Adams v Great Lakes Council

[2010] NSWLEC 14

Land and Environment Court

of New South Wales

CITATION:

Adams v Great Lakes Council [2010] NSWLEC 14

PARTIES:

APPLICANT
Peter Wesley Adams
FIRST RESPONDENT
Great Lakes Council
SECOND RESPONDENT
Gregory James Harrison

FILE NUMBER(S):

40288 of 2009

CORAM:

Pain J

KEY ISSUES:

EVIDENCE :- whether certificate of status of land is admissable in proceedings - application of Crown Lands Act 1989 s 177(2)

LEGISLATION CITED:

Crown Lands Act 1989 s 177
Environmental Planning and Assessment Act 1979 s 78
Environmental Planning and Assessment Regulation 2000 r 49
Local Government Act 1993
Real Property Act 1900

DATES OF HEARING:

5 February 2010

EX TEMPORE JUDGMENT DATE:

5 February 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr I Latham
SOLICITOR
Adams Raves Marsh & Co

FIRST RESPONDENT
Mr I Hemmings
SOLICITOR
Malik Rees Lawyers
SECOND RESPONDENT
Submitting appearance
SOLICITOR
Sattler & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

5 February 2010

40288 of 2009

Adams v Great Lakes Council

EX TEMPORE JUDGMENT

1 Her Honour: Judgment is reserved in this matter. The Applicant has filed a Notice of Motion dated 21 January 2010 seeking leave to reopen the case to introduce a certificate of status of land issued under s 177(1) of the Crown Lands Act 1989 (the CL Act). Leave to reopen is not opposed by the Applicant and I consider that leave should be granted as the material is relevant to the matters in issue. Accordingly, the affidavit of David John Adams dated 21 January 2010 to which the certificate is attached was read.

2 According to the Applicant’s counsel, the purpose of the tender is to prove the ownership of land as Crown land for the purposes of determining who can give owner’s consent for the development of land under s 78 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and r 49 of the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation). The Council objected to the tender of the certificate for that purpose as, it submitted, that is prohibited by s 177(2) of the CL Act. Whether s 177(2) applies to the certificate is the issue I must determine.

3 Section 177(1) and (2) of the CL Act provide:

177 Certificate as to status of land etc

(1) A certificate signed by the Minister certifying that, at a stated time or during a stated period:
(a) specified land was, or was not, Crown land,
(b) specified land was, or was not, granted, reserved or dedicated for a public purpose,
(c) specified land was, or was not, a reserve within the meaning of Part 5,
(d) specified land was, or was not, land in respect of which a notification under section 18 (4) (application of protection of public land provisions to other land) was in force,
(e) specified land was, or was not, the subject of a holding or a specified class of holding,
(f) a holding was, or was not, subject to a specified condition, or
(g) a named person was, or was not, the holder of a holding,

is, in any legal proceedings, admissible as evidence of the matters certified.

(2) If the court before which any legal proceedings are brought is satisfied that the proceedings were brought wholly or partly for the purpose of determining title to land, a certificate under subsection (1) is not admissible in the proceedings.

Applicant’s submission

4 The purpose of the tender of the certificate is to demonstrate ownership of the land to determine who can give owner’s consent under the EP&A Act for the development of land. Title and ownership are overlapping but not identical. Section 177(2) of the CL Act has no role to play as it is concerned with title of land. Ownership under the EP&A Act has the same meaning as under the Local Government Act 1993 (the LG Act). That definition is much broader than the meaning of title under the CL Act. Title is not defined in the CL Act but is self evidently a reference to formal title gained under the Real Property Act 1900 (the RP Act) which is directed to Torrens title. Section 177(2) of the CL Act is about preventing use of Ministerial certificates to determine title for the purposes of the RP Act. That does not prevent the use of the certificate for the purposes of proving ownership of land under the EP&A Act.

Council’s submission

5 In issue in the proceedings is who is the owner of the relevant land from 5 June 2009 when the gazettal notice transferring Crown roads to the Council was published and therefore whether the land which was a Crown road then changed to a public road from that date. Who has title to land as provided under the CL Act will be the owner under the EP&A Act. Title and ownership are interchangeable in these circumstances. The certificate is therefore being tendered for the purposes of determining title, and its use for that purpose is forbidden by s 177(2) of the CL Act. Section 177(1)(a) must be connected to s 177(2), contrary to the Applicant’s submissions.

6 If the certificate is not tendered for that purpose it can be relied upon as non-conclusive evidence of the status of the land under the CL Act by virtue of s 177(1).

Finding

7 A certificate issued under section 177(1) of the CL Act can be tendered in any proceedings as evidence of the matters specified in ss (a)-(g). There is no basis given the reference in the section to ‘any proceedings’ for restricting the circumstances in which certificates may be tendered in respect of title to only those proceedings whose purpose is determining formal title under the RP Act, contrary to the submissions of the Applicant. Further reason not to restrict the application of s 177(2) is that title is not defined in the CL Act so that there is no basis within the terms of the CL Act to do so.

8 While the Applicant’s submissions emphasised that title in s 177(2) of the CL Act is concerned with formal title such as that provided by the RP Act, the CL Act is largely concerned with Crown land. My understanding is that evidence of Crown land title will not necessarily be contained in a certificate of title as provided for under the RP Act. No such evidence is before me in this case in relation to the relevant land. Neither party could assist in fully detailing the ways in which title to Crown land is demonstrated except that it appeared to be accepted that it would not necessarily (or at all) be contained in a certificate of title.

9 All of the certificates of the status of land provided for under s 177(1) of the CL Act are concerned with the status of land under the CL Act: whether land is Crown land or not (s 177(1)(a)), whether land is reserved for a public purpose (s 177(1)(b)), whether land is reserved under Pt 5 of the Crown Lands Act (s 177(1)(c)), whether land is subject to an application for protection as public land (s 177(1)(d)) and various matters related to holding land under the Crown Lands (Continued Tenancies) Act (ss 177(1)(e), (f), (g)). That s 177(2) refers to inadmissibility of certificates in proceedings concerning the title of land in the context of s 177(1) suggests that the certificates issued under s 177(1) can, in particular proceedings, be relevant to proving title. Under s 177(1)(a) that could include title of Crown land.

10 The Applicant argues that title should have a narrow construction and is not encompassed by the meaning of owner under the EP&A Act. The purpose of the proceedings is the determination of ownership not title, and therefore s 177(2) does not apply. I do not agree. As submitted by the Council, in these proceedings ownership and title are interchangeable in that a certificate used to demonstrate ownership of land by the Crown will also effectively be proof of title of Crown land under the CL Act. This will potentially determine ownership for the purposes of giving owner’s consent under the EP&A Act. That the CL Act does not use the term ‘ownership’ in s 177(2) but ‘title’, does not mean s 177(2) should not apply to this certificate. Title is part of ownership and comes within the broader definition of owner under the LG Act (the definition adopted in the EPA Act) which states that owner in relation to Crown land:

means the Crown and includes:(i) a lessee of land from the Crown, and (ii) a person to whom the Crown has lawfully contracted to sell the land but in respect of which the purchase price or other consideration for the sale has not been received by the Crown.

11 I find that the purpose of the proceedings is the determination of ownership, which includes title, of the land in question and s 177(2) of the CL Act provides that the certificate is not admissible in these circumstances. If the certificate is tendered other than for that purpose, it may be admissible as evidence under s 177(1) of the CL Act.