In this proceeding, the Court of Appeal was asked to make orders by consent allowing an appeal from a decision of a judge in the Trial Division concerning compliance with the requirements for the compulsory acquisition of land in the Land Acquisition and Compensation Act 1986 (LAC Act).  Relevantly, the primary judge had found that the appellants had denied the first and second respondent procedural fairness by failing to afford them with an opportunity to be heard prior to the appellants issuing a Notice of Acquisition under s 19 of the LAC Act.  By consent, the parties agreed that the appeal should be allowed on the basis that the primary judge had erred in construing s 19 of the LAC Act as being subject to the requirements of procedural fairness.  The Court ultimately agreed with this submission, noting that the Court needed to be satisfied as to the existence of error in order to support the making of orders allowing the appeal by consent given that the making of such orders nonetheless involved the exercise of judicial power.

As to the existence of error, the Court of Appeal held that the process of acquisition under the LAC Act was a single statutory process and it was unlikely that Parliament intended there to be multiple rights to be heard during the acquisition process particularly given that there already exists a comprehensive regime for public participation under the LAC Act.  Contrary to the approach taken by the primary judge, s 19 is a machinery provision and does not impliedly re-open the question whether the acquisition should occur (which is a question that would have been considered at an anterior point in time).  A construction of the LAC Act which imposed an additional right to be heard prior to the issue of a Notice of Acquisition would, in the Court’s view, add to the complexity of the acquisition process and lead to likely delay in that process.  Accordingly, the Court was satisfied that the primary judge had erred in concluding that the appellants were obliged to afford the first and second respond a further opportunity to be heard prior to the issue of a Notice of Acquisition under s 19 of the LAC Act.

The Court would have also allowed the appeal on a further ground raised by the intervener.  That ground concerned findings made by the primary judge in relation to the intervener in circumstances where the intervener was not aware of the proceedings and had no opportunity to participate in them.  As such, the failure to join the intervener to the proceedings below provided a further reason why the Court of Appeal would make the orders sought by consent.