to its previous owner if it was no longer required by the acquiring authority within a specified period. Difficulty arose when the land or part of it had not been used within the specified period. The previous owners argued that the lack 15 Clissold v Perry (1904) 1 CLR 363 at 373 per Griffith CJ. 16 [2000] 3 NZLR 63 at [41] see also Attorney-General v Morrison [2002] 3 NZLR 373 at [17]; Attorney-General v Edmonds at [30]. 17 Hooper v Bourne (1880) 5 App Cas 1; Hobbs v Midland Railway Co (1882) 20 Ch D 418; Macfie v Callander and Oban Railway [1898] AC 270; Macdonald v SA Railways Commissioner [1909] SALR 135. -- 7 of 14 -- 8 of use of the land showed that it was in fact no longer required. The acquiring authority often responded that the land may not yet have been used but that did not mean that it was no longer required, particularly in an area where demand was growing and was likely to continue to grow. More recently, there are many public purposes for which land may be acquired.18 [26] As to whether or not in certain circumstances the land will be considered to be “no longer required” the following propositions can be deduced from the decided cases: • A decision by the acquiring authority to sell the land it has acquired is evidence that the land is no longer required for the public purpose for which it was acquired: Attorney-General v Morrison [2002] 3 NZLR 373 at [30]; Attorney-General v Horton at [10]; but it is not conclusive: Hobbs v Midland Railway Co at 432 – 433, 437; Macfie v Callander and Oban Railway at 287. • The fact that the land had not yet been used for the purpose for which it was acquired is evidence which might suggest that it was not required: Hooper v Bourne at 21; but is not sufficient to show that the land is not required because there is a distinction between land being “used” and land being “required”: Attorney-General v Edmonds & Ors at [29]. It is, as the Council submitted, the absence of requirement for the land, not absence of use, which is the relevant criterion for the operation of s 41 of the Act. • Evidence as to whether land was required at a later date can be used to infer whether or not the land was required at an earlier date: Hooper v Bourne at 10, 19-20. • It is not necessary that there should be the immediate possibility of employing the land for the required purpose: Hooper v Bourne at 10. • It is not necessary for the acquiring authority to point to a specific project or use: Attorney-General v Edmonds & Ors at [29]. • It is not necessary that an actual present intention to employ the land for the required purpose must have been formed within the prescribed time: Hooper v Bourne at 18. • If no such intention was consciously formed or explicitly formulated, it is sufficient that the circumstances indicate a probable development and a requirement for the land to be used for the purpose within a reasonable time: Hooper v Bourne at 18; Hobbs v Midland Railway Co at 432; Macfie v Callander and Oban Railway at 284. 18 e.g. public housing in Estates Development Co Pty Ltd v State of Western Australia (1952) 87 CLR 126. -- 8 of 14 -- 9 • The court may take account of the fact that the requirement for the use for which the land was acquired may increase as time goes on: Hooper v Bourne at 22; Macfie v Callander and Oban Railway at 287. • A finding that the acquiring authority no longer requires the land cannot be made if it is in a state of genuine indecision: Attorney-General v Hull (2003) 3 NZLR 63 at 77.19 The Council’s requirements for the land [27] In this case, the Albert Shire Council acquired the land which included Lot 241 after it had commissioned a “Feasibility Study for Proposed Engineered Landfill Depot at Nerang” which was presented to it by Sinclair Knight and Mr RH Amaral on April 1992. That study considered the feasibility of using the appellant’s quarry site for landfill. Three options were considered all of which recommended the immediate purchase of Astway’s land, Lot 241, although it was not anticipated that it would be used for the disposal of waste for many years. The potential life of the site as a rubbish tip for Albert Shire Council waste ranged from 37 to 70 years depending on the amount of land acquired in addition to Lot 241 and the amount of waste left there. The proposed site was known as Molendinar II to distinguish it from Molendinar I, an existing rubbish depot. [28] A draft Environmental Impact Study (“EIS”) was prepared by Sinclair Knight in June 1993 showing the long lead time for the proposal for a general rubbish tip for domestic and commercial waste, which was proposed on land which included Lot 241. The draft EIS predicted that the existing landfill would be at capacity within seven years and asserted that therefore a further repository was “required”. [29] The final EIS for the site of the proposed Molendinar Waste Management Facility was commissioned by the Council, which had by now become the Gold Coast City Council, in January 1993 from Sinclair Knight. The Council acquired Lot 241 and other land which enabled it to act on the recommendations of Sinclair Knight but Council did not resolve to approve a particular plan. Rather, as the learned trial judge held, when it acquired the land, “the Council did not intend to use it immediately and had no specific plan in mind; rather it was making provision for future rubbish disposal needs”.20 There was a proposal but this was not characterised by her Honour as a “specific plan”. Indeed the proposal continued to undergo modification after the acquisition. [30] An updated EIS was presented to the Council in July 1995. The proposal, which was referred to as Molendinar Stage II, had by then been modified because of concerns expressed by local residents. [31] On 17 November 1999, Sinclair Knight Merz forwarded to the Council material for an application for material change of use and Impact Assessment Report to be lodged for a development permit for waste landfill on Molendinar II which included 19 at [41]. 20 Astway P/L v Council of the City of the Gold Coast [2007] QSC 205 at [52]. -- 9 of 14 -- 10 Lot 241. That application was made in December 1999. Further community consultation was undertaken. In February 2000 an amended application was made together with an environmental authority application. The application was extensively considered by a number of agencies. In October 2000, Sinclair Knight Merz prepared a report in response to matters raised by those various agencies. [32] On 10 November 2000, Council resolved to accept the recommendations of its Co- ordination Committee.21 It recognised that the objections raised to the proposed use of Molendinar II meant that it should exclude putrescible waste, which would have adverse effects on local residents and business, and the application for material change of use should be withdrawn and consultation be undertaken with the Nerang community with respect to using Molendinar II for “hard fill landfill”. That is waste that can be described as non-putrescible. [33] There was a change from the recommendations of Council’s officers to the Co- ordination Committee in that the officers had recommended that the application for material change of use should be amended to exclude putrescible waste whereas the Council decided that it would withdraw that application. This does not mean that it could be inferred that the Council no longer required the land for a “rubbish depot”. Rather, the decision to engage in community consultation about using the land for non-putrescible waste showed that the Council had not decided that they no longer required the land for that purpose. That is consistent with the observations of Council officers that a significant proportion of the community concern was associated with the disposal of putrescible waste and their assessment that the use of Molendinar II for rubbish disposal might be acceptable if it did not accept putrescible waste. Diverting the putrescible waste elsewhere would have the advantages, inter alia, of allowing “further community input to the construction of a new hard fill landfill at Molendinar” and “deferral of the major capital cost of construction of the new landfill and Transfer Station at Molendinar”.22 Those conclusions were adopted by the Council. [34] The appellant pointed to some further facts from which it said that, in addition to the other factual circumstances, a conclusion could safely be drawn that the Council no longer required the land. The first was from the minutes of 1 February 2001 of the Health, Cultural and Community Safety Committee of the Council, Item 4, Waste Management Budget Review, the purpose of which was to gain Council approval to amend the adopted Capital Works Budget for 2000/2001 financial year. Under the heading “Discussion”, the minutes record that a range of issues was discussed including “Council’s decision not to proceed with the construction of a new landfill at Molendinar”. A number of points may be made about this. It is merely a report of a discussion and although the committee’s recommendation at the end of the report was adopted by the Council, the statement must be seen in the light of the recent decision of the Council to undertake consultation about using the land for non-putrescible waste. As the Council officers’ recommendation had explicitly recognised, that would have the advantage of deferral of the major capital cost of construction of the new landfill at Molendinar. It was therefore not necessary to 21 Astway P/L v Council of the City of the Gold Coast at [24]. 22 Minutes of the Gold Coast City Council Coordination Committee Meeting of 3rd November 2000 and Minutes of the Gold Coast City Council Meeting of the 10th November 2000. -- 10 of 14 -- 11 include the costs of that construction in the revised budget. There still remained, as the learned trial judge held, a capital budget for the project, albeit reduced from $1,400,523 to $701,994.23 There was no Council decision not to proceed with the construction of a new landfill on the land. A misstatement in discussion of the Council’s decision, which was set out in the Council minutes of 10 November 2000, cannot change the position. [35] The second matter relied upon by the appellant was that there was a report of a workshop entitled “Nerang Visioning Workshop April 2001: Summary of Outcome” facilitated by John Byrne of the School of Design of the Queensland University of Technology (QUT) which reports that “the group applauded the decision by Council not to use the site as a dump or landfill.”24 That is not a Council document and does not in any way demonstrate that Council had made any such decision, even if it is a correct report of the workshop. As the learned trial judge found, “The group’s understanding of the [Council’s] decision made on 10 November 2000 was flawed. It had decided not to dispose of putrescible waste at Molendinar II but it had not decided that the site not be used for some other form of dump or landfill.” 25 [36] The third additional matter upon which the appellant relied was the minutes of the Nerang Development (Advisory) Committee meeting held at the offices of the Council on 6 December 2001. It is apparent on its face that this meeting was held under the auspices of the Council. The meeting was introduced to the Council officer whose job it was to manage the “project at Molendinar” on behalf of the Council. The minutes record: “[The officer] stated that she is currently developing the project brief and that consultation will take place with the Nerang community. The intention is to determine the most appropriate use of the site e.g. landfill, technology park. [The officer] stated that it was important to keep an open mind in relation to possible uses of the site.” 26 As a result another officer of the Council asked Sinclair Knight Merz to investigate other uses for the land other than landfill and to give indicative costs. This shows that as at December 2001, the Council was undertaking further consultation and investigation about whether to use the land for “rubbish depot” purposes or for other purposes but it could hardly be safely inferred that it in fact no longer required the land for the purpose for which it was acquired. [37] The respondent Council referred the court to a number of other actions taken by Council during 2001 with regard to the proposed rubbish depot on the land which were the subject of undisputed findings by the trial judge.27 These included budgetary allocations and the establishment of a committee for consultation purposes. 23 Astway P/L v Council of the City of the Gold Coast at [25]. 24 at p 7. 25 Astway P/L v Council of the City of the Gold Coast at [26]. 26 Minutes of the Nerang Development (Advisory) Committee Meeting of 6 December 2001 item 3.5 at p 3. 27 Astway P/L v Council of the City of the Gold Coast at [27]-[30]. -- 11 of 14 -- 12 [38] Mr Griffin QC for the appellant submitted that the Council would not have been able to acquire the land pursuant to s 5(1) of the Act on the facts as they were in December 2001 but that, even if correct, and in my view it is not, is not the relevant test. What the former owner must demonstrate is that the Council no longer required the land; not whether or not it could have lawfully acquired it at that later date. Both the precise nature of the test to be applied and the party bearing the onus are different in the two situations. [39] The appellant failed to demonstrate that within seven years of the date of taking the land, the Council no longer required the land. The occasion for offering the land for sale to its former owner, the appellant, therefore did not arise. [40] It remains to consider two relatively minor procedural issues: whether “retrospectant” evidence was admissible and whether an adverse inference could be drawn from the Council’s not calling certain witnesses. “Retrospectant” evidence [41] The appellant objected to what it characterised as “retrospectant” evidence. This was documentary evidence tendered by the Council from its files relating to the Council’s actions and decisions after December 2001, at a time which post-dated the period within which the relevant seven years under s 41(1) was running. [42] The submission is essentially moot as, although the evidence was admitted by the learned trial judge, her Honour said in her reasons that she had not in fact relied upon it in reaching the decision that she did. Her Honour said, however, that the “retrospectant” evidence confirmed the conclusion of the fact that she had otherwise reached that the Council still required the land for rubbish depot purposes during the seven years after it had been compulsorily acquired. [43] I agree with the learned trial judge that the evidence was admissible. JD Heydon’s Cross on Evidence at [1170] 28 explains that retrospectant evidence is a type of circumstantial evidence in which the subsequent occurrence of an act, state of mind or state of affairs justifies an inference that the act was done, or that the state of mind or affairs previously existed. The term comes from 1 Wigmore, Evidence §43. 29 [44] In this type of case it may be used to infer the Council’s state of mind during the relevant period. Such evidence was admitted in Hooper v Bourne where Lord Cairns observed:30 “…there is a very strong presumption which arises when you find that in 1868, without its being said that there was any unexpected, unnatural, casual, or fortuitous development of traffic, but merely that the traffic had developed so as to require this additional siding 28 Heydon JD, Cross on Evidence, (Butterworths , subscription service) at [1170]. 29 John Henry Wigmore, Evidence in Trials at Common Law, revised by Peter Tillers, Little Brown and Company, Boston (1983). 30 At 10; see also Hobbs v Midland Railway Co; Attorney General v Edmonds &Ors. -- 12 of 14 -- 13 accommodation, - there is, I say, the strongest presumption that those elements were at work in the year 1863, and that any person with proper foresight, properly acquainted with the way in which railway traffic does develope, would have said, and would have said rightly, in the year 1863 that these pieces of ground would be required for the development of the traffic which afterwards took place. As your Lordships well know, it is not at all necessary that at the end of ten years there should have been then the immediate possibility of employing, or the immediate necessity for employing, the pieces of land for the additional work. It would not have been superfluous land if it could have been reasonably said at the end of the 10 years, that there was a purpose for which, even after that period, it will be required in connection with the railway.” [45] It is not necessary to refer to the many other cases in which retrospectant evidence has been held admissible although I note that such evidence may need to be treated with some circumspection in terms of the weight attached to it: see Melchior v Cattanach [2001] QCA 246 at [136]; R v N [2006] VSCA 111 at [37]. [46] Further, the learned trial judge’s finding that the events since 16 December 2001 confirm that the finding that the appellant failed to show that, within seven years after the date of its acquisition, the Council no longer required the land, is with respect, unimpeachable. The events which occurred after 16 December 2001 included further planning for use of the land as landfill or for “a waste receival, reuse and treatment facility” and the articulation of the advantages of doing so both by Council officers and external consultants; budgetary allocations; and amendments to the planning scheme which would allow the land to be used as “community infrastructure”, which would enable it to be used for rubbish disposal without any application having to be made for material change of use. The land, however, has not yet been used for “rubbish depot” purposes. [47] The Council’s specific plans for the land may have changed and been adapted to meet community needs and expectations but the purpose for which the land is to be used and for which it was acquired has not. Failure to call witnesses [48] The appellant argued that the failure of the Council to call Council officers who were the authors of reports made to the Council in the period prior to December 2001 or to call one of the Councillors who was involved in consultations between the Council and the Nerang community should lead to an inference being drawn that, had they been called, their evidence would not have assisted the Council on the issue of whether or not the Council had decided to leave open the prospect of the landfill operation for non-putrescible waste from the land or had decided to abandon altogether the use of the land for rubbish depot purposes. In my view their subjective views of what the Council had or had not decided would be irrelevant. The Council is a body which keeps records of its decisions and those records are much more reliable than the subjective views of Council officers or of one of the Councillors. No adverse inference could or should have been drawn from the decision of the Council not to call those persons as witnesses. -- 13 of 14 -- 14 Conclusion [49] The appellant failed to establish that the Council no longer required the land within seven years of taking it. The Council did not therefore come under any obligation to offer to sell it to its former owner, the appellant. The appeal should be dismissed. Orders: 1. Appeal dismissed. 2. The appellant to pay the respondent’s costs of and incidental to the appeal to be assessed. -- 14 of 14 --