All roads lead to High Court in landmark compulsory acquisition case

Marshall v Director General, Department of Transport, 205 CLR 603

It is well known that the government has the power to compulsorily acquire land. If a person's land is next to, for example, a road that needs to be widened, the government has the right to require that person to cede their land to the government.

The law, of course, provides for compensation for the landowner in such circumstances. This compensation can provide redress not only for the loss of the land, but also any resulting damage to land not resumed. This damage is known as "injurious affection".

In 2001, James Conomos Lawyers was involved in an important injurious affection case before the High Court of Australia. Our client, Mr Marshall, owned land next to the Bruce Highway in Queensland. Part of this land was resumed so the highway could be widened. Mr Marshall became concerned at increased flooding on his remaining land following the opening of the new carriageway. He brought a claim for compensation for injurious affection.

The claim failed both in the Land Court of Queensland and on appeal to the Queensland Court of Appeal. Both courts ruled that the claim could not succeed because the new highway was not actually located on the land acquired from Mr Marshall.

But before the High Court of Australia, James Conomos Lawyers successfully argued that it was not necessary for the new highway to be located on the resumed land in order for Mr Marshall to claim compensation for injurious affection. To establish an impact from the works was sufficient. The High Court agreed with this argument and ruled that Mr Marshall was entitled to compensation. This result flowed from the Court's construction of statute law and Justice Gaudron noted that the Court's approach was particularly appropriate where "to do otherwise would limit or impair individual rights, particularly property rights."

Mr Marshall's case has proven to be a key decision in the development of the law and the case continues to be cited as an important authority by courts all around Australia to this day. James Conomos Lawyers is proud of our involvement in this pivotal case.