Case: Commissioner of Main Roads v The North Shore Gas Company Limited (1967) 120 CLR 118
Outcome: considered
the huts and the slab on which they stood were improvements within this definition, as were the gardens, fences and the lavatory. The definition includes things which would normally be characterized as fixtures, usually owned by the owner of the fee simple or, in the case of Crown land, the Crown. Section 361A clearly contemplates ownership of improvements by somebody other than the Crown or the holder of the fee simple title pursuant to a deed of grant. The intention cannot have been to authorize the grant of a lease to the owner of improvements who already held the fee simple title. In Commissioner of Main Roads v The North Shore Gas Company Limited (1967) 120 CLR 118 at 127, the majority of the High Court (Barwick CJ, McTiernan, Kitto and Taylor JJ) said: Differences of opinion from time to time have arisen concerning the true meaning and operation of the principle expressed in the maxim "quicquid solo plantatur, solo cedit ..." but, primarily, it is applied to determine the right of the owner of land to things affixed to or imbedded in the soil. Whatever is fixed to the freehold is said to become part of it and is subjected to the same rights of property as the land itself ... . The presumption is said to be rebuttable and, it seems to us, it must be so when a statute empowers someone other than the owner of land to affix to or embed things in the soil and yet retain ownership of the things so affixed or embedded. Section 361A seems necessarily to contemplate such a situation. As was pointed out in argument, ss 236, 237 and 238 of the Land Act 1962 also seem to have contemplated somebody other than the Crown owning improvements situated on Crown land. It has not been submitted that any person other than Mr Ludwick might own improvements erected by him on the Bukki block. Since the hearing in this matter, the Minister for Lands has indicated that he is satisfied that the two sheds stood on the land at the date of the deed of grant and that Mr Ludwick owned them. The Council is also satisfied as to those matters. The State submits that although s 520(b) of the Land Act 1994 continues the application of s 361A to deeds of grant made prior to the commencement of that Act, it does not continue the operation of other relevant provisions of the Land Act 1962. Further, it submits that pursuant to s 511 of the Land Act 1994 , references in s 361A to provisions of the Land Act 1962 are to be taken as references to the corresponding sections in the Land Act 1994 . Counsel for Mr Ludwick submit that s 20 of the Acts Interpretation Act 1954 (Qld) (the "State Interpretation Act") preserves his rights pursuant to s 361A. Section 361A provides that the terms of any lease are to be in accordance with "the provisions of this Division", prima facie referring to Division V (Reservations in Deeds of Grant) which is contained in Part XI (Grants, Reserves and Reservations for Public Purposes). Further, s 361A expressly deprives the Minister for Lands of his capacity to refuse to approve a proposed lease pursuant to s 343 of the Land Act 1962 . The State submits that s 57 of the Land Act 1994 now imposes the requirement for ministerial approval, the effect of which would, presumably, also be negated by s 361A. The State submits that the conditions of any lease will be regulated by s 61 of the Land Act 1994 , and not by the "provisions of this Division". Mr Ludwick submits that s 343 (dealing with ministerial approval) and s 344 of the Land Act 1962 (dealing with conditions) continue to apply for the purposes of s 361A.