BRYANT & ANOR v COMMISSIONER OF HIGHWAYS [2026] SASCA 82

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE CHIEF JUSTICE KOURAKIS) CIV-23-012046 First Appellant: NELLY BRYANT Counsel: MR M DOUGLAS - Solicitor: BASTIAAN SPARREBOOM Second Appellant: JOHN CLYDE BRYANT Counsel: MR M DOUGLAS - Solicitor: BASTIAAN SPARREBOOM Respondent: COMMISSIONER OF HIGHWAYS Counsel: MR M J WAIT SC WITH MS J CLARE - Solicitor: CROWN SOLICITOR’S OFFICE (SA) Hearing Date/s: 04/03/2026 File No/s: CIV-25-007077 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. BRYANT & ANOR v COMMISSIONER OF HIGHWAYS [2026] SASCA 82 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby) 30 July 2026 REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION - INJURIOUS AFFECTION OF ADJOINING PROPERTY COURTS AND JUDGES - PRECEDENTS - REVIEW BY COURT OF OWN DECISIONS - GENERAL PRINCIPLES The appellants own a parcel of land along Long Valley Road, between Strathalbyn and Mount Barker. In 2022, a portion of their land was compulsorily acquired by the respondent pursuant to his powers under the Highways Act 1926 (SA) in order to facilitate the creation of an overtaking lane on Long Valley Road (the Acquired Land). The appellants sought compensation pursuant to s 25 of the Land Acquisition Act 1969 (SA) (LAA), claiming damages for loss in the nature of injurious affection resulting from the construction of the overtaking lane. The injurious affection arose from the construction of a median wire rope safety barrier installed between the southbound and northbound lanes, which impeded ingress to, and egress from, the retained land. At first instance, the primary judge dismissed the appellants’ claim for compensation on the basis that they failed to establish that any injurious affection was a loss suffered ‘by reason of the acquisition of’ the Acquired Land for the purposes of s 25(1)(a) of the LAA. In so holding, the judge considered himself bound to apply the narrow construction of s 25(1)(a) adopted by this Court in McInnes v Commissioner of Highways (1992) 78 LGERA 410 (McInnes). On appeal, the appellants contended that: -- 1 of 65 -- 1. the judge erred in treating himself as bound by McInnes notwithstanding that the Court’s reasoning in that case had been overtaken by the decision of the High Court in Marshall v Director-General, Department of Transport (2001) 205 CLR 603 (Marshall); 2. alternatively, this Court should depart from McInnes to the extent that it requires a narrow view of the requisite causal connection that precludes the recovery of compensation in the present case; and 3. the judge erred in assessing the compensation payable in the amount of $40,000, whereas he ought to have assessed that loss in the amount of $90,000. The respondent sought to uphold the primary decision for reasons which differ from those given by the primary judge, pursuing the argument, partially through a notice of alternative contention, that: 1. the primary judge was correct to consider himself bound by McInnes, but that McInnes did not require such a narrow view of the causal connection invoked by s 25(1)(a) – rather, McInnes provided that compensation would be payable if the use of the Acquired Land was ‘integral and inseparable’ to the activity which occasioned the injurious affection; and 2. even this broader causal test was not satisfied here because the work on, and use of, the Acquired Land was not an integral and inseparable part of the creation of the overtaking lane that created the injurious affection. Held, per S Doyle JA and Bleby JA, allowing the appeal, dismissing the respondent’s notice of alternative contention, and entering judgment in the appellants’ favour in the amount of $40,000: 1. compensation for injurious affection pursuant to s 25 of the LAA is not confined to loss arising from work on, or use of, acquired land – it is sufficient that the work was an integral and inseparable part of the project that occasioned the injurious affection; 2. in this case, there was a sufficient causal connection between the work undertaken on the Acquired Land and the construction of the overtaking lane so as to trigger the appellants’ right to compensation under s 25; and 3. the primary judge correctly assessed the appellants’ loss at $40,000. Held, per Livesey P, dissenting: 1. The primary judge was bound by McInnes, but the Full Court in that case did not follow Edwards v Minister of Transport [1964] 2 QB 134 and its analysis of s 25 of the LAA is not plainly wrong or overtaken by Marshall. 2. In this case, it was necessary to identify the effect of the acquisition and use of the appellants’ land and not merely the effect of the project on their retained land. 3. The statutory causation test posed by s 25 was not satisfied. Acquisition of Land Act 1967 (Qld) s 20; Acts Interpretation Act 1901 (Cth) s 15AB(3)(a); Compulsory Acquisition of Land Act 192 (SA) s 12(1)(c); Highways Act 1926 (SA); Land Acquisition Act 1969 (SA) ss 3, 6, 15, 23 22B, 23BA, 25; Land Acquisition Act 1993 (Tas) s 27; Land Acquisition and Compensation Act 1986 (Vic) s 41(1); Land Acquisition (Just Terms Compensation) Act 1991 (Cth) s 55; Land Administration Act 1997 (WA) s 241(7)(b); Land Clauses Consolidation Act 1845 (UK) s 63; Land Compensation Act 1973 (UK) s 44; Lands Acquisition Act 1955 (Cth) ss 23, 55; Lands Acquisition Act 1978 (NT) s 66, sch 2 r 2(c); Lands Acquisition Act 1989 (Cth) s 55; Lands Acquisition Act 1994 (ACT) s 45; Native Title Act 1993 (Cth), referred to. Commonwealth v Morison (1972) 127 CLR 32; Edwards v Minister of Transport [1964] 2 QB 134; Marshall v Director-General, Department of Transport (2001) 205 CLR 603; McInnes v Commissioner of Highways (1992) 78 LGERA 410; Meyer v Commissioner for Highways (1998) 71 SASR 196, discussed. Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; Amalgamated Society of -- 2 of 65 -- Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; Anderson v Commissioner of Highways (2019) 134 SASR 543; Bryant v Commissioner of Highways (2025) 265 LGERA 103; Carter v Bradbeer [1975] 3 All ER 158; Cerini v The Minister for Transport [2001] WASC 309; Chadrysiak v Commissioner of Highways (2018) 132 SASR 277; City of Adelaide v Cinema Place Pty Ltd (2006) 94 SASR 165; Cody v JH Nelson Pty Ltd (1947) 74 CLR 629; Comcare v Martin (2016) 258 CLR 467; Commissioner of Highways v George Eblen Pty Ltd (1975) 10 SASR 384; Commissioner of Highways v Shipp Bros Pty Ltd (1978) 19 SASR 215; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Cowper Essex v Acton Local Board (1889) 14 App Cas 153; Crompton v Commissioner of Highways (1973) 5 SASR 301; Duke of Buccleuch v Metropolitan Board of Works (1872) LR 5 HL 418; Emerald Quarry Industries Pty Ltd v Commissioner of Highways (1976) 14 SASR 486; Emerald Quarry Industries Pty Ltd v Commissioner of Highways (SA) (1979) 142 CLR 351; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; Heirloom Vineyards Wine Company Pty Ltd v Sante Wines Pty Ltd (2018) 131 SASR 150; Horton v Colwyn Bay and Colwyn Urban Council [1908] 1 KB 327; In re the Stockport, Timperley and Altringham Railway Co (1864) 33 LJQB 251; Ketteringtom Pty Ltd v Noosa Shire Council (2004) 78 ALJR 1022; Lee v Lee (2019) 266 CLR 129; Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Marshall v Director-General, Department of Transport [1999] QCA 440; Meyer v Commissioner for Highways (1998) 71 SASR 196; Mills v Meeking (1990) 169 CLR 214; Mills v Sola Optical Australia Pty Ltd (1987) 46 SASR 364; Moloney v 21-25 South Esplanade Pty Ltd (2024) 145 SASR 226; Moloney v Roads and Maritime Services (NSW) (2018) 98 NSWLR 651; Morison v Commonwealth (1971) 34 LGRA 273; Pallas v Lendlease Corporation Ltd (2024) 114 NSWLR 81; Pashalis v WorkCover Corporation (1994) 63 SASR 71; Pointe Gourde Quarrying and Transport Co. Ltd v Sub-Intendent of Crown Lands [1947] AC 565; Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd (1989) 52 SASR 148; R v Gilson (1990) 54 SASR 191; R v XY (2013) 84 NSWLR 363; Return to Work (SA) v English (2023) 144 SASR 382; Sisters of Charity of Rockingham v The King [1922] 2 AC 315; Sleeman v SPI Electricity Pty Ltd [2014] VSCA 243; Telstra Corporation Ltd v Australasian Performing Right Association Ltd (1997) 191 CLR 140; Thompson v His Honour Judge Byrne (1999) 196 CLR 141; Travel Compensation Fund v Tambree (2005) 224 CLR 627; Warren v Coombes (1979) 142 CLR 531; Westaway v Landsborough Shire Council (1964) 31 QCLLR 1, considered. -- 3 of 65 -- -- 4 of 65 -- BRYANT & ANOR v COMMISSIONER OF HIGHWAYS [2026] SASCA 82 Court of Appeal – Civil: Livesey P, S Doyle and Bleby JJA LIVESEY P: Introduction 1 The issue arising on this appeal is whether the appellants are entitled to damages for “injurious affection” pursuant to s 25(1) of the Land Acquisition Act 1969 (SA) (the Land Acquisition Act). 2 The primary judge rejected this claim,1 finding that he was bound to do so by reason of a decision of the Full Court in McInnes v Commissioner of Highways.2 The primary judge also found that, were it not for the decision in McInnes, he would have awarded compensation in the amount of $40,000. 3 The appellants contended on appeal that the primary judge was wrong to follow McInnes because it was overtaken by a later decision of the High Court, Marshall v Director-General, Department of Transport,3 and because McInnes was wrongly decided. The appellants contended that the statutory causation test postulated by s 25 of the Land Acquisition Act was not as narrow as the primary judge found. 4 The Commissioner sought to uphold the dismissal of the appellants’ claim. The Commissioner maintained that the primary judge was bound by McInnes, but that McInnes did not require that a narrow approach be taken to the causation test under s 25(1)(a) of the Land Acquisition Act. The Commissioner contended that the correct test was whether the injurious affection was “integral and inseparable” to the activity associated with the compulsory acquisition. The Commissioner contended that this somewhat broader statutory causation test was not satisfied. 5 Whilst the appellants tended to agree with this way of putting their case, they contended that the statutory causation test was satisfied and they should have been awarded compensation. Disposition of the appeal 6 For the following reasons, the appeal should be dismissed. The primary judge was bound by McInnes, but the Full Court did not follow Edwards v Minister of Transport,4 and its analysis of s 25 of the Land Acquisition Act is not plainly wrong. 7 Whilst the High Court in Marshall took a different approach to the causation of injurious affection, that was based on differently worded legislation which 1 Bryant v Commissioner of Highways [2025] SASC 85 (Kourakis CJ) (Reasons). 2 McInnes v Commissioner of Highways (1992) 78 LGERA 410 (McInnes). 3 Marshall v Director-General, Department of Transport (2001) 205 CLR 603 (Marshall). 4 Edwards v Minister of Transport [1964] 2 QB 134 (Edwards). -- 5 of 65 -- [2026] SASCA 82 Livesey P 6 permitted a broader approach, based on the purpose and effect of the project for which land was acquired, rather than whether loss was caused by the acquisition of the claimant’s land. This decision does not overtake McInnes. 8 In this case it was necessary to identify the effect of the acquisition of the appellants’ land, and not merely the effect of the broader project. The question is whether injurious affection was caused by both the use of the acquired land as well as the broader project. In that event, if “the use of the part taken constitutes an integral and inseparable part of a single use”, an award of compensation could be made for all of the injurious affection caused to the appellants’ retained land.5 9 After reviewing the evidence and the works carried out on the appellants’ acquired land, the use of that land did not give rise to injurious affection of their retained land. The injurious affection in this case was only caused by the use of other land. As the appellants’ injurious affection was only caused by the use of other land, the statutory causation test posed by s 25(1)(a) of the Land Acquisition Act was not satisfied, and compensation was not available for injurious affection. 10 These reasons are set out as follows. The Project works following acquisition ....................................................................................... 6 The Land Acquisition Act .............................................................................................................. 8 The compensation principles under s 25 ..................................................................................... 12 The concept of “injurious affection” under s 25(1)(b)(ii) ........................................................... 14 The decisions in McInnes, Meyer and Edwards .......................................................................... 16 The High Court authorities – Morison and Marshall .................................................................. 21 The valuation evidence ................................................................................................................ 28 Causation under s 25 of the Land Acquisition Act ....................................................................... 29 Conclusion ................................................................................................................................... 32 The Project works following acquisition 11 The appellants owned land along the western edge of Long Valley Road, roughly south of Adelaide. Relevantly, Long Valley Road extends from Mount Barker to the north, towards Strathalbyn to the south. 12 Before the Project works, there was no impediment to entering or exiting the appellants’ land from Long Valley Road. For example, if a vehicle wished to leave the appellants’ land and travel south towards Strathalbyn, away from Adelaide, it could turn right from the appellants’ land, into the south-bound lane. Correspondingly, if a vehicle travelling south from Adelaide or Mount Barker wished to enter the appellants’ land, it could turn right from Long Valley Road and cross the north-bound lane to do so. 5 Morison (1972) 127 CLR 32, 41 (Barwick CJ); Meyer v Commissioner for Highways (1998) 71 SASR 196, 202 (Debelle J). -- 6 of 65 -- [2026] SASCA 82 Livesey P 7 13 In 2022, a portion of the appellants’ land adjoining the western edge of Long Valley Road was compulsorily acquired by the Commissioner, using his powers under the Highways Act 1926 (SA). 14 The compensation paid for the land which was acquired is not in issue. What is in issue is compensation for the effect of what was done with that land by means of the Project works, particularly its impact on the land which was not acquired and remained with the appellants. 15 The purpose of the acquisition was to undertake the Project works. These include the widening and reconstruction of the Long Valley Road adjoining the appellants’ land. This required the construction of an overtaking lane adjacent to the appellants’ land. The construction of the overtaking lane included the erection of a median wire which prevented overtaking or other movement between the north-bound and south-bound lanes of Long Valley Road adjoining the appellant’s property. No part of the overtaking lane or the median wire were on the land acquired from the appellants. 16 By preventing the risk of head-on motor accidents, the median wire prevented ready access to the appellants’ land. South-bound vehicles travelling from Mount Barker could no longer turn right onto the appellants’ land. It was necessary to continue past the appellants’ land for around 600 metres before undertaking what was effectively a U-turn, travelling back towards the appellants’ land and entering it by a left-hand turn from the north-bound lane. 17 Correspondingly, vehicles exiting the appellants’ land and intending to travel south towards Strathalbyn, could no longer turn right to do so either. It was necessary for those vehicles to turn left onto the north-bound land of Long Valley Road and travel for around 1.8 kilometres in the opposite direction towards Mount Barker, before undertaking what was effectively a U-turn to access the south-bound lane. 18 Accordingly, the loss of ready access to the appellants’ land increased the time required for travel between the appellants’ land from Adelaide and Mount Barker, and to Strathalbyn. 19 It was for this inconvenience that damages were claimed for “injurious affection”. After considering expert evaluation evidence, the primary judge awarded damages in the amount of $40,000, based on starting with a 2.5 per cent reduction in the value of the land retained, rejecting a claim exceeding $100,000 based on the capitalised value of increased travelling costs.6 20 Nonetheless, the primary judge dismissed this claim, finding that he was bound to do so by McInnes. The primary judge’s finding depends upon the proper 6 Reasons, [11], [88]. -- 7 of 65 -- [2026] SASCA 82 Livesey P 8 construction of s 25 and what is meant by “injurious affection” in the Land Acquisition Act. The Land Acquisition Act 21 The object of the Land Acquisition Act is to “provide for the acquisition of land on just terms”.7 Parts 2 to 5 of the Land Acquisition Act comprise a comprehensive scheme ensuring that acquisition on just terms is achieved. The scheme includes rights to require an explanation for and object to a proposed acquisition (Part 2), facilitating negotiations (ss 15, 23 and 23BA) and the articulation of the compensation principles which apply to acquisition (s 25). 22 By s 22B(1) of the Land Acquisition Act, a person with an alienable interest in land is conferred an entitlement to compensation for the acquisition of land as follows: Division 2—Compensation 22B—Entitlement to compensation (1) Subject to this Act, a person who has an alienable interest in land is entitled to compensation for the acquisition of the land under this Act if— (a) the person’s interest in the land is divested or diminished by the acquisition; or (b) the enjoyment of the person’s interest in the land is adversely affected by the acquisition. (2) However, the requirement under subsection (1) that an interest be alienable does not apply in relation to an interest consisting of native title. 23 Accordingly, under s 22B(1) the entitlement to compensation depends upon, and is connected with, “the acquisition of the land”.8 The effect of s 22B(1) is to limit the subject matter for which compensation is paid.9 It must be shown that the claimant’s interest in the land is “divested or diminished”, or the claimant’s enjoyment of their interest in the land is “adversely affected”, by the acquisition. 24 The principles governing the assessment of compensation are set out in s 25 of the Land Acquisition Act: 25—Principles of compensation (1) The compensation payable under this Act in respect of the acquisition of land shall be determined according to the following principles: 7 Land Acquisition Act, s 3. Acquisition in this case, however, was authorised by the Highways Act 1926 (SA). 8 By s 6 of the Land Acquisition Act, “land” includes an interest in land. In the same section, an interest in land “means”: a legal or equitable estate or interest in the land; or an easement, right, power, or privilege in, under, over, affecting, or in connection with, the land; or native title in the land. 9 Anderson v Commissioner of Highways (2019) 134 SASR 543, [3]-[15] (Blue J, agreeing with Stanley J). -- 8 of 65 -- [2026] SASCA 82 Livesey P 9 (a) the compensation payable to a claimant shall be such as adequately to compensate him for any loss that he has suffered by reason of the acquisition of the land; and (b) in assessing the amount referred to in paragraph (a) of this section consideration may be given to— (i) the actual value of the subject land; and (ii) the loss occasioned by reason of severance, disturbance or injurious affection; and (c) compensation shall be fixed as at the date of acquisition of the land; and (d) where the claimant’s interest in the subject land was liable to expire or be determined, any reasonable prospect of renewal or continuation of the interest must be taken into account; and (e) any special suitability or adaptability of the land for any purpose shall not be taken into account if it could be applied to that purpose in pursuance only of statute, or if the suitability or adaptability is peculiar to the purposes or requirements of a particular person or of any Governmental or local governing authority but any bona fide offer to acquire the land made before the passing of the special Act shall be taken into account; and (f) where the value of the land is enhanced by reason of its use, or the use of any premises on the land, in a manner that may be restrained by any court, or is contrary to law, or is detrimental to the health of any persons, the amount of that enhancement shall not be taken into account; and (g) no allowance shall be made on account of the fact that the acquisition is effected without the consent, or against the will, of any person; and (h) no allowance shall be made for any enhancement or diminution in the value of the land in consequence of— (a) the passing of the special Act; or (b) the acquisition under this Act of any other land; or (c) any proposed or expected development of the land after its acquisition; and (i) where the land is, and but for acquisition would continue to be, devoted to a particular purpose, and there is no general demand or market for land devoted to that purpose, the compensation may, if reinstatement in some other place is bona fide intended, be assessed on the basis of the reasonable cost of equivalent reinstatement; and (j) allowance shall be made in favour of the Authority for any enhancement in value of land adjoining the subject land in which the claimant is interested by reason of development of the land after its acquisition, but in no case shall the claimant be liable to make any payment to the Authority in respect of such enhancement in value; and -- 9 of 65 -- [2026] SASCA 82 Livesey P 10 (k) where a notice of intention to acquire land has been served upon a person interested in the land, any sales, transactions, arrangements, licences or approvals effected or obtained with respect to the land, and any improvements to the land effected, after service of the notice, shall not be taken into account unless it is proved that they were effected or obtained bona fide. (2) The reference to loss in subsection (1)(a) extends, in the case of acquisition of native title, to diminution, impairment or other adverse effect on native title that results or will result from the acquisition project.1 (3) Subject to subsections (1) and (2), the total compensation payable for the acquisition of native title must not exceed the amount that would be payable for the acquisition of an estate in fee simple in the relevant land. (4) A reference in this section to a claimant is limited to a claimant who is entitled to compensation.2 Explanatory Notes— 1 Compare section 51(1) of the Native Title Act 1993 (Cwth). 2 See section 22B. 25 As can be seen, these principles comprise numerous limbs. The use of the word “and” following each suggests that it was intended that they operate cumulatively, at least to the extent that they are capable of applying to a particular case. When construing principles such as these, the starting point was described by Gaudron J in Marshall in the following way:10 It is a basic rule of statutory construction that legislative provisions are to be construed according to their natural and ordinary meaning unless that would lead to a result that the legislature must be taken not to have intended.11 The rule serves the important purpose of ensuring that those who are subject to the law understand the nature and extent of their rights and obligations.12 And because it serves that purpose, good reason must be shown before it will be concluded that the legislature did not intend the consequences that would flow if the provision in question were given its natural and ordinary meaning. Although the rule that legislative provisions are to be construed according to their natural and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to do otherwise, would limit or impair individual rights, particularly property rights. The right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit. Certainly, such provisions should not be construed on the basis that the right to 10 Marshall (2001) 205 CLR 603, [37]-[38] (Gaudron J, with whom Hayne J agreed).. 11 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 161-162 (Higgins J); Cody v JH Nelson Pty Ltd (1947) 74 CLR 629, 648 (Dixon J); Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 305 (Gibbs CJ); Mills v Meeking (1990) 169 CLR 214, 223 (Mason CJ and Toohey J), cf 235 (Dawson J); Thompson v His Honour Judge Byrne (1999) 196 CLR 141, [19] (Gleeson CJ, Gummow, Kirby and Callinan JJ), [45] (Gaudron J). 12 Note that this purpose is recognised by s 15AB(3)(a) of the Acts Interpretation Act 1901 (Cth). -- 10 of 65 -- [2026] SASCA 82 Livesey P 11 compensation is subject to limitations or qualifications which are not found in the terms of the statute. 26 Later statements by the High Court concerning statutory interpretation do not require any different approach in a case such as the present. For example, it is necessary to begin with the text, viewed in context, and that context includes the historical context:13 “This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text.”14 So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself. 27 When giving the words used by the legislature their natural and ordinary meaning,15 it is also necessary to address the statutory purpose. Whilst a claimant must establish a “statutory right” to compensation,16 which requires satisfaction of the statutory causation test,17 the High Court’s decision in Marshall shows that the court does not commence with any preconceived or narrow view of the statutory entitlement to compensation on just terms. 28 Moreover, the statutory causation test must be construed by reference to the statutory purpose, as revealed by the statutory text and context. As was explained in Comcare v Martin:18 Causation in a legal context is always purposive.19 The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose.20 It has been said more than once in this Court that it is doubtful whether there is any “common sense” approach to causation which can provide a useful, still less universal, “legal norm”.21 Nevertheless, the majority in the Full Court construed the phrase “as a result of” in s 5A(1) as importing a “common sense” notion of causation. That construction, with respect, did not adequately interrogate the statutory text, context and purpose. 13 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). 14 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47] (Hayne, Heydon, Crennan and Kiefel JJ). 15 Marshall (2001) 205 CLR 603, [20], [29]-[34] (Gleeson CJ, Gummow, Kirby and Callinan JJ, with whom Hayne J agreed), [37]-[38] (Gaudron J, with whom Hayne J agreed), [44] (McHugh J). 16 Morison v Commonwealth (1971) 34 LGRA 273, 294 (Stephen J). See also Sisters of Charity of Rockingham v The King [1922] 2 AC 315, Morison (1972) 127 CLR 32; Marshall (2001) 205 CLR 603. 17 Morison v Commonwealth (1971) 34 LGRA 273, 297 (Stephen J); McInnes (1992) 78 LGERA 410, 412 (Olsson J, with whom King CJ and Mullighan J agreed). 18 Comcare v Martin (2016) 258 CLR 467, [42] (French CJ, Bell, Gageler, Keane and Nettle JJ). 19 Legal Services Board v Gillespie-Jones (2013) 249 CLR 493, [137] (Bell, Gageler and Keane JJ). 20 Travel Compensation Fund v Tambree (2005) 224 CLR 627, [28] (Gleeson CJ). See also Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568, [42] (McHugh J). 21 Travel Compensation Fund v Tambree (2005) 224 CLR 627, [45] (Gummow and Hayne JJ, agreeing with Gleeson CJ), citing Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568, [96]-[97] (Gummow, Hayne and Heydon JJ). -- 11 of 65 -- [2026] SASCA 82 Livesey P 12 29 The issue raised by this case is whether the approach taken in earlier authorities to the meaning of “injurious affection”, and what causes it, controls its meaning and application in this case. In particular, whether the primary judge was bound by McInnes or whether he should have followed the broader approach taken in Marshall. 30 Addressing that issue requires that consideration be given to the compensation principles set out in s 25 of the Land Acquisition Act, and the approach taken in earlier authorities in this State, as well as in the High Court in cases such as Marshall, when addressing differently worded compulsory acquisition legislation. 31 Before addressing s 25 of the Land Acquisition Act, under the predecessor to s 25(1)(a), s 12(1)(c) of the Compulsory Acquisition of Land Act 1925 (SA), compensation was limited to damage caused by works on the land taken: … the damage (if any) to other land adjoining the land taken … by reason of the execution of works, or of the carrying on or use of the works by the promoters on the land taken. 32 The second reading speech for the Land Acquisition Bill shows that the proposed legislation followed a report prepared by the Land Acquisition (Legislation Review) Committee and the reforms were intended to be largely procedural in nature.22 33 The second reading does not suggest that s 25 the Land Acquisition Act was intended to alter the approach disclosed by s 12(1)(c) of the Compulsory Acquisition of Land Act 1925 (SA). 34 In addition, at the time of the passage of the present Act, Edwards had not yet been questioned by the High Court and a leading text concluded that “no compensation is payable in respect of what is done on lands other than those taken from the claimant”.23 The compensation principles under s 25 35 In this case, it is the first and third of the principles set out in s 25 which are of most relevance, and each must be construed in context, having regard to the whole of s 25 and the Act of which they form a part. In each part of s 25, and consistently with the terms of s 22B, the “subject land” is that which was compulsorily acquired, not any land which was retained. 36 The first principle, which is the guiding compensation principle that must be addressed in all acquisition cases, is that the compensation payable shall 22 South Australia, Parliamentary Debates, Legislative Council, 19 November 1969, 3085 (Charles Hill, Minister of Local Government). The Commissioner was unable to locate the Committee Report, but in City of Adelaide v Cinema Place Pty Ltd (2006) 94 SASR 165, Debelle J said that the Honourable WAN Wells QC chaired that committee as Crown Solicitor, before his appointment to the Supreme Court, [6]. 23 Charles A Cripps, The law of compensation for land acquired under compulsory powers (London: Stevens, 11th ed, 1962). -- 12 of 65 -- [2026] SASCA 82 Livesey P 13 “adequately … compensate … for any loss … suffered by reason of the acquisition of the land” (s 25(1)(a)). This guiding principle sets out the key causation test which applies under s 25, and which must be construed having regard to the statutory purpose in the manner described by the High Court in Comcare v Martin.24 37 The second principle is that, in assessing the amount referred to in paragraph (a), consideration may be given to the actual value of the subject land. No doubt this was one of the principles which assisted when determining the assessment of compensation for the land which was acquired from the appellants (s 25(1)(b)(i)). 38 Thirdly, and of particular relevance in this case, when “assessing the amount referred to in paragraph (a)”, consideration may be given to: (i) the actual value of the subject land; and (ii) the loss occasioned “by reason of the severance, disturbance or injurious affection” (s 25(1)(b)(ii)). 39 The fourth principle is that the compensation payable shall be fixed as at the date of acquisition of the land (s 25(1)(c)).25 40 The heads of claim in s 25(1)(b)(ii), such as severance and injurious affection, are each separate from compensation for the value of the land taken.26 Nonetheless, they are “not intended to be exhaustive” of the ways in which claims may be made for any loss sustained.27 These heads of claim were explained by the primary judge in the following way:28 … Compensation for severance is payable for the loss of the contribution, formerly made by the acquired land, to the optimisation of the user of the remainder of the land. Compensation for disturbance is payable where the acquisition of the land reasonably requires the performance of works on the remaining land to maintain its pre-acquisition use or the relocation of activities formerly performed on the residual land. Compensation for injurious affection is payable where the acquisition has adversely affected the continuing pre-acquisition user and enjoyment of the remaining land. 41 These provisions have long presented “certain problems of construction”, though it has been recognised that “certain traditional heads of compensation” have been accorded “meanings … that have been developed over the years by courts when fixing compensation”.29 24 Comcare v Martin (2016) 258 CLR 467, [42] (French CJ, Bell, Gageler, Keane and Nettle JJ). 25 Addressing an issue regarding a different date that arose under the old Compulsory Acquisition of Land Act 1925 (SA), see Commissioner of Highways v George Eblen Pty Ltd (1975) 10 SASR 384 (George Eblen), 390-391 (Wells J). 26 Marshall (2001) 205 CLR 603, [44] (McHugh J). 27 George Eblen (1975) 10 SASR 384, 390 (Wells J). 28 Reasons, [15]. 29 George Eblen (1975) 10 SASR 384, 389-390 (Wells J). -- 13 of 65 -- [2026] SASCA 82 Livesey P 14 42 Whilst the primary judge suggested that s 25(1)(h) is concerned with the land retained by a claimant,30 in context, “the land” in that provision refers to the subject or acquired land.31 43 Section 25(1)(j) should also be noticed. By that provision, an allowance must be made in favour of the Authority where the development of the subject, acquired land enhances the value of the remaining land (“land adjoining the subject land”). 44 As the Commissioner contended, and as the primary judge agreed in part,32 a policy correlation may be drawn between “injurious affection” and “enhancement”, as both are concerned with the impact on the retained land of works or development on the subject or acquired land. These are, as it was contended, “opposite sides of the same coin”. 45 Finally, there was some debate on this appeal about the significance of s 25(2). Three points may be made about that provision. The first is that it must be read with s 25(3) and is intended to provide additional compensation in the case of adverse effects of varying kinds on native title, up to the amount payable for an estate in fee simple in the relevant land – being the subject land. Secondly, and in so far as loss is extended for adverse effects on native title resulting from the “acquisition project”, that term is defined in s 6 by reference to the land acquired under the Land Acquisition Act: acquisition project means— (a) the acquisition or proposed acquisition of land under this Act; and (b) the development or use (or the proposed or expected development or use) of the land following its acquisition … 46 Thirdly, s 25(2) assumes loss under s 25(1)(a), but in the case of native title cases then extends it in the manner indicated. That is, it otherwise assumes the operation of the constraints found in s 25(1)(a). The concept of “injurious affection” under s 25(1)(b)(ii) 47 When addressing what is meant by “injurious affection” in s 25 of the Land Acquisition Act, it is necessary to commence with the history of the concept. 30 Reasons, [21]. 31 As emerges from the following decisions: Crompton v Commissioner of Highways (1973) 5 SASR 301, 325 (Wells J); Emerald Quarry Industries Pty Ltd v Commissioner of Highways (1976) 14 SASR 486, 496 (Bray CJ), 499 (Wells J), 506 (Jacobs J); Emerald Quarry Industries Pty Ltd v Commissioner of Highways (SA) (1979) 142 CLR 351, 363-367 (Mason J), 372 (Jacobs J, with whom Murphy and Aickin JJ agreed). These address what has been described as the “Pointe Gourde principle”, which requires the court to determine the value of the land to the owner and to exclude from that value any increment due to the construction to be undertaken by the resuming authority, Pointe Gourde Quarrying and Transport Co. Ltd v Sub-Intendent of Crown Lands [1947] AC 565. 32 Reasons, [23]-[24]. -- 14 of 65 -- [2026] SASCA 82 Livesey P 15 Injurious affection can be traced back to the Land Clauses Consolidation Act 1845 (UK), at least, and to s 63 of that Act which relevantly provided: … the damage, if any, to be sustained by the owner of the land by reason of the severing of the land taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special Act, or any Act incorporated therewith. 48 Secondly, the concept has been described in different ways. In Edwards,33 Harman LJ famously described it as “a piece of jargon having a respectable pedigree and prolific of litigation in our courts for a century or more”. In the course of describing the reasoning in Edwards as “unconvincing”, the plurality in Marshall described “injurious affection” as follows:34 The reasoning in Edwards is in our respectful opinion, in any event unconvincing. Harman LJ35 described “injurious affection” as a piece of jargon. It is more than that. It is a neat, expressive way of describing the adverse effect of the activities of a resuming authority upon a dispossessed owner’s land. Reference to it in disparaging language does nothing in our view to assist in the elucidation of what it involves. The use of this common expression serves well to distinguish the statutory right from the common law claim in nuisance. It is unnecessary, and it would be unprofitable in these reasons, to examine his Lordship’s reasons and his analysis of the earlier cases to ascertain why the apparently unambiguous language of s 63 of the 1845 Act was given the meaning which his Lordship and others have attributed to it. Like the Court in Beaver Dredging, we do not read the decision in Morison as embracing the reasoning in Edwards. 49 Thirdly, it follows that compensation for injurious affection is not concerned with compensating for the loss or severance of land, at least not directly. It is not concerned with the value of the land acquired, but with the value of the land retained. It is usually intended as compensation for the diminution in the value of the land retained by the claimant which is caused by the scheme or project for which other land owned by the claimant has been acquired and used. 50 Fourthly, and despite the emphasis on valuation at the time of the acquisition, the court takes into account events after that date, as well as future events arising from the works or project for which land was acquired.36 More particularly, the court takes into account what is likely to be done with the land that has been acquired, as well as with the proposed project more generally, when considering whether and to what extent the claimant has sustained a loss, including by way of injurious affection. 51 Fifthly, there is some difficulty accommodating a claim for injurious affection within the s 25(1)(a) compensation principle where the emphasis is so clearly on the claimant’s acquired or subject land, rather than on the claimant’s retained land. That follows because s 25(1)(b) explicitly references “the amount 33 Edwards [1964] 2 QB 134, 144 (Harman LJ). 34 Marshall (2001) 205 CLR 603, [32] (Gleeson CJ, Gummow, Kirby and Callinan JJ). 35 Edwards [1964] 2 QB 134, 144 (Harman LJ). 36 George Eblen (1975) 10 SASR 384, 391-392 (Wells J), “much as a Court does when assessing damages”. -- 15 of 65 -- [2026] SASCA 82 Livesey P 16 referred to in paragraph (a)” and, therefore, the “loss suffered by reason of the acquisition of the land”.37 This textual difficulty can, nonetheless, be accommodated where the use of the claimant’s acquired land is productive of the injurious affection of the claimant’s retained land. 52 As will be seen, that is the effect of South Australian authorities such as McInnes and Meyer v Commissioner for Highways, 38 concerning s 25(1)(a). Quite apart from McInnes and Meyer, South Australian decisions have long recognised that the textual device of tying compensation to “loss suffered by reason of the acquisition of the land” requires that a claimant demonstrate a sufficient causal relationship to the acquisition of the claimant’s land to enable it to be regarded as resulting from the acquisition.39 The decisions in McInnes, Meyer and Edwards 53 In McInnes, the Full Court accepted that a claim for injurious affection may lie where loss is suffered “by reason of the acquisition of the land” (s 25(1)(a)), that is, where there is a casual connection between the acquisition of the claimants’ land and injurious affection (s 25(1)(b)(ii)).40 54 In McInnes, around 3.5 hectares of the claimants’ land was acquired, along with other contiguous land, for a bypass project. The parties were agreed that the claimants’ loss was caused by the construction of the bypass, diverting Port Wakefield Road traffic from the front of the claimants’ Dublin Hotel, so that it passed some distance to its rear.41 This was expected to cause a downturn in passing trade and a reduction in the value of the land retained by the claimants. The Full Court posed the issue for decision in the following terms:42 In essence, what the learned trial judge was called upon to determine was whether or not the concept of “injurious affection” referred to in the section was limited to loss suffered as a result of activities only on what was formally [sic, formerly] the appellants’ land, or 37 This technique of tying injurious affection to “loss suffered by reason of the acquisition of the land” appears to be unique to South Australia. Contrast the legislation in other Australian jurisdictions: Land Acquisition and Compensation Act 1986 (Vic), s 41; Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 55(f); Acquisition of Land Act 1967 (Qld), s 20(1)(ii), where compensation is available for “the exercise of statutory powers”; Land Administration Act 1997 (WA), s 241(7); Lands Acquisition Act 1989 (Cth), s 55(2)(a)(iv); Land Acquisition Act 1993 (Tas), s 27(1)(e), where compensation is available for “the carrying out [of] the authorised purpose”; Lands Acquisition Act 1978 (NT), s 66(1), sch 2; Lands Acquisition Act 1994 (ACT), s 45(2)(iv). Apart from South Australia, injurious affection is only referred to in the Queensland and Tasmanian provisions, in clearly broader terms. 38 Meyer v Commissioner for Highways (1998) 71 SASR 196 (Meyer) (Debelle J). 39 George Eblen (1975) 10 SASR 384, 390, 392 (Wells J), “as effect is linked to cause” and “[t]he only limit to the compensable loss is the causative link with the acquisition and with the dispossession that inevitably follows it”; Commissioner of Highways v Shipp Bros Pty Ltd (1978) 19 SASR 215, 219 (Wells J): “The passage ‘by reason of the acquisition’ imports an element of causation into this fundamental principle which, in its function, is not unlike the same element incorporated into the rules according to which awards of damages are made at common law”; Chadrysiak v Commissioner of Highways (2018) 132 SASR 277, [66], [74] (Blue J). 40 McInnes (1992) 78 LGERA 410, 412 (Olsson J, with whom King CJ and Mullighan J agreed): a “a relevant cause and effect”. 41 McInnes (1992) 78 LGERA 410, 411 (Olsson J, with whom King CJ and Mullighan J agreed). 42 McInnes (1992) 78 LGERA 410, 411-412 (Olsson J, with whom King CJ and Mullighan J agreed). -- 16 of 65 -- [2026] SASCA 82 Livesey P 17 whether it encompassed a broader concept of loss of profits likely to be suffered in the hotel business by virtue of the general, overall proposed new undertaking, as to which the land acquired from the appellants formed only portion of the total site of the new construction works. 55 The Full Court was not here articulating any general statement of principle. It was identifying the issue which arose for decision on the facts of the case before it. The Court ruled that the equivalent of s 25(1)(a) imposed a statutory causation test:43 What is clear is that the loss which attracts compensation is that which is suffered “by reason of the acquisition of the land”. There must therefore be a relevant cause and effect. 56 The Full Court concluded that there could be no claim where the activities which injuriously affected the claimant’s retained land were not carried out on the claimant’s acquired land:44 So it was that, on a contrast of the types of reasoning emerging from the authorities above referred to, Matheson J came to the conclusion that the heads of compensation sought to be propounded by the appellants (which essentially flowed from a general construction of the by-pass, by way of contrast with what was to occur only on the specific segment of land acquired from the appellants) was not sustainable. It was upon that basis that he determined the questions put before him in the negative. In my opinion the conclusion arrived at by him was manifestly correct. Even granted the contention of the appellants that the verbiage employed in the Act should be accorded the broadest construction of which it is reasonably capable, having regard to the stated objects of the legislation and the requirement of s 22(1) of the Acts Interpretation Act 1915 (SA), the fact remains that, taking the provisions of both s 18 and s 25(a) together, the expression “by reason of the acquisition of the land” necessarily connotes a cause and effect situation. It logically limits consideration to the impact of the acquisition of a specific parcel of land; and not consequences flowing from the broader undertaking of the Commissioner, of which the acquisition is but portion. 57 It is necessary to address whether this ruling was made in reliance on Edwards, as the appellants contended and the primary judge held.45 58 The only reference made by the Full Court to the decision in Edwards was one place, in connection with the warning that the term “injurious affection” is not defined and, whilst its meaning can be derived by reference to earlier authorities, these depended on “particular legislation”. It was necessary that these authorities:46 … should be read with considerable care, because all of them are necessarily the direct product of the particular legislation to which they refer — the content of which is by no means universally common. 43 McInnes (1992) 78 LGERA 410, 412 (Olsson J, with whom King CJ and Mullighan J agreed) (original emphasis). 44 McInnes (1992) 78 LGERA 410, 413-414 (Olsson J, with whom King CJ and Mullighan J agreed). In the second passage, ss 18 and 25(a) equate to ss 22B and 25(1)(a) of the present Act. 45 Reasons, [74]-[75]. 46 McInnes (1992) 78 LGERA 410, 412 (Olsson J, with whom King CJ and Mullighan J agreed). -- 17 of 65 -- [2026] SASCA 82 Livesey P 18 59 In the fleeting reference made to Edwards that follows this warning, no attempt was made by the Full Court to analyse the text of the English statute of 1845, or the ruling of the Court of Appeal, rather than simply state its effect. The reference to Edwards was merely illustrative. 60 Indeed, the Full Court spent most of the next page of its reasons, before referring to the conclusion of Matheson J (set out earlier),47 analysing the decision of the High Court in Commonwealth v Morison,48 explaining that the legislation in that case permitted the Court to consider “the public purpose for which the land was acquired”. This analysis of Morison culminated in the following observation about that legislation:49 So it was that the High Court [in Morison] was constrained to adopt the view that a consideration of the general public purpose in issue authorised the award of compensation based upon a broad consideration of the practical effect of the overall public works; and was not confined to an inquiry as to mischief originating only from the land actually acquired. 61 Where the Full Court’s conclusion was based on its view of the operation of s 25, contrasted with the operation of the legislation considered by the High Court in Morison, the holding by the primary judge that this conclusion was arrived at by following Edwards is, respectfully, wrong.50 62 Having said that, the primary judge was, respectfully, correct to conclude that the result in McInnes could be explained by the closure of the old Port Wakefield Road, rather than by the construction of the bypass that was facilitated by the land acquisitions, including the land acquired from the claimants in that case.51 63 The approach taken in McInnes was later followed but distinguished on the facts in Meyer. 64 In that case, two small parcels of the claimants’ land were acquired for the purposes of constructing the Adelaide to Crafers Freeway Project. The claimants were compensated for their land and for disturbance in an amount of $9,500. At issue was their claim for injurious affection, for which they claimed $18,000. It was common ground that the acquisition of one of the two parcels would not cause injurious affection. Only the acquisition of the lightly timbered parcel at the southern end of the claimants’ land was the subject of the injurious affection claim. 65 On the findings of Debelle J, the construction of the new six-lane freeway, replacing the old four-lane roadway, would utilise only a small portion of the southern parcel and was likely to be associated with a higher volume of traffic, on a road that would be around 12 metres higher than the old roadway. The balance 47 McInnes (1992) 78 LGERA 410, 413-414 (Olsson J, with whom King CJ and Mullighan J agreed). 48 Commonwealth v Morison (1972) 127 CLR 32 (Morison). 49 McInnes (1992) 78 LGERA 410, 413 (Olsson J, with whom King CJ and Mullighan J agreed). 50 Reasons, [53]. 51 Reasons, [57]. -- 18 of 65 -- [2026] SASCA 82 Livesey P 19 of the acquired land was to be used for a verge, a retaining wall and a two-lane bicycle path, as well as another verge.52 66 In the course of carefully reviewing the authorities, Debelle J observed that difficulties with the concept of injurious affection “tend to arise when the works which have a depreciatory effect upon the retained land are not confined to the acquired land”, and he gave Edwards as an instance.53 67 The facts in Edwards were somewhat similar to those in Meyer, where two small parcels of land were acquired in order to construct a main trunk by-pass road. That new road was likely to cause considerable loss of amenity because of noise, flashing lights and smell. The parties were agreed that if the damage was confined to that which emanated from the two small parcels, the compensation was £1,600. However, if compensation could be awarded for the diminution in value caused by all of the works, the amount was £4,000. The Lands Tribunal awarded the higher amount, but this was overturned by the Court of Appeal, who substituted the lower amount. 68 In a revealing observation, Debelle J explained that the Court in Edwards was only concerned with “the true basis for compensation”, not the extent to which the use of the acquired land would cause damage to the land retained by the claimants:54 The major issue in the appeal in Edwards v Minister of Transport was the true basis for compensation. The Court was presented with the agreed amount of compensation, the amount to be awarded depending on what was to be the true basis for compensation. What is significant is that the Court did not have to determine the extent to which the use of the acquired land caused damage to the retained land. Indeed, Harman LJ said that the sum agreed as the amount of the damage suffered if that damage was confined to acts done upon the acquired land had been arrived at “by some alchemy which I do not understand at all”. When discussing that decision in Morison, Barwick CJ described the process as having “elements of mystery”. I respectfully share those views. 69 After reviewing the decision of the High Court in Morison, Debelle J identified two principles to be found in the reasons of Barwick CJ (with whom McTiernan J agreed) and Walsh J, with which he agreed, distinguishing between cases where one could isolate the effect that works on the acquired land had on the retained land, and those where it was not possible to isolate the effect of those works on the acquired land:55 1. In those cases where it is possible to isolate factors which depreciate, that is to say, injuriously affect, the value of the retained land to the use of the works carried out upon the acquired land, the diminution in value will be confined to the effect of those factors: see Barwick CJ (at 39), Walsh J (at 47-49). 52 Meyer (1998) 71 SASR 196, 198-199 (Debelle J). 53 Meyer (1998) 71 SASR 196, 200 (Debelle J). 54 Meyer (1998) 71 SASR 196, 201 (Debelle J). 55 Meyer (1998) 71 SASR 196, 202 (Debelle J). -- 19 of 65 -- [2026] SASCA 82 Livesey P 20 2. In those cases where it is not possible to isolate to the use of the works on the acquired land the depreciatory effects upon the retained land, the compensation will be the whole of the diminution in the value of the retained land: see Barwick CJ (at 39-42), Walsh J at (52-53). In such cases, it is not appropriate to award nothing, nor is it appropriate to attempt to determine the compensation by some arbitrary processes of assessment, for example, by taking that proportion of the total depreciation which the area of the land taken bears to the whole area upon which the activities are conducted: see Walsh J (at 52). As Barwick CJ noted (at 41) the approach is consistent with that adopted in the United States as the following passage from Corpus Juris Secundum, vol 29A, “Eminent Domain”, par 139, p 588-589 illustrates. In that passage it is stated that whilst the basic rule is that the damages to the retained land, “... should be limited to those accruing from the improvement on the land condemned ... some courts have modified this rule, stating that where a part of an owner’s land is taken for a public improvement, and the use of the part taken constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put, the owner is entitled to recover the full damage to his remaining property due to such public improvement, even though portions of the public improvement are located on land taken from surrounding owners, although where the use of the part taken is found to be separable consequential damages should be allowed only for the use of the part taken”. With respect, this approach accords with both principle and commonsense. 70 As can be seen, in Morison Barwick CJ and Walsh J referred to American jurisprudence and adopted in cases where the diminution in the value of the retained land could not be isolated to the use of the works on the acquired land. That analysis that required the Court to determine whether “the use of the part taken constitutes an integral and inseparable part of a single use”:56 … where a part of an owner’s land is taken for a public improvement, and the use of the part taken constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put, the owner is entitled to recover the full damage to his remaining property … 71 Justice Debelle agreed and, in consequence, though he could not isolate the effect of increased noise from the works on the acquired land from the effect of the broader project, and was asked to find that their effect was “miniscule”, he held this was neither “practical or realistic”:57 In the particular circumstances of this case, it is not possible to isolate the use of the small part of the road which is constructed on the acquired land and which forms an integral part of the roadworks. It forms a small part of a large sweeping curve. What is being said on behalf of the Commissioner is that, because of the generally increased noise levels in the area, the increase in noise from this part of the road will be minuscule. That is in large part because of quite a high increase in noise levels from parts of the road a short distance from the acquired land, an increase resulting from a more efficient noise path. In other words, there is an increase in the noise level but it is largely obscured by traffic noise from parts 56 Morison (1972) 127 CLR 32, 41 (Barwick CJ). 57 Meyer (1998) 71 SASR 196, 204 (Debelle J). -- 20 of 65 -- [2026] SASCA 82 Livesey P 21 of the road a short distance before and after that part constructed on the acquired land. Where, as here, the acquired lands form such an integral part of a carriageway, it is not practical or realistic to say that it has no depreciating effect, or to isolate that area and say that its effect is minuscule. 72 Accordingly, Debelle J concluded that the claimants were entitled to the whole of the diminution in value of their retained land:58 … this is a case where it is not possible to isolate the depreciatory effect of the use of the acquired land from the use of other land used for the undertaking so that the compensation for injurious affection will be the whole of the diminution in value of the retained land resulting from the use of the new road: see Morison. 73 Justice Debelle was asked to follow the outcomes in both Edwards and McInnes. He declined to do so, finding that they were both distinguishable. His Honour’s observation about Edwards has already been addressed. As for McInnes, Debelle J explained that it was a “quite different case” because the use of the works on the acquired land did not cause loss on the retained land, and so the Court did not have to deal with the issues that arise where the depreciatory effects were caused by the use of the acquired land as well as other land.59 74 After considering the expert evidence, Debelle J awarded $10,000 for injurious affection. The High Court authorities – Morison and Marshall 75 The appellants’ first two grounds of appeal contended that the primary judge failed to apply Marshall, which was described as “binding High Court authority” and, alternatively, that this Court should depart from McInnes. 76 The appellants contended that McInnes was “plainly wrong”60 because it was inconsistent with Marshall and because it imposed “an artificial spatial restriction which finds no footing in the text of s 25” of the Acquisition of Land Act. 77 However, and as has been seen, McInnes did not “impose any spatial restriction”, artificial or otherwise. It applied the statutory causation requirement that a claimant demonstrate that the loss which attracts compensation for injurious affection be “by reason of the acquisition of the land” under s 25(1)(a). This was 58 Meyer (1998) 71 SASR 196, 204 (Debelle J). 59 Meyer (1998) 71 SASR 196, 204 (Debelle J). 60 It is in this case not necessary to address the criticisms sometimes made about this test, R v XY (2013) 84 NSWLR 363, [34] (Basten JA); Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631, [126] (Lee J); Pallas v Lendlease Corporation Ltd (2024) 114 NSWLR 81, [140] (Leeming JA); Lendlease Corporation Ltd v Pallas (2025) 99 ALJR 834, [109], [114]-[120] (Edelman J). See also Mills v Sola Optical Australia Pty Ltd (1987) 46 SASR 364, 368-369 (King CJ); Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd (1989) 52 SASR 148, 159 (King CJ); R v Gilson (1990) 54 SASR 191, 196 (Cox J); Pashalis v WorkCover Corporation (1994) 63 SASR 71, 83 (Perry J); Heirloom Vineyards Wine Company Pty Ltd v Sante Wines Pty Ltd (2018) 131 SASR 150, [31] (S Doyle J, with whom Parker and Lovell JJ agreed); Moloney v 21-25 South Esplanade Pty Ltd (2024) 145 SASR 226, [5] fn 7 (Livesey P, Bleby and David JJA). -- 21 of 65 -- [2026] SASCA 82 Livesey P 22 approached in an orthodox manner. That approach was followed by Debelle J in Meyer, though the question of causation was distinguished on the facts and modified by reference to the decisions of Barwick CJ and Walsh J in Morison. McInnes is not plainly wrong. 78 The question is whether the approach to s 25(1)(a) taken in McInnes, as modified in Meyer, has been overtaken by Marshall. 79 Because of the treatment given to it in Marshall, it is necessary to commence with Morison. 80 In Morison, part of a grazing property was compulsorily acquired to enable the extension of an existing airport runway to accommodate jet aircraft. In addition, part of the claimant’s land was used for placing navigational aids and a taxiway for use in connection with existing airport facilities. Overall, the new works enabled the introduction of jet aircraft which increased the depreciatory effect on the land retained by the claimant. Whilst the High Court rejected the Commonwealth’s case that compensation could only be awarded for the effect of the work done on, and the use made of, the claimant’s acquired land, the reasons for judgment differed. 81 Whilst it is significant that the Court was required to address legislation which was in materially different terms to s 25(1)(a) of the Land Acquisition Act, the decisions of Barwick CJ (with whom McTiernan J agreed) and Walsh J did not turn on the terms of the legislation before them, but on the approach to causation outlined in Meyer which focuses attention on the acquisition of a claimant’s land. 82 The Court contrasted the legislation in the UK and Australia. By s 63 of the Lands Clauses Consolidation Act 1845 (UK), when awarding compensation for acquired land, it was necessary to have regard: ... to the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special Act, or any Act incorporated therewith. 83 By s 23(1)(c) of the Land Acquisition Act 1955 (Cth), the expression “injurious affection” did not appear, but it permitted compensation to be awarded for the depreciation in value of the land retained “by reason of the carrying out or the proposal to carry out the public purpose for which the land was acquired”. 84 Justice Menzies and Justice Gibbs thought that the contrast between the assessment of compensation under s 23, and the damage resulting from the exercise of the power of acquisition under s 63 of the Land Clauses Consolidation Act 1845 (UK), was significant.61 61 See, for example, Morison (1972) 127 CLR 32, 45 (Menzies), 56 (Gibbs J). The attempt to distinguish these provisions was rejected in Marshall (2001) 205 CLR 603. See, for example, [59]-[62] (McHugh). -- 22 of 65 -- [2026] SASCA 82 Livesey P 23 85 Chief Justice Barwick took both provisions into account, distinguishing them but explaining that where the work done and the stated public purpose were both confined to the acquired land, as distinct from other land, there was little difference in their application.62 Where the use of the acquired land and its depreciating effect could be separated or isolated from the balance of the project, compensation would be limited to the use of the acquired land and its depreciating effect.63 However, where the use of the acquired land could not be isolated, he articulated the approach earlier set out in the reasons of Debelle J in Meyer. As Barwick CJ explained:64 It is, in my opinion, a sound principle in the application of s 23 that the depreciation in value of retained land for which compensation is to be given is the depreciation caused by the use of the constructions placed on the acquired land. In a case in which it is possible to isolate the depreciatory factors to the work done upon or to the use of work done upon the acquired land, it would be proper, in my opinion, to confine the depreciation in value to the effect of those factors. After all, it is the fact of acquisition of his land which alone gives to the claimant any right of compensation for the use by government, or an authorized person or body, of any facility adjoining his land. 86 The Chief Justice continued, emphasising that it was necessary to consider whether the results of the use of constructions on the combined areas could properly be said to “flow from the use of the constructions on the acquired land”:65 But it does not follow, in a case such as the present, that because the acquisition is the source of the right to compensation for depreciation in value, the compensable depreciation may not include the effect of the use of the constructions on the acquired land in combination with other land and the constructions thereon. In a real sense the results of the use of constructions on the combined areas can properly be said, in my opinion, to flow from the use of the constructions on the acquired land, once it is clear that it is not possible to refer any part of such results exclusively to the use of the constructions on the acquired land. After much consideration, I see no practical way in which in the facts and circumstances of this case, the effect of the use of the constructions on the acquired land could be isolated so that it related exclusively to such use. 87 Chief Justice Barwick explained his statement of the relevant principles by reference to the English cases, including cases where it had been found that work of a depreciatory nature had or had not “been done on the acquired land”.66 He gave as an example Cowper Essex v Local Board for Acton, where “injury had been caused by the works on the acquired land or their use”.67 88 The Chief Justice then explained that “one thing at least is certain: the aerodrome could not be used for jet aircraft to the same extent it can now be used without the works carried out on the acquired land and by the use of them”. Accordingly, “in practical terms, it could be concluded that the whole depreciation 62 Morison (1972) 127 CLR 32, 39 (Barwick CJ). 63 Morison (1972) 127 CLR 32, 39 (Barwick CJ). 64 Morison (1972) 127 CLR 32, 39 (Barwick CJ). 65 Morison (1972) 127 CLR 32, 39 (Barwick CJ). 66 Morison (1972) 127 CLR 32, 40 (Barwick CJ). 67 Morison (1972) 127 CLR 32, 40 (Barwick CJ), citing Cowper Essex v Local Board for Acton (1889) 14 App Cas 153. -- 23 of 65 -- [2026] SASCA 82 Livesey P 24 in value due to the use of the extended aerodrome as a jet airport was referrable in the circumstances to the works constructed on the acquired land and their use”.68 89 Chief Justice Barwick thought that this approach was not precluded by the decided cases and was “in line with the tendency of decision in American courts”, referring to the Corpus Juris Secundum (earlier set out). It was the combination of the works and causes that permitted recovery for the whole of the loss:69 But the fact that the depreciation results from those works or that use in combination with works on other land or their use does not lessen the compensation payable for the depreciation in fact suffered by reason of the use of the constructions on the acquired land unless it is possible to separate entirely the depreciation due to the works on the acquired land and their use. 90 On that approach, because what was done on the acquired land was an integral and inseparable part of a single use of the whole project, the claimant succeeded.70 91 In his reasons, Walsh J took the view that, absent authority, under s 23 the depreciation caused by the extended use of the airport as a whole could be taken into account.71 His Honour analysed the English cases, pointing out that no claim was recognised where the claimant’s injury was not caused by acts done on the land acquired from the claimant, even though there was injurious affection caused by the undertaking for which part of the claimant’s land had been acquired:72 Some cases have been decided on the basis of a finding that whatever injury was done to the retained land of the claimant did not result (either in whole or in part) from acts done on land which has been acquired from him. That being so, then although his retained land was injuriously affected by reason of the undertaking carried on by the statutory authority by which part of his land had been acquired, he was in no different position from any other person whose land had been so affected, but from whom no land had been taken. Therefore, he was not entitled to compensation in respect of the injurious affection of his retained land. 92 Justice Walsh explained that the point of difference in the case before them was that “the activities which are the cause of depreciation in the value of the retained land take place, or are expected to take place, partly [on] land taken from the claimant and partly on other land”.73 And, it was significant that there was a combination of works and causes. Accordingly:74 Where it is not possible separately to ascertain the damage caused to the remainder of the claimant’s land by the taking and the proposed use of part of it, that use being an inseparable part of a single use to which that land and other adjoining land are put, it has been held in 68 Morison (1972) 127 CLR 32, 41 (Barwick CJ). 69 Morison (1972) 127 CLR 32, 42 (Barwick CJ). 70 Morison (1972) 127 CLR 32, 42 (Barwick CJ). 71 Morison (1972) 127 CLR 32, 46 (Walsh J). 72 Morison (1972) 127 CLR 32, 47 (Walsh J). 73 Morison (1972) 127 CLR 32, 47 (Walsh J). 74 Morison (1972) 127 CLR 32, 52 (Walsh J). -- 24 of 65 -- [2026] SASCA 82 Livesey P 25 American decisions that the landowner is entitled to recover the full amount of the damage caused to his retained land. 93 Therefore, a majority of the High Court in Morison adopted an approach to causation which required that attention be given to the injurious affection caused by the acquisition of the claimant’s land and, in its application to cases involving injurious affection caused by both the acquisition of the claimant’s land and other land, a claimant was permitted to recover for all of the loss caused to the retained land where the damage caused by each could not be differentiated. 94 In Marshall, the claimant’s land was acquired for the construction of an extension to the Bruce Highway near Nambour in Queensland. There was a conflict of expert evidence about whether the retained land would become more susceptible to flooding, but the evidence accepted by the Land Court showed that the new carriageway, new culverts and an extended bridge were all on the original road reserve, not the claimant’s acquired land. 95 The Court of Appeal held that Edwards applied and rejected the claim for injurious affection. On appeal, the High Court disapproved Edwards and held that the claim was available and remitted the matter so that the question of flooding could be determined. 96 What is significant about Marshall is that the Queensland legislation, much like the Commonwealth legislation considered in Morison, was materially different to s 25(1)(a) of the Land Acquisition Act. This time, whilst the members of the High Court accepted that there was no real difference between the UK and Queensland statutes, they gave effect to their view of the proper meaning of the Queensland statute, rejecting the approach taken in the English cases such as Edwards. Section 20 of the Acquisition of Land Act 1967 (Qld) provided: Assessment of compensation (1) In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage, if any, caused by either or both of the following, namely— (a) the severing of the land taken from other land of the claimant; (b) the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land. (2) Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken. (3) In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken. (4) But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value. -- 25 of 65 -- [2026] SASCA 82 Livesey P 26 97 Whilst s 20 referred to “the value of land taken”, it explicitly required that the assessment also have regard to “the damage, if any, caused by ... the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land”. As to these words, the plurality were blunt:75 In our opinion, however, the language of s 20(1)(b) of the Act could hardly be plainer. In assessing compensation, regard is to be had not only to the value of the land taken but also to the damage caused by the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other [the remaining, severed] land. The section does not say “the exercise of any statutory powers by the constructing authority on and only on the land taken …”. The section clearly distinguishes between the land taken and the severed land. ... Once the constructing authority acquires land for a statutory purpose and carries out the statutory purpose, it must, pursuant to s 20(1)(b) of the Act, compensate the dispossessed owner for the injurious effect upon the residual land resulting from the undertaking and the implementation of that purpose, actual and prospective. 98 The plurality did not read what was said in Morison about Edwards as “an endorsement, enthusiastic or otherwise” of a decision which had “understandably … been questioned”.76 Their Honours recorded the ways in which the members of the High Court in Morison had distinguished the UK legislation considered in Edwards, as well as the “similar conclusion by a slightly different process of reasoning” adopted by Barwick CJ, set out earlier.77 99 In separate reasons, a portion of which were earlier set out, Gaudron J agreed. 100 In the concurring opinion of McHugh J, the relevant tribunal could have regard to “any damage caused by the exercise of any statutory powers” (original emphasis):78 The natural and ordinary meaning of s 20(1)(b) of the [Queensland] Act directs the relevant tribunal, when determining the amount of compensation to be awarded to the claimant, to have regard to any damage caused by the exercise of any statutory powers by the constructing authority injuriously affecting the land of the claimant that he or she retains after the severance. That is a separate head of compensation from compensation for the value of the land taken and compensation for damage resulting from the severing of the land of the claimant. Nothing in the section gives any ground for supposing that compensation for injurious affection is conditioned on the statutory powers of the constructing authority being exercised on the resumed land. All that the claimant is required to prove is that the exercise of a statutory power by the constructing authority injuriously affected the “other land” of the claimant. 75 Marshall (2001) 205 CLR 603, [20] (Gleeson CJ, Gummow, Kirby and Callinan JJ with whom Hayne J agreed). 76 Marshall (2001) 205 CLR 603, [23] (Gleeson CJ, Gummow, Kirby and Callinan JJ). See also, [32]. 77 Morison (1972) 127 CLR 32, 39 (Barwick CJ). The plurality observed that Barwick CJ “appeared to accept the correctness of Edwards”, though he expressed scepticism about its application, Marshall (2001) 205 CLR 603, [24] (Gleeson CJ, Gummow, Kirby and Callinan JJ). 78 Marshall (2001) 205 CLR 603, [44] (McHugh J). -- 26 of 65 -- [2026] SASCA 82 Livesey P 27 101 Justice McHugh then explained the reference to “the exercise of any statutory powers”:79 It seems natural to read the reference in that paragraph to “the exercise of any statutory powers” by that authority as referring to the exercise of powers implementing the purpose for which the land was taken.80 The exercise of a power for any function or purpose incidental to the purpose for which the land was acquired is therefore an exercise of statutory power within the meaning of s 20(1)(b). No narrow view should be taken of what is incidental to the purpose for which the land was acquired. If part of a parcel of land is taken for road purposes, any damage caused to the residue in the course of constructing, paving, draining or making safe the road and its accessories will be injurious affection for the purpose of the paragraph. 102 When addressing Edwards, McHugh J regarded the UK and Queensland statutes as relevantly similar, and they could not be “persuasively distinguished”.81 103 In Marshall, the Solicitor-General for the State of Queensland attacked the broad scope for an award for injurious affection where the activities which give rise to the claim were carried out entirely on land other than land owned or formerly owned by the claimant, suggesting that the fact of the acquisition of another part of the owner’s land was a “fortuitous circumstance”.82 For the plurality this, and the fact that others who had lost no land may have no claim even though they may be equally injuriously affected, provided no reason to “distort the language” of s 20 of the Acquisition of Land Act 1967 (Qld).83 104 Both the UK and Queensland statutes considered in Marshall, unlike s 25 of the Land Acquisition Act, explicitly referred to injurious affection caused by “the exercise of … powers” by the relevant Authority. 105 This review of Marshall shows that the application of the concept of injurious affection differed because the legislation considered by the High Court differed from s 25(1)(a) of the Land Acquisition Act. 106 Indeed, even in cases where the words used in different legislation are similar, the “strict doctrine of precedent can only be of narrow application”,84 and courts should not “slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation … [these] are guides to, but cannot control, the meaning of legislation in the court’s jurisdiction”.85 79 Marshall (2001) 205 CLR 603, [45] (McHugh J). 80 Westaway v Landsborough Shire Council (1964) 31 QCLLR 1, 16. 81 Marshall (2001) 205 CLR 603, [62] (McHugh J). 82 Marshall (2001) 205 CLR 603, 605. 83 Marshall (2001) 205 CLR 603, [28] (Gleeson CJ, Gummow, Kirby and Callinan JJ). 84 Carter v Bradbeer [1975] 3 All ER 158, 191 (Lord Diplock); Telstra Corporation Ltd v Australasian Performing Right Association Ltd (1997) 191 CLR 140, 200 (Kirby J). 85 Marshall (2001) 205 CLR 603, [62] (McHugh J), albeit referring to the approach which should have been taken in Queensland to the UK decisions on similar legislation. -- 27 of 65 -- [2026] SASCA 82 Livesey P 28 107 In this case, however, the primary judge concluded in the following terms:86 The decision in Marshall rejects the reasoning in Edwards on which founded the decision in McInnes. It supports the application of a common-sense causal test. It rejects the implication of a limitation which restricted injurious affection to that generated on the acquired land itself. The words of s 20(1)(b) of the ALA(Qld) can have no bearing on whether that limitation should be implied. The decision in Marshall denying any basis for the implied limitation is as applicable to the words “caused by … the exercise of any statutory power” as it is the words “by reason of the acquisition”[.] However, as a single judge I remain bound by the decision of the Full Court in McInnes. I therefore dismiss the Bryants’ application. 108 This conclusion suggests that the decision of the Full Court in McInnes was founded on Edwards. As has been seen, it was in fact founded on an orthodox view about the operation of s 25(1)(a). In addition, whilst Marshall rejected Edwards, it is not authority for the proposition that the views expressed by the Full Court in McInnes or by Debelle J in Meyer have been overtaken, given the textual differences between the Queensland and South Australian legislation. 109 Whilst it follows that the appellants’ first two grounds of appeal fail, at least in the terms they were pressed, it is necessary to address the contention that they were in any event entitled to an increased award and that depends on the contest between the parties about causation and valuation. The valuation evidence 110 The appellants’ third ground of appeal was that the primary judge erred in his approach to the valuation evidence. As it was put in writing, the Commissioner’s valuer “volunteered an extemporaneous view that a lower percentage might be appropriate”. This was criticised because it was not in the valuer’s written report, was not supported “by any valuation method or analysis” and “reflected no more than an impression offered in the moment”. 111 The appellants were right to all but abandon this ground at the hearing. These criticisms must be rejected. The primary judge rejected the approach of the appellants’ valuer based on travel costs being “inherently and radically uncertain”.87 The views the Commissioner’s valuer expressed in evidence were, however, not simply accepted without question. After putting to one side the initial views expressed by each valuer, the primary judge evaluated their competing views about an appropriate percentage reduction, there being no question that this represented an available methodology.88 The award based on a starting reduction of 2.5 per cent of the value of the remaining land was carefully and appropriately explained.89 86 Reasons, [74]. 87 Reasons, [79]. 88 Reasons, [80]-[84]. 89 Reasons, [88]-[89]. -- 28 of 65 -- [2026] SASCA 82 Livesey P 29 112 The primary judge heard and saw the expert witnesses give their evidence concurrently, and his findings are neither glaringly improbable nor contrary to compelling inferences.90 113 It follows that the appellant’s third appeal ground should be dismissed. Causation under s 25 of the Land Acquisition Act 114 Finally, it is necessary to address the implication arising from the appellant’s first appeal ground – that some award should have been made – and the Commissioner’s alternative contention that no award was available on a correct application of the s 25(1)(a) causation principles arising from McInnes and Meyer. 115 The appellants ultimately took no issue with Meyer, though it was a decision of a single judge and not the Full Court,91 contending that it recognised that compensation could be awarded where “the works impacting value were off the acquired land but integral to a broader road scheme”. 116 That submission must be rejected. As was explained by Barwick CJ (with whom McTiernan J agreed) and Walsh J in Morison, which was followed and applied by Debelle J in Meyer the question is whether the injurious affection emanated from the acquired land as well as from other land. If it did, the next question is whether the use of the part taken from claimants, and which gives rise to injurious affection, constituted an integral and inseparable part of a single use reflected in the project as a whole, so that all of the reduced value of the retained land could be compensated.92 117 The primary judge did not apply Meyer,93 though it was relied on by the Commissioner at trial, concluding as follows:94 … Even though the median wire was not erected on the land acquired from the Bryants, there is no doubt that the relocation of the drain services, the landscaping of the western verge and the curbing, guttering and guard rail safety barrier were integral to the construction of the passing lane. The median wire was an integral part of the construction of the overtaking lane. The safety imperative to separate traffic travelling in opposite directions when there is an overtaking lane is plain to see. There is a real risk that the overtaking lane may be used both by vehicles travelling north and vehicles travelling south at the same time. The median wire obviates that risk. Equally, a conclusion that the acquisition caused the injurious affection could properly be made if there were no median wire rope safety barrier but instead a road rule prohibiting turning across an overtaking lane. Moreover, that conclusion would pertain whether the lane was entirely, or even partly, on the acquired land and if the acquired land provided a drained verge for that lane. 90 Lee v Lee (2019) 266 CLR 129, [55] (Bell, Gageler, Nettle and Edelman JJ). 91 Cf, Written submissions of the appellants, [12]. 92 Morison (1972) 127 CLR 32, 41 (Barwick CJ). 93 Reasons, [27]-[31], the primary judge preferred “a commonsense and pragmatic causation test which was satisfied because the land acquired substantially or materially facilitates the development which generates the injurious affection”. 94 Reasons, [32]. -- 29 of 65 -- [2026] SASCA 82 Livesey P 30 118 The Commissioner attacked this finding, contending that it articulated a causation test that was too broad, where there was no evidentiary basis for a finding that what was done on the appellants’ land was integral to the Project works and the construction of the median wire. 119 The Commissioner argued that the evidence before the primary judge was set out in agreed facts and in an affidavit he had filed, where the deponent was not required for cross-examination. That uncontested evidence showed that the principal cause of injurious affection was the erection of the median wire adjacent to the appellants’ retained land, and the impediment it posed to entering and exiting the appellants’ land. 120 As well, no part of the overtaking land was constructed, and no part of the median wire was erected, on the appellant’s acquired land. These had, however, formed part of the broader Project works. 121 On the appellants’ acquired land, the works comprised the relocation of drainage and services, the undertaking of landscaping, the construction of kerbing and guttering over 230 metres, and the erection of a guardrail which was over 350 metres in length adjacent the appellants’ retained land. 122 The Commissioner’s contention was that though the Project works caused injurious affection, there was no evidence for the conclusion that the works undertaken on the acquired land “were integral to the construction of the median wire”.95 123 Contrary to the approaches taken by the primary judge, the appellants and the Commissioner, the question for this Court under s 25(1) is whether when “assessing the amount referred to in paragraph (a)”, consideration may be given to: (ii) the loss occasioned “by reason of … injurious affection” (s 25(1)(b)(ii)). 124 That is, whether injurious affection was caused by the acquisition of the appellants’ land. In the interpretation and application of the statutory test, it is necessary to have regard to the evident statutory purpose. That purpose is concerned with ensuring compensation for the acquisition of a claimant’s land on just terms and, by reference to s 25(1)(b)(ii), when compensating for loss by reason of the acquisition, consideration may be given to injurious affection. It is not concerned with whether injurious affection was caused by the implementation of the broader Project works, even though elements of these may have been constructed on the appellants’ land. 125 In the application of the statutory test under ss 25(1)(a) and 25(1)(b)(ii) of the Land Acquisition Act, the questions which may be posed when evaluating causation, as recognised in Morison and Meyer, include whether: 95 Written submissions of the respondent, [79]. -- 30 of 65 -- [2026] SASCA 82 Livesey P 31 1. It is possible to isolate the factors which depreciate, or injuriously affect, the value of the retained land to the works carried out on, or the use of, the acquired land. If it is, compensation is confined to the effect of those factors; or 2. If it is not possible to isolate the factors which depreciate or injuriously affect the value of the retained land to the works carried out on, or the use of, the acquired land, compensation is not confined and will extend to the whole of the diminution in the value of the retained land, provided the use of the acquired land which caused part of the injurious affection constituted an integral and inseparable part of the overall works. 126 In this case, the answers to questions such as these must be addressed on the basis of the inferences which arise on evidence about which there was no dispute. When compared with position of the primary judge conducting a two-day trial, this Court is not at any disadvantage in determining the question of causation.96 127 When viewed as a whole, the Project works comprised a number of elements and these included the construction of the overtaking lane and the erection of the median wire on land that was not acquired from the appellants, together with the associated works that were carried out on land that was acquired from the appellants. 128 In this case, the depreciatory effect of the works is not due to noise or some other disturbance, but the impediment to access caused by the median wire. In those circumstances, can it be said that the works on and use of the acquired land caused injurious affection and constituted an integral and inseparable part of the overall Project works? 97 129 This case has features which did not appear in either McInnes or Morison and Meyer. It is certainly distinguishable. In McInnes, the injurious affection was not caused by what was done on the acquired land. Whilst in a broad sense the claimants’ land had been acquired for a project that included the re-routing of passing traffic, nothing that affected value was done with their land: it was the closure of the old Port Wakefield Road and the construction of the new bypass that caused the claimants’ loss. 130 In Morison and Meyer, the noise which gave rise to the diminution in value of the retained land came in part from those portions of the new runway and carriageways which had been constructed on the appellants’ acquired land. The use of the appellants’ land in each case gave rise to injurious affection. In Morison that was associated with the introduction of jet aircraft. In Meyer it was associated with the large increase in passing traffic. In those settings it did not matter that injurious affection was also caused by the use of other land that had not been acquired from the appellants. In circumstances where it was unrealistic to attempt 96 Warren v Coombes (1979) 142 CLR 531. 97 Morison (1972) 127 CLR 32, 41 (Barwick CJ), referring to the Corpus Juris Secundum, 51 (Walsh J); Meyer (1998) 71 SASR 196, 202 (Debelle J). -- 31 of 65 -- [2026] SASCA 82 Livesey P 32 to disentangle and identify what only came from the appellants’ acquired land, or describe that as “miniscule”, the appellants were awarded compensation for all of the injurious affection caused to their retained land. 131 In this case, no aspect of the works undertaken on or use of the appellants’ acquired land gave rise to injurious affection on their retained land. In that sense, the works carried out on each of the acquired land and the other land areas, and their uses, have a separately identifiable effect. 132 However, the difficulty in this case arises because the works undertaken on the appellants’ acquired land do form part of the overall Project works. They are very close to and, in some instances, abutting the area of the overtaking lane and the median wire. They were all intended to facilitate the construction of an overtaking lane on Long Valley Road, in an area adjoining the appellants’ land. 133 That, however, requires viewing the works from the perspective of the overall Project and its purpose, rather than through the prism of whether loss was caused by the acquisition of the appellants’ land. It is important not to conflate the analyses of loss caused by the acquisition of the appellants’ land with loss caused by the implementation of the overall Project and its purpose. That latter analysis might be appropriate under different legislation such as the Queensland provision considered by the High Court in Marshall, but it is not the analysis required under s 25(1)(a) of the Land Acquisition Act. 134 When attention is directed to whether loss was caused by the acquisition of the appellant’s land, as s 25(1)(a) requires, it is both practical and feasible to separately consider what was done on the acquired land against what was done on other land, including the erection of the median wire. Nothing done on or with the acquired land gave rise to a diminution in value of the retained land. 135 That is not to suggest any spatial test, as the passages cited from Morison and Meyer demonstrate. Rather, it is the causation question posed by the text and purpose of the Land Acquisition Act. 136 Unless there was injurious affection caused by the acquisition and use of the acquired land, neither the “integral and inseparable part” analysis, nor the injurious affection arising (only) from broader Project works, become relevant. 137 Accordingly, in this case, it cannot be said that causation under s 25(1)(a) was established, with the result that the appellants are not entitled to recover compensation for injurious affection. This part of the Commissioner’s notice of alternative contention should be upheld. Conclusion 138 The appeal should be dismissed. 139 It is necessary to hear from the parties regarding costs. -- 32 of 65 -- [2026] SASCA 82 S Doyle JA 33 140 S DOYLE JA: The appellants, Mr and Mrs Bryant, own a parcel of land along the western side of Long Valley Road, between Strathalbyn and Mount Barker. A portion of their land (the Acquired Land) was compulsorily acquired in order to facilitate the creation of a southbound overtaking lane on Long Valley Road, and they sought compensation pursuant to s 25 of the Land Acquisition Act 1969 (SA) (the LAA). They claimed damages for loss in the nature of injurious affection as a result of the impact of the overtaking lane (in particular, a median wire rope safety barrier installed between the southbound and northbound lanes) on the ability to enter and depart the portion of the land they retained (the Retained Land). 141 Whilst certain aspects of the overall acquisition project works were carried out on the Acquired Land, neither the overtaking lane itself nor the median wire were constructed on the Acquired Land. Following a trial before the primary judge, the appellants’ claim for compensation failed on the basis that they failed to establish that any injurious affection was a loss suffered ‘by reason of the acquisition of’ the Acquired Land for the purposes of s 25(1)(a) of the LAA.98 In so holding, and in applying what might be described as a narrow or strict view of the required causal connection, the judge followed a decision of this Court in McInnes v Commissioner of Highways,99 which in turn relied upon a decision of the English Court of Appeal in Edwards v Minister of Transport.100 The effect of the decision in Edwards was to confine compensation for injurious affection to loss arising from work on, or use of, the acquired land as opposed to the project for which the land was acquired more generally. Whilst acknowledging the existence of High Court authority in Marshall v Director-General, Department of Transport101 which had criticised the reasoning in Edwards and applied a broader view in the context of similar Queensland legislation, the primary judge considered himself bound by this Court’s narrow construction of s 25(1)(a) of the LAA in McInnes. This was despite his Honour indicating that he would have decided the matter differently, had the issue been free of binding authority. 142 Although dismissing the appellants’ claim for compensation, the primary judge went on to hold that, had compensation been payable for their loss of injurious affection, he would have assessed damages for that loss in the amount of $40,000. 143 The appellants rely upon three grounds in their appeal from the decision of the primary judge. Those grounds raise issues which may be summarised as involving contentions to the effect that: 98 Bryant v Commissioner of Highways [2025] SASC 85 (Reasons). 99 McInnes v Commissioner of Highways (1992) 78 LGERA 410 (McInnes). 100 Edwards v Minister of Transport [1964] 2 QB 134 (Edwards). 101 Marshall v Director-General, Department of Transport (2001) 205 CLR 603 (Marshall). -- 33 of 65 -- [2026] SASCA 82 S Doyle JA 34 (i) the judge erred in treating himself as bound by McInnes notwithstanding that the Court’s reasoning in that case had been overtaken by the decision of the High Court in Marshall; (ii) alternatively, this Court should depart from McInnes to the extent that it requires a narrow view of the requisite causal connection that precludes the recovery of compensation in the present case; and (iii) the judge erred in assessing the compensation payable in the amount of $40,000, whereas he ought to have assessed that loss in the amount of $90,000. 144 The respondent Commissioner, on the other hand, contends that this Court should uphold the decision of the primary judge dismissing the appellants’ claim for compensation for injurious affection. However, he seeks to uphold that decision on reasons that differ from those given by the primary judge. In particular, and in part through his notice of alternative contention, the respondent contends: that the primary judge was correct to regard himself as bound by McInnes in construing s 25(1)(a) of the LAA, but that McInnes did not require a narrow view of the causal connection that would confine compensation to cases of injurious affection emanating from the Acquired Land; that compensation would be payable if the use of the Acquired Land was ‘integral and inseparable’ to the activity which gave rise to the injurious affect; and that, contrary to the reasoning of the primary judge, this broader causal test was not satisfied on the facts of the present matter because the work on, and use of, the Acquired Land was not an integral and inseparable part of the creation of the overtaking lane that generated the injurious affection. 145 For the reasons which follow, I would allow the appeal. Compensation for injurious affection pursuant to s 25 of the LAA is not confined to loss arising from work on, or use of, the acquired land. In the present case the work undertaken on the Acquired Land was an integral and inseparable part of the construction of a safe and efficacious overtaking lane. As such there was a sufficient causal connection between the appellants’ injurious affection and the acquisition of their land to permit recovery. However, I would reject the appellants’ challenge to the primary judge’s assessment of their loss. Factual background 146 The trial proceeded on the basis of a statement of agreed facts, some relatively brief affidavit evidence of Craig Eckermann (the Delivery Manager, Projects from the Department for Infrastructure and Transport) and the appellants, and valuation reports and evidence from two valuation experts (Darcy Bruce and Tom Rowe). There is no dispute about the matters contained in the following summary of the relevant factual background. 147 The appellants owned the land situated at 1146 Long Valley Road, (the Road) Strathalbyn, being the whole of the land in Certificate of Title Volume 5322 -- 34 of 65 -- [2026] SASCA 82 S Doyle JA 35 Folio 300 (the Land).102 The Land comprised a slightly irregular shaped allotment of approximately 39 hectares, with a frontage along the western side of Long Valley Road of approximately 633 metres, and a depth along its northern boundary of approximately 760 metres. 148 In 2022, the respondent compulsorily acquired a portion of the Land, defined earlier as the Acquired Land, pursuant to his powers under the Highways Act 1926 (SA). The Acquired Land comprised a strip of land adjoining the Road, being approximately 633 metres in length and varying in width from about 14.59 metres to 21.79 metres, with a total area of 1.335 hectares. Upon the respondent acquiring the Acquired Land, the first appellant became the registered proprietor of the balance of the Land, being the whole of the land in Certificate of Title Volume 6277 Folio 693, and defined earlier as the Retained Land. 149 Improvements on the Retained Land include two dwellings, farm shedding, a dam, rainwater tanks and fencing. The appellants use the property for grazing and hay production, and as their residence. 150 Access to the Retained Land is via the Road, which is the main access route between Strathalbyn and Mount Barker, and ultimately the South-Eastern Freeway to Adelaide. The Road is used by approximately 7,000 vehicles per day, of which seven per cent are commercial vehicles. 151 The Acquired Land was acquired for the purpose of the Long Valley Road Overtaking Lane 2 and Turning Facilities Project (the Project). As part of the Project, an overtaking lane was constructed on the section of the Road adjacent to the Retained Land. This was one of two overtaking lane projects along this stretch of road, the other constructed under a separate project. 152 The Project works comprised: road construction (taking the Road from two lanes to three lanes, including 2.5 metre wide sealed shoulders and a 2.2 metre wide centre line treatment); G-turn facilities at both ends of the overtaking lane to provide access to properties adjacent to the Road; left turn (exit lanes) to the G- turn facilities; a median wire rope safety barrier separating the northbound and southbound traffic lanes; audio-tactile line markings; kerbing and guttering; construction of a (relocated) drain on the western side of the Road; guardrail safety barriers; relocation of services (such as phone and internet networks); and landscaping. 153 Construction commenced on 16 May 2023, and the overtaking lane was opened to traffic on 17 May 2024, with a speed limit of 100 km/h. This was the same speed limit as had applied previously to this section of the Road. 154 The components of the Project works constructed on the Acquired Land were the relocated drain, the relocated services, the landscaping, approximately 356 102 The first appellant was the registered proprietor, with the second appellant claiming an interest arising from her payments in respect of a mortgage over the Land. -- 35 of 65 -- [2026] SASCA 82 S Doyle JA 36 metres of guardrail safety barrier, and approximately 231 metres of kerbing and guttering. 155 The installation of the median wire separating the northbound and southbound lanes was a safety feature of the Project, designed to prevent head-on motor vehicle accidents. There had previously been free and unimpeded access to and from the appellants’ Land, with the ability to turn left or right in to or out of their driveway. The creation of the overtaking lane (and in particular, the installation of the median wire) has affected the ingress to, and egress from, the Retained Land in the following ways: • ingress to the Retained Land is now left-turn only. Southbound vehicles (travelling from Mount Barker towards Strathalbyn) must progress past the Retained Land for approximately 600 metres and then turn right at the G-turn facility located to the south of the Retained Land, followed by a return in a northerly direction and a left turn into the Retained Land; and • egress from the Retained Land is left-turn only. Southbound vehicles (travelling towards Strathalbyn) must turn left onto Long Valley Road and progress in a northerly direct for approximately 1.8 kms, and then turn right at the G-turn facility located to the north of Acquired Land to head south towards Strathalbyn. 156 In summary, the median wire prevents a right-hand turn onto the appellants’ property when travelling in a southerly direction from Adelaide, and prevents a right-hand turn from the appellants’ property in order to travel south to Strathalbyn. The loss of the facility to turn directly into the appellants’ driveway when travelling south, or to turn from their driveway into the southbound lane, has increased the distance and time to travel between their premises and both Adelaide and Strathalbyn. 157 The appellants claimed damages for the loss of this facility as injurious affection by reason of the compulsory acquisition of a portion of their Land. They supported this claim with a report from a valuer, Mr Bruce, who valued their loss at $102,270, being an estimate of the capitalised value of their increased travelling costs. 158 The respondent denied that any compensation for injurious affection was payable. Although the primary judge characterised the respondent’s opposition as based upon the fact that the median wire was not constructed on the Acquired Land, it appears his opposition was in fact more broadly based upon the absence of the requisite causal connection between the claimed injurious affection and the acquisition of the Acquired Land. In the alternative, the respondent argued that the alteration to the ingress and egress from the appellants’ land did not affect its value. -- 36 of 65 -- [2026] SASCA 82 S Doyle JA 37 159 For reasons outlined earlier, and explained in more detail below, the primary judge rejected the appellants’ claim for compensation. His Honour also indicated that if he were to have awarded compensation, he would have rejected the methodology applied by Mr Bruce, and relied instead on the valuer called by the respondent, Mr Rowe. He would have found that the diminution in the value of the Retained Land was in the order of 2.0 to 2.5 per cent of its value, and would have awarded $40,000 for injurious affection. Relevant provisions of the LAA 160 The issue to be determined on this appeal, namely the appellants’ entitlement to compensation for injurious affection, must be answered on a proper construction of the relevant provisions of the LAA. 161 The object of the LAA is to provide for the acquisition of land on just terms.103 162 The LAA does not, itself, authorise the acquisition of land. Rather, it creates the scheme by which land which is authorised to be acquired pursuant to another Act is acquired, and compensation paid. The land the subject of the appellants’ claim for compensation was acquired by the respondent pursuant to the Highways Act. 163 Section 22B of the LAA creates an entitlement to compensation for the acquisition of land in two broad categories of case: 22B—Entitlement to compensation (1) Subject to this Act, a person who has an alienable interest in land is entitled to compensation for the acquisition of the land under this Act if— (a) the person's interest in the land is divested or diminished by the acquisition; or (b) the enjoyment of the person's interest in the land is adversely affected by the acquisition. 164 Section 25 then sets out the principles governing the assessment of compensation. It relevantly provides: 25—Principles of compensation (1) The compensation payable under this Act in respect of the acquisition of land shall be determined according to the following principles: (a) the compensation payable to a claimant shall be such as adequately to compensate him for any loss that he has suffered by reason of the acquisition of the land; and 103 LAA, s 3. -- 37 of 65 -- [2026] SASCA 82 S Doyle JA 38 (b) in assessing the amount referred to in paragraph (a) of this section consideration may be given to— (i) the actual value of the subject land; and (ii) the loss occasioned by reason of severance, disturbance or injurious affection; and (c) compensation shall be fixed as at the date of acquisition of the land; and … (g) no allowance shall be made on account of the fact that the acquisition is effected without the consent, or against the will, of any person; and (h) no allowance shall be made for any enhancement or diminution in the value of the land in consequence of— (a) the passing of the special Act; or (b) the acquisition under this Act of any other land; or (c) any proposed or expected development of the land after its acquisition; and … (j) allowance shall be made in favour of the Authority for any enhancement in value of land adjoining the subject land in which the claimant is interested by reason of development of the land after its acquisition, but in no case shall the claimant be liable to make any payment to the Authority in respect of such enhancement in value; and … (2) The reference to loss in subsection (1)(a) extends, in the case of acquisition of native title, to diminution, impairment or other adverse effect on native title that results or will result from the acquisition project.1 (3) Subject to subsections (1) and (2), the total compensation payable for the acquisition of native title must not exceed the amount that would be payable for the acquisition of an estate in fee simple in the relevant land. (4) A reference in this section to a claimant is limited to a claimant who is entitled to compensation.2 Explanatory Notes— 1 Compare section 51(1) of the Native Title Act 1993 (Cth). 2 See section 22B. 165 Relevantly for present purposes, s 25(1)(a) of the LAA establishes the guiding principle of adequate compensation for any loss suffered ‘by reason of the acquisition of the land.’ To this end, s 25(1)(b)(i) provides for compensation for -- 38 of 65 -- [2026] SASCA 82 S Doyle JA 39 the value of the acquired land; and s 25(1)(b)(ii) of the LAA identifies other heads of loss for which compensation is available, being loss occasioned ‘by reason of’ severance, disturbance or injurious affection. 166 Speaking generally, compensation for severance is payable for the loss of the contribution, formerly made by the acquired land, to the optimisation of the use of the retained land. Compensation for disturbance is payable where the acquisition of the land reasonably requires the performance of works on the retained land to maintain its pre-acquisition use or the relocation of activities formerly performed on the retained land. 167 Compensation for injurious affection is payable where the acquisition has adversely affected the continuing pre-acquisition use and enjoyment of the remaining land. Injurious affection encompasses any injurious consequence which depreciates the value, or increases the cost, of using the retained land. This may include where the acquisition causes physical damage to that land, limits the activities on or use of that land, interferes with the amenity or character of that land, deters purchasers from buying that land, or makes it more expensive to use that land.104 168 As the primary judge explained, altered ingress and egress to the retained land may result in loss in the nature of injurious affection, severance or disturbance, depending on the particular way and degree in which the retained land is affected, and whether remedial works on that land can provide alternative ingress and egress. For example, if the acquisition of the land removes a driveway from the remaining land necessitating the construction of an alternative path that is similarly efficacious and practically available, the loss may be limited to disturbance and not injurious affection. In the generality of cases, the compensation for that loss would be assessed as the cost of constructing the alternative path but, in some cases, there may be an additional diminution in the value of the land. If there is no practical alternative available, the loss suffered would be in the nature of severance. 169 Focussing upon the claim for injurious affection in the present case, the use of the words ‘by reason of’ in each of s 22B(1)(b) and ss 25(1)(a) and (b)(ii) introduce a causal test. Under s 25(1)(b)(ii), the loss claimed must be occasioned ‘by reason of’ injurious affection. But in addition to this, and mirroring the causal requirement in s 22B(1)(b), s 25(1)(a) requires that the loss claimed be suffered ‘by reason of the acquisition of the land’. 170 The determination of this appeal requires closer consideration of the nature and strength of the causal connection inherent in the requirement that the injurious affection be suffered ‘by reason of the acquisition of the land’. Accepting that this causal test is capable of a range of meanings, it is useful to consider the issue by 104 Marshall at [46] (McHugh J). -- 39 of 65 -- [2026] SASCA 82 S Doyle JA 40 reference to three different constructions of the right to compensation for injurious affection posited by the respondent: • On a narrow construction, a claimant would only be entitled to compensation for injurious affection to the retained land if the injurious affection emanates from work or activities undertaken on, or the use of, the acquired land. In other words, the narrow construction requires a physical, geographical or spatial connection between the use or work on the acquired land and the injurious affection. • On a broad construction, a claimant would be entitled to compensation for any injurious affection to the retained land which was a consequence of the acquisition project pursuant to which the acquisition occurred. • On an intermediate construction, a claimant would be entitled to compensation for injurious affection to the retained land where the use of the acquired land is an ‘integral and inseparable’ part of the activity which gave rise to the injurious affection (whether physically emanating from the acquired land or not). 171 It is convenient to commence by outlining the primary judge’s approach to the requisite causal connection, before addressing the relevant authorities and then setting out my own views. Primary judge’s reasons 172 The primary judge commenced his analysis of the requisite causal connection by observing that it involved a question of fact, or evaluative judgment, to be determined having regard to the relevant statutory context.105 173 His Honour noted that there was no express wording which would confine compensation to the narrow construction, and hence to injurious affection solely or directly referrable to activities or work undertaken on the Acquired Land.106 Conversely, his Honour also considered that it would not be appropriate to permit compensation for any injurious affection arising from the acquisition project as a whole. His Honour acknowledged that it might be said that the entire project would not have been possible were it not for the power of compulsory acquisition, and that in that sense, the landowner might be said to have had a power of veto were it not for the authority’s compulsory powers. However, his Honour considered that s 25(1)(g) of the LAA prohibited compensation for the statutory abrogation of any such power to veto the project.107 As his Honour added, satisfaction of this ‘but for’ style of analysis is not generally regarded as sufficient 105 Reasons at [27]. 106 Reasons at [27]. 107 Reasons at [28]. -- 40 of 65 -- [2026] SASCA 82 S Doyle JA 41 to satisfy the common sense and practical approach of the common law to causation.108 174 Having noted the potential for these narrow and broad constructions of the requisite causal connection, the primary judge observed that there was ‘an undistributed middle between these two termini … where a commonsense and pragmatic causation test is satisfied because the land acquired substantially or materially facilitates the development which generates the injurious affection’.109 In his Honour’s view, the present case fell within that intermediate category of cases:110 That is the case here. Even though the median wire was not erected on the land acquired from the [appellants], there is no doubt that the relocation of the drain services, the landscaping of the western verge and the curbing, guttering and guard rail safety barrier were integral to the construction of the passing lane. The median wire was an integral part of the construction of the overtaking lane. The safety imperative to separate traffic travelling in opposite directions when there is an overtaking lane is plain to see. There is a real risk that the overtaking lane may be used both by vehicles travelling north and vehicles travelling south at the same time. The median wire obviates that risk. Equally, a conclusion that the acquisition caused the injurious affection could properly be made if there was no median wire rope safety barrier but instead a road rule prohibiting turning across an overtaking lane. Moreover, that conclusion would pertain whether the lane was entirely, or even partly, on the acquired land and if the acquired land provided a drained verge for that lane. 175 The primary judge then turned to address the authorities, stating that there was ‘strong authority in this Court for the proposition that only injurious affection which is suffered by reason of activity undertaken on the acquired land is compensable’.111 His Honour was referring in this respect to the decision of the Full Court of the Supreme Court in McInnes, which in turn had relied upon the earlier decision of the English Court of appeal in Edwards. After considering those cases at some length, his Honour concluded that in McInnes, Olsson J, with whom King CJ and Mullighan J agreed, had followed the decision in Edwards in holding that compensation was only payable in respect of activities conducted on the very land acquired. In other words, his Honour accepted that the decision in McInnes was authority for what I have referred to as the narrow construction of the causal connection required by the words ‘by reason of the acquisition of the land’ in s 25 of the LAA.112 176 The primary judge was critical of Olsson J’s reasoning in favour of the narrow construction, suggesting that it was not required either by the wording of the section, or in order to avoid compensation as though there was a power of veto.113 His Honour also considered that the result in McInnes (that is, the refusal 108 Reasons at [29]. 109 Reasons at [31]. 110 Reasons at [32]. 111 Reasons at [33]. 112 Reasons at [53]. 113 Reasons at [55]. -- 41 of 65 -- [2026] SASCA 82 S Doyle JA 42 of compensation) could be justified without adopting the restrictive rule adopted in Edwards.114 It could be explained by the fact that the diminution in the value of the hotel business claimed as injurious affection was the result of the loss of a frontage by reason of a re-routing of the new highway, rather than the construction of the new highway. 177 The primary judge also addressed the High Court’s reasoning in Marshall in relation to the equivalent Queensland legislation, which confined compensation to damage caused by ‘the exercise of any statutory powers’, observing that it involved a rejection of the reasoning in Edwards on which the decision in McInnes was founded. 178 However, in ultimately rejecting the appellants’ claim for injurious affection, the primary judge regarded himself as bound by McInnes:115 The decision in Marshall rejects the reasoning in Edwards on which founded the decision in McInnes. It supports the application of a common-sense causal test. It rejects the implication of a limitation which restricted injurious affection to that generated on the acquired land itself. The words of s 20(1)(b) of the ALA (Qld) can have no bearing on whether that limitation should be implied. The decision in Marshall denying any basis for the implied limitation is as applicable to the words ‘caused by … the exercise of any statutory power’ as it is the words ‘by reason of the acquisition’. However, as a single judge I remain bound by the decision of the Full Court in McInnes. I therefore dismiss the [appellants’] application. The authorities 179 In considering the authorities bearing upon the issue on appeal, a convenient starting point is the decision of the English Court of Appeal in Edwards. This decision is often cited as authority for the narrow approach to compensation for injurious affection; that is, confining compensation to damage from work on, or the use of, the land acquired from the claimant, as opposed to damage arising from any broader consequences of the project of which the acquisition formed part. Edwards v Minister of Transport 180 The claimant owned a house on about two acres of land, with an adjacent grazing field of about two and a half acres. Under powers conferred by particular highway legislation, the Minister of Transport constructed a large trunk road on an embankment which passed by the claimant’s land. To construct the road, the Minister compulsorily acquired two small triangular pieces of land from the claimant. Although for most of its length the road did not impact on the claimant’s property, the evidence indicated that, because the road rose somewhat steeply where it passed his house, the claimant would be considerably disturbed by dust, noise and the flashing lights of traffic. 114 Reasons at [57]. 115 Reasons at [74]-[75]. -- 42 of 65 -- [2026] SASCA 82 S Doyle JA 43 181 Under s 63 of the Land Clauses Consolidation Act 1845 (UK), the claimant was entitled to compensation not only for the land acquired from him, but also for the damage sustained ‘by reason of the severing of’ the acquired land from the retained land, or ‘otherwise injuriously affecting such other lands by the exercise of the powers of this or the Special Act’. 182 Before the Land Tribunal, it was agreed that the claimant would be entitled to £4,000 compensation for the acquisition of the acquired land, and injurious affection to the remainder of his land, if the latter were to be assessed on the basis of the impact of the construction of road generally; but he would only be entitled to £1,600 compensation if it were to be restricted to the impact caused by acts done on the acquired land. 183 In awarding compensation in the higher amount, the Land Tribunal took into account what it referred to as the ‘veto principle’, namely that if the Minister had no compulsory acquisition powers, the claimant could have refused to sell, unless he were compensated for all the damage his entire holding would suffer by construction of the road. It followed, on the Land Tribunal’s reasoning, that the claimant was entitled to compensation for all damage arising from the exercise of any of the Minister’s legislative powers, wherever they were exercised. 184 On appeal to the English Court of Appeal, however, the Court held that compensation under s 63 was confined to compensation for damage arising from things done on the acquired land. Accordingly, the claimant was only entitled to compensation in the lower amount. 185 In the leading judgment, Harman LJ considered that the prevailing academic and judicial view was that compensation was not payable in respect of what is done on lands other than those taken from the claimant.116 In analysing the authorities which he considered provided support for this view,117 his Lordship included reference to a justification for the narrow view of the compensation payable being that it reflects an amount payable for what was in effect a legislative sanction of what would otherwise have been an actionable wrong (seemingly, trespass to the claimant’s land). As there could have been no actionable wrong in respect of activities on land which did not belong to the claimant, the rationale for the compensation did not extend to those activities.118 186 His Lordship rejected the Land Tribunal’s reliance upon the veto principle:119 116 Edwards at 146 (Harman LJ). 117 Edwards at 146-155 (Harman LJ), referring to: In re the Stockport, Timperley and Altringham Railway Co (1864) 33 LJQB 251, Cowper Essex v Acton Local Board (1889) 14 App Cas 153; Horton v Colwyn Bay and Colwyn Urban Council [1908] 1 KB 327; Duke of Buccleuch v Metropolitan Board of Works (1872) LR 5 HL 418; and Sisters of Charity of Rockingham v The King [1922] 2 AC 315. 118 Edwards at 144-148 (Harman LJ), referring in particular to the reasons of Crompton J in In re the Stockport, Timperley and Altringham Railway Co (1864) 33 LJQB 251. 119 Edwards at 156 (Harman LJ). -- 43 of 65 -- [2026] SASCA 82 S Doyle JA 44 The Tribunal seems to have thought that if that were so [that is, if the claimant could have exercised a power of veto], then that would justify the compensation being put at the whole value of the damage which has ensued. Quite apart from the question of whether the tribunal was justified in entering upon speculation of that kind, I do not find anywhere in the text books or in any of the authorities any suggestion that a kind of ransom value, to which a man having a power of veto might hold the promoting authority, was the measure of his damage; for in fact he does not have a right of veto and the question, therefore, does not really arise. 187 Having rejected the veto principle as a basis for the broader view of the compensation payable, and despite some reservations about how the lower figure was calculated,120 his Lordship supported the narrower view of the compensation payable:121 [The veto principle] being the consideration upon which the tribunal based his decision to fly in the face of all the authorities, as it seems to me, and to give full compensation, although, as he admitted, the most substantial part of that compensation was caused before ever the traffic using the by-pass ever got on to the claimant’s land at all, on the occasions when traffic was coming up the hill on land taken over from other people, then I think he was not justified, and if he was not justified, it is admitted that the other figure holds the field. That is supposed to be the damage actually caused to the respondent by the noise, vibration, smoke and what not, actually done on the piece of land of which he has been deprived. It is not for us to go into questions of quantum or to wonder how the sum was arrived at … 188 Both Donovan and Russell LJJ wrote short concurring reasons. It is useful to set out the key passage from the former’s reasons, as it both clearly states the decision reached, whilst also exposing and acknowledging its artificiality:122 If a public authority acting under statutory powers constructs a highway opposite my house but takes none of my land for the purpose, I cannot claim compensation for any diminution of value of my house caused by the noise and other inconveniences inflicted by the traffic. If, on the other hand, part of my frontage is compulsorily acquired and made part of the new highway, the position is different. Then I may claim not only the value of the land taken but also something in respect of any consequential diminution of value of my house (see section 63 of Lands Clauses Act of 1845). In assessing this latter claim, however, regard must be had only to things done on the land taken from me. Where a highway is concerned, this restriction is of course artificial. The noise of traffic will begin well before it reaches the plot of land which was formerly part of my frontage and it may continue long after traffic has passed it. All the noise will contribute to any diminution of the value of my house; and it will be very difficult at times to say how much of that diminution of value is due to what the traffic does simply on the land taken from me. It has, however, been done by agreement in this case and the diminution in value is £1,600. If one could take into account the total noise and inconvenience of traffic as it approached and passed the present claimant’s house, the compensation due to him under this head would be £4,000, for that is the agreed total diminution in the value of his house. But one cannot take such total noise and inconvenience into account for this purpose. To do so would be contrary to the true construction if section 63 of the Act of 1845, when it speaks of damage ‘… injuriously affecting such other lands by the exercise of the powers of this or the special 120 Referring, at 145, to the agreed figure of £1,600 being based upon ‘some alchemy which I do not understand at all’. 121 Edwards at 156 (Harman LJ). 122 Edwards at 157 (Donovan LJ). -- 44 of 65 -- [2026] SASCA 82 S Doyle JA 45 Act …’ is, in my opinion, referring only to damage due to things happening on the land compulsorily taken. The contrary view is also against authority … 189 The decision in Edwards was apparently greeted with criticism. It was argued that it relied upon artificial distinctions. It was said to draw a distinction between a case where only a shoulder or embankment was constructed on the acquired land (where no compensation would be payable), and a case where a part of the highway was on the acquired land (where compensation would be payable). In the latter case, it was also said to draw a distinction between the damage arising from traffic on the part of highway on the acquired land, and the damage arising from the traffic on other parts of the highway. 190 Indeed, the legislation in the United Kingdom was amended in 1973 to reverse the effect of the decision in Edwards.123 Commonwealth v Morison 191 In Commonwealth v Morison,124 the High Court distinguished the approach taken in Edwards, or at least confined it to cases where there was a proper basis in the evidence for distinguishing between the damage arising from activities on the acquired land, and activities associated with the project of which the acquisition forms part. 192 The case arose out of the Commonwealth’s acquisition of land adjacent to an airport for the purpose of extending the airport, and making it suitable for the use of jets. The owner of the acquired land, who retained land abutting the extended airport, claimed compensation under s 23(1)(c) of the Lands Acquisition Act 1955 (Cth) for the depreciation in the value of his retained land ‘by reason of the carrying out or the proposal to carry out the public purpose for which the land was required’. 193 The High Court (Barwick CJ, McTiernan, Menzies, Walsh and Gibbs JJ) unanimously held that compensation had been properly assessed on the footing that allowance should be made for the depreciation in value of the adjacent land by reason of the use of the whole of the extended airport. Compensation was limited to allowance for depreciatory effects exclusively traceable to the construction and use of works on the acquired land. 194 Whilst unanimous as to the outcome, there are differences in the reasoning of various members of the Court. At a general level, it may be observed that, in departing from the approach taken in Edwards, Barwick CJ (with whom McTiernan J agreed) and Walsh J focussed upon the inability in the case before them to isolate the damage which was exclusively referable to activities on the 123 Land Compensation Act 1973 (UK), s 44, which requires compensation for injurious affection now to be assessed by reference to the effect of the whole of the works of the acquiring authority and not just those on the acquired land. 124 Commonwealth v Morison (1972) 127 CLR 32 (Morison). -- 45 of 65 -- [2026] SASCA 82 S Doyle JA 46 acquired land, whereas Menzies and Gibbs JJ relied more upon the difference in the statutory language. 195 Whilst noting the difference in the statutory language between s 63 of the legislation under consideration in Edwards and s 23(1)(c) of the Lands Acquisition Act, Barwick CJ explained his focus upon the factual difference between the two cases as follows:125 Where the work to be done in carrying out the statutory powers, and the stated public purpose, are, in each case, wholly confined to the acquired land, little difference in my opinion, can exist in the application, vis-à-vis the assessment of compensation, of the two provisions, i.e. s 63 and s 23(1)(c). But where the accomplishment of the stated public purpose involves the use of other land in conjunction with the acquired land, divergence of result might possibly arise in the application of s 23(1) as compared with the application of s 63 in identical circumstances, particularly if the statutory powers to which that section refers are limited to the use of the acquired land. It seems to me that the formulae of s 63 and s 23(1) are not identical and that s 23(1) is not an attempt to re-express the provisions of s 63. But that does not mean, in my opinion, that the principle which underlies each provision is not the same or that the decisions so far made on s 63 are irrelevant in all cases to the application of s 23. It is, in my opinion, a sound principle in the application of s 23 that the depreciation in value of retained land for which compensation is to be given is the depreciation caused by the use of the constructions placed on the acquired land. In a case in which it is possible to isolate the depreciatory factors to the work done upon or to the use of the work done upon the acquired land, it would be proper, in my opinion, to confine the depreciation in value to the effect of those factors. After all, it is the fact of acquisition of his land which alone gives the claimant any right of compensation for the use by government, or an authorized person or body, of any facility adjoining his land. But it does not follow, in a case such as the present, that because the acquisition is the source of the right to compensation for depreciation in value, the compensable depreciation may not include the effect of the use of the constructions on the acquired land in combination with other land and the constructions thereon. In a real sense the results of the use of the constructions on the combined areas can properly be said, in my opinion, to flow from the use of the constructions on the acquired land. After much consideration, I see no practical way in which in the facts and circumstances of this case, the effect of the use of the constructions on the acquired land could be isolated so that it related exclusively to such use. 196 In then referring to Edwards, Barwick CJ emphasised that that case was presented on the footing that a separate and identifiable depreciatory effect could be attributed exclusively to the work done, and the use made of the work done, on the acquired land.126 His Honour contrasted that with the case before him:127 I think that, in practical terms, it could be concluded that the whole depreciation in value due to the use of the extended aerodrome as a jet airport was referrable in the circumstances to the works constructed on the acquired land and their use. Such a conclusion on the facts and circumstances of this case is not, in my opinion, contrary to any of the decided cases. 197 Barwick CJ added that his conclusion was ‘in line with the tendency of decision in American courts’. His Honour referred in this respect to a passage 125 Morison at 38-39 (Barwick CJ, McTiernan J agreeing) (see also at 41-42). 126 Morison at 40 (Barwick CJ, McTiernan J agreeing). 127 Morison at 41 (Barwick CJ, McTiernan J agreeing). -- 46 of 65 -- [2026] SASCA 82 S Doyle JA 47 from the Corpus Juris Secundum in which it was said that the basic rule was that damages for injurious affection should be limited to damage arising from the acquired land, but that some courts had modified this rule. They had modified this rule such that where the use of the acquired land ‘constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put’, the land owner is entitled to recover full compensation for the damage, even though some of the damage may be attributable to work on, or use of, adjoining land acquired from others. The basic rule continues to apply, and to confine recovery for damage from use of the acquired land, where the use of that land was found to give rise to ‘separable consequential damages’.128 198 McTiernan J agreed with Barwick CJ.129 199 In his separate reasons, Walsh J reasoned similarly. His Honour commenced by observing that, putting authority to one side, he preferred the broader view adopted in the decision under appeal:130 It would be unreal, in my opinion, to say that the public purpose for which the land was acquired was nothing more than the purpose of enabling aircraft to traverse an additional length of runway to be constructed on the land acquired from the respondent and the purpose of providing some incidental facilities, such as navigational aids. The purpose of the acquisition was to extend the airport in such a way that the jet aircraft could operate. 200 His Honour then proceeded to refer to a number of the English cases, including Edwards, but considered that the narrow view applied in those cases did not apply where it was not possible to separately ascertain the damage caused by the use of the acquired land:131 If the circumstances are such that it is not possible to ascertain an amount by which a decrease in value can be found to have resulted solely from so much of the harmful activities as will take place upon the particular parcel of land acquired from the complainant, the decisions should not be taken, in my opinion, to require the tribunal assessing compensation to adopt some arbitrary process of computing an amount to be awarded, e.g., by taking that proportion of the total depreciation which the area of the land taken bears to the whole area upon which the activities are conducted. Nor do the decisions require that where a real dissection of the total amount of depreciation is not possible the claimant should receive nothing for depreciation of his retained land. Where it is not possible separately to ascertain the damage caused to the remainder of the claimant’s land by the taking and the proposed use of part of it, that use being an inseparable part of a single use to which that land and other adjoining land are put, it has been held in American decisions that the landowner is entitled to recover the full amount of the damage caused to his retained land ... In my opinion the English decisions do not deny the validity of a similar rule to the statutes upon which those decisions were given and do not require the denial of its validity in this case.... The decisions do indicate, I think, that the tribunal 128 Morison at 41 (Barwick CJ, McTiernan J agreeing), referring to Corpus Juris Secundum, vol 29A, ‘Eminent Domain’, par 139, pp 588-589. 129 Morrison at 42 (McTiernan J). 130 Morison at 46 (Walsh J). 131 Morison at 52-53 (Walsh J). -- 47 of 65 -- [2026] SASCA 82 S Doyle JA 48 should make an appropriate dissection of the total amount of damage where this can be done, although that may be a difficult task. But they cannot go any further than that. 201 His Honour concluded that, in circumstances where the evidence did not permit an apportionment of the depreciation in the value of the retained land between what was caused by activities on the acquired land and what was caused by activities on other land comprised within the airport, it was not necessary for him to decide whether or not the English cases should be applied in (other) cases where the facts are such that it is possible to apply them.132 202 Menzies J on the other hand, reached the same conclusion by the more direct route of distinguishing between the different legislative provisions. 203 His Honour commenced his reasons by noting what he described as a number of obvious objections to the narrow approach contended for by the Commonwealth, including artificial distinctions of the type I have mentioned earlier in these reasons when referring to criticisms of that approach. His Honour preferred a broad approach to the compensation payable:133 I do not think this section requires artificiality of the sort that the Commonwealth construction would demand. Regard is to be had to the depreciation in value of retained land by reason of the proposal to carry out the public purpose for which land taken was acquired and the natural sense of this provision requires that regard should be had to the whole purpose for which land was acquired and not merely to so much of the purpose as is to be fulfilled upon the land taken from a single land owner. 204 Menzies J referred to the English cases, including Edwards, relied upon by the Commonwealth as supporting a narrower view, but disregarded them as based upon different legislation:134 If s 23(1)(c) were in pari materia with the English section, these authorities might be of overwhelming weight, but it is not. No good purpose would be served by discussing the language of s 63 of the Lands Clauses Consolidation Act. It is sufficient to say that its language is quite different from that to be found in s 23(1)(c). Accordingly, I cannot regard the authorities relied upon by the Solicitor-General as determining the construction of the Commonwealth statute. The construction of s 23(1)(c), unencumbered by authorities upon different statutes, is not, I think, in doubt. 205 Gibbs J also emphasised the particular terms of the legislation under consideration. His Honour considered that the Commonwealth’s submission in favour of the narrow view ‘appears at first sight to be opposed to the words of 132 Morison at 53-54 (Walsh J). 133 Morison at 44 (Menzies J). 134 Morison at 45 (Menzies J). -- 48 of 65 -- [2026] SASCA 82 S Doyle JA 49 s 23(1)(c)’.135 His Honour proceeded to reject the Commonwealth’s reliance upon Edwards given the different statutory language:136 In my opinion, the words of s 63 of the Lands Clauses Consolidation Act (UK) upon which the English decisions were given are materially different from those of s 23(1)(c) of the Act. The ‘exercise of powers’ referred to in s 63 appears to mean the particular exercise of statutory powers by which the land in question was taken. Since the section referred to injurious affection arising from the exercise of the powers to take the land, it is understandable that it was held to limit compensation to the damage resulting from what was done or expected to be done on the land actually taken. In other words, it is natural to confine damage resulting from the exercise of a power of resumption to damage caused by activity on the land resumed. However, depreciation caused by carrying out the public purpose for which land was acquired may be more extensive than depreciation caused by the use of the land acquired, because the public purpose may involve the use of the land acquired in conjunction with other land, and in carrying out the public purpose use may be made of land other than that resumed. Marshall v Director General, Department of Transport 206 The High Court next considered compensation for injurious affection in Marshall. Once again, the Court unanimously permitted compensation for damages beyond what was attributable to activities on the acquired land. In taking a broad view of the permissible compensation, and rejecting the narrow view in Edwards, the Court both distinguished the legislative language and criticised the reasoning of the English Court of Appeal in that case. 207 The claim for compensation in Marshall related to a constructing authority’s compulsory acquisition of land from the claimant for the purpose of extending a highway. It transpired that no part of the widened highway or the consequently altered drainage system was constructed on the acquired land. The acquired land was used only for rock spill from the batters supporting the highway. The rock spill did not form part of the road embankment; it was surplus material with no discernible structural or engineering purpose. The claimant sought compensation, including for injurious affection on the basis that the altered drainage system had made the retained land more susceptible to flooding. Under s 20(1)(b) of the Acquisition of Land Act 1967 (Qld), compensation was payable for the damage caused by ‘the exercise of any statutory powers by the constructing authority otherwise injuriously affecting’ other land of the claimant. 208 The courts below had refused the claim for compensation for injurious affection. In particular, the Queensland Court of Appeal applied the narrow approach to compensation for injurious affection in Edwards, suggesting that the criticisms of that decision were ‘legally unsound’:137 Indeed the criticisms have proceeded upon the basis of inequality of result according to artificial criteria. The principles are principally of legislative unfairness, and their subject 135 Morison at 56 (Gibbs J). 136 Morrison at 56-57 (Gibbs J). 137 Marshall v Director-General, Department of Transport [1999] QCA 440 at [35] (de Jersey CJ, Davies and Thomas JJA). -- 49 of 65 -- [2026] SASCA 82 S Doyle JA 50 matter goes beyond the consequences of Edwards, adverting particularly to persons affected by a public project without having any of their land taken, and who accordingly are not eligible for compensation. Other points of criticism involve the types of nuisance for which Australian law has not provided compensation for land owners affected by public projects. Such matters involve wide-ranging aspects of public policy with complex social and economic consequences. It is significant that despite the existence of such criticism over many years, and despite various amendments in some jurisdictions, no ideal solution seems to have emerged to satisfy the community’s desire for both progress and compensation. The criteria settled in Edwards may not be ideal, but they have the virtue of relative certainty, and have been well understood for many years. If they are to be replaced by some other criteria this should be done by the legislature. It is interesting to note that this was done in the United Kingdom in 1973 by s 44 of the Land Compensation Act which requires compensation for injurious affection now to be assessed by reference to the effect of the whole of the works of the acquiring authority and not only those performed on land acquired from the claimant. Edwards has been consistently followed in this State for many years … [and] applied in other jurisdictions within and beyond Australia, but it is unnecessary to pursue its application further. For the purpose of s 20 of the Acquisition of Land Act 1967 it may be taken as settled law. 209 In commencing their joint reasons for allowing the appeal to the High Court, the plurality (Gleeson CJ, Gummow, Kirby and Callinan JJ) framed the issue as whether compensation for injurious affection payable to a dispossessed landowner pursuant to s 20 of the Acquisition of Land Act was restricted to compensation for the impact of work done on the actual land taken, and the precise use to which that land is put. 210 Whilst noting some similarities in the language used in s 20 of the Acquisition of Land Act and the English legislation under consideration in Edwards, the plurality considered that the language of the former required a broader view:138 In our opinion, however, the language of s 20(1)(b) of the Act could hardly be plainer. In assessing compensation, regard is to be had not only to the value of the land taken but also to the damage caused by the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other [the remaining, severed] land. The section does not say ‘the exercise of any statutory powers by the constructing authority on and only on the land taken …’. The section clearly distinguishes between the land taken and the severed land. It does not seek to distinguish between the various activities carried out by a constructing authority in the exercise of its statutory powers: for example, the conduct of a survey, the construction of a road, the building of a bridge, the installation of drainage or footpaths beside the road, and the subsequent use of everything that has been done or brought into existence as, and for the purposes of, a road. In truth, all of these can relevantly and properly be characterised as part and parcel of the construction, and subsequently the use of the road. Once the constructing authority acquires land for a statutory purpose, it must, pursuant to s 20(1)(b) of the Act, compensate the dispossessed owner for the injurious effect upon the residual land resulting from the undertaking and the implementation of that purpose, actual and prospective. 138 Marshall at [20] (Gleeson CJ, Gummow, Kirby and Callinan JJ). -- 50 of 65 -- [2026] SASCA 82 S Doyle JA 51 211 Their Honours proceeded to explain that, the constructing authority having exercised its statutory power to acquire the claimant’s land for ‘road purposes’, the acquired land was used for that purpose:139 The correct view is, in our opinion, that the land, whether it is a site for the deposition of residue from the road works, a site for the support of a batter, or for drainage associated with the roadworks, or for future road-widenings, or has a use as a passive buffer, is land used for ‘road purposes’, the Bruce Highway. 212 Rejecting the Court of Appeal’s suggestion that a majority of the High Court in Morison had impliedly approved the reasoning in Edwards,140 the plurality explained:141 The correctness of Edwards has, understandably in our opinion, been questioned. … Certainly we do not read what was said in Morison as an endorsement, enthusiastic or otherwise, of Edwards. In Morison, although Barwick CJ appeared to accept the correctness of Edwards, his Honour expressed some scepticism about the way in which the principle for which it stood could be applied to an assessment of compensation for injurious affection … Menzies J distinguished Edwards. Walsh J did not think it threw much light upon s 23 of the Commonwealth Act which the Court had under consideration there. … Walsh J thought that in any event, … Edwards … [was] distinguishable, and, as the Court of Appeal said in the present case, both Menzies J and Gibbs J concluded that the depreciatory effect on the balance land was to be assessed according to the effect of the overall carrying out of the public purpose of the resuming authorities. But it should not be overlooked that Barwick CJ reached a similar conclusion by a slightly different process of reasoning. 213 The plurality did not attach any weight to the suggestion of artificiality in taking a broad view to compensation whilst excluding from compensation those who had not had any of their land acquired:142 It is no answer to say, as was suggested by the respondent in the argument here, that there may be others who have lost no land but who may be either equally, or almost equally, injuriously affected in the enjoyment of their land by the implementation of a constructing authority’s purpose, yet have no entitlement to any compensation. That is irrelevant. The fact that the enjoyment or utilisation by them of their property may have been adversely affected, and indeed, perhaps unfairly so by reason of the unavailability to them of compensation, provides no reason to distort the language of the Act, and to deprive others, who have lost land, of compensation for injurious affection. 214 Their Honours also rejected several other arguments advanced in favour of a narrow view, dismissing some as raising mere factual issues for resolution in an individual case.143 Their Honours concluded by stating that not only had the 139 Marshall at [22] (Gleeson CJ, Gummow, Kirby and Callinan JJ). 140 Marshall at [15] (Gleeson CJ, Gummow, Kirby and Callinan JJ). 141 Marshall at [23]-[25] (Gleeson CJ, Gummow, Kirby and Callinan JJ) (omitting citations). 142 Marshall at [28] (Gleeson CJ, Gummow, Kirby and Callinan JJ). 143 Marshall at [29]-[31] (Gleeson CJ, Gummow, Kirby and Callinan JJ). -- 51 of 65 -- [2026] SASCA 82 S Doyle JA 52 reasoning in Edwards not been embraced by the High Court in Morison, but also, in their Honours’ opinion, it was unconvincing.144 215 The plurality concluded by stating their support for a broader view of the compensation payable for injurious affection under the legislation applicable in that case:145 The appellant is entitled to have compensation assessed for injurious affection to his remaining land resulting from the exercise of the respondent’s power in duplicating the highway. Just as each pylon in Beaver Dredging was an integral part of a power line constructed by the authority there, and, as Barwick CJ in Morison said, regard should be had to ‘the use of the construction on the acquired land in combination with other land and the construction thereon’. The use of the appellant’s land acquired here should be taken in combination with the use of other land for the duplication of the highway, for the purposes of assessing the damage to the appellant’s remaining land by reason of injurious affection to it. The acquisition of the land, the work done on it, and the use, passive or active, to which it is put in pursuance of a statutory purpose such as that involved here, will form part of the exercise of the relevant statutory power so as to give rise to a right to compensation for such injurious affection as is caused to remaining land by reason of the exercise of the power. If it were otherwise, the authority would have neither the need nor the legal right to acquire the land in question. 216 In her short reasons concurring with the plurality, Gaudron J emphasised that the right to compensation for injurious affection was an important right, and that while the relevant legislative provisions should be given their natural and ordinary meaning, they should nevertheless be construed ‘with all the generality that their words permit’ and not subjected to any ‘limitations or qualifications which are not found in the terms of the statute’.146 Her Honour said that when s 20 was construed in accordance with these principles, the limitation suggested in Edwards must be rejected.147 217 McHugh J also supported a broad view of the right to compensation:148 The natural and ordinary meaning of s 20(1)(b) of the Act directs the relevant tribunal, when determining the amount of compensation to be awarded to the claimant, to have regard to any damage caused by the exercise of any statutory powers by the constructing authority injuriously affecting the land of the claimant that he or she retains after the severance. … Nothing in the section gives any ground for supposing that compensation for injurious affection is conditioned on the statutory powers of the constructing authority being exercised on the resumed land. All that the claimant is required to prove is that the exercise of a statutory power by the constructing authority injuriously affected the ‘other land’ of the claimant. 144 Marshall at [32] (Gleeson CJ, Gummow, Kirby and Callinan JJ). 145 Marshall at [33]-[34] (Gleeson CJ, Gummow, Kirby and Callinan JJ). 146 Marshall at [38] (Gaudron J). 147 Marshall at [39] (Gaudron J). 148 Marshall at [44] (McHugh J). -- 52 of 65 -- [2026] SASCA 82 S Doyle JA 53 218 His Honour added that ‘no narrow view should be taken of what constitutes the exercise of a statutory power when the acts or omission of the constructing authority have resulted or will result in damage to the remaining land of the claimant’.149 219 McHugh J noted the narrow approach that had been taken in the English cases concerned with injurious affection, including Edwards.150 His Honour acknowledged that, in Morison, Barwick CJ (with whom McTiernan J agreed) had held that this approach was applicable to s 23(1)(c) of the Land Acquisition Act 1955 (Cth) despite the textual differences in the legislation, but noted that his Honour had nevertheless held that, on the facts of that case, it was not possible to isolate the factors causing the depreciation in the value of the retained land with the result that compensation was payable for the whole of that depreciation.151 However, Menzies and Gibbs JJ had said the English decisions were not applicable to s 23(1)(c); and Walsh J, whilst apparently inclining to the view that they were applicable, did not so say in terms. In those circumstances, McHugh J considered that the High Court’s decision in Morison ‘cannot be regarded as deciding that those decisions applied’ to s 23(1)(c) of the Commonwealth legislation.152 220 McHugh J acknowledged that the case law provided ‘formidable support’ for the narrow view, but considered that the language of s 20(1)(b) of the Queensland legislation was ‘too clear to read it down by reference to the English cases’ that were decided on similar but different legislative provisions.153 His Honour doubted that it was appropriate to distinguish the English cases, as Gibbs J had done in Morison, on the basis that the reference in s 63 of the English legislation to the exercise of powers was confined to the statutory powers by which the land in question was acquired.154 Indeed, his Honour suggested it was not easy to see anything in s 63 which supported limiting compensation to consequences arising from the use or works on the acquired land.155 However, despite not being satisfied there was a persuasive basis to distinguish the English legislation, his Honour said that this ‘does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow the judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation’.156 221 McHugh J concluded that the principles expounded in the English decisions were not applicable to s 20(1)(b) of the Queensland legislation. In particular, it was not a condition of a claim for injurious affection under that section that the 149 Marshall at [47] (McHugh J). 150 Marshall at [54] (McHugh J). 151 Marshall at [55] (McHugh J). 152 Marshall at [56]-[58] (McHugh J). 153 Marshall at [59] (McHugh J). 154 Marshall at [59]-[60] (McHugh J). 155 Marshall at [61] (McHugh J). 156 Marshall at [62] (McHugh J). -- 53 of 65 -- [2026] SASCA 82 S Doyle JA 54 statutory power injuriously affected the claimant’s retained land was exercised on the acquired land of the claimant.157 222 Hayne J agreed with the reasons of the plurality, as well as the additional observations of Gaudron J.158 McInnes v Commissioner of Highways 223 Against this background, it is appropriate to turn to the decision of the Full Court of the South Australian Supreme Court in McInnes. It was decided in 1992, and so after the High Court’s decision in Morison but before its decision in Marshall. 224 The appellants were the owners and licensees of the Dublin Hotel, situated on land abutting the western side of Port Wakefield Road. The respondent Commissioner compulsorily acquired a portion of the appellant claimants’ land so as to reconstruct a portion of Port Wakefield Road for the purpose of by-passing the Dublin township. The practical effect of the project was that the claimants’ hotel no longer had a frontage on Port Wakefield Road, with the road now skirting the rear of the hotel. The claimant suffered an adverse economic effect by reason of the diminution in its passing trade. 225 The claimants sought compensation for injurious affection under s 25 of the Land Acquisition Act 1969 (SA), the terms of which have been set out earlier in these reasons, and which permit compensation for loss suffered ‘by reason of the acquisition of the land’. 226 Olsson J (with whom King CJ and Mullighan J agreed) described the issue in the case as whether or not compensation for injurious affection was limited to loss suffered as a result of activities only on what was formerly the claimants’ land, or whether it encompassed a broader concept of loss of profits likely to be suffered in the hotel business by virtue of the general or overall project (as to which the land acquired from the claimants formed only a portion of the total site for the construction works).159 227 His Honour commenced his analysis by stating that it was clear that the loss which attracts compensation must be suffered ‘by reason of the acquisition of the land’, and that there must therefore be a relevant cause and effect.160 His Honour noted the different legislative provisions in different jurisdictions, acknowledging that the authorities thus needed to be read with ‘considerable care’.161 His Honour referred in this context to the decision in Edwards, observing that it had held in relation to the English legislation that compensation was limited to activities on 157 Marshall at [65] (McHugh J). 158 Marshall at [67] (Hayne J). 159 McInnes at 411-412 (Olsson J). 160 McInnes at 412 (Olsson J). 161 McInnes at 412 (Olsson J). -- 54 of 65 -- [2026] SASCA 82 S Doyle JA 55 the very land acquired, and did not extend to the diminution in value arising from the overall construction of a by-pass generally.162 228 Turning to the facts, Olsson J explained that there would be no change in the nature of the usage of Port Wakefield Road; it was simply that it would now pass to the western side of the township of Dublin and the claimants’ hotel. His Honour contrasted the facts with the situation in Morison, where the works on the adjacent airport resulted in a significant increase in the number of jets. His Honour also noted that the Commonwealth legislation in that case permitted compensation for a depreciation in value by reason of carrying out of the public purpose for which the land was acquired. He explained that the High Court had held that there was an important difference between damage from the exercise of the power of acquisition and the more extensive notion of carrying out the public purpose for which the land was acquired. The latter necessarily brought into consideration the use of land other than the acquired land. This was the context in which the High Court had adopted the view which authorised the award of compensation based upon a broad consideration of the practical effect of the overall public works, and was not confined to an inquiry as to the mischief originating only from the land actually acquired.163 229 It was in this context that Olsson J described as ‘manifestly correct’ the trial judge’s conclusion that the compensation sought by the claimants (which he described as essentially flowing from the general construction of the by-pass, rather than what was to occur only on the acquired land) was not recoverable.164 His Honour reasoned that, even accepting that the provision should be given the broadest construction of which it was reasonably capable, having regard to the objects of the legislation, the expression ‘by reason of the acquisition of the land’ necessarily connotes ‘a cause and effect situation’; it ‘logically limits consideration to the impact of the acquisition of a specific parcel of land; and not consequences flowing from the broader undertaking of the Commissioner, of which the acquisition is but portion’.165 230 His Honour concluded by elaborating as follows:166 When one contrasts the instant case with that in Commonwealth of Australia v Morison it is to be noted that, quite apart from the very different expression used in the relevant statute and the reference in it to carrying out of the relevant public purpose, the evidence there established that, in any event, the relevant deleterious activity which adversely bore upon the future value of the plaintiff’s residual property was primarily, if not almost entirely, attributable to the actual acquisition of the land from the plaintiff in question for the very purpose of extending the aerodrome so that it could be utilised in a manner quite different from that which had earlier obtained. 162 McInnes at 413 (Olsson J). 163 McInnes at 413 (Olsson J). 164 McInnes at 414 (Olsson J). 165 McInnes at 414 (Olsson J). 166 McInnes at 414 (Olsson J). -- 55 of 65 -- [2026] SASCA 82 S Doyle JA 56 That is not the factual situation in the case at bar, because any adverse effects flowing to the appellants’ business stem from the broader undertaking of the Commissioner in constructing the whole by-pass (taken as a totality) rather than what may be caused by the mere acquisition of the specific land owned by the appellants. 231 The Court thus dismissed the appeal from the trial judge’s rejection of the claim for compensation for injurious affection. A further decision 232 For completeness it is useful to mention the decision of Debelle J of this Court in Meyer v Commissioner for Highways,167 which post-dates Morison and McInnes, but pre-dates Marshall. 233 The claimants owned land on Mt Osmond Road. The Commissioner acquired two small parcels of his land for the purposes of the construction of the Adelaide to Crafers Freeway Project. The claimant sought compensation for injurious affection in relation to the acquisition of the parcel towards the southern end of his property. Part of the new carriageway was constructed on that parcel, and it was not only anticipated that it would carry a higher volume of traffic, but it was also to be constructed at a significantly greater height than the carriageway previously adjoining the property. The remainder of the southern parcel was to be used for a bituminised verge, a retaining wall and a cycle track above the retaining wall. 234 The claimants argued that by virtue of the work done on the southern acquired parcel, the enjoyment of their retained land would suffer from an increased amount of noise emanating from the freeway. They claimed this would have a depreciatory effect on the market value of their property. The Commissioner, relying on Edwards, argued that the compensation for injurious affection should be confined to damage associated with work done on, or the use of, the acquired land, rather than the freeway project more generally, and that this would be minimal. 235 Debelle J referred to several of the key authorities, including Edwards, Morison and McInnes, observing that each had held that, in order to recover compensation for injurious affection, the owner had to establish that the depreciation in value of the retained land was ‘caused by the works and the use of the works on the acquired land’. His Honour went on to explain that where the works were confined to the acquired land and affected the retained land, this was unlikely to result in any difficulty in determining the claim. However, the difficulties with injurious affection tended to arise when the works which have a depreciatory effect were not confined to the acquired land (referring in this context to Edwards).168 167 Meyer v Commissioner for Highways (1998) 71 SASR 196 (Meyer). 168 Meyer at 200 (Debelle J). -- 56 of 65 -- [2026] SASCA 82 S Doyle JA 57 236 After addressing the High Court’s decision in Morison, Debelle J identified two principles which he considered could be found in the reasons of Barwick CJ, McTiernan and Walsh JJ. The first was that in those cases where it was possible to isolate factors which depreciate, or injuriously affect, the value of the retained land to the use of the works carried out on the acquired land, compensation would be confined to the effect of those factors. The second was that in those cases where it was not possible to isolate the depreciatory effects to the use of the works on the acquired land, then compensation would be for the whole of the diminution in value of the retained land.169 237 In support of this second principle, his Honour considered that this approach was preferable to awarding nothing, or ‘determining compensation by some arbitrary process’. His Honour included reference in this context to the passage from Corpus Juris Secundum contemplating modification of the narrow view in cases where use of the acquired land ‘constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put’. Debelle J considered that this approach accorded with both principle and commonsense, and applied to the case under consideration despite the small size of the acquired parcel.170 238 After considering the evidence in some detail, Debelle J held that despite only a small part of the highway being constructed on the acquired land, it was not possible to isolate the depreciatory effects (such as the increase in noise levels) attributable just to this part of the freeway as opposed to more generally. For that reason, reliance upon Edwards in attempting to limit the claim for compensation was misplaced.171 Debelle J also distinguished McInnes:172 But that is quite a different kind of case, since the court held that the use of the works on the acquired land did not cause any loss to the retained land. The court did not have to deal with the issues which arise when the depreciatory effects are caused by the use of the acquired land as well as other land. … The claimant … claimed compensation for the loss of business to the hotel caused by the by-pass. … The cause of the lost business was not the acquisition of the parcel of land from the claimant. The hotel continued to trade and the original road continued to run through Dublin and past the hotel. The damage was caused by the broader undertaking, namely the by-pass road … 239 Debelle J ultimately awarded compensation for the whole of the diminution in value attributable to the increase in noise levels. Statutory provisions governing compensation for injurious affection 240 As emphasised in several of the cases surveyed above, in determining the availability and extent of any compensation for injurious affection, it is important to focus upon the terms of the relevant statutory provision. Before addressing the construction of the South Australian legislation under consideration in the present 169 Meyer at 201-202 (Debelle J). 170 Meyer at 202 (Debelle J). 171 Meyer at 204 (Debelle J). 172 Meyer at 204 (Debelle J). -- 57 of 65 -- [2026] SASCA 82 S Doyle JA 58 case, it is instructive to summarise the differences in the statutory language used in various jurisdictions. 241 In Edwards, s 63 of the English legislation permitted compensation for injurious affection ‘by the exercise of the powers of this or the special Act’. 242 In Morison, s 23(1)(c) of the Commonwealth legislation, whilst not expressly mentioning injurious affection, permitted compensation for the depreciation in value of the claimant’s retained land ‘by reason of the carrying out … the public purpose for which the land was required’. 243 The notion of injurious affection is only expressly addressed in the legislation providing for compensation for the compulsory acquisition of land in three States: Queensland, Tasmania and South Australia. As considered in Marshall, s 20(1)(b) of the Queensland legislation permits compensation for damage caused by ‘the exercise of any statutory powers by the constructing authority otherwise injuriously affecting’ the claimant’s retained land. In Tasmania, s 27(1)(e) of the Land Acquisition Act 1993 (Tas) permits compensation where the claimant’s retained land is injuriously affected ‘by the carrying out … the authorized purpose’. In South Australia, s 25 of the LAA permits compensation for injurious affection ‘by reason of the acquisition’ of the acquired land. 244 The equivalent legislation in the remaining Australian jurisdictions, whilst not expressly referring to ‘injurious affection’, provides for compensation in equivalent circumstances, usually via the concept of severance.173 Similar issues arise in these jurisdictions as to the breadth of the potential recovery. By way of illustration, in Cerini v The Minister for Transport,174 Parker J expressed the tentative view that the limitation upon compensation in Edwards did not apply in relation to the generally expressed right to compensation under s 241(7)(b) of the Western Australian legislation, albeit also doubting whether it was intended to have ‘the width of operation which was so manifestly intended by the Queensland provision in Marshall’.175 Analysis 245 As outlined earlier, the issue in the present case is whether the appellants’ entitlement under s 25 of the LAA to compensation for injurious affection ‘by reason of the acquisition’ of the Acquired Land extends to compensation for the diminution in the value of their Retained Land by reason of the restriction in access to that land. 173 Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 55; Land Acquisition and Compensation Act 1986 (Vic), s 41(1); Land Administration Act 1997 (WA), s 241(7)(b); Lands Acquisition Act 1994 (ACT), s 45; Lands Acquisition Act 1978 (NT), schedule 2 rule 2(c); Land Acquisition Act 1989 (Cth), s 55(2)(a)(iv). 174 Cerini v The Minister for Transport [2001] WASC 309. 175 Cerini v The Minister for Transport [2001] WASC 309 at [224]-[234] (Parker J). -- 58 of 65 -- [2026] SASCA 82 S Doyle JA 59 246 It involves a question of fact, or evaluative judgment, which must be determined having regard to relevant statutory provision and context. In particular, the requirement in s 25 of the LAA that the injurious affection be suffered or occasioned ‘by reason of the acquisition of the land’ must be construed having regard to the relevant statutory text, context and purpose. 247 It is sometimes said that a statutory provision conferring a right to compensation for the compulsory acquisition of land should be construed with all the generality that its words permit.176 However, I am not persuaded that this adds much to the interpretative task, beyond emphasising the importance of construing the relevant provision having regard to the legislative object of providing for the acquisition of land on just terms,177 and the need to avoid taking any narrow approach which would involve implying a limitation upon recovery not justified by the ordinary approach of construing legislation by reference to its text, context and purpose.178 248 In construing the s 25 requirement that the injurious affection be suffered or occasioned ‘by reason of the acquisition of the land’, the starting point is an appreciation that it is an expression of the causal connection justifying the recovery of compensation. Whilst the common law has generally taken a commonsense or practical approach to causation,179 modern authorities have tended to deprecate reliance upon any abstract notion of commonsense which is of general application.180 It has been emphasised that the focus must be upon construing the statutory expression of the causal connection in the context of the relevant statutory regime. 249 Importantly, the causal connection in s 25 is expressed by reference to the connection between the injurious affection and the acquisition of the acquired land. This may be contrasted with the various expressions of the causal connection under the Commonwealth legislation under consideration in Morison (‘by reason of the carrying out … the public purpose for which the land was required’), the Queensland legislation under consideration in Marshall (‘by the exercise of any statutory powers’) and indeed the English legislation under consideration in Edwards (‘by the exercise of the powers of this or the special Act’). It is noteworthy that the South Australian legislation involves a causal connection with the acquisition of land, rather than with the exercise of the statutory powers or the 176 Marshall at [38] (Gaudron J, Hayne J agreeing); Ketteringtom Pty Ltd v Noosa Shire Council (2004) 78 ALJR 1022 at [31] (the Court); McInnes at 414 (Olsson J, King CJ and Mullighan J agreeing); Moloney v Roads and Maritime Services (NSW) (2018) 98 NSWLR 651 at [70] (Payne JA, Beazley P and Basten JA agreeing); Sleeman v SPI Electricity Pty Ltd [2014] VSCA 243 at [103] (Nettle, Beach and Kyrou JJA). 177 LAA, s 3. 178 Moloney at [72] (Payne JA, Beazley P and Basten JA agreeing). 179 Chadrysiak v Commissioner of Highways (2018) 132 SASR 277 at [66], [74] (Blue J), applying the common law commonsense approach to causation in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 509-515 (Mason CJ, Toohey and Gaudron JJ agreeing). 180 Comcare v Martin (2016) 258 CLR 467 at [42] (the Court); Travel Compensation Fund v Tambree (2005) 224 CLR 627 at [45] (Gummow and Hayne JJ), cf [81] (Callinan J); Return to Work (SA) v English (2023) 144 SASR 382 at [140] (Doyle JA, Bleby JA agreeing). -- 59 of 65 -- [2026] SASCA 82 S Doyle JA 60 carrying out of the relevant public purpose. Whilst assistance may nevertheless be derived from the authorities considering these other expressions of the causal connection, some care is required given the differing statutory language. Indeed, the importance of having regard to the relevant statutory language was a matter of particular emphasis in the reasoning of the High Court in Marshall. 250 Given the focus of the causal test upon the connection between the injurious affection and the acquisition of the acquired land, it does not seem to me that there is room in this jurisdiction for a broad approach which would permit recovery, without more, for all injurious affection occasioned by the acquisition project works or purpose as a whole. Whilst such an approach might be justifiable in the case of a legislative provision with a causal test anchored in a connection between the injurious affection and the exercise of statutory power or achievement of the acquisition project or purpose, it is not able to be justified under s 25. 251 To the extent that there has occasionally been some support for a broad ‘but for’ style approach by reference to what is sometimes referred to as the veto principle, this is not a consideration that derives any support from the reasoning of the High Court in Morison or Marshall. Nor is there any support for reliance upon this approach in the language of s 25 of the LAA. Indeed, as the primary judge pointed out, s 25(1)(g) of the LAA, in preventing the court having regard to the landowner’s lack of consent to the acquisition, appears intended to exclude consideration of any hypothetical power of veto over the acquisition project which the landowner might otherwise have had. 252 At the same time, it does not seem to me that the anchoring of the s 25 causal test in a connection between the injurious affection and the acquisition of the acquired land requires any strict physical or spatial limitation upon the recovery for injurious affection of the type contemplated by the decision of the English Court of Appeal in Edwards. To construe s 25 in that way would, in my view, involve the implication of words not required by the statutory text, context or purpose. I see no textual, contextual or purposive difficulty in accepting that injurious affection may arise by reason of the acquisition of the claimant’s land without it being exclusively attributable to the use of, or work on, the acquired land. 253 The respondent sought to draw some support for a narrow construction from the context provided by s 25(2) of the LAA. That subsection, set out earlier in these reasons, provides that the reference to ‘loss’ in s 25(1)(a) ‘extends, in the case of acquisition of native title’, to adverse effects that result or will result ‘from the acquisition project’.181 The respondent argues that the perceived need to ‘extend’ the notion of loss under s 25 to cover losses associated with the acquisition project in the context of the acquisition of land affected by native title supports its contention that s 25 does not otherwise extend this far. I do not attach any weight 181 With ‘acquisition project’ defined in s 6 to mean the acquisition of land, and the development or use of the land following its acquisition. -- 60 of 65 -- [2026] SASCA 82 S Doyle JA 61 to this argument. Like the primary judge,182 I do not consider it safe to draw any implication from the introduction of this subsection given that its terms appear to be explained by an intention to ensure consistency with the Native Title Act 1993 (Cth), rather than to reflect any assumption about the prior breadth of s 25 in relation to compensation for injurious affection. 254 To the extent there was some policy rationale that might be said to support the narrow approach taken in Edwards, it did not receive any significant support in Morison and was squarely rejected in Marshall. 255 It is true that there is some artificiality and unfairness in distinguishing between two landowners of adjoining land adjacent to a new highway, permitting one (from whom a narrow strip of land upon which part of the highway is constructed) to recover compensation whilst refusing the other (from whom no land is acquired) any compensation. It might be said that by strictly confining the recovery of compensation to the injurious affection attributable to the activity on the acquired land in accordance with Edwards, the economic effect of this artificiality or unfairness would be minimised. However, there are two answers to this suggested policy rationale for the narrow approach. The first is that the plurality in Marshall regarded this consideration as ‘irrelevant’, and as providing ‘no reason to distort the language of the Act, and to deprive others, who have lost land, of compensation for injurious affection’.183 The second is that the narrow approach risks attempting to address one potentially arbitrary and unfair distinction by introducing another potentially arbitrary and unfair distinction, with the extent of the compensation turning upon the happenstance of the nature of the work undertaken on the acquired land without having any regard to the relationship between that work and the acquisition project more generally. 256 To my mind, the proper approach to the causal test under s 25 demands close attention to not only the immediate impact of the use of, and work on, the acquired land, but also the relationship between the activities on that acquired land and the acquisition project more generally. A focus upon these matters is likely to reveal some cases in which it will be possible to isolate factors which injuriously affect the retained land, and which point clearly to that injurious affection having a close connection with the work or use on the acquired land, with the result that compensation is payable. It is also likely to reveal some cases in which it will be possible to isolate factors which injuriously affect the retained land, but which point clearly to that injurious affection being solely referrable to some aspect of the broader acquisition project having no real connection at all with the work or use on the acquired land, with the result that compensation is not payable. But in between these two categories of case there will undoubtedly be some cases, like the present case, where the matter is more nuanced and turns on an evaluative assessment of matters of fact and degree. 182 Reasons at [25]. 183 Marshall at [28] (Gleeson CJ, Gummow, Kirby and Callinan JJ). -- 61 of 65 -- [2026] SASCA 82 S Doyle JA 62 257 In this last category of case, it is difficult, indeed unwise, to attempt to be prescriptive. Any attempt to be prescriptive runs the risk of adding an impermissible gloss on the statutory language. That said, there is some support in the authorities surveyed above for an approach which extends compensation to cases in which the injurious affection is not exclusively referrable to activities on the acquired land, but where those activities are nevertheless an ‘integral and inseparable’ part of a single use to which the acquired and other land has been put as part of the acquisition project.184 Such an approach represents a practical and commonsense approach to the causal connection required by s 25, consistent with not only the text, context and purpose of that provision, but also the general effect of the authorities which I have surveyed. 258 Applying that approach in the present case supports an award of compensation for injurious affection. The injurious affection associated with the impeding of access to the appellants’ Retained Land is most immediately or directly attributable to the median wire constructed between the southbound and northbound lanes on the reconstructed Road. That physical impediment to vehicles turning right out of, or into, the appellants’ driveway is not physically located on the Acquired Land. However, it would be artificial to deny compensation on this basis. This would be to ignore the practical reality that the median wire is a necessary and integral part of the creation of a safe and efficacious overtaking facility. 259 As the primary judge observed, the injurious affection might just as easily have arisen from a road rule prohibiting turning across an overtaking lane. Alternatively, it might have arisen from the installation a road sign (which may or may not have been located upon the Acquired Land) to that same effect. In my view, these examples serve to illustrate the artificiality of treating the injurious affection as emanating from the median wire, as opposed to the creation of a safe and efficacious overtaking lane. 260 Further, whilst no part of the overtaking lane, or new road, was constructed on the Acquired Land, there was nevertheless significant work undertaken on that land which was, as a matter of substance and reality, an integral and inseparable part of the creation of the safe and efficacious overtaking facility for which the appellants’ land was acquired. As outlined earlier in these reasons, the works undertaken on the Acquired Land included the relocated drain, the relocated services, landscaping, approximately 356 metres of guardrail safety barrier, and approximately 231 metres of kerbing and guttering. Even if some aspects of this work might, considered in isolation, be characterised as separate and opportunistic upgrades to the existing Road, I am satisfied that the package of works on the Acquired Land is aptly characterised as an integral and inseparable part of the overall construction of a safe and efficacious overtaking facility.185 184 Morison at 41 (Barwick CJ, McTiernan J agreeing), 52-53 (Walsh J); Meyer at 202 (Debelle J). 185 Reasons at [32]. -- 62 of 65 -- [2026] SASCA 82 S Doyle JA 63 261 In the circumstances, I am satisfied that the injurious affection claimed by the appellants was occasioned by reason of the acquisition of the Acquired Land, and that the appellants are entitled to compensation on this basis under s 25 of the LAA. 262 Strictly speaking, the primary judge was right to regard himself as bound by the decision of the Full Court in McInnes. Given the differences in the statutory language between s 25 and the Queensland provisions in Marshall, the decision in McInnes remained binding. That said, as explained at some length above, aspects of the reasoning in McInnes have been undermined by the subsequent reasoning of the High Court in Marshall. In particular, insofar as Olsson J drew support for a narrow approach to the entitlement to compensation from the reasoning of the English Court of Appeal in Edwards, that support must now be seen as misplaced. 263 Whilst I thus have some reservations about aspects of the reasoning in McInnes, I do not consider it necessary for this Court to overrule that decision, or decline to follow it on the basis that it is plainly wrong. In my view, McInnes is able to be distinguished on the basis that there was simply no factual basis in that case for the requisite causal connection. As both the primary judge in the present matter,186 and Debelle J in Meyer,187 pointed out, the refusal of compensation in that case could be justified without reliance upon any limitation upon recovery having its foundation in the reasoning in Edwards. The refusal of compensation was able to be justified on the basis that the injurious affection related to the loss of custom by reason of the re-routing of the highway, rather than the construction of the new highway. As such, there was an insufficient connection between the injurious affection and the acquisition of the claimant’s land even on the approach to the requisite causal connection outlined in these reasons. Assessment of compensation for injurious affection 264 The primary judge held that if compensation were payable for the injurious affection referrable to the restriction in the access to the appellants’ property, he would have assessed it in the amount of $40,000. The appellants contend that his Honour erred in not assessing compensation in a higher figure of $90,000. 265 By way of context, the appellants’ valuation expert, Mr Bruce, prepared a report which calculated the appellants’ loss at $102,270 by capitalising the estimated cost of the additional travel for the appellants necessitated by the restriction in their access. The respondent’s expert, Mr Rowe, prepared a report setting out his reasons for concluding that no compensation was payable. Both experts gave oral evidence, which was heard concurrently. 266 The primary judge rejected Mr Bruce’s methodology as flawed,188 holding that the appropriate methodology for assessing the appellants’ injurious affection 186 Reasons at [57]. 187 Meyer at 204 (Debelle J). 188 Reasons at [79]. -- 63 of 65 -- [2026] SASCA 82 S Doyle JA 64 was the depreciation, if any, in the value of the Retained Land by reason of the restriction in access. The experts addressed this methodology in their oral evidence, with Mr Bruce suggesting a percentage discount in value in the order of five to eight per cent. Mr Rowe, on the other hand, suggested that a discount closer to 2.5 per cent would be appropriate. 267 In preferring Mr Rowe’s figure, and applying this to a value of $1.6 million for the Retained Land, the judge arrived at an award of $40,000:189 Mr Bruce accepted that it was too difficult to find comparable sales to assess the loss of value arising out of the changed ingress and egress. … However, Mr Bruce expressed the opinion that a hypothetical purchase of two otherwise similar properties, one with unfettered ingress and egress, and the other with restricted ingress and egress to the remaining land, a hypothetical purchaser would pay substantially more for the property with the unfettered ingress and egress. Mr Bruce’s opinion was that an appropriate percentage discount of the value of land for injurious affection was in the order of five to eight percent. However, Mr Bruce’s opinion was based largely on the range of percentage diminution attributed to injurious affection in the reports of valuers who have opined on the question in other cases. However, that is not market evidence. I doubt that it is admissible. Nonetheless, I have determined to receive the evidence as an indication of the potential effect of injurious affection on the value of remaining land. Mr Rowe, on the other hand, took the position that if the injurious affection was compensable, any discounting of the value of the land in the circumstances of this case was counter-balanced by the improved safety of the road resulting from the median wire. Hypothetical purchasers will have different views on the relative advantages and disadvantages of the roadworks and it cannot be known which class of purchasers will be present and in what numbers. Mr Rowe’s opined a discount “closer to 2.5% in terms of the diminution value” would be appropriate. Mr Rowe testified that potential hypothetical purchasers would have a wide range of reasons for purchasing a ‘lifestyle’ property. He testified that “every hypothetical purchaser has a bunch of reasons they like or don’t like a particular block to purchase”. In his opinion, those factors for a lifestyle orientated property would be weighted towards potential dwelling sites, outlook, proximity to townships and service and access. As to access, he accepted that it would cross a purchaser’s mind but doubted whether it would be at the forefront of their thinking. Mr Bruce agreed that properties like the Bryant’s premises were a lifestyle purchase. However, Mr Bruce continued: Having to get in and out of the property, you know, five, six days a week, is – would be a – would be a factor in someone’s determination on how much they might pay for something particularly when comparing it to someone that – another property that did not have such an ingress and egress problem. I again observe that much depends on the commuting or travelling pattern of the hypothetical purchaser, and on their concern for safety on the one hand, or the premium they put on their time and cost of living on the other. 189 Reasons at [82]-[89]. -- 64 of 65 -- [2026] SASCA 82 S Doyle JA 65 To assess the compensation for injurious affection, I would apply a discount of 2.5 percent to the value of the remaining land. I acknowledge Mr Bruce’s criticism of applying that low percentage reduction, that it is inadequate because it amounts to no more than several potential bids. However, from another perspective, towards the end of the bidding, when the restricted ingress and egress is more likely to become significant, if at all, it may well encompass many bids. That is all the more so when, for some purchasers, the median wire may be seen as an advantage. Mr Rowe valued the unimproved value of the remaining land at $1.111 million. Putting to one side any reduction for the changed ingress and egress, Mr Bruce valued the remaining land at $1.25 million but added $425,000 for the value of the improvements arriving at a value close to $1.7 million. I accept Mr Bruce’s valuation of the improvements and split the difference between Mr Bruce and Mr Rowe on the value of the land, adopting a total value of $1.6 million. I would have awarded $40,000.00 for injurious affection. 268 In challenging the judge’s assessment of the compensation for injurious affection, the appellants contend that his Honour ought to have preferred Mr Bruce’s estimate of the diminution in value. They argue that Mr Bruce’s estimate, even though not a matter addressed in his report, reflected a cross-check he had performed, and was conservative, transparent and unchallenged in any substantive sense. Conversely, they argue that Mr Rowe’s estimate was essentially an extemporaneous view, which was not supported by any valuation methodology, analysis or sustained consideration. 269 In my view, the appellants have not identified a proper basis for challenging the judge’s estimate. Neither expert prepared a report which addressed the methodology that his Honour held was the correct methodology. Both were given the opportunity to, and did, express relatively impressionistic assessments of the appropriate percentage reduction in value likely to be attributable to the restriction in access. Neither was subjected to any robust cross-examination. The judge gave sound reasons for preferring the lower estimate provided by Mr Rowe. Particularly bearing in mind that the appellants carried the onus of establishing an entitlement to compensation, no error has been established in the judge’s decision to assess the compensation in the amount of $40,000. Conclusion 270 I would allow the appeal, set aside the judgment below and enter judgment in the appellants’ favour in the amount of $40,000. 271 I would dismiss the respondent’s notice of alternative contention. 272 BLEBY JA: I would allow the appeal and join in the orders as proposed by S Doyle JA. I agree with his Honour’s reasons. -- 65 of 65 --