Another road not taken

cranroad_00521_10_bnc4.jpgThe Charter got a passing mention in a tricky case about property valuation. In 1988, Halwood Corporation bought some land in Berwick that it knew was subject to a reservation for acquisition by VicRoads. The previous owner hadn’t sought compensation for the impact of the reservation on the value of the land and Halwood tried and failed to get the same compensation. In 2006, VicRoads finally acquired the land (probably for this project) and Halwood again sought compensation. This time, the issue was whether or not the land (and compensation) should have been valued without regard to the original reservation (which greatly reduced the value of the land, something Halwood pointedly demonstrated when it tried and failed to get the land subdivided.) Quite a tricky issue! Should Halwood get compensated for a ‘loss’ it already knew about when it bought the land (presumably for that very reason?) Or should VicRoads get the lost value of the land ‘for free’ just because the original owner sold rather than making a claim?

The case came down to interpreting the Land Acquisition and Compensation Act 1986. VicRoads argued that the Act didn’t have to ‘be interpreted to provide compensation on just terms’. Justice Osborn accepted that, noting in passing – something I’ll have more to say on in a future post! – that:

it is apparent s.20 of the Charter of Human Rights and Responsibilities Act 2006 did not provide for or recognise a right to just compensation upon the compulsory acquisition of land.

I say: not so fast. It’s true that Charter s.20 doesn’t mention compensation:

A person must not be deprived of his or her property other than in accordance with law.

Moreover, the EM pointedly notes that s20 ‘This right does not provide a right to compensation.’ But, at least in cases about interpretation of statutes, the Charter also allows – and arguably encourages – recourse to ‘judgments of… foreign… courts… relevant to a human right’. The most relevant judgments for Charter s20 are ECtHR judgments on Article 1 of Protocol 1 of Europe’s human rights convention, which provides that:

No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

This obviously isn’t identical to Charter s.20, but it is pretty similar in testing deprivations according to their fit with the ‘law’ rather than any right to compensation. So, it’s very relevant that, in a compensation case, the ECtHR wrote:

The Court has consistently held that the terms ‘law’ or ‘lawful’ in the Convention ‘[do] not merely refer back to domestic law but also [relate] to the quality of the law, requiring it to be compatible with the rule of law.

Compatibility with the rule of law in turn prevents a law from arbitarily or disproportionately affecting any particular person, for example by developing a capricious compensation rule that ignores relevant individual circumstances. So, while there’s no right to compensation, there is a right to any scheme regulating deprivations of property, including a compensation scheme, to be non-capricious.

So, it seems to me that Charter s.20 had some relevance to the question before the court after all. One difference between the European scheme and the Charter  is that the latter excludes corporations, including Harwood. However, as Evans & Evans have pointed out, where the statute being interpreted applies both to corporations and individuals, like the Land Acquisition and Compensation Act, then the Charter must be used to interpret it and corporations will thus get the windfall of individual rights. That makes this case a missed opportunity for applying the Charter (although, as usual, the judge appears to have achieved the same result by reference to ordinary law.)

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