Alfred Weber & 1 Or v Jennifer Ankin & 2 Ors

[2007] NSWSC 263

CITATION:	Alfred Weber & 1 Or v Jennifer Ankin & 2 Ors [2007] NSWSC 263
HEARING DATE(S):	12-14/03/07
JUDGMENT DATE :	15 March 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	White J
EX TEMPORE JUDGMENT DATE:	15 March 2007
DECISION:	See paragraphs 67-71 of judgment.
CATCHWORDS:	PROCEDURE – Joinder of parties – Necessary for final determination of proceedings that all affected parties joined – Where seriously arguable that laneway vested in Marrickville Council – Order that Council be joined as a party to proceedings – (NSW) Uniform Civil Procedure Rules 2005 r 6.24(1). - REAL PROPERTY – Roads – Whether laneway dedicated as a public road – Where seriously arguable that laneway vested in Marrickville Council – (NSW) Local Government Act 1906 s99 - (NSW) Local Government Act 1919 ss 4, 223, 226, 230, 232.
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 (NSW) Conveyancing Act 1919 (NSW) Municipalities Act 1867 (NSW) Local Government Act 1919 (NSW) Local Government Act 1906 (NSW) Roads Act 1993 (NSW) Real Property Act 1900 (NSW)
CASES CITED:	Permanent Trustee Company of New South Wales Limited v Campbelltown Municipal Council (1960) 105 CLR 401 Dabbs v Seaman (1925) 36 CLR 538 Attorney-General v City Bank of Sydney (1920) 20 SR (NSW) 216 Newington v Windeyer (1985) 3 NSWLR 555 Dawes v Hawkins (1860) 8 CB NS 848; 141 ER 1399
PARTIES:	Alfred Weber & 1 Or v Jennifer Ankin & 2 Ors
FILE NUMBER(S):	SC 2889/04
COUNSEL:	Plaintiff: K J Pierce Defendant: M A Bradford
SOLICITORS:	Plaintiff: Bournazos & Co Defendant: Musgrave Peach Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Thursday, 15 March 2007

2889/04 Alfred Weber & 1 Or v Jennifer Ankin & 2 Ors

JUDGMENT

1 HIS HONOUR: These proceedings are part-heard. An issue has arisen as to whether the Marrickville Council ought to be joined as a party to the proceedings pursuant to rule 6.24 of the Uniform Civil Procedure Rules 2005 (NSW).

2 The proceedings concern title to a strip of land known as "Wallace Lane", Marrickville. The plaintiffs claim title by adverse possession to a portion of the land within the boundary of the lane, but which is physically enclosed by a retaining wall so as to form part of their property at number 13 Wallace Street.

3 The plaintiffs also claim an order for the imposition of an easement pursuant to s 88K of the Conveyancing Act 1919 (NSW) along the lane to create a right of carriageway to an area at the rear of number 13 Wallace Street where the plaintiffs propose to construct a carport, if Council approval to that course is obtained.

4 The defendants are the owners of 11A Wallace Street. The only vehicular and pedestrian access to 11A Wallace Street is through the lane. They claim possessory title over the lane, save for that part which is enclosed as part of number 13 Wallace Street. Alternatively, they claim that easements ought to be imposed over the lane in their favour pursuant to s 88K.

5 The question of joinder of the Marrickville Council arises because of issues which I have raised during the course of the hearing as to whether the lane is a public road.

6 The proceedings have had a somewhat unfortunate history. This is the third occasion upon which they have been set down for hearing.

7 Unless the lane has been vested in the Council by statute, the owner of the lane appears to be either the heirs of a late Mr Bushby, or possibly the heirs of a late Mr Sharp, both of whom died in the nineteenth century or thereabouts. On the first occasion, the proceedings were adjourned to enable such persons to be served.

8 On a second occasion, the parties reached agreement as between themselves as to how the proceedings should be disposed of. However, their agreement provided for the making of declarations by consent as to the parties' possessory title to the land. Windeyer J declined to make such declarations, as his Honour was of the view that the evidence did not support the plaintiffs’ claim to possessory title over parts of the lane which the declarations, if made, would have provided them to have.

9 The Marrickville Council was notified of these proceedings in 2004. In 2002, the Council took the position that the lane was not owned by the Council. It declined to undertake repair or maintenance work which the defendants were then pressing it to undertake.

10 By letter of 25 February 2002 to one of the defendants, the Council advised that:

“ Council has conducted a thorough search to determine the ownership status of the lane. The results of the search indicate that this laneway is not owned by Council. Therefore, Council is not in a position, nor is it responsible, to undertake maintenance or repair works to the laneway in question. "

11 On 27 February 2002, Mr Strickland, the Manager, Engineering, of the council, also wrote to Ms Ankin, one of the defendants. He said that:

“ As discussed, the subject 'laneway' has never been dedicated as public road and, accordingly, its title remains in the name of one John Campbell Sharp. "

12 He went on to say the Council had not made any decision with regard to the future of the laneway or any other 'similar laneways' in the Local Government area and it was not appropriate for Council to construct and seal the laneway as it was not Council land.

13 Mr Strickland enclosed a copy of a letter from a surveyor, Mr McNiff, whom he described as the Council's consulting surveyor. Mr McNiff reported to the Council on 22 January 2002 that:

“ The land was originally shown in Deposited Plan 1351 which was surveyed in November 1884.
As this subdivision pre-dates the implementation of the Local Government Act in 1920 and there is no record of the laneway being dedicated as public road since that date, the fee of the laneway comprises the residue of the original certificate of title and remains in the name of John Campbell Sharp who was the original proprietor of the subject Certificate of Title or James Bushby who in Dealing No. 87402 was conveyed the whole of 20-25 in Section 1 in Deposited Plan 272 which included the site of the lane.
If the Council accepts the care and maintenance of the laneway, it may be dedicated to the public as road by the preparation of a notification in the Government Gazette pursuant to Section 16 Roads Act 1993. "

14 On 28 July 2004, the defendants’ solicitors gave notice to the Council of the plaintiffs’ summons in these proceedings and of their cross-claim. The defendants’ solicitors noted that in previous correspondence, the Council had indicated it had no interest in the laneway and recorded that this had recently been confirmed verbally by a Council officer.

15 On 6 August 2004, the council replied by saying that it had no legal interest in the land. It also said that it considered that, regardless of which party obtained title to the land, suitable rights of way and easements for drainage, sewerage and utilities should be granted to adjoining properties, where necessary. However, the Council confirmed it had "no specific interest in the outcome of this matter".

16 Hence, Mr Bradford of counsel, who appears for the defendants, has submitted that it is unnecessary for the council to be joined as a party to the proceedings, and that such a joinder would be productive of further cost and delay.

17 Nonetheless, I have concluded that, for reasons I will give, it is appropriate for an order to be made for the joinder of the Council. I have concluded that it is seriously arguable that the lane is a public road and is vested in the Council. If that is so, it would be seriously arguable that that may affect the rights of parties on both sides of the record to the relief which they claim. I have concluded that the joinder of the Council is desirable and may be necessary to ensure that all issues in dispute are resolved in these proceedings, so that if I were to conclude that the lane is a public road, a declaration to that effect could be made which would bind the Council.

18 In the circumstances, I propose to give my reasons for these conclusions in more detail than would ordinarily be warranted on such a question of joinder. I do so in the hope that the reasons may be of assistance to the parties in their submissions, and of assistance to the Council.

19 In giving these reasons, I am not to be taken as expressing any concluded view either as to the issues of law, or as to findings of fact which I might make in due course.

20 As appears from the correspondence to which I have referred, Wallace Lane was created by a subdivision in 1884. I will come back to that in more detail later.

21 It can be inferred that some time after 1884 and before 1920, a portion of the lane on its eastern side, where it abuts the western boundary of the plaintiffs’ land, now called 13 Wallace Street, was enclosed by the then owner of 13 Wallace Street by a retaining wall. Wallace Street is a steeply sloping street with the slope running downwards from west to east. A retaining wall was constructed which, according to a 1960 survey, encroached on the lane by four feet, five-and-three-quarter inches at the Wallace Street end of the lane. The wall encroached on the lane for its entire length, although at a reducing distance. The area east of the wall has physically formed part of the property at 13 Wallace Street since before 1920.

22 There is evidence as to the use of the lane from the 1960s. The plaintiffs have given evidence of using the lane to move building materials when they constructed extensions to their house between 1965 and 1968. There is evidence of cars being parked on the lane by the owners, licensees or invitees of 11A and 13 Wallace Street. There is some evidence of cars having been parked by the owner of the property at 11 Wallace Street, which, until recently, was a nursing home. There is also some evidence that prior to the construction of a block of home units in the 1970s, on a property at 374-376 Livingstone Road, which property also abuts the lane, the owner or occupier of that property from time to time used the lane for pedestrian access or parking. The lane is the only means of pedestrian or vehicular access to 11A Wallace Street. The defendants are the owners of 11A Wallace Street. They park one of their cars in the lane.

23 The plaintiffs have constructed a mound on their property adjacent to the lane. They have stored a trailer and various used building materials on the mound. The lane has been used for access to the mound for these and, latterly, other purposes.

24 In the early 1970s, there were proposals by the then owners of 11A Wallace Street for the lane to be closed and sold to them. This was opposed by the other adjoining owners. It may be inferred that the then view of all such owners, and of the Marrickville Council, was that the land was then owned by the Council, hence, a recommendation of the Council's municipal engineer in 1976 was that:

“ Council reaffirm its previous decision [in 1973] not to dispose of the laneway and that Mr J. F. Flanagan be advised that although property owners adjacent to the laneway do not at this stage utilise it for access they have an interest in maintaining the laneway in public ownership and that a Lands Department Form A400 being the Application For the Closing and Purchase of an Unnecessary Road be forwarded to Mr. Flanagan to illustrate that all adjacent property owners must consent to be successful in an application at the Land Board Office. "

25 It appears that either in the very late 1970s or in the 1980s, the then owner of 11A Wallace Street used an electric hammer to chop a large boulder on the Western side of the lane to create a more level surface. Mr Weber assisted in this levelling work and cleared larger rocks to his backyard. This work facilitated vehicular access, but it is clear that there had been vehicular access to 11A Wallace Street before the work was done.

26 In the 1980s, the Council laid a bitumen surface over part of the lane where it sloped towards Wallace Street. It may be inferred that this was done to improve vehicular access to the lane. The Council also concreted the kerb from Wallace Street and the footpath to the lane.

27 After November of 1985, and it may be inferred around 1988, the Council erected a street sign naming the lane as "Wallace Lane".

28 In about 1988, Mr Weber was prosecuted and convicted on certain charges of leaving rubbish and of parking unregistered vehicles in the lane. Although the precise offences have not been indicated, it appears likely, as Mr Bradford accepted, that an element of the charges brought by the Council was that the lane was a public road, or at least public space.

29 There is evidence that in about 1998, Ms Myers, one of the defendants, was told by Mr Strickland that she could not apply a road base to the lane, which was needed to protect telephone cables, because she did not own the laneway. As a result of the persistent efforts of Ms Myers to have the Council maintain or control the weeds and grass on the lane, in December 2001, Council employees cut grass using a whipper snipper and sprayed the weeds.

30 On 2 February 2002, there was a clear-up of the lane organised by Ms Myers with the Council where a contractor used a backhoe and whipper snipper to clear the lane. There is evidence from which it can be inferred that the Council paid the contractor. Shortly following these events, the Council wrote the correspondence of 25 and 27 February 2002 referred to earlier.

31 The subdivision of 1884 was of part of the land in Certificate of Title Volume 284, Folio 45. The subdivision was made contemporaneously with a transfer by the then registered proprietor, namely John Campbell Sharp, of lots 20-25 in section 1 of DP 272, to a Mr James Bushby.

32 At the same time as that land was transferred, lots 20-25 in section 1 of DP 272 was subdivided by DP 1352. By that subdivision, the land was divided into 12 lots: Lots 1-6 faced Illawarra Road, Marrickville; lots 7-10 faced what is now Wallace Street; lot 10 is what is now known as 13 Wallace Street; lot 11 was on the corner of Wallace Street and what is now Livingstone Road, Marrickville; and lot 12 faced what is now Livingstone Road. Lot 12 was later, itself, subdivided. A lot which is now 11A Wallace Street was created in 1922.

33 The plan of subdivision in 1884 showed a lane 25 feet wide from Wallace Street running towards the rear of lot 12 and alongside lots 10 and 11. The land was marked on the plan as "lane".

34 New Certificates of Title, Volume 732 Folio 10 and volume 732 folio 11, were issued showing James Bushby as the registered proprietor of lots 1-12. Those Certificates of Title also showed a lane 25 feet wide. No separate Certificate of Title was issued for the lane.

35 In 1884, although councils had the care, construction and maintenance of public roads other than main roads in their municipality, there was no statutory requirement for council's approval to the dedication of a road as a public road. A municipality could not be compelled to take the charge or maintenance of a new road less than 40 feet wide (Municipalities Act 1867 (NSW), s 118, Permanent Trustee Company of New South Wales Limited v Campbelltown Municipal Council (1960) 105 CLR 401 at 421). Hence, in 1884, a lane could be dedicated as a public road by a competent landowner manifesting an intention to dedicate the land as a public road and by the public acceptance of the proffered dedication (Permanent Trustee Co at 420).

36 The ordinary meaning of a lane now and then is that it is a species of street or road (Dabbs v Seaman (1925) 36 CLR 538 at 552-553). It ordinarily denotes a public way. It is seriously arguable that the designation of the land as a lane in the Plan of Subdivision lodged with the Land Titles Office was an offer by the landowner which manifested the required intention to dedicate the land as a public road (Attorney-General v City Bank of Sydney (1920) 20 SR (NSW) 216 at 221; Permanent Trustee Co at 415, 422). In Permanent Trustee Co, Menzies J said at 415:

“ ... I regard it as an artificial and unreal conception that when roads are left in subdivision they are left as private roads merely for the use of those who want to get to land in the subdivision. It seems more realistic to treat such roads as shown as part of the general roadway system and as open to all so that unless access is prevented by fencing or otherwise, roads shown upon a plan of subdivision are properly to be regarded as open to the public, with the consequence that if there is use of such a road as a means of passage by any members of the public, whether owners of land in the subdivision or not, then it is a public road. "

37 Where there is clear evidence of an intention to dedicate land as a public road, being evidence independent of an inference which might be drawn from the use of the land as a road, then no great amount of public use was necessary to make the dedication complete (Permanent Trustee Co at 423, per Windeyer J).

38 As the passage cited from the judgment of Menzies J in Permanent Trustee Co makes clear, it is also arguable that use of a road by the public may consummate the dedication of the road as a public road, even where that use is by the occupiers of the lots in the subdivision adjoining the road or by their licensees or invitees (see also s 226(1) and (2)(e) of the Local Government Act 1919 (NSW), but cf Newington v Windeyer (1985) 3 NSWLR 555 at 562). The question is whether such use is by right, rather than by licence of the documentary landowner. There is no evidence, at this distance, of the extent of use of the lane after 1884 and up to either 1906 or 1920, or indeed at any time up to the 1960s.

39 Dedication of land as a public road may also be completed where a public body, having authority to take over the road on behalf of the public, does so by, for example, spending money in forming or maintaining the road (Permanent Trustee Co at 422).

40 Section 99 of the Local Government Act 1906 (NSW) required any person who proposed to open a public road to obtain approval of the council. In Permanent Trustee Co Limited, Windeyer J (at 423) said that it was at least doubtful whether any use after 1906 could make a dedication effectual if it had not become effectual before 1906. However, his Honour expressed no definite view on that question, nor was it adverted to by the other justices in Permanent Trustee Co Limited. In my view, it is arguable that if a legal owner expressed an intention to dedicate a road before 1906, the land may become a public road if the acts of public acceptance occurred after 1906.

41 Section 232 of the Local Government Act 1919 provided that except where otherwise expressly provided, every public road shall vest in the council. This section applied to what were then present as well as future public roads (see section 223).

42 The expression "public road" was defined in s 4 to mean:

“ road which the public are entitled to use, and includes any road dedicated as a public road by any person or notified, proclaimed or dedicated as a public road under the authority of any Act, including this Act, or classified as a main road in the Gazette of the thirty-first day of December, one thousand nine hundred and six. "

43 One view of the definition of "public road" is that a road was only a public road within the meaning of the definition if it had already become a public road at common law, or by statute, by the date of the Local Government Act coming into force (see Permanent Trustee Co, per Windeyer J at 420). On the other hand, the definition might be construed as extending the meaning of a "public road" such that a road which was dedicated to the public, in the sense that an offer of dedication had been made by the landowner, was a public road which the public was then entitled to use, whether the public had used it as a road or not. (This was the view of Kitto J in Permanent Trustee Co at 411.) At least this might be so if the land was physically capable of use by the public as a road.

44 If the latter construction be correct, it would be arguable that so much of the lane as was capable of use as a road in 1920 was a “public road” within the meaning of the Local Government Act 1919, even in the absence of evidence as to its use up to that time.

45 It may also be relevant that at all times the lane met the then statutory requirements for the width of a lane, even after the annexation of part of it by the then owner of number 13 Wallace Street.

46 Section 226 of the Local Government Act 1919 provided for a classification to be made of public roads according to their intended use. Public roads were to be classified as lanes if they were primarily intended to give access to the back of premises (s 226(2)(e)). Wallace Lane would appear to qualify as a lane by that criterion.

47 Section 226 of the Local Government Act required councils to classify all public roads, except main roads, as secondary roads, residential roads, pathways or lanes. The section required that councils publish such classification in the Gazette and in a newspaper. Section 230 required councils to prepare a road map and a road register of the area showing, inter alia, every public road which was either classified or aligned, and showing such classification.

48 If the Marrickville Council made a classification as required by s 226, and in or after 1920, prepared the road map and road register as required by s 230, then such documents would be relevant to, although they might not be determinative of, the question whether the lane was a public road.

49 I have referred earlier to the evidence of the acts done by the Council in relation to the lane which might be characterised as actions by the Council to take over the lane as a road on behalf of the public. I have also referred to the evidence given in these proceedings of actions taken by users of the lane which might be characterised as acts of public acceptance of the lane as a road.

50 Notwithstanding the Council's assertions in its correspondence of 25 and 27 February 2002, there is a number of ways in which the lane might have become a public road.

51 First the lane may have been a public road before 1906 by the dedication of Mr Sharp or, more likely Mr Bushby, in the Plan of Subdivision, and by acceptance by the public of the lane as a road by their use of it as such.

52 Secondly, at least that part of the lane formed as a road may have been a "public road" within the definition of that expression in s 4 of the Local Government Act 1919, whether or not the dedication had been accepted by the public by that date. If that was so, the lane would have vested in the Council by virtue of s 232 of the Local Government Act 1919.

53 Thirdly, either the use of the lane by the adjoining owners, which has been proved from the 1960s, or the actions of the Council in the 1970s, 1980s, 2001 and on 2 February 2002, or both, may be acts of acceptance of the offer of dedication made in 1884. This would only be so if an unaccepted dedication, as at 1906, could be accepted after the passing of the 1906 Local Government Act.

54 However, for these reasons, I think it is seriously arguable that the lane is a public road and is presently vested in the Council. That question is not only relevant so as to ensure that the legal owner of the laneway is joined as a party to, or has notice of, the proceedings. The question of whether the lane is a public road may also be relevant to the determination of both parties' claims to title to the lane by adverse possession, or for the imposition of easements.

55 At common law, the dedication of a road to the public could not be extinguished by adverse possession. In Dawes v Hawkins (1860) 8 CB NS 848; 141 ER 1399, Byles J said (at 858, 1403-1404):

“ It is also an established maxim, - 'once a highway always a highway: for, the public cannot release their rights, and there is no extinctive presumption or prescription. The only methods of legally stopping a highway are, either by the old writ of ad quod damnum, or by proceedings before magistrates under the statute. "

56 If the lane is a public road then, prima facie, neither the plaintiffs nor the defendants would be entitled to possessory title over it unless the road was closed pursuant to Pt 4 of the Roads Act 1993 (NSW).

57 Mr Bradford for the defendants has foreshadowed an argument that, by reason of section 45D(2A) of the Real Property Act 1900 (NSW) title to the lane may be acquired by adverse possession, even if it be a public road. Subsection 45D(2A) provides as follows:

“ (2A) A person who:

(a) is in possession of part of a residue lot that could, if it had been a whole parcel of land, have been the subject of an application by the person under subsection (1).
(b) is (or is entitled to be) the registered proprietor of an estate in fee simple in land that adjoins that lot,
may apply to the Registrar-General to be recorded in the Register as the proprietor of an estate in fee simple in land consisting of a consolidated lot comprising the part of the residue lot in the person’s possession and the adjoining land. "

58 A "residue lot" is defined in section 45D(2B):

“ (2B) In subsection (2A), residue lot means an allotment consisting of a strip of land that the Registrar-General is satisfied:
(a) was intended for use as a service lane, or
(b) was created to prevent access to a road, or
(c) was created in a manner, or for a purpose, prescribed by the regulations. ”

59 Subsection 45D(3) provides:

“(3) A possessory application may not be made in respect of an estate or interest in any land, or in any part of any land, of which:
(a) Her Majesty or a Minister of the Crown,
(b) a statutory body representing the Crown,
(c) a corporation which is constituted by an Act and of which, in the case of a corporation aggregate, at least one of the members is appointed by the Governor or a Minister of the Crown.
(d) a council or county council within the meaning of the Local Government Act 1993,
is the registered proprietor. ”

60 Mr Bradford has foreshadowed a submission that the possessory application is not excluded by subs 45D(3), and that Parliament intended that service lanes, of which he says Wallace lane is an example, should be able to be the subject of a claim for title by adverse possession. That submission may be correct. On the other hand, in order to be entitled to make an application under s 45D(2A), the applicant must be in possession of part of a residue lot which, if it had been a whole parcel of land, could have been the subject of an application under subs 45D(1). That subsection provides:

“ (1) Where, at any time after the commencement of this Part, a person is in possession of land under the provisions of this Act and:
(a) the land is a whole parcel of land,
(b) the title of the registered proprietor of an estate or interest in the land would, at or before that time, have been extinguished as against the person so in possession had the statutes of limitation in force at that time and any earlier time applied, while in force, in respect of that land, and
(c) the land is comprised in an ordinary folio of the Register or is comprised in a qualified or limited folio of the Register and the possession by virtue of which the title to that estate or interest would have been extinguished as provided in paragraph (b) commenced after the land was brought under the provisions of this Act by the creation of the qualified or limited folio of the Register,
that person in possession may, subject to this section, apply to the Registrar-General to be recorded in the Register as the proprietor of that estate or interest in the land. "

61 Given that the dedication of a road as a public road cannot be extinguished by the statutes of limitation, there must be at least an arguable question of whether an applicant under s 45D(2A) can obtain title by adverse possession to a "residue lot" if the residue lot is a public road. Moreover, there must, in any event, be a question as to whether the use by the defendants of the lane can create a title by adverse possession. I say nothing as to whether the evidence would justify such a claim if the lane is private land. If the lane is a public road, then a separate question may arise as to whether the use by the defendants and their predecessors in title of the lane is consistent with the lane being a public road, and not adverse to that position.

62 If the lane is a public road then, prima facie, no question would arise of the imposition of easements for carriageway or footway.

63 In my view, these proceedings cannot be determined without the question of whether the lane is a public road also being determined. In my view, the council is a desirable party, and a necessary party, to the determination of that question. If the lane is a public road, that issue should be determined in a way which binds all affected parties and avoids the need for further litigation. It was not submitted that this Court lacks jurisdiction to determine that question in these proceedings.

64 It is for these reasons that I have concluded that an order ought be made for the joinder of the Council as a party.

65 The evidence of the plaintiffs and the defendants has been concluded. It is possible that the Council may wish to cross-examine some of the witnesses who have given evidence, and that will be possible. It may be that the Council will itself wish to adduce evidence on the question. It may be that either of the parties may wish to re-open to tender evidence, at least if there is evidence, one way or the other, as to whether the lane was, in 1920 or thereafter, classified as a public road.

66 Because of the unfortunate history of the proceedings, because the proceedings were fixed for hearing for three days, and because much of the evidence did not relate to this question, I took the view that the interests of justice did not require joinder of the Council as a party before embarking on the evidence.

67 For these reasons, pursuant to r 6.24(1), I order that the Marrickville Council be joined as a defendant and cross-defendant to the proceedings.

68 I direct that within 14 days, the plaintiffs and cross-defendants file and serve a further amended summons and an amended cross-claim accordingly.

69 I direct that the parties also serve on the Council the affidavits relied upon in these proceedings. I will stand over the proceedings to a convenient date for further directions at which time I expect that the attitude of the Council to these proceedings should be able to be made known. The Council will require a reasonable period in order to consider the materials and these reasons.

70 I also direct that when these reasons are available to the plaintiffs’ solicitors in written form, that the plaintiffs’ solicitors serve a copy of the reasons on the Council.

71 I will provisionally fix the further hearing of the matter for 24 May 2007 for an estimated 1-2 days.

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