Bathurst City Council v Pwc Properties
[1998] HCATrans 119
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S141 of 1997
B e t w e e n -
BATHURST CITY COUNCIL
Appellant
and
PWC PROPERTIES PTY LIMITED
Respondent
GAUDRON J
McHUGH J
GUMMOW J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 21 APRIL 1998, AT 10.18 AM
Copyright in the High Court of Australia
MR W.R. DAVISON, SC: May it please the Court, I appear with my learned friend, MR D.R. PARRY, for the appellant. (instructed by McIntosh, McPhillamy & Co)
MR B.W. WALKER, SC: If it please the Court, I appear with my learned friends, MR B.J. PRESTON and MR A.S. BELL, for the respondent. (instructed by Clayton Utz) (Mr Preston did not appear in Court.)
GAUDRON J: Yes, Mr Davison.
MR DAVISON: Your Honours, on 21 December 1979 the appellant granted development approval for the use of the now respondent’s land as a shopping centre subject to certain conditions. That approval is to be found in the appeal papers at page 40.
GUMMOW J: Were there any constraints on the nature of these conditions? That is to say, any constraints on the power to impose these conditions?
MR DAVISON: There were common law constraints, your Honour. There were no constraints expressed in the instrument.
GUMMOW J: No, but spelt out of the statute one way or another.
MR DAVISON: The statute empowered the making of an ordinance which was relevantly the Bathurst Planning Scheme Ordinance, the statute then being the Local Government Act 1919. The statute made no specification as to empowerment for imposing conditions. The ordinance which we are seeking to have faxed to us as we speak - my memory of it was that there was a general power to impose conditions which was not circumscribed in any way specified in the instrument. The circumscription arises from the authorities which conveniently are identified in the respondent’s written submissions.
GUMMOW J: So you say there could be and was a condition imposed which required the transfer to your client in fee simple of land which could later be turned by your client to commercial advantage and use by sale of the property?
MR DAVISON: I do not quite put it that way, your Honour.
GUMMOW J: You might not put it that way but was there a constraint that prevented that from being so?
MR DAVISON: We say no, your Honour.
HAYNE J: But was that the effect of the condition that was imposed here? The condition imposed here was that a credit would be given if - - -
MR DAVISON: That is so, your Honour. Could I take your Honours to the condition. The condition is found at the foot of page 40 in the appeal papers.
GUMMOW J: But the credit having been given, do you say that was the end of it and you could do what you liked with the land thereafter?
MR DAVISON: There was no constraint which arose out of those circumstances, your Honour, no.
GUMMOW J: A condition that has permitted you to use the land as you wished after the credit had been given was something that could be imposed?
MR DAVISON: Well, your Honour, we do not say that there was no obligation at all. The Council has consistently accepted an obligation to use the land for car parking to provide for, so far as the respondent is concerned, that which it was required to provide, that is to say, 60 car parking spaces and, as your Honours will hear, to ensure that the respondent had access to its loading and unloading area. That was no part of the original consent but, subsequently, there was an arrangement between the appellant and the respondent whereby a reduction in the credit was allowed upon a payment of money made such that the respondent was entitled to access from the car park for the purpose of getting into its loading and unloading area. That is an arrangement which, if it is to be characterised, would be as a private trust, that is to say, an obligation upon the Council to provide for the respondent.
GUMMOW J: People jump to “trust” immediately without construing the relevant legislation. That is what puzzles me about this litigation.
MR DAVISON: We, with the greatest respect, accept that criticism, your Honour, and it flows throughout the judgment. But to the extent that there is a characterisation of that second element, that is to say provision of the loading and unloading facilities, if there is something that applies in the nature of a trust, it is a private trust and not a public trust. So, as we understand it, it bears not at all upon the present proceedings. So far as the condition was concerned it required the developer to provide 60 offstreet car parking spaces. That was the obligation that the consent imposed for the carrying out of this development, that is to say a shopping centre, so far as it related to car parking.
The condition went on to say that that condition could be satisfied by taking up, in part, any one or more of three options listed as (a), (b) and (c) at the top of page 41, and any one of those could have been taken up, or all three taken up, so as to satisfy the requirement for 60.
GAUDRON J: It reads very much, if you have regard to (c), as though that was the substance of the transaction, rather than the provision of the 60 car parking spaces. (c) reads:
The developer is to pay a cash contribution of -
so much -
in lieu of the provision of the 6.4 spaces not credited in (a) and (b) of this condition.
MR DAVISON: Yes, your Honour.
GAUDRON J: So, it looks as though there never was any intention that there be car parking spaces provided.
MR DAVISON: The intention, your Honour, was that there would be car parking spaces provided. So far as (c) is concerned, the extent that if - and one has to construe it appropriately - (a) and (b) are taken up, then the only way in which the balance can be provided, in the context of the particular development application, was to make such a contribution.
GAUDRON J: Well then I take it that really (a), (b) and (c) were cumulative ‑ ‑ ‑
MR DAVISON: No, your Honour.
GAUDRON J: ‑ ‑ ‑ in a sense. It was not feasible to say, “Look, here is $4,160 and I am providing 53.6 car parking spaces.”
MR DAVISON: With respect, no, your Honour. In fact, what occurred, (a) and (b) were taken up and the land transferred, such that 53.6 car parking spaces were provided for ‑ ‑ ‑
GAUDRON J: Were credited.
MR DAVISON: Were credited. There was no longer the opportunity for the developer to provide for the balance of car parking spaces for its development, as the development plan showed buildings upon the balance of its land. The only way then in which those additional spaces could have been provided, in the context of that application, was to make a contribution.
GAUDRON J: I think that is what I am putting to you.
MR DAVISON: Yes.
GAUDRON J: It is not so obvious that it was ever intended that the developer would provide all or any of the 60 car parking spaces.
MR DAVISON: Well, with respect, no, your Honour. The developer had the option of providing the 60 car parking spaces ‑ ‑ ‑
GAUDRON J: Providing 60, or of complying with (a), (b) and (c).
MR DAVISON: Yes, your Honour.
MR DAVISON: Yes, your Honour.
GAUDRON J: Not a choice of complying with (a) and providing some spaces or (b) and providing some spaces or (c) and providing some spaces?
MR DAVISON: In our respectful submission, your Honour, it was but, as things turned out, all three were taken up.
GAUDRON J: You just said, did you not, that the rest of the land was occupied?
MR DAVISON: Yes, your Honour. That is not to say, your Honour, that the applicant may not have been able to acquire other land nearby to consolidate with one or other of the parcels identified in (a) or (b) if they were not to be transferred to the Council so as to avoid the consequence of (c), but the result, your Honour, was that the developer chose to satisfy condition (11) by (a), (b) and (c) and it is our submission that that was ‑ ‑ ‑
GAUDRON J: And at that stage did the developer have any other means of satisfying (11)?
MR DAVISON: The developer could have provided for car parking ‑ ‑ ‑
GAUDRON J: No, not could have; did it have any other means at that stage?
MR DAVISON: There is no evidence as to that, your Honour. The other means ‑ ‑ ‑
HAYNE J: Was it open to it to itself acquire the land from the then owners?
MR DAVISON: Yes, your Honour.
HAYNE J: And construct the car parking spaces on that land?
MR DAVISON: Yes, your Honour. That land or that land and other land.
HAYNE J: Yes.
MR DAVISON: There was no requirement for it to be confined to be identified land in (a) and (b). That was identified by way as reflective of that which the Council would accept as satisfying the requirement to provide for 60 spaces, but it was open for the appellant to provide the 60 spaces proximate to its development in the way it chose. It was not ‑ ‑ ‑
HAYNE J: That is an obligation that flows from the ordinance or other instrument that stands behind this permit, is it not?
MR DAVISON: The obligation to comply with conditions,your Honour, yes.
HAYNE J: No, the obligation to supply car parking.
MR DAVISON: Supplying car parking is a consideration in the ordinance. There is not an obligation in the ordinance to provide parking, but there is the opportunity which the consent authority has to require the provision of car parking and that almost universally is done. How it is done can occur in different ways. This condition is very reflective of the ways in which that obligation can be satisfied.
CALLINAN J: As a reasonable and relevant condition of the development.
MR DAVISON: Yes, your Honour. The result, your Honours, was that the - just to complete the answer to the question about what the other alternatives were: in addition to acquiring other land, or the applicant for consent could have sought to demonstrate to the Council that it could provide, on the identified parcels of land then in its ownership or control, the totality of the 60 spaces. Now, that was an opportunity, and that opportunity could have been sought to be demonstrated by physical structures on the land so as to achieve that result.
There is any range of option that is available to the developer at the time. The fact is, choice was offered: “Either provide it yourself or transfer this land to the Council and pay the difference by way of contribution”, and it was the latter choice which was taken up by the developer. Your Honours, while the Council was assembling the parcels of land for its then clear intention to provide a car park within the middle of the street block within which the respondent’s land is located, it had made its position clear as to its intent in respect of the car park.
We have supplied further extracts from the bundle of documents, which is exhibit B. Could I hand up those additional extracts? These documents, your Honours, formed part of exhibit B in the proceedings and relevantly relate to the transfer by the Bank of New South Wales to the Council of land that it held within the area which was proposed to be this car park. Relevantly, at - - -
GUMMOW J: This has got nothing to do with this litigation, has it? With the orders in this litigation?
MR DAVISON: Nothing to do with the orders in this litigation, your Honour. What they go to, if one has to go to intent and determine what ‑ ‑ ‑
GUMMOW J: Well, the intent appears at page 37 of the bundle of documents, does it not, which is the contract - which is volume 2 - between Gurdon Motors and the Council? There is a special condition, is there not, directly indicative of intent with respect to one of the two parcels, namely, (a) in the conditions at page 41?
MR DAVISON: Yes, your Honour, agrees to give the benefit of 41 car parking spaces.
GUMMOW J: Now, the markings on that page, were they put there later, or was it - - -
MR DAVISON: One assumes they were put there later, your Honour. Yes, they were not part of the contract.
GUMMOW J: So, the last sentence is not struck out, is it? It has just been marked later?
MR DAVISON: It has just been underlined, your Honour.
GUMMOW J: Yes, all right. So, that was a condition. It was not a merge. It talks about “benefit accruing to a development application”, whatever that means, by certain people.
MR DAVISON: Yes. Well, the intent of those words, your Honour, as we would perceive it, is that, not just for the instant development, but thereafter, a credit of 41 car parking spaces would apply in relation to that land.
GUMMOW J: Well, the benefit went from Gurdon to Permewan Wright, I suppose.
MR DAVISON: Yes, that is so, your Honour.
GUMMOW J: Was there any contract for the Permewan Wright parcel or just a bare transfer? There is a transfer at page 97, I think. Was that preceded by a contract, do you know. Is there any evidence about that?
MR DAVISON: I do not recall that there was a contract, your Honour, but yes.
GUMMOW J: Well, that might be checked. Anyway, I took you away from the Bank of New South Wales.
MR DAVISON: At page 6 of that additional bundle, the Court sees the position taken by the Bank of New South Wales in respect of the proposal to transfer land to the Council for the purpose of the car park. Paragraph 5, at the foot of the page:
Council’s letter 7 October 1976 states inter alia “Council desires to acquire this land which, when amalgamated with similarly zoned adjoining lands and developed as a Council owned car park, will bring tangible benefits to your property”.
It was on the basis that land would be used for public car parking that Bank approved its sale. We wish to ensure that it will remain in use for this purpose and not be used otherwise, e.g. office/retail development, due mainly to the increase in land value this could have over the value Bank will now be receiving.
We are agreeable to vestment of fee simple of the land to Council without encumbrance on the title, however, would appreciate Council’s written assurances that land will not be used other than for public car parking without the written express consent of the Bank.
At page 8 the Council responds, relevantly in the last paragraph on page 8 - beginning in the middle of the page at line L:
In connection with your comments regarding the use of the land to be acquired, it is pointed out that Council desires to utilise the land for parking purposes, as a ground level car park where approximately 150 cars may be accommodated.
In order that you may be aware of Council’s reasons for wishing to obtain the fee simple of the lands without restrictive conditions, the following information is given.
It is Council’s policy to strengthen the existing commercial centre and to this end is encouraging re-development. At the same time, it is being subjected to pressures to permit a fringe development whereby shopping facilities may be provided with acres of car parking.
Council is aware of the adverse effect such a development would have upon the existing commercial area and has so far refused to consider such a development.
If the existing commercial area is to remain viable, more parking will need to be provided. It is envisaged that the existing car parking areas and the one proposed in William Street block would serve the purpose for some time. However, the time will arrive when there will be a need for even more parking space. Such parking may be provided by constructing car parking stations on the existing sites, the cost of which would have to be borne by the property owners deriving the benefit, or by endeavouring to encourage a development within such areas by a leasing arrangement which would ensure the provision of more parking, as well as additional commercial facilities. Such developments would ensure the success of Council’s policy of maintaining the viability of the existing commercial area and of providing more car parking when required.
He goes on to say it is for these reasons that a fee simple transfer is required so as not to fetter that intent. Then, finally, your Honours, on page 19, special conditions of the contract for sale commences at 17, between the Bank of New South Wales and the Council. Clause 24 d) of the contract:
The purchaser agrees to provide at all times public car parking facilities on the land hereby sold either on, beneath or above the surface of the land and the purchaser agrees to enter into a Deed of Covenant in the form attached hereto and marked with the letter ‘C’.
And that deed of covenant is at page 21 which binds the Council to that condition. That, your Honours, is an expression of the Council’s intent at the time, so far as the parking area as a whole is concerned, and the town planning context of that intent.
GUMMOW J: You say the proposal that now exists and about which Mr Walker’s client complains is, nevertheless, a proposal which is consistent with this intent?
MR DAVISON: Yes, your Honour.
GUMMOW J: Still consistent with this intent?
MR DAVISON: Still consistent, yes.
GUMMOW J: Why, because there will still be car parking even though it might be not on the ground?
MR DAVISON: Yes, your Honour. Your Honours, the continuation of that intent, so far as the present parties are concerned, is reflected by the correspondence at pages 43 to 49 of the application pages. The letter at 43 and 44 is the culmination of the series of correspondence that preceded it. The Council, at line 32:
I concur that Council has given a written undertaking in respect of your Points 1 and 2 in your letter -
and those points 1 and 2, one sees on page 45, are:
. access to the loading dock of Payless Plaza will be maintained;
. the number of car parking spaces presently available on that site will be maintained;
Then goes on to say:
I do not, however, agree with Point 3 -
and point 3 is that:
if the car spaces are relocated at first level or in a basement rather than at ground level, the convenience of the existing access from the car park to Payless Plaza will be maintained.
The Council restates a position it had expressed in earlier correspondence within a similar timeframe:
The vacant land that is currently used for carparking purposes and access is owned by Bathurst City Council. Council will therefore ensure that should the carpark behind Payless be developed in the future, access to the loading dock of the Payless Plaza is maintained. Council will also ensure that the present number of carparking spaces presently available on that site will also be maintained. You should note however, that the existing carparking spaces may be located at a level different to that which presently exists, eg, there may be one level or two levels above the existing ground level.
Standard commercial practice should ensure that a mutual agreement between the owners of Payless and any future development will result in that development linking with the Payless Plaza. Should such a link eventuate, it could be expected that access would be via travelators and/or trolley ramp, or whatever is the most appropriate technology at the time development takes place.
Your Honours, the position, so far as the impact upon the respondents is concerned, would be no different whether the form of development of the car park land were by way of the type of arrangement referred to in this letter, or by the erection of a car parking structure with the land continuing to remain in the ownership of the Council. The result is precisely the same. The impact upon the perimeter developers cannot be expected to be the same. If you have a car parking structure, it follows that the founding of the structure will interfere with the interplay of ground level access that now exists. Whether the intention which the Council originally expressed was in either of the forms that it expressed that either the structure which the adjoining landowners would have to pay for, or a joint venture with a commercial developer to provide for more car parking than is presently provided, the result would be a building which would necessarily interfere with the then existing ground level access from the car park. Your Honours, we say that it is entirely consistent with proper town planning that the Council form the opinion and the intent that it did at the time of developing this car park.
The Local Government Act 1993 requires land to be identified either as commercial or operational and, in essence, the distinction between the two is the ability of the Council to deal with the land, whether by sale, lease or other means. Schedule 7 of the Act provides for transitional provisions and the relevant provision is in Part 2 of Schedule 7, being clause 6 (2)(b), “land subject to a trust for a public purpose”.
The Council, on 18 May 1994 resolved to classify the car park land behind the respondent’s land as operational, and thereafter called for expressions of interest in respect of a redevelopment of the land on the basis of a retention of the facilities that the car park land already provided.
GUMMOW J: Where are the provisions in the Act that provide for this differential capacity for ‑ ‑ ‑
MR DAVISON: Operational and community land, your Honour. The particular part of the Act that deals with it is Part 2, related to public land, and there is a useful note ‑ ‑ ‑
GUMMOW J: Which section?
MR DAVISON: Section 25 begins the Part 2 of Chapter 6.
GUMMOW J: This is all simplified, is it not?
MR DAVISON: That was its intent, your Honour, but I do not know that is universally accepted that that has been the result.
CALLINAN J: Mr Davison, could I just ask you a question? Assuming that the position is that there is either some sort of an enforceable trust or and enforceable contractual obligation of some kind with respect to the provision of a number of car parking spaces, that you are right in the sense that you could satisfy whatever the obligation is by providing them on any level. Assume that to be correct. Is your only way of achieving that by classifying the whole of the land, or reclassifying the whole of the land?
MR DAVIDSON: Yes, your Honour.
CALLINAN J: That is the only way you can do it?
MR DAVISON: Yes, your Honour. It is not so much reclassification. This resolution arose in the context of transitional provisions, the land being held at the time the Act came into force. The Council was obliged at that point of time to identify all its land as either operational or community and it is Schedule 7 which goes towards dealing with the transitional arrangement.
CALLINAN J: I understand that, but do you have to classify all of the land as operational land?
MR DAVISON: Yes.
CALLINAN J: For example, might it not be possible to classify a different level, to get separate titles for different levels of the land and not classify the land as operational land that was going to be used, for example, for a certain number of car parking spaces? Is that just quite impractical, is it?
MR DAVISON: Impractical in this sense, your Honour, that that could only occur in the context of an approved development to which a strata title application could be made. Here there was no development proposal, only the continuation of the intent. The Council was required to address the fulfilment of the continuation of its planning intent and the only way, at that point of time, that it could do it was to have the land identified as operational because the land existed only in the form of the surface use. There was no building.
CALLINAN J: Why could not the Council have resolved that any development application and any approval should be upon terms that there be excluded from the operational land classification so much of a strata, if you like, as could be attributed to 41 or 60 car parking spaces as the case might be.
MR DAVISON: The difficulty, your Honour, is identifying where that would be in relation to the land, and in the absence of a development proposal that would generate such uncertainty as to be unworkable.
CALLINAN J: Would it necessarily? A developer would know that there would need to be some discussion with the Council and a proposal that took account of that.
MR DAVISON: Your Honour, a developer might choose the course of having the ground level as car parking and if the Council had taken such a course as to specify the ground level as operational and levels 2 and 3, for instance, within the example that the Council identified in the Bank of New South Wales correspondence, it would be denying that opportunity.
CALLINAN J: Did the classification have to precede the development application that the advertisement invited?
MR DAVISON: Yes, your Honour, the classification had to occur within 12 months of the coming into force of the Local Government Act 1993 and the date of the resolution was towards the end of that 12 month period.
CALLINAN J: I see. What happened if there were not an application? Is there not some provision for making an application afterwards?
MR DAVISON: Indeed there is, your Honour, but, so far as the decision which the Council was obliged to take in respect of this land before the expiration of the 12 months, it had to identify it as either operational or community. That, by reason of the surrounding facts and circumstances, had to be taken in the absence of any development proposal. There was none.
CALLINAN J: But if it had remained or if it had classified it as communal land, subsequently it could have sought to reclassify it after the 12 months?
MR DAVISON: Yes, your Honour, it could have, with the inhibition of the development proposal by adding another level of process to the achievement of the objective which had been in place since the car park was first contemplated prior to its establishment. But the answer to your Honour’s question is yes, the facility is available within the Act to have land which is designated “communal” redesignated “operational”.
CALLINAN J: It is a little more difficult though, I think, is it not?
MR DAVISON: Yes, your Honour. There is a requirement not only for local environmental plan but for a public inquiry in respect of it. What it does is have the effect of signalling to any potential purchaser or developer that there are a lot more hurdles to be jumped.
CALLINAN J: A prolonged and expensive course, no doubt?
MR DAVISON: Yes, your Honour, and that impacts upon the commercial viability of that solution, the result being that in order to achieve any increase in the level of car parking which the Council had always contemplated would be necessary, the only solution then would be a multi‑storey car park for which the surrounding landowners, who are the principal beneficiaries of the car park, would be bound to contribute. It was to avoid that consequence that the Council was leaving this option open. The question, your Honours, then is whether, pursuant - I am sorry, I do not think I had finished your Honour Justice Gummow’s question as to the context of operational and community land.
GUMMOW J: I was wondering if it would be possible for community land to be used for a car park.
MR DAVISON: Yes, it is possible for community land to be used for car parking but not in the - it would not be possible for it to be sold in the context of a joint venture or to be leased for any period longer than 21 years.
GUMMOW J: A car park would be “general community use”, would it?
MR DAVISON: Yes, your Honour. The question then, your Honours, as at the time of coming into force of the Local Government Act 1993, is whether the land comprising this car park, and particularly the land transferred to the Council by or through the respondent, was subject to a trust for a public purpose. The trust that has been held to exist is a constructive public trust.
GUMMOW J: What does that mean?
MR DAVISON: Your Honour, as we perceive it, what it means is that there is a perpetual trust - - -
GUMMOW J: The only public trusts I know of that are valid, apart from some odd trusts about tombs and dogs and cats and so on, are charitable trusts, and they are enforceable by the Attorney-General, with or without a relator, and that is not so here.
MR DAVISON: No, your Honour. We, with respect, your Honour, would accept your Honour’s - - -
GUMMOW J: Now, it may be one can construe circumstances as giving rise to a charitable trust - I understand that - and, in that sense, you have a constructive charitable trust. I understand that. But I do not think you use the words “public trust” without the need for some further explanation, and that is the difficulty I have with the judgments here.
MR DAVISON: Indeed, your Honour. I do not wish to go back, to spend time dealing with - - -
GAUDRON J: There are no definitions anywhere in this simplified legislation?
MR DAVISON: Not in that respect, your Honour, no.
GUMMOW J: Now, it may be that it could be some trust which has some of its element, at any rate, drawn out of a statute. There are decisions of this Court dealing with statutory trusts.
MR DAVISON: Yes, your Honour.
GUMMOW J: One of them could amount to a public trust, in the meaning of this section.
MR DAVISON: If I could come to that directly, your Honour.
GUMMOW J: Yes.
MR DAVISON: I do not wish to take time seeking to identify that which the Court of Appeal has identified, because we contend that it does not exist, and not known to the law. We have put our submissions in writing.
GAUDRON J: It is known to the statute, apparently. The statute assumes to know of a trust for public purposes. Is there any provision in the Act creating any such trusts?
MR DAVISON: No, your Honour.
GAUDRON J: Acknowledging them? Any other provision, apart from this one?
MR DAVISON: Your Honour, this is a transitional provision, so that that to which one goes is that which existed prior to the coming into force of this Act, and that was the Local Government Act 1919.
GUMMOW J: Well, that had provisions about trusts in it, did it not?
MR DAVISON: It did. It, in section 526, empowered the Council to accept trusts and, as we would perceive it, it was that type of provision that the draftsman of this transitional provision would have had in mind.
GUMMOW J: Section 526(a) talked about “charitable or public purpose.”
MR DAVISON: Yes, your Honour.
GAUDRON J: It is not said to be conveyed, et cetera, “on trust for”, it is said to be “conveyed for any charitable or public purpose”, which would then suggest that the schedule might be picking up property that was conveyed for a public purpose.
MR DAVISON: In our respectful submission, your Honour, that provision does not - - -
GUMMOW J: You have to read (b) with (a), though.
MR DAVISON: - - - expand the law of trusts, that the public purpose for which the Council may accept trust must, nonetheless, in our submission, be a charitable trust. We say that this provision goes no further and that one is cast back to the general law of trusts, with the result that although the Council was empowered to accept trusts by section 526, the result is that the trust, in order for it to be of this character, must be charitable.
CALLINAN J: Why could not car parking purpose be a charitable purpose, leaving aside whether there is a trust?
MR DAVISON: It could be, your Honour. When I say, it could be, if there were evidence to establish that car parking was relevantly a charitable purpose, then the answer to your Honour’s question would be, it could.
CALLINAN J: Because, I mean, under the fourth category of the Statute of Elizabeth, Havens and Highways, it is fairly analogous to those, is it not?
MR DAVISON: Well we would say no, your Honour. What that category of the Charitable Uses Act was directed towards was the right of passage by the populous and to maintain those essential public facilities. It has never been held that a car park is relevantly a charitable purpose within the ‑ ‑ ‑
GUMMOW J: Well, that is right, but that is not the point.
MR DAVISON: No, your Honour, but we say that in order for a finding to be made that it is within the spirit and intendment of the statute, there needs to be some evidence as to that. There is no evidence here which would assist in that decision.
GUMMOW J: You would have to have the Attorney-General; he is about to be lumbered with the superintendents of this.
MR DAVISON: Well ‑ ‑ ‑
GUMMOW J: There is a new Act in New South Wales all about it: the Charitable Trusts Act of 1993.
MR DAVISON: Yes, your Honour. That is not a reason for ‑ ‑ ‑
GUMMOW J: .....charitable trust in the absence of the suit when the Attorney‑General is there. He is the sort of party who would assist us on the construction of the statute.....
MR DAVISON: Indeed, your Honour. It only comes back to the proposition that we contend for, that there is no assumption that the facts of this case identify a charitable purpose, and there is no evidence that it does, and just to complete that ‑ ‑ ‑
GUMMOW J: That does not mean I cannot have some public purpose which the Act permits and gives some special characteristics to.
MR DAVISON: Well, your Honour, our primary submission is that that is not so; that where the Council has the ability to accept a trust which is enforceable by equity as a trust, it may only do so if it is a charitable trust. That is not to say, your Honour, that there is not, by facts and circumstances or by statutory provision, a duty created, and those are duties of the type that were first recognised in Kinloch, which have been referred to thereafter in a series of decisions, and perhaps the most useful in this context is Town Investmentsv Department of Environment (1978) AC 359, in the judgment of Lord Diplock in a passage at page 382, the first full paragraph:
My Lords, I would not exclude the possibility that an officer of state, even though acting in his official capacity, may in some circumstances hold property subject to a trust in private law for the benefit of a subject; but clear words would be required to do this and, even where the person to be benefited is a subject -
and relevantly no difference if the benefit is for public purpose -
the use of the expression “in trust” to describe the capacity in which the property is granted to an officer of state is not conclusive that a trust in private law was intended; for “trust” is not a term of art in public law and when used in relation to matters which lie within the field of public law the words “in trust” may do no more than indicate the existence of a duty owed to the Crown by the officer of state, as servant of the Crown, to deal with the property for the benefit of the subject for whom it is expressed to be held in trust, such duty being enforceable administratively by disciplinary sanctions and not otherwise.
Lord Diplock’s reasoning formed the majority reasoning and was also ‑ ‑ ‑
GUMMOW J: It also, more to the point, commended itself to four Judges of this Court in The Registrar of the Accident Compensation Tribunal 178 CLR 145 at 162.
MR DAVISON: Yes, your Honour, and what this Court did was to recognise the principle but in that case to say it had no application, but the principle, your Honours, nonetheless applies and we would say that what one is here concerned with in terms of the obligation which the Council has in respect of this car park is the obligation which, in a town planning sense, it adopted for itself at the time and from which it has not departed from the early 80s until the present time. The Council accepts that obligation and that, your Honours, is an obligation which is enforceable by the identification of the duty in appropriately constituted proceedings.
In New South Wales that would be in the Land and Environment Court and because the Land and Environment Court has been invested with the equitable functions of supervising performance of public duties in New South Wales prior to the Land and Environment Court Act that was a duty which would have been enforced and is enforced in other jurisdictions in courts of equity. The result, your Honours, that is that the duty is relievable in this context and if the Council sought to step aside from the obligation which was cast upon it, it could be restrained from so doing.
GUMMOW J: By who?
MR DAVISON: In New South Wales, your Honour, by anybody because of section 123.
GUMMOW J: Of the?
MR DAVISON: Of the Environmental Planning and Assessment Act. Even apart from that standing provision, clearly it is something that the present respondent would be a person having the relevant interest, we would have thought, but in any event in New South Wales.
GUMMOW J: It then becomes a question of defining the purpose, the ambit of the purpose.
MR DAVISON: Yes, your Honour.
GUMMOW J: And you are in disagreement as to the ambit of the purpose and that is the cause of the litigation.
MR DAVISON: We may be in disagreement, your Honour, but so far as the facts are concerned ‑ ‑ ‑
GUMMOW J: You say car parking, which you include in that broad sense that was apparent in the Bank of New South Wales correspondence, but not in correspondence with Mr Walker’s clients or its predecessor.
MR DAVISON: Your Honour, that correspondence that took place with Mr Walker’s client was ‑ ‑ ‑
GUMMOW J: He said no one said anything to us about multi-storey developments with a car park up the top.
MR DAVISON: They did not ask, your Honour. The thing is, they transferred the land to the Council. They transferred it so as to satisfy the obligation that they had under condition 11 of the development consent. That was the purpose of the transfer. There was, in that respect, relevantly, consideration which avoids the finding of the trust, there is no suggestion here that there is an express trust. Even, your Honour, as the question of unconscionability has to be looked at in the context of what the relevant, in this type of situation, of that which the respondents sought to achieve by what they did and by what the appellant sought to achieve by what was done. One has to take account of the two sets of surrounding facts in determining, even if there were the opportunity for some constructive trust as to whether there was any unconscionable conduct. But we say, one does not characterise it in that way, one characterises it as a duty to use the lands so as to achieve the result of providing upon them car parking and ‑ ‑ ‑
GAUDRON J: Do you accept that that is itself a public purpose?
MR DAVISON: That car parking is a public purpose, your Honour? Yes.
GAUDRON J: Well, then, did the Council, in terms of 526(a) accept real property conveyed to it for a public purpose?
MR DAVISON: Amongst others, your Honour, yes.
GAUDRON J: Then the next question I have to ask is, given that the general law does not know the sort of trust expressed to exist in Schedule 2, except in terms of a charitable trust, why does one not construe 6(2)(b) as including land accepted for a public purpose?
GUMMOW J: Under 526.
MR DAVISON: Your Honour, because all lands which the Council - the Local Government Act 1993, to which Schedule 7 relates, and was given operation by, includes as its charter, section 8. Section 8 ‑ ‑ ‑
HAYNE J: Sorry, of which Act? The 1993 Act or the ‑ ‑ ‑
MR DAVISON: The Local Government Act 1993. In section 8 it is identified that the Council has the following charter and then the sixth point down within section 8(1):
to bear in mind that it is the custodian and trustee -
GAUDRON J: That makes one think that they are not using trust and trustee in any very precise sense.
MR DAVISON: No, indeed not, your Honour. We would say it comes back to the proposition that we put that what section 8 is reflective of is duties which flow from the holding of land by Council and the duty to account for and manage the assets for which it is responsible.
GAUDRON J: Having said that, why does not the same flow into 6(2)(b) of the Schedule?
MR DAVISON: Because, your Honour, if that is the character, then there is no work for 6(2)(b) to do. All land which the Council holds is held by it as custodian and trustee of public assets. To the extent that they are held for public purposes, that is to say, lands that were acquired for a public purpose by whatever means, and that public purpose having been identified, one takes by way of instance the resumption.
GAUDRON J: Well, accepted. I am using the word “accepted” rather than “acquired” when I put to you the possible relationship between 6(2)(b) and the old Act, 526. It may be one thing if the Council goes and buys land out of its own funds for various reasons, it might be a different thing for the purposes of 526 and the effect of 6(2)(b) if it accepts.
CALLINAN J: It bought the Gurdon land though, did it not, and paid $800 for it? The 41, the one that was to satisfy the requirement of 41 car parking spaces.
MR DAVISON: No, your Honour, the land was transferred ‑ ‑ ‑
CALLINAN J: The contract says it was sold for $800.
MR DAVISON: Your Honour, with respect, is correct. That creates an additional complication. What we say is that where 526 entitles a council to accept and hold real property conveyed to it for a public purpose, that is no different from the situation that arises whenever land comes into the hands of the Council for a public purpose.
CALLINAN J: Under the 1919 Act, did the Council have any power to hold land other than for a public purpose?
MR DAVISON: The answer to that question has to be yes. There have been a number of cases where the Council has recognised the Council has had power to resume land for the purpose of resale. So it must follow that the Council was empowered to receive lands which it could hold not subject to a public purpose. I will find that particular passage, but we would not submit that a council had no power to receive land that was not ‑ ‑ ‑
HAYNE J: Hold land.
MR DAVISON: Hold land that had not assigned to it a particular public purpose.
GUMMOW J: Granted then, as I think you do, that 526 would apply here in its public purpose aspect to this land, how would the 526 land fit in the structure of the new Act if it was not to be treated as 6(2)(b) were in it? Where else would it slot in? That is to say, a public purpose short of a charitable trust, true, but this particular statutory creature that is recognised in 526, where would that fit? It would be odd if it were not ‑ ‑ ‑
MR DAVISON: Could I answer your Honour’s question in this way: if what was intended by the draftsman was to take as community land all land which the Council held for a public purpose, then it would have been - - -
GAUDRON J: No, no, not “held”, had accepted and held. You see, clearly enough, “accept” in 526 indicates a particular form of acquisition in context. Not all land held, land accepted and held.
MR DAVISON: So far as this particular land is concerned, your Honour, that formula of words is one which we say necessarily gives rise to a trust. For the Council to accept it for the public purpose, it follows that it must be for no other, and the question is whether the facts of this case justify a finding that the Council accepted this land for that public purpose and no other. We say it did not. We say that that which characterises this transfer, so far as the - - -
GAUDRON J: Well, it does not say “and no other”. If you follow the words of 526(a) it does not say that. I mean, the larger questions of equity are fascinating, but perhaps the answer to this is to be found in the detail of the statute.
CALLINAN J: And no document suggests any other purpose, anyway. There is nothing to suggest any purpose other than car parking, is there?
MR DAVISON: There is no document which requires car parking beyond the credit. The fact of providing the credit which the contract calls for does not carry with it the obligation to use this land for that purpose. The obligation is to ensure that that number of car parking spaces is available for this development. But the obligation does not flow to it being upon this land and no other, the - - -
CALLINAN J: What about if the Council did not want to provide any car parking space on the existing site, the accumulation of allotments? Do you say that it could satisfy the obligation by providing car parking, say, two blocks away?
MR DAVISON: No, your Honour, we do not. No, we say that - - -
CALLINAN J: Well, you are really saying, then, that there must be some association with, or use of, an identified parcel of land or accumulation of parcels of land. Is that not right?
MR DAVISON: Yes, your Honour, Council accepts the obligation of that amount of car parking being provided.
CALLINAN J: But, generally, somewhere on the site, is that what you are saying?
MR DAVISON: Yes, your Honour.
CALLINAN J: And by “the site” you mean the existing car park, either above it, or below it, or on it?
MR DAVISON: And, your Honours, the way in which we characterise this conveyance, it was not the acceptance of land conveyed for a public purpose, but it was the acceptance of land conveyed to satisfy condition (11).
GAUDRON J: Two questions arise in relation to the way you put that. Firstly, it suggests that the intention, the relevant intention, is on the part of the person conveying. The second thing is, are the two mutually inconsistent?
MR DAVISON: The question, your Honour, is what the bargain is. That is referred to by the documents and the bargain is by the transfer of land you have a credit for this development and any other development of the subject land of that number of car parking spaces. That is the bargain. The bargain does not go on to say “and the land shall be held for that purpose”, not even “for that purpose and no other”. It does not go on to make that requirement. That duty, we accept, arises in the context of the Kinloch style of duty. It is an administrative duty, not a duty which arises in the nature of a trust and ‑ ‑ ‑
GUMMOW J: So you are saying you could sell this land - and it is Torrens land after all is said and done - and the purchaser would acquire an indefeasible title free of any condition of itself?
MR DAVISON: Yes, your Honour. Yes, if that occurred, that, your Honour, would be correct.
GUMMOW J: And that in doing that your client would not be disobedient to its obligations accepted under the old 526?
MR DAVISON: Well, we say, your Honour, no obligation accepted in that respect but there is nonetheless that administrative duty.
GAUDRON J: Where does that come from?
MR DAVISON: The duty, your Honour, comes from the obligation to provide for car parking.
GAUDRON J: And where does that obligation come from?
MR DAVISON: It comes, your Honour, from the ‑ ‑ ‑
GAUDRON J: The acceptance of the land perhaps.
MR DAVISON: No, your Honour. It comes from the holding out which the Council made generally in respect of a car park and the benefits that the car park would provide. That was not a holding out that this respondent or its predecessor have acknowledged or relied upon, but it is nonetheless, in terms of the Council’s broader public duty, one which it has accepted for itself and made known to other landowners who contributed towards this car parking area. That is the source of the duty and a duty which is enforceable but not as a trust.
GAUDRON J: Would there have been that same duty if the Council had owned the land in the first place?
MR DAVISON: Yes, your Honour, we would say it would. We say regardless of how the land comes into the Council’s hands - and, as the evidence discloses, the lands forming this car park came into the Council’s hands in a variety of ways, some by purchase, some by transfer for which a similar formula of words was used as in this contract, credit for car parking for future redevelopment, there is the Bank of New South Wales which articulates the matter with specificity, and part of the land was resumed. It matters not at all how the land came into the Council’s hands so far as that is concerned because in all respects the Council is utilising public money to acquire the land for that broad public purpose, that public purpose which is enforceable by the administrative line of the equitable jurisdiction rather than by a trust. That really is all this comes down to in our perception of it, your Honours, that the obligation here created is an administrative obligation, not a trust obligation.
HAYNE J: And that therefore the obligation that was imposed by old 526(b) to act in the administration of the property for the purpose for which it was conveyed - as I understood it, a purpose which you accepted was the public purpose of provision of car parking - is an obligation that is swept away by the 1993 Act.
MR DAVISON: No, your Honour. My concession of car parking being appropriate public purpose was not one which accepted the proposition that the land here conveyed had the character of acceptance by the Council for that public purpose. We do not make that concession.
HAYNE J: So you meet it at the logically prior point, saying that, although car parking is a relevant public purpose, this land was not accepted for that purpose?
MR DAVISON: That is so, your Honour.
HAYNE J: If it had been accepted for such a purpose, does it follow that the obligation to act in administration of that property for that purpose could be given effect under the 1993 Act by reading 6(2)(b) as intended to extend beyond what the law in its narrowest usage might understand by a trust obligation?
MR DAVISON: We, your Honour, would still say no. We would say that what 6(2)(b) is directed towards is a trust obligation in what the Kinloch line of cases speak of, trust in the lower sense rather than the higher sense, and that the subject land is not impressed with such a trust.
GAUDRON J: Do we not have to assume that the land was accepted finally for a public purpose, namely, the provision of car parking, to be used in connection with the developments in the surrounding area?
MR DAVISON: We would say no, your Honour. We would say that is not ‑ ‑ ‑
GAUDRON J: Would that not be the first requirement of a public body in matters of this kind, to act bona fide for all purposes of the Act?
HAYNE J: Was it not concluded against you by the condition at page 37 of the appeal book; the condition in the contract, which says that “the purchaser” - that is the Council - agrees that”, et cetera?
MR DAVISON: Your Honours, so far as the intention of the draftsman is concerned for clause 6(2)(b) of the transitional schedule, if he had intended that all land that was acquired by the Council for a public purpose from whatever source was subject to a trust for a public purpose, then there is no need for the words in 6(2)(b). The transitional provision would simply be to deem all lands which the Council held, at the time of coming into force of the Local Government Act 1993, for a public purpose, would be community lands. There would be no offering to the Council of a discretion to determine whether certain lands so held for a public purpose could be identified as operational land. That is a general power which is given by the Act for which (2)(b) is a limitation.
GUMMOW J: It has to think about (2)(c) as well.
MR DAVISON: Yes, your Honour.
HAYNE J: I wonder whether you may not contend that (a), (c) and (d) - and I do not know about (e) - would be rendered otiose by a construction of (2)(b) as entirely ample as the construction that is being now debated.
MR DAVISON: That is our contention, your Honour, yes.
GUMMOW J: But they can overlap; you could have (a) and (b), could you not? In other words, some situation may fall into more than one.
MR DAVISON: Indeed they may, your Honour, but if all lands that were held ‑ ‑ ‑
GUMMOW J: One could have land dedicated as a condition under section 94 of the 1979 Act; that was a public reserve.
MR DAVISON: Yes, your Honour.
GUMMOW J: There would be quite a few of those.
MR DAVISON: Yes, your Honour. It has to be borne in mind that that Act was not in force when this consent was granted.
GUMMOW J: I realise that.
MR DAVISON: But the point that we make, your Honours ‑ ‑ ‑
GUMMOW J: But the presence of (c) is some indication of the sort of subject-matters perhaps of (b).
MR DAVISON: We would say not, your Honour, because if (b) ‑ ‑ ‑
GUMMOW J: Because 94 was the first legislative plain formulation, as I understand it in New South Wales, of what previously, to some extent, had been spelled out in other cases, particularly by Mr Justice Glass, as to what could be extracted under these conditions.
MR DAVISON: Yes, your Honour, and so far as that is concerned, there is no finding that the obligation that is created is relevantly a trust obligation. Mr Justice Glass did not go that far.
GUMMOW J: But he was not focused, as we have now been, on 526.
MR DAVISON: No, indeed he was not, your Honour. We say that the obligation that Mr Justice Glass was speaking of was the obligation of the Kinloch type, and we do not resile from that. But we do say, your Honour, that there would be no need for any of the exclusions of 6(2) if all lands that the Council held for a public purpose were community land. If “trust” is met in 6(2)(b) in the highest sense, then all land held by the Council for a public purpose would be caught.
HAYNE J: What would be odd about that result?
MR DAVISON: Because, your Honour, it takes away the discretion which the legislature clearly offered to councils in the transitional period.
HAYNE J: Well, it confines the consequence of the discretion in that land held for public purpose, on this construction, would be subject to all the fetters and difficulties about changing use or disposing of it.
MR DAVISON: Yes, your Honour.
HAYNE J: Is that a result which you contend to be an odd or absurd result?
MR DAVISON: The absurdity, your Honour, is simply that there is a removal of that discretion. If the legislature did not intend there to be a transitional discretion, then there is no need for clause 6; no need to give that discretion at all. The legislature has seen it necessary for councils which have ordered themselves in a way which allows the very thing which this Council has intended to do throughout, to continue with that intent by identifying the land as operational land, without having to go through a process which is a public process, quite independent of the understandings that people who have dealt with the Council over the years in respect of the intent that it has manifested in the Bank of New South Wales correspondence to them and to others about the ultimate use of this land ‑ ‑ ‑
HAYNE J: Would land of the kind, say, where the Council has its depot, would that be ordinarily regarded under this legislation as operational land?
MR DAVISON: It would usually, your Honour, be community land, I would think, because it is held for the public purpose of providing the works depot.
CALLINAN J: Mr Davison, this land is not a public car park within the meaning of that term in the dictionary.
MR DAVISON: Yes, your Honour.
CALLINAN J: It is, or it is not?
MR DAVISON: It is, your Honour.
CALLINAN J: It is. So, one has to pay to go there?
MR DAVISON: No, your Honour. I am sorry, your Honour.
CALLINAN J: There is a definition at page 449 of “public car parking”, but the characteristic is that you have got to pay to park in it.
MR DAVISON: I am sorry, your Honour, I have jumped too quickly to an affirmative answer. The answer is, no, it is not, in that respect.
CALLINAN J: Just to follow up what Justice Hayne asked you, would a public car park be operational land or would that be communal land? It may not matter.
MR DAVISON: I would think, your Honour, that it would be operational in that whatever it is doing is providing for a commercial rather than a community purpose. This definition is directed as much to, and one would say, more to, commercial operators, where the land is held privately not publicly, but councils such as the Domain parking station in Sydney operate similar facilities.
CALLINAN J: Could the Council charge for parking on the present car park?
MR DAVISON: Not without - there are regulations under this Act which deal with such facilities, and the Council could go through the process to establish this car park as a public car park for those purposes, but that has not occurred.
Your Honours, just to complete this proposition: so far as the obligation is concerned, the learned trial judge found at 121 line 10 of the appeal papers:
There can be no suggestion that the council does not intend to ensure that parking provision is continued.
Then he went on to say:
Although the calling for expressions of interest indicates that the council may seek to take commercial advantage from the sale of the land, nevertheless while ever the sale is intended to be conditional upon the preservation of parking for members of the public, including sufficient provision to meet the demand created by the development on the adjoining land, council’s actions would not appear to be contrary to any moral, legal or other obligation it has in respect of the use of the land.
Can I then, your Honours, just quickly deal, by way of reply, with the respondent’s written submissions. In paragraph 4 and 5, secret trusts are referred to. In our submission, your Honours, secret trusts arise only by the act ‑ ‑ ‑
GAUDRON J: Not in this case, do they?
MR DAVISON: No, your Honour. I will not take the matter further if your Honours do not wish to hear further. In paragraph 11 a reference is made to Keough v Burnside, and Burnside v Attorney General South Australia. It is to be noted that the Full Court did not follow Mr Justice Debelle in his reasoning process in Keoug, and that, in essence, what Mr Justice Debelle was finding was more related to an express trust which was also held to be charitable, than a form of constructive trust of the type here, found by the Court of Appeal.
Paragraph 12 refers to Salvation Army v Fern Tree Gully and Ashfield v Joyce - those are rating cases which this Court and Privy Council have found to be unhelpful in identifying what is a charitable trust for the different considerations that apply in that context.
Paragraph 16, we say, your Honour, that there is no evidence sufficient to justify the finding that car parking is relevantly a charitable purpose and while highways are essential components of life in the time of the reign of Elizabeth I, as they are now, car parks were not then, and are now not, we would say, but in order to determine whether they were, one would need some evidence. There is as much reason for denying the use of private motor vehicles associated with commercial facilities as there is in encouraging them because private motor vehicles cause pressures upon the roads which are the more appropriate charitable purpose and the denial of them and the encouragement of the use of public transport, which limiting car parking would provide, is a matter which would need to be taken into account in any evidentiary excursus as to whether car parking was relevantly a charitable purpose.
CALLINAN J: Mr Davison, that is exactly the opposite of what the Privy Council said in Attorney General v Brisbane City Council. It said the trial judge was perfectly entitled to decide for himself what a showground was, that everybody knew what a showground was, and you did not need any evidence. I do not see, really, myself, at the moment, that there is any difference between that and a car park, or indeed, any difference between a car park and a haven or a port.
MR DAVISON: Your Honour, again, it is a matter for the trial judge to find on the basis of facts. What the Privy Council was saying was that the decision was open to the trial judge. The fact is that there has been no finding here and we say no evidence to support a finding and we say that had the question been alive before the trial judge, the points that I am making would be available to pursue in the evidence and there is a clear distinction between roads and a port than there is between roads and a car park because there is the continual passage.
CALLINAN J: If a common were provided for the tethering of horses, you would not suggest that that would not be a public purpose or charitable purpose in Elizabethan times, would you, so that the horses could pass across the highways and then be tethered on a public common?
MR DAVISON: We would have said that the tethering of horses on a common would be inconsistent with the more useful public purpose of the common of recreation.
CALLINAN J: Call it a tethering area, if you like, it is incidental, completely incidental to the highway, is it not?
MR DAVISON: Your Honour, we would say no. The highway is to pass along. The tethering ‑ ‑ ‑
GUMMOW J: Not for ever though.
MR DAVISON: Indeed, but speaking of Elizabethan times, the tethering would usually take place at an inn along the highway and would be associated with the commercial purpose rather than with the highway itself.
Paragraph 18 refers to the car park in proximity to the respondent’s supermarket. We reiterate that the transfer was one for which there was appropriate consideration. It was the satisfaction of condition (11), but in addition, what the respondents achieved by the transfer was the avoidance of obligation for the perpetual maintenance of this car park and avoided the obligation for rating and taxing in respect of it. Those were parts of the bargain that the parties made.
So far as paragraph 30 is concerned, the reference to the payment of other moneys, the only other moneys that were paid by PWC to the Council were for its own benefit and not for any public benefit. It was to provide for the sealing of the car park in the interim between a car park being partly in the hands of the Council, or certain parts of the car park being in the hands of the Council, and the totality of the car park coming into the hands of the Council some years later. That which the respondent sought to achieve was an interim facility for its benefit upon the lands which the Council accommodated. After the totality of the car park was constructed there is no evidence that there has been any contribution towards improving or maintaining the car park by the respondents nor is it to be imagined there would be.
Paragraph 32 relates to the proposition of unjust enrichment. In our respectful submission, it is not the Council that is enriched, it is the public. That is the difficulty that one has in seeking to separate out a particular public purpose from the Council’s duty to act, in all respects, in the public interest. Otherwise, your Honours, I have covered the submissions by what I have put. So far as lot 12 is concerned, there was no contract between PWC and the Council because the transfer was essentially by way of - the
land had already been conveyed to the Council in error, and all that occurred was the confirmation of the erroneous earlier transfer.
GUMMOW J: Conveyed under what disposition? Conveyed under some earlier contract in error?
MR DAVISON: No, your Honour, it was an additional - there were certain lands conveyed to the Council and, mistakenly, lot 12 was added to them.
GAUDRON J: That is somewhat cryptic. Let me ask a few a questions about lot 12. Is it conceded that the effect of the conveyance of lot 12 to the Council is, from the point of view of PWC, exactly the same as if it had been conveyed by PWC to the Council in satisfaction of the condition?
MR DAVISON: Yes, your Honour.
CALLINAN J: And no money was paid?
MR DAVISON: No, your Honour.
GAUDRON J: Now, before you resume your seat, Mr Davison, can you direct us to any cases on section 526 of the old Act?
MR DAVISON: No, your Honour.
GAUDRON J: Thank you. Yes, thank you, Mr Walker.
MR WALKER: May it please your Honours. Just before lot 21 was conveyed on 8 February 1980, which is to be found at page 33 of volume 2, the Council chivvied along those who were then representing the predecessors in title of my client. Having agreed to a boundary adjustment between lots in order to enable a buildings back wall to be straight, they said ‑ lines 25 to 30 on that page:
It is also pointed out that the conveyance to Council of the land required for car parking purposes, has not yet been finalised.
It is an expression which is a little obscure in the printing, but I think it is clear enough to your Honours and, certainly, the effect, so far as concerned the plain attitude of the Council, could not be clearer.
That is before it happened. That is at a time when, according to the way my learned friend put it in opening, my client’s predecessor, the developer, was apparently faced with an embarrassment of choices as to how it would satisfy the requirement for the provision of car parking. Now I am quite unable to point out any evidence to your Honours which would show that in fact there was one, and one only, effective commercial choice, that is, no choice at all. What is clear, from material which I will point out to your Honours, and from the various plans that your Honours have seen, is that this is in the centre of town, a relatively built-up area, a business area, where there had already been some car parking uses.
So that this Court would not find, no other court below has been asked to find, that there was, as it were, an ease of choice available to the developer. I am about to come to reasons why, on the evidence, one would find there was an extremely localised and highly particular zone where car parking would be of any interest as a public facility to be provided at the expense of the developer, by giving it, that is the land, to the Council to be used for public car parking.
What is significant about the words at 33 is, of course, that they chivvy along the developer to complete something, and that which is completed is then, of course, as various of your Honours have pointed out, done under the otherwise unexplained cover of an $800 contract for land which it might be assumed for another lot referred to in the appeal book, the one noted at page 10 of the same volume, in the near vicinity, one may assume that $800 did not represent anything like what I would call a commercial purchase. I am unable, I am afraid, to point to anything else in the record that I have been able to locate to explain why $800.
CALLINAN J: The Privy Council in that other case, the case I mentioned to Mr Davison, said that without any evidence at all the 450 pounds was plainly an under value.
MR WALKER: Yes. Well I will, with the same boldness but with none of the authority, tell your Honours that $800 was inadequate, but I cannot take it any further than that.
What we have then at page 37, as your Honours have observed, is the special condition 2 which very plainly links that which is being achieved, so‑called by contract, that is, purportedly by contract, links it with the apparent choice Mr Davison has noted in condition (11)(a) to which I will come back. It links it with the hurry up of the letter at 33, and it links it to the provision of 41 car spaces. There is no question about that, no doubt possible. I think your Honour Justice Gummow has already referred to the somewhat curious phrasing, but the intendment, at least, is clear, namely the said benefit of car spaces:
shall accrue to any development application lodged by the vendor or any purchaser from the vendor or any owner for the time being of.....who wishes to develop -
that land.
It is agreed this condition will not merge on completion of this contract.
Now, whatever may be said in criticism of the prose, or much more importantly, in criticism of the legal achievement of the apparent intendment of those words, we would submit that so far as concerns the central issue of purpose, to which I will come in a moment, those words made it very clear, pre‑conveyance, just as 33 made it very clear, pre‑conveyance, just as condition 11(a) made it very clear at the outset of the planning decision that this was land for a purpose.
Your Honours, so far as concerns the public nature of the purpose, and before I embark on the, perhaps, stormy waters of describing this as a charitable trust, confining myself to public, could I take your Honours to evidence that was before the courts below. It is in the same volume, 2, that is, and it starts at page 2. This was near contemporaneous discussion of the needs of what I will call - I hope, not tendentiously - the community at the time. One will see that on page 2 there is the unromantic heading, Functional Purpose of Bathurst. One thing is clear, that apart from being an historic centre it is also a business, service and distributing centre with other functions as well, and for Mr Davison’s emphasis on the fluid intercourse on highways, your Honours will see that it is also crossroads of main highway and main routes, et cetera.
Having set the scene in that very general way, the planner who wrote this, the next page, page 3 under the heading, Detailed Planning Proposals, and under the two headings in particular, Central Parking Areas, and Zoning for Central Business Parking, which will be found between 25 and 30 and 35 and 40, one finds a relatively earnest discussion of the importance from the public point of view, that is, planning of this community, of parking, in order to enable business and the life of business to be concentrated in the centre of town rather than strung out along where acres of parking could be found out of the CBD.
One will find, I think, the relevant area at about line 45 on that page, your Honours, an area bounded by William, Howick, Bentinck and Russell Streets. I think that is correct. I stand corrected if I have mistaken the location. Then one finds on page 6 there is a discussion at about line 35 under the heading “Central Business Zoning”, in relation to the area where there had been an attempt to overcome what is called the “too strung out” nature of the centre and “some consolidation being highly desirable”. The biggest benefit of the sprawl, that is, other than a single street, is that the parking which can be spread out over a larger area than is possible by the one-street type shopping group.
Now, all of this is beginning to sound, in our submission, your Honours, very plainly an overt, an explicit awareness by the Council and those advising it of what might be called the community value, phrased admittedly in planning terminology, of public parking.
GUMMOW J: What is the date of this document?
MR WALKER: According to the index, your Honour, that is quite undated. I was not at trial so I am not quite sure what it was described as when it was tendered, your Honour.
GUMMOW J: Mr Davison can probably tell us in reply.
MR WALKER: It is relatively clear, however, that it was before these developments had been the subject of application, so it is from context.
MR DAVISON: From the 1960s, is the time that you put it, your Honour. Your Honour sees the first page, “Planning Scheme Reports”. It was a report by a group of planners in respect of the proposal for the Bathurst planning scheme ordinance which was made in 1972 and ‑ ‑ ‑
GUMMOW J: Are we going to get that ordinance?
MR DAVISON: We have an extract from it, your Honour, straight off the fax machine and there is only one copy, unfortunately. The instrument was made on 24 November 1972.
MR WALKER: Your Honour, can we have copies of that made for your Honours over the luncheon adjournment?
GAUDRON J: Yes, that would be the convenient course, thank you.
MR WALKER: Now, your Honours, nor did those who owned these pieces of land, nor did they have in mind anything other than the provision of public parking. Of course they had selfish motive. Many charitable donors or donors for the public benefit, or those who give for a public purpose, have selfish motives and none the worse for that. On page 17, which is the second page of a town planner’s report of March 1978, there is consideration of what is called - I cannot explain it - a suspension application in relation to, amongst other lots, lots 22, one of the subject lots. It is said to be an application by Gurdon Motors and two objections are the subject of extract and quotation between lines 20 and 30.
It is clear, as well, that in the planner’s report to Council, which it is asked to note, the public nature, the public importance of what is called the “eventual planned car park”, to which lot 22 may be important, is emphasised. So that there is again, we stress, an overt explicit understanding of the general public community nature. With great respect, we adopt and urge what your Honour Justice Callinan said about what can be drawn by a court at trial or at appellate level, from words such as “showground” or “car parking”. But, in our submission, here we actually have evidence as well, in relation to the planning of this community, from which one can discern without any difficulty at all, the intended public benefit from the Council’s point of view, from those advising the Council and, presumably, from those willing to co-operate with the Council in relation to this car park.
Then we come to what might be called the developer’s ambitions which, though expressed as long ago as December 1979, are still relevant in this case because of the conflict, which as your Honour Justice Gummow has pointed out, leads to this litigation, notwithstanding the Council’s repeated protestation that it does not wish to depart from the obligations that it apparently accepts it has. Page 18, predecessor entitled, 17 December 1979 ‑ ‑ ‑
GUMMOW J: Who are these Tortuga Securities? Are they a related company of your client?
MR WALKER: I cannot say that they were related then, but they are one of the predecessors in title. They are certainly the proponent of the development which we now hold, as I will show your Honours in a moment. Page 18, the notion that there could be, as it were, car parking in the sky, as is now proposed, needs a little bit of anxious consideration. Line 35 or so:
As previously discussed, it is essential for the “½ case” operation to have a bitumen paved parking area for at least 100 cars completed to coincide with the opening of the supermarket which we anticipate will be in mid September 1980. Under the ½ case concept, shoppers are required to wheel trolleys to their car with their purchases, and unless an area of the car park is paved and available, this concept will not be accepted by the shopping public of Bathurst.
In due course, your Honours, I will draw to your Honours’ attention again the same page contains special condition (2), namely page 37, where the word “adjacent” is used just above line 20, which we would ask your Honours to understand in a context which really means this is adjacent in a sense that wield shopping trolleys onto available paved area is a genuine and real prospect. This is a letter ‑ ‑ ‑
HAYNE J: If you can find one that steers.
MR WALKER: Yes, all the more reason for the paving to be extremely contiguous to the shop floor, your Honours, no stairs.
CALLINAN J: Tortuga seems to have been agent for your client. I was just looking at the second paragraph on page 18.
MR WALKER: Yes. Whether it is related, I do not know. Its name is evocative of all sorts of exotica, your Honour, but I have got no idea whether it was a mere planning consultant or what.
CALLINAN J: Anyway, they seemed to be acting for your client.
MR WALKER: It is the proponent which your Honour will find on page 20 under the development application. Now, going back to page 18. This, of course, is a letter to the Council which tells the Council in the most formal way possible, after all, line 25 “We lodge herewith a Development Application”, what is intended so far as the proponent is concerned in relation to this shopping facility and what is intended is that there be for “the shopping public of Bathurst” something which is adjacent, available, paved, et cetera, contiguous to the proposed shopping centre.
So that what falls out thereafter, when your Honours come to ask, “Was there a purpose and what kind of purpose was it?” and then finally perhaps, “What juristic character does one give the means by which that purpose can be enforced?”, it is essential, in our submission, to understand that the context included this dealing a mere four days, as it happens, before the application was approved. That dealing included between lines 45 and 50:
We understand that a credit for car parking spaces is attached to the Gurdon Motors site -
That is by a mechanism I cannot explain to your Honours. Whether it is what might be called an expectation, legitimate or otherwise, a local understanding, a tradition, does not matter. What matters is that there was the expression “a credit for car parking spaces” being attached to that site:
and by agreement with the vendor we request that this credit be transferred to the present application.
So that by language which was plainly understandable between the parties to this correspondence ‑ ‑ ‑
GUMMOW J: That is the genesis of the language in the special condition at page 37.
MR WALKER: Yes. By that language it is quite plain that this was not some incidental offer of some possibility not to be thought of as the prime intent of the parties to the consent, namely, (11)(a) the transfer; (11)(b) the transfer of land as credit for the provision of a specified number of car parking spaces. This is no accident, this is no mere option; this is really what they were talking about.
Your Honours will then see, passing briefly over, at the top of page 19, about line 10, there is reference to footpaths. I only make that clear because of what will follow in the development consent itself. On page 20, as I have already noted, Tortuga Securities, makes application. In case your Honours have been wondering what things looked like, there is a not particularly informative picture at page 21 which nonetheless has the numerals 22 and 21 at about line 30, top and bottom, to show your Honours the particular lots. There is a location plan, if that assists your Honours in relation to street names, on page 22 between lines 45 and 60 on the right‑hand side.
At page 23 there is, under what I apprehend is 101/79, which is the third‑last entry in that handwritten ledger of approvals, Tortuga Securities’ application noted and there is a reference to “shops - chemist food supermarket, arcade and 9 specialty shops”. Then on the right‑hand side in relation to what had happened, “Approved - letter dated 21.12.1979 - confirmed” - and I cannot explain that quite to your Honours at the moment - and there is something about “for” - and I would have to interpolate the figure - “parking” - “space”, we think - and I cannot interpret the rest of that wording. So it is quite plain that there was a significance attached even in the summary notation of this approval to what then comes. I have taken your Honours to pages 24 and 25 of this bundle where the consent is found rather than to where my friend took you simply because it is conveniently in this sequence.
What one has is a condition which imposes an obligation only if the developer proposes to develop the land lawfully and in accordance with this consent. That is No (11). The developer is to provide spaces and, upon that structure, my learned friend has hung his opening gambit, which is that (a) and (b) ought not to be construed as anything in the nature of a characterisation of the purpose of the land which was eventually conveyed because there just happened to be a way, as it were, of buying out of the obligation in (11). In our submission, that is misconceived for a number of reasons.
The first is, if my learned friend used the word “consideration”, as he did this morning, to evoke some contractual element or atmosphere in relation to (a) and (b), and the obligation imposed by condition (11), in our submission, that is inapt. One does not purchase, in any sensible transactional sense of the word, as a matter of private contract, except corruptly, planning approval.
Second, in our submission, it is wrong to regard (a), (b) and (c) as merely incidental in light of what your Honours have seen from the history which I have just taken you to. It is plain that that was at the forefront of dealings which had been recorded in writing a mere four days before. And then the language. The language on page 25, which your Honours have already observed, “a credit will be granted”; a banking metaphor which, of course, finds no place, formally, in the statutory scheme, but a perfectly serviceable metaphor for what is happening: “You will be regarded as having complied with this obligation to the extent of 41 of the necessary 60 spaces by (a) giving us that land.”
When one links that, of course, to what happened later - a couple of months later - with the “hurry up” letter, that is to be construed as exactly the way the Town Clerk later chose to describe it. That was land, and I quote, “required for car parking purposes.” The same is true, of course, of (b); exactly the same language in exactly the same context, falling to be described in exactly the same way.
Then the language of credit is departed from in (c) and we revert to the language of obligation. Whether that be a slip or not, it certainly presents the seamless appearance in all of 11 that the whole is intended to be read as the way in which these car parking spaces were to be provided.
CALLINAN J: I wonder what you point to as being the source of the obligation - and do not try to characterise what the legal nature of the obligation is for the moment - upon the Council to provide 60 car parking spaces at any particular location within the accumulation or at any particular level above or below the accumulation of the land constituting the car park. What do you point to to say that it is a particular part of the accumulation or, indeed, that it is on any of the land that is conveyed and that it must be at a particular level? I am sorry, I am probably ‑ ‑ ‑
MR WALKER: No, I am trying to resist characterising it juristically, your Honour, but factually I say as follows: in the horizontal plane it comes from the description of lots 21 and 22 in (a) and (b). That locates them.
CALLINAN J: But does it, you see?
MR WALKER: As to metes and bounds, yes, your Honour.
CALLINAN J: No, but that is my problem, because it does not say anywhere that the car parking spaces, with which your client is to be credited, should be located on the land which is referred to in (a).
MR WALKER: It does not say it explicitly; in our submission, it is to be implied, not only from the four corners of this document but from this document in the context I have drawn your Honours’ attention from the other documents in this bundle.
CALLINAN J: It would have been very easy to say it explicitly that the 41 car parking spaces, referred to in (a), are to be provided on ground level on lot 21.
MR WALKER: Your Honour, were I to be wrong in arguing that it is implied from the reference to particular lots, that that is where the car parking should be for which the so-called credit is given, were I wrong in that, then the difficulty would be in detecting any restraint at all on the Council deciding that it could be relatively quite remote. I do not mean in the next municipality, I do not mean out of the town bounds, but I mean two blocks away.
CALLINAN J: But the customers of your client were not confined to the use of lot 21, or car parking places on lot 21.
MR WALKER: No, this is a public car park. Indeed, for other purposes in my argument, I have to stress that this is a public car park. You do not have to be someone wishing to enrich the lessees of our site in order to use it.
CALLINAN J: I just have some trouble spelling out the identification of the ‑ ‑ ‑
MR WALKER: My first part of my answer, as to the horizontal plane, is what I say are ultimately the metes and bounds of those two lots. That is the first part of it. The second part is the context to which I have already drawn your attention: why did the developer volunteer to provide this land? The third part is that, in order for it to be a lawful condition, it had to be sufficiently pertinent, in a sense of relevance, to the development being proposed for it to be a proper condition, rather than just a form of ransom, or a form of informal tax.
CALLINAN J: But proximity might be a question of degree.
MR WALKER: Quite so.
CALLINAN J: I mean, it might be reasonably pertinent if it were across the road on land that did not actually adjoin.
MR WALKER: But that is where we have the contextual support of the evidence I drawn to your attention in the letter of 19 December, on page 18, which says, in effect, “My customers need to be able to wheel easily to their vehicles from the shop.” I have not quite finished the list of matters to answer your Honour. As to the horizontal plane as well, in our submission, condition (13) adds some colour, between lines 25 and 30 on page 25; that is, there is a footpath proposed. This is something which physically links the proposed car park and anchors it, we would submit, in a place which those lot metes and bounds references will locate on the earth’s surface. That is not a footpath of indeterminate length, that is one that the writer of that document knew ran from a specified spot to another specified spot.
Finally, in the vertical plane, in our submission, you have the letter of 19 December, to which I have already drawn your attention, namely, that this was to be suitable for wheeled access for customers from one place to another and, then, again, the footpath in condition (13). Condition (12) I draw to your attention, because that, and (13), relates back to the offer to reconstruct footpaths. Your Honours will there see that one is talking about vehicular access from the street, which is a public street, which it may be supposed was not intended ever in Bathurst, in anyone’s wildest imaginations, to be elevated, and it was to be vehicular access from the car park over the footpath.
So that by those suggestions, none of them tightly drawn, as it were, in a deed of conveyance or in an agreement creating obligations between governments or anything like, notwithstanding they all combine, in our submission, to a powerful indication that what Council intended to be getting, what the developer was clearly prepared commercially to give for the public benefit was a car park which on the horizontal plane was located, including lots 21 and 22, whatever else it came to include, and in a vertical plane was located adjacent to the word of a contract as well as available to the word of a letter, shoppers in the centre.
McHUGH J: That is one way of looking at it. Why is not another way of looking at it this, that if this development was to be approved, 60 car spaces had to be provided and at the same time the Council wanted to build a car park, saw an opportunity to acquire some land for that car park and took the car parking spaces plus the $4,160 in lieu of imposing the condition, so it was just a fulfilment of the condition? No trust.
MR WALKER: Can I leave the trust question aside for just one moment?
McHUGH J: Yes.
MR WALKER: I am not concerned otherwise to contest the characterisation your Honour puts except that there is a legal limit on what can be accepted by Council in lieu. Leaving aside questions of corruption ‑ ‑ ‑
McHUGH J: It is a very wide limit, is it not, because ‑ ‑ ‑
MR WALKER: No, with respect.
McHUGH J: ‑ ‑ ‑ unless Council has acted illegally in New South Wales for many years they used to take cash contributions from developers?
MR WALKER: With the suggestion being that they held it on trust to use for a purpose which had been ‑ ‑ ‑
McHUGH J: Yes, which has usually been parkland or something like that.
MR WALKER: ‑ ‑ ‑ which had been identified as being a need generated by or exposed by the proposed development.
McHUGH J: Yes.
MR WALKER: It was not the child care in an established part of the municipality. It would be for child care in the new subdivision. It would not be for lighting of that which was already well lit or the Council chambers. It would be for lighting of the new thoroughfare.
McHUGH J: But it would go into general funds.
MR WALKER: It would go into - your Honour, it may well be that the accounting for such contributions has been - and I do not suggest any impropriety at all - tinged with unlawfulness or at least irregularity in many places for a long time. It is not our concern to either vindicate or condemn in that regard but, in our submission, there has always been a limit which has to do with the realistic relevant connection between that which would be extracted by a condition and that which was proposed to be done by way of the development and whether it be generation of demand for child care, generation of demand for maintenance of public park or lighting or whether it be generation of demand for car parking for shoppers to come into the town that they want to keep vibrant at its centre, et cetera, et cetera, in our submission, there must still be the nexus.
McHUGH J: That may be, but it points to what Justice Callinan put to you earlier, they could have taken a cash payment and built a car park in..... It did not have to be on lot 21.
MR WALKER: We do not have to hypothesise as to what may have been the different calculations of the developer had that been proposed. Nor can your Honours hold on the face of the material before you that that would have been a lawful condition. But, leaving that aside at the moment, what we do know, what did happen, was that the developer held out for its own selfish purposes the proposed benefit to the public which your Honours cannot suppose would have been held out on anything like the same terms, were the car park not to be one which would permit a half case commercial success, but one which would require people to walk and cross pedestrian crossings.
McHUGH J: But let us test it. What do you say this obligation was that was imposed on the Council, that they had to have 41 car spaces on lot 21, 12.6 on lot 22?
MR WALKER: Yes. That does not mean that there might not be what I might call an informal acquiescence in casual departures from that, but that does not matter.
McHUGH J: You have to say that, have you not, because your client paid $12,000 to get rid of six car parking spaces.
MR WALKER: I do not have to say it, your Honour, no.
McHUGH J: But that is the fact, is that subsequently in 1985, six car spaces were eliminated by the payment of you of $12,000 to the Council. That does not seem to indicate that the parties, at that stage, regard there being some trust or obligation for public benefit to maintain these car parking spaces there.
MR WALKER: Can I take it one at a time? The first point is to return to page 33, with which I started, as part of an answer both to your Honour Justice McHugh, and to supplement the answer to Justice Callinan. The land required, the impending conveyance of which is the subject of the letter, is described as the land required for car parking purposes. It would be disingenuous of Council then, or now, and to its credit it has not, to have ever said this land was able to used for anything, notwithstanding we described it as “required for”, not within our discretion, not possibly to be, not preferably to be, but “required for”. That is the first point. Those are words which, if I can make good the juristic basis that we do suggest is a trust ultimately, those are words which are redolent with an acceptance of obligation, and acceptance of, to use the word non-technically, dedication or devotion of the land to a particular purpose and to a particular purpose only.
Your Honour Justice McHugh has asked me, does it mean it has to divide up with the yellow lines to get the right count from time to time? Your Honour has pointed to a later dealing which, in our submission, is far more equivocal than your Honour suggests. A dealing of that kind may, it must be logically conceded, be consistent with people regarding themselves as not bound inter se by any rights or obligations. It may be consistent with that. On the other hand, the exchange of money for what might be called the release of the provision of car parking spaces is, in fact, more readily to be seen as consistent with people believing there was a regime on foot which needed to be adjusted in some such formal way in order that there could be a change. Now, it does not cast ‑ ‑ ‑
McHUGH J: That argument seems to indicate it was a private obligation.
MR WALKER: That is what I am about to say. That does not cast a very good light on their appreciation of the Attorney-General’s special role with respect to charities and the fact that people who were successors entitled to set laws of a charitable trust are not in a position, as it were, to simply alter it. But that informality or casualness of dealing which, as your Honours will appreciate, has never been pleaded or argued as some subsequent conduct which could affect the nature of the determination of the court arising from the 1979 and 1980 dealings, that subsequent contact, in our submission, at most, casts some light on the appreciation of matters of law, not entirely straightforward, by natural persons from whom we have not heard, in positions we do not really know about - there may have been a town clerk; there may have been a planner; there may have been councillors voting in accordance with a recommendation; there may have been a commercial manager of a shopping centre owner. But that has never been tested and so there are no special factual inferences that this Court can draw, bearing in mind Sutton v Gundowda, in relation to that subsequent conduct. At most you can observe that it was a dealing which did not accord to, what Council now urge is a charity, the observance which was required.
In our submission, to suggest there has been a breach of trust not only is not inconsistent with the existence of a trust, it actually presupposes the existence of a trust. So, in our submission, the subsequent event throws no light. Your Honours cannot even assume that the same natural persons were the corporate minds involved at all.
McHUGH J: For my part I would be assisted if you can spell out what the terms of this obligation were because, once you make out that there was an obligation, then it seems to me that even on equity law that this was a charitable trust and all that is needed is that the tendency of the trust must be to benefit the public, a condition which is satisfied if the obligation tends to the benefit of the public or a section of the public or any class of the public.
MR WALKER: Yes.
McHUGH J: But what I have some difficulty with is this question of obligation in these public situations. Perhaps it reflects the fact that I was one of the dissenters in The Registrar of the Accident Compensation Tribunal v Commissioner of Taxation.
MR WALKER: Your Honours, I will be coming to the question of whether this is a trust, a word which becomes increasingly treacherous for me to use - treacherous for me, that is - a trust sui generis, that is referred to and in a sense given existence and validity by the references in the 1919 Act and 1993 Act. I will come back to that.
Considering, first, the question of the trust in general equity, for reasons which will become obvious in relation to our argument about the 1993 Local Government Act, we say it does not matter if this is express, or constructive. I cannot speak for the trial. There did not seem to have been a statute of frauds as a defence. It may even be that there was, in fact, a statute of frauds - - -
McHUGH J: I think I recollect reading that 23(c) was referred there - - -
MR WALKER: It was referred to by - - -
McHUGH J: Justice Talbot, was it not?
MR WALKER: Yes, it was referred to by Mr Preston, who appeared for my client at trial. He was not intent, of course, on taking the point, and there is no reference to counsel on the other side taking the point, and the pleadings do not take the point. It may even be that there was a 23(c) memorandum, though we obviously are not concerned to need to demonstrate it because the point is not taken against us, constituted by perhaps a loan, perhaps in conjunction with the conveyancing documents, the Council’s notification of consent on 21 December 1979.
Be that as it may, the statute of frauds is not a point in this case. Whether it be express or constructive is ultimately of no concern to us. Your Honours will have seen that both routes were offered and, at trial, not a lot is said about express trust, but constructive trust is found and, in the Court of Appeal, the same pattern is repeated.
GUMMOW J: But it is an odd sort of constructive trust. What they were really trying to say, I think, perhaps, was that it is that sort of constructive trust which is really an express trust, namely, the absence of writing, in these circumstances, cannot be set up to defeat the proof of express trust.
MR WALKER: It is not just Rochefoucauld v Boustead.
GUMMOW J: Baumgartner has got nothing to do with that.
MR WALKER: I did not say it did, your Honour. I will be invoking the ratio in Baumgartner shortly in order ‑ ‑ ‑
GUMMOW J: If you can find the ratio, you are fairly astute.
MR WALKER: I will start again. There are passages in Baumgartner, the majority decision, which I will invoke to support general principles which ‑ ‑ ‑
GUMMOW J: There is majority order.
MR WALKER: ‑ ‑ ‑ did not require Baumgartner to establish but, in our submission, in one sense, all constructive trusts are a bit odd. In another sense the constructive trust here does not seem to have been imposed either by the trial judge or by the Court of Appeal in relation to what your Honour has noted, namely, a lack of writing. This is not a Bannister v Bannister or Rochefoucauld v Boustead determination by equity not to allow the statute of frauds itself to be an instrument of fraud. That plays no part in their reasoning, however much it may sublimely have informed his Honour Justice Talbot, who, after all, did refer to the statute of frauds.
Rather, it belongs to an equally well known - whether it be odd or not does not matter, in our submission - equally well-established form of constructive trusts which, in our submission, emerges simply from consideration of the principles by which it is said that somebody is not entitled to assert that their legal title carries full beneficial title if their legal title was got in on the strength of what I will call for the moment arrangements which in the circumstances bind their conscience so as to prevent the full beneficial title being enjoyed.
GUMMOW J: That is the remedial idea?
MR WALKER: I am trying to avoid that word, your Honour, because, in our submission, there is nothing being remedied at the point when equity can say that. Equity can say that, in our submission, at the point that the legal title goes over; at that point the obligation attaches. And whether one uses the word “remedial” or not is, in our submission, not very important. The difficulty with using the word “remedial” is that it focuses on the time and occasion of the court granting a remedy which,.in our submission, is a misleading inquiry here. What matters is, at the point that the legal title went over, was there what could be called an obligation arising from the arrangement or circumstances? And here, strangely for such cases, there is no contest. My learned friend has said at least three times that he accepts there is a form of obligation. He has not specified whence it springs; it appears to be administrative law. In our submission, that is not easy to see, nor is it easy to see how section 123 of the Environmental Planning and Assessment Act has anything to do with it, as it provides standing in relation to breaches of the Act. I am not quite sure what provision of the Act we would argue was being breached. We might have to think of one over the adjournment, but it is not clear to us.
On the other hand, a straightforward way in which a constructive trust imposed, to use the words of the authorities, to ensure that somebody does not renege - and we would interpolate whether they have threatened to or not - in our submission, supplies a traditional, entirely old approach to the way in which this Council got in legal title to this land. So that, in answer to your Honour Justice McHugh, the terms of the obligation, that is its content, is that equity will compel by declaring an appropriate trust to be in existence, and, as I would wish to add, to have existed from the time the legal title was obtained, compelling the Council to use the land for the purposes described by the dealings between the parties which may be paraphrased as the provision of public car parking to the extent of, and then one will name the number of spaces.
HAYNE J: On this land. You must add that.
MR WALKER: I do. In our submission, there is no weakness in my argument for so doing.
McHUGH J: You have left out an important element, have you not? There has to be something more than that for equity to impose a constructive thrust, has there not? There has to be some unconscionable dealing.
MR WALKER: There has to be the attraction of equity’s intervention by reason of the unconsciounability, or unconscientiousness, of the Council dealing with the land otherwise. In our submission, there is no novelty at all in seeing that, and arguing that that inheres in, indeed, springs very clearly from, the Council having held out that this is land required for car parking purposes to be accepted in liew of the developer providing car parking, and then one draws in the legal context of the validity of conditions about which I spoke earlier. Against that background, that is in the nature of an assurance or, as I will also put for other purposes, an acceptance by the Council of this land for those purposes. For no other purposes. Not for the purpose of building an annex to the Council’s chamber in some future time. Not for the purpose of selling to another developer for a competing shopping centre, for example. Just for those purposes. In our submission, there is nothing strange about that inequity. Loke Yew v Swettenham is one example. Bannister v Bannister is another example. Both are well known.
McHUGH J: But they are private cases. Much of what you were just putting a moment ago reminded me as if you were addressing the Court of Chancery in the time of Dickens. We are dealing here with a local government council, which has an obligation, at least an obligation to its rate payers in a political sense, to provide car parking.
MR WALKER: Yes.
McHUGH J: It has a plan for a car park for the betterment of Bathurst. Five years later, because of change in traffic technology, they may want to change to somewhere else, sell off the particular area of land. Why should you impose an obligation of the kind that you seek to impose in that context? Why should equity intervene in that context to impose a constructive trust. Different if you are arguing - you do argue it is an express trust. Brisbane City Council decided, if it needed any authority, that you can create a charitable trust without using the word “trust” or similar words.
MR WALKER: Well, I make our position clear. It is of no moment to us whether this be express or constructive. What matters is that it is a trust.
GUMMOW J: Your complaint really is, though, that there is some unconscientious conduct involved because they - - -
MR WALKER: They would not have got it if they had not said it was land required for a car park.
GUMMOW J: Yes. But whatever they have got, they can put an end to it under section 30.
MR WALKER: That is exactly what I was about to go to, your Honour, yes.
GUMMOW J: And your complaint is that they are not going the section 30 route, with an environmental plan.
MR WALKER: My friend said, towards the end of his submissions - and, really, Justice McHugh’s comments to me have picked up a similar theme - why should, to use my friend’s language, his client, the Council, lose the flexibility of dealing with this as operational land, as if the extremely new official public policy in New South Wales for dealing with community land is some burden - I think his - I have forgotten the word - my learned friend used some other derogatory term to describe - “the hurdles”, sorry - he described “the hurdles” that one would have to overcome in answer to your Honour Justice Callinan.
McHUGH J: But does it invite error, to be even referring to the statutory regime after 1993?
MR WALKER: Not ultimately because my case is about the statute. That is why I am not the Attorney-General. That is why we do not need the Attorney-General.
McHUGH J: Is not the real question, what would have been the position in relation to this land immediately before the commencement of this Act?
MR WALKER: That is right at the heart of it, your Honour.
GAUDRON J: But do you not have to say that whatever the trust, it was a trust that was at all times subject to whatever legislation applied?
MR WALKER: Yes. They would not be alone in that. There are trusts when people give money to churches, whether they know it or not, that money can be swallowed up and used in all sorts of ways they may never have contemplated, by reason of legislation that the churches may have had a hand in passing.
CALLINAN J: Mr Walker, it would help me if you could, over the adjournment, say precisely what the terms of the obligation are which, I think, is the question that his Honour Justice McHugh asked you, and by the same token, it would help me if Mr Davison could say, and give us a document, perhaps, precisely what the obligations he accepts are, leaving aside the mode of enforcement and their characterisation. I would just like to know what the difference is with precision, between you, with respect to the obligation? The only other matter I mention, and I appreciate it is under an entirely different statutory regime, but there is a case about correlative obligations of councils - that is correlative to the performance of conditions by developers - Belcaro Pty Limited v Brisbane City Council 110 CLR 251. As I say, it is an entirely different statutory regime and I have not had a chance to look at it, but I know it talks about that sort of reciprocal or correlative obligation.
MR WALKER: I will have a look at that your Honour.
GAUDRON J: We will perhaps then adjourn until 2.15 to give you a chance to do that.
MR WALKER: May it please your Honour.
AT 12.48 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
GAUDRON J: Yes, thank you, Mr Walker.
MR WALKER: If it please your Honours. In answer to your Honour Justice Callinan’s question, we would enunciate the content of the obligation, the juristic basis of which we have identified as a trust, as follows: namely, to use lots 21 and 22 in Deposited Plan 258221 to provide 60 off-street car parking spaces adjacent to and on the same level as the respondent’s shopping centre at 208-218 Howick Street, Bathurst.
CALLINAN J: You just got a little bit ahead of me, Mr Walker.
MR WALKER: I am sorry, your Honour.
GUMMOW J: Stenography is not our primary skill.
CALLINAN J: Uses lots 21 and 22 ‑ ‑ ‑
MR WALKER: In D.P. 258221 to provide 60 off-street car parking spaces adjacent to and on the same level as the respondent’s shopping centre at 208-218 Howick Street, Bathurst.
GUMMOW J: Is that so long as the respondent operates that shopping centre or ‑ ‑ ‑
MR WALKER: No, on reflection I remove the word “the respondent’s”; just the shopping centre at ‑ ‑ ‑
GAUDRON J: Do you need to make it so specific?
MR WALKER: No, we could win with something broader.
GAUDRON J: Simply to use lots 21 and 22.
MR WALKER: To provide off-street car parking.
GAUDRON J: Yes.
MR WALKER: But Justice Callinan asked me for what we contend and we contend for that. The reasons why we contend for that with the specific elements that I have laid out are those that I sought to argue before lunch. I have nothing to add to those reasons.
McHUGH J: What time period?
MR WALKER: Forever.
GAUDRON J: Well, you do not really, do you, say that?
MR WALKER: I really do mean in perpetuity, but I accept that, quite apart from whatever asteroid is hurtling towards us as we speak, your Honour, there is also the question that both at general law, because circumstances can defeat even charitable trusts, notwithstanding or sometimes saved by the cy-pres doctrine, but also because this happens to be a trust which is capable of relatively straight-forward extinguishment, utter extinguishment under the Act, to which I will come.
GAUDRON J: That is why I was asking you.
MR WALKER: It is, of course - we have not put in our formulation ‑ ‑ ‑
GAUDRON J: Until extinguished in accordance with the Act or until otherwise dealt with in accordance with the Act?
MR WALKER: Yes, your Honour, but this is land which is subject to the legislative power of New South Wales. One does not need to add to the terms of the trust that the enjoyment of its benefits or its very existence depend upon the law of New South Wales permitting it to continue.
GAUDRON J: I am not too sure about that. You see, let us assume it were a clear express trust, the terms of which were to hold it in perpetuity for those purposes. Would the Act then operate?
MR WALKER: Yes, for reasons I am about to come to.
GAUDRON J: Good, thank you.
MR WALKER: In any event, any other Act could operate subject to whatever terms were required by the legislative regime of resumption or other extinguishment. Trusts can be affected as to their existence, not only as to their content and longevity, by competent legislation. One does not have to add that. That happens to be parliamentary sovereignty within the limits permitted by the respective constitutions. Your Honours, that being what we say the obligation is and with the alternative that for car parking purposes will suffice ‑ ‑ ‑
CALLINAN J: But still at the same level as the shopping centre, under the alternative that her Honour the presiding Judge put to you?
MR WALKER: No, the alternative would simply be for car parking purposes.
CALLINAN J: At any level?
MR WALKER: No, not at any level, your Honour, no.
CALLINAN J: You still want it at ground level, or at the level - - -
MR WALKER: The way your Honour puts it is exactly right, we would still want it at ground level, would we be permitted - or could anyone say that it could not be at anything other than a precise RL. The answer is almost certainly not, the law would not be concerned with the ordinary accretion or excavation of land, in a minor way. But a question might arise as to whether an elevated car park, without there being any ground for provision at all for car parking - the question might arise as to whether that is within or without the terms of the trust. Your Honour put to me at any level, and that leaves open questions of degree which may, in our submission, reflect questions of authority, or affect questions of authority.
CALLINAN J: But the remedy, if there is a remedy, may very much depend upon your being able to define with absolute precision what you say the obligation is.
MR WALKER: No, absolute precision is never necessary, your Honour, simply the establishment of a line upon which we are on the right or wrong side. So when the law ‑ ‑ ‑
GUMMOW J: That may be true of a charitable trust.
MR WALKER: Yes, and I am going to attempt, as your Honour knows, to demonstrate that this is a charitable trust.
GUMMOW J: Well, you may, but if it is not?
MR WALKER: If it is not, one loses the traditional tenderness of equity for vagueness or relative uncertainty; I accept that. Even if this were a contract, notions of reasonable proximity would not render it uncertain but may well render the outcome of an argument unpredictable. In answer to your Honour Justice Callinan’s question, would I need to have absolute precision, the answer is no, except in the sense that the line of within and without power is always just a line. It might be very difficult to locate it, that is all.
CALLINAN J: But Mr Davison might even be prepared to accept an obligation in terms of the alternative formulation.
MR WALKER: It appears that he does, except, so far as we understood, his words before the adjournment. Though he spoke in terms of obligation and duty, and indeed cast about to identify an administrative law source of the duty, in our submission, the real gist of how he started his appeal was to say that the Council could use it for anything at all. That is not much of an obligation, in our submission.
CALLINAN J: But he may not be contending for that today.
MR WALKER: He started off by contending for that, that he could use it for anything.
GUMMOW J: But do you say he cannot use it for anything but the purpose you have specified?
MR WALKER: Yes, unless the law otherwise permits it, your Honour.
GAUDRON J: Unless rezoned, you say, in accordance with the Act?
MR WALKER: Yes, that will suffice. In answer to your Honour Justice Gummow, could I reconsider slightly. The closest I could come to in the hypothetical case is to suggest that there might be an interesting question as to whether the air space was forever sterilised in the sense that the bitumen car park had to be open to the sky. It is obviously something that nobody ever thought about and it may even be that Bathurst ‑ ‑ ‑
GUMMOW J: That is what I thought this debate was all about.
MR WALKER: No, it is not just about the use of air space, your Honour; it is about the continued provision of car parking at an appropriate level.
McHUGH J: It has to be a bitumen car park?
MR WALKER: No, your Honour, it has to be sealed.
McHUGH J: Is there an obligation to maintain the vehicular access which you had to pay the cost of developing?
MR WALKER: That would probably be a corollary of the obligation to use it for that purpose, but that does not mean that there could be as a matter of obligation a particular standard of maintenance, your Honour. It would then be a question as to whether it had fallen into such dereliction as no longer to be capable of being used for that purpose. I think that long answer means yes, your Honour, but not to any standard other than that which renders it capable of being used for the stated purpose.
The onus, or burden, on the ratepayers ultimately of having on trust property which may require some expenditure on it from time to time is the very kind of reason why, in our submission, in the face of what might otherwise have been obligations capable of being enforced against the Council, that Parliament has enacted provisions such as section 30, to which I will come. In other words, those provisions contrary ‑ ‑ ‑
McHUGH J: Yes, but they were not in operation when this trust was created.
MR WALKER: I was about to say, your Honour, contrary to the same point that you made to me before the luncheon adjournment, while they are not relevant to construe or to affect the circumstances that we say attract equities intervention, they do indicate that there is an acceptance that there needs to be legislative intervention because otherwise, by private law or otherwise, the Council may well be subject to perpetual obligations forever, which it would be quite impractical in the political sense to regard as a realistic prospect.
GUMMOW J: Section 526(b) gave power to the Council to act in administration, et cetera - of the old Act.
MR WALKER: Yes; that may involve making applications under the Trustee Act, for example, but in New South Wales, at least, they do not include frank variations of trust.
GUMMOW J: No, but it may include making sure that the fabric is in a reasonable state, too.
MR WALKER: Quite. There is no question about power, and indeed we would say to some extent there would be obligation, but obligation would only come in at the point where it could be said that but for something being done it is no longer being used for a car park.
GUMMOW J: In Ku‑ring‑gai Municipal Council v The Attorney‑General 55 SR(NSW) at 72 Chief Judge Roper said that under 526(b) the Council:
has the same powers as a trustee, being a private person, would have to regulate the use of land -
et cetera.
MR WALKER: Yes, your Honour.
GUMMOW J: That would cover these things, would it not?
MR WALKER: I am sorry, your Honour?
GUMMOW J: That would cover these activities?
MR WALKER: Yes, your Honour, it does. That passage in Mr Justice Roper’s reasons is one of, I think, the only two passages that we have found that says anything about the nature of the trust which is referred to in section 526. Just for ease of reference, if we could hand up to your Honours copies of Attorney‑General v Parramatta 49 SR (NSW) 283 and Ku‑ring‑gai v The Attorney‑General 55 SR (NSW) 65.
GUMMOW J: I must get this clear in my head. Are you saying that if the Council were to sell this land it would be free to do so provided it extracted some obligation from the transferee?
MR WALKER: No, it would be obliged to hold.
GUMMOW J: Yes.
MR WALKER: No. In other words, this is not a fund to be treated as a fund to discharge a function. This is property impressed with an obligation and as soon as one uses that kind of concept the instrument of trust is the natural area of discourse. It is used in 526, we would submit.
GUMMOW J: That is why I think 526 is the natural area of discourse myself.
MR WALKER: Perhaps I am putting it the wrong way around. 526 very reasonably, not unnaturally, uses the language it does because it is talking about holding land. Could I draw your Honours’ attention just about two‑thirds of the way down that page 72 in Ku-ring-gai 55 SR(NSW), his Honour does talk about the:
the council is empowered to administer the trust of the land held by it so as to carry out the purposes set out in the declaration of trust.
GUMMOW J: There was one there.
MR WALKER: Yes, quite. I was about to say whether that means that his Honour was suggesting that there had to be something that answered the description of a declaration of trust is to be doubted, because that was not in issue in that case. In the Attorney-General v Parramatta 49 SR(NSW), at page 290, in a dispute about the power of - effectively, the power of, I think, Dundas v Parramatta, which was absorbing Dundas in relation to some electricity supply arrangements, the question arose as to the meaning of certain words in paragraph 518(2)(b) which included, as one sees on the second half of page 290, a reference to authorising - or nothing authorising the sale et cetera of any “land subject to a trust”, and the question was whether the land, being part of the electricity undertaking of the Dundas Council had been land subject to a trust within the meaning of that provision. His Honour turned, at the very foot of that page, second‑last line, to section 526 and then, at the top of the page, there is a reference to the:
land the subject of a trust under s. 518(2)(b) is a reference to the land held upon the trust indicated in the section to which I have referred or to land held upon some public trust created by the grant of land itself from the Crown.
Again, his Honour referred to a declaration on page 290, about an inch and a quarter from the bottom, the fifth line of the last paragraph, it reads:
the land referred to is land which came to the council impressed with some form of declared trust.
Now again, it was not an issue before his Honour as to what I will call the formality of the way in which the trust was constituted, but we draw it to your Honour’s attention for what little it may cast upon 526 itself.
To return to what I was saying to your Honour Justice McHugh about the 1993 Act, yes, it is the position immediately before commencement of this Part, Part 2 of Chapter 6, 1 July 1993, which is the critical time to ask the questions that are raised by the schedule, but, in our submission, not for the first time, provisions such as section 30, to which I am about to come, are relevant to bear in mind because they, first, alleviate what my friend calls inflexibility, and second, acknowledge, in any event, that there is the possibility not to be alarmed about, of inflexible, that is fixed, clear, binding, terms of a trust, which can affect a council as well as a private person.
Could I also draw to your Honour Justice Hayne’s attention, for what it may be worth, and I do not suggest it is worth a great deal, that in the print, at least which we are using, which is as in force up to 18 April 1996, your Honours will see on page 22, at any event, the beginning of Part 2 of Chapter 6, that there are some notes in small type. In the second-last paragraph of those notes I see that a “works depot” is mentioned, which relates to a question your Honour Justice Hayne asked my learned friend, and it is suggested as ordinarily being operational land. My answer to your Honour’s question is that it will depend upon two things: if the land was held before 1 July 1993, it depends upon what happened to it under the clause to which I will come. If it was acquired after 1 July 1993 then, by reason of section 31, to which I am about to come, it will again depend upon what has happened to it.
Could I then come to this notion of classification because that, after all, is what really the controversy is between the parties. This is not a suit ill-constituted in equity by the absence of the Attorney-General, because this was a fight between a landowner and a council about how the council may deal with land in which the landowner had a special concern and how it might deal with it under the Local Government Act and what procedures were open to it, and the relief we were granted was directed to Local Government Act obligations. It so happens, of course, that one of the stepping stones to final relief became the establishment of a trust for public purposes which was treated as being the equivalent to a charitable trust, and it is only in that sense that the question of the enforcement of a charitable trust came up.
Literally, this is not anything to do with the enforcement of the trust. As my learned friend has pointed out, and correctly so, there has been no breach of the obligation which we appear to be agreed on, however obscurely, to provide public car parking. So that this is not a suit for the enforcement of a charity. It is an application, originally in a specialist court, which included, among other things, that as one of the probanda of our final claim, that is the existence of a charity.
Your Honours will see that in the new form of drafting, one moves through the concept in section 25 that all public land, and that means relevantly all land held by the Councils, defined in the dictionary, must be classified. There are only two classifications, “community” and “operational”, and in the dictionary the entirely unhelpful definition is given of “community” and “operational”, that they simply mean land which is classified, using that term. So one is driven back to classification as the be all and end all. The classification in section 27 may be made by an LEP in some cases, and resolutions in other cases, and succeeding provisions limit the power to use those various means. Under sections 28 and 29, there are references to the local environmental plan being made, and your Honours will be aware that there are relatively elaborate local democratic procedures involving exposure for inspection, receipt and consideration of submissions and the like, before local environmental plans can be made. You will see a reference to incorporated requirements there in section 29.
Could I, simply because it is the next I come to, remind your Honours of section 30. Section 30 shows that when community land is reclassified as operational land by an LEP, what happens, among other things, is that it is discharged from any trusts, et cetera, affecting the land. One thing is clear, that in a collocation that includes a State’s interests, dedications, conditions, restrictions and covenants, your Honours ought to read the word “trusts” as a term of a art, meaning trusts in the ordinary sense in a court. Contrary, perhaps, to the way in which it was used and the provision drawn to your Honours’ attention by my learned friend, namely, section 8(1), where there is a reference to the Council being, among other things, the custodian and trustee of public assets, public assets being an undefined term. Section 8 may be aspirational more than technical in relation to obligations with respect to land.
Your Honours will see, for example, the flexibility which is introduced by section 30, because in section 30(2) it is possible that the LEP imposes provisions which might echo or adapt the restrictions or dedications of the land when it was subject to a trust in the LEP, thereby making them enforceable as a matter of local planning law.
Section 31 deals particularly with land acquired after the commencement date, and in effect it says that other than particular categories in subsection (1) it is to be community land and to have been classified as such - that is under subsection (2) - unless there is a resolution to the contrary.
Curiously, in paragraph 31(3)(b) the resolution to the contrary which would render it operational land upon acquisition must not be, among other things, inconsistent with “the terms of any trust applying to the land”. It is not entirely clear how the terms of a trust applying to the land would be inconsistent with a resolution, as such. Presumably it is an elliptical expression for the liberty which being operational land brings would be inconsistent with the lack of liberty imposed by the terms of the trust.
Your Honours then see that there is flexibility for land taken in the modern equivalent of the way the land was taken in our case, in section 32, because the modern equivalent of taking land, as in our case, is under section 94 of the Environmental Planning and Assessment Act. There, if there is the kind of outdating influence that one might expect, and particularly with car parks in shopping centres, there are provisions safeguarded by mandatory states of satisfaction in section 32(2). It is aimed at something which is called unsuitability.
Your Honours will see that in section 34 there is again some public democratic requirements which apply to any reclassification, either direction of community land or operational land. In short, there is nothing to be seen from the face of this statute to be alarmed about in what my friend calls the inflexibility. Perhaps the inflexibility is introduced in Division 2 commencing with section 35, although we would submit, again there is nothing to be alarmed about. This is where the classification gets its teeth because this lays down how you can use community land. There are no restrictions relevantly in relation to operational land. So that community land ultimately must be used in accordance with a plan of management which is a tool described in section 36. They too have democratic elements, section 38; they may be amended. Section 41 ‑ ‑ ‑
HAYNE J: Just before you leave 36 as you now have, what category would this land fall into?
MR WALKER: Paragraph 36(4)(d), which I cannot find defined. If I may say so, your Honour, it probably has its ordinary meaning, but its ordinary meaning would mean, in our submission, probably, use by the general community rather than something which is adaptable for all the uses of a community. In other words, it does not have to be versatile as to use, it has to be open to all, in effect.
Then section 45 is the cutting edge of the teeth in relation to community land and section 46 and some subsidiary provisions in section 47. Those provisions, in our submission, do not present anything like the alarming state of affairs that my learned friend spoke of. There is nothing troubling about an interpretation, therefore, of the clause to which I am about to come, clause 6 of Schedule 7, which as a matter of interpretation would drive one to interpret 6(2)(b) in some way different from its ordinary meaning so as to avoid land of this kind becoming community land. The very reverse is the case. Those statutory provisions are, in our submission, well adapted to a controlled and transparent use of such land, holding of such land.
GUMMOW J: Is there any provision in the legislation before the 1993 Act which approximated to section 30 in the 1993 Act, in other words, which would bring about a termination?
MR WALKER: Not that I am aware of, your Honour, no. Certainly when one looks at section 32, that was introduced to meet a well‑known mischief in relation to section 94 contributions. So it may be that in the same class - I will have that looked at. We have not found anything, but section 30 is also to introduce a relatively well‑known mischief, that is, there has been talk for a long time in New South Wales about perhaps the need to have a statutory power in relation to private trusts. With public trusts it is a different kind of need, but it might be even more urgent in some cases.
Your Honours, if I can return then to clause 6 of Schedule 7. The category, of course, that we say this falls into is “land subject to a trust for public purpose”. When one looks at the other possibilities, (a), (c), (d) and (e), it is clear why we say that because that is the only one apt to cover our case, and it is for those reasons, and those are the statutory words, why this case is posed as the question: “Was this land held subject to a trust for a public purpose?” It is in that sense and that sense only that what might be called the timing question, which has occupied scholarly and academic comment about constructive trusts, arises and it is only in a relatively low‑level sense that that issue arises. The primary way in which we urge the case is that it is virtually conceded that this is land held or which was conveyed to the Council for a purpose, to be used for a purpose.
GUMMOW J: Well, accepted by the Council for a purpose.
MR WALKER: Accepted - I will come to 526 in a moment - and that that purpose is public. My friend resists characterising that public purpose as charitable within the fourth class, though, in our submission, the only reason advanced is a reason which is at odds with the approach taken in the innumerable cases on the fourth class. The approach taken is not to ask, “Has such a community project ever been held to be a charity before?” The cases would not be so innumerable were that so. Second, the principle always has been to ask the questions about public benefit and availability which are familiar. Third, as a matter of intrinsic intention of those tests, they will include an almost infinite variety of possible projects.
Finally, it has never ever been the case that the possibility of private benefit from the provision of the charitable object in any way destroys the general intention. If one looks at some of the examples we have assembled for your Honours, sea wall, fire brigade, it is easy to see that it does not cease to be charitable in the case of a sea wall simply because the donor lives below sea level - that could not be right - nor in the case of a fire brigade that you own property within the zone of likely threat.
In our submission therefore, unless there is something in what my friend says about the difference between highways and places where one may pause off a highway, then there is nothing in his resistance to this being charitable. Yet that is an argument which seemed to draw upon the fact that motor cars may be a scourge more than a benefit. That would suggest that bicycle racks would be charitable but not a car park and that could not be right because, in our submission, it is risible so that, in our submission, once there is a public benefit of a kind which one can see from the early planning report was considered utterly appropriate as a matter of community concern in Bathurst, it is charitable.
Some people, after all, may think public theatres, public concert halls are not a good idea and yet they are held to be charitable because a court can discern that on balance they are. The same must be true with respect to car parking. After all, it enables people to shop and it was originally intended to enable them to shop at a place where, with half case purchases, it might be supposed they would buy their food both more cheaply as well as more conveniently and it is difficult to think of anything more conducive to the public benefit.
CALLINAN J: If it is charitable, how do you come to be able to enforce it?
MR WALKER: I cannot enforce it.
CALLINAN J: How can you impede the classification then?
MR WALKER: I can impede the classification because to impede the classification is not the enforcement of a charitable trust. It is drawing to the Court’s attention in relation to proposed conduct under the Local Government Act, which is not a charity matter, of the existence of a charity.
GAUDRON J: Or would you say of a statutory duty?
MR WALKER: Of a statutory duty which happens, among other things, to fasten upon this land because it is subject to a charitable trust.
CALLINAN J: I am not familiar with the New South Wales legislation. The original application to Justice Talbot was made under a section of the Environmental and Planning Act of New South Wales, was it?
MR WALKER: No, under the Lands and Environment Court Act because it is given exclusive jurisdiction with respect to planning laws.
CALLINAN J: How do you have standing under that Act to make the application you did?
MR WALKER: Because of our special interest in the land.
CALLINAN J: You might have a Day v Pinglen sort of - do you know that case?
MR WALKER: Yes. I am trying to resist importing any of the old Boyce v Paddington notions into this area but it is difficult completely to resist. This was a public duty.
CALLINAN J: I do not think Day v Pinglen has got anything to do with that, had it? Do you know that case?
MR WALKER: No, Day v Pinglen which is the building that was built beyond the height limit ‑ ‑ ‑
CALLINAN J: Yes.
MR WALKER: ‑ ‑ ‑was eventually the subject of a demolition order. No, I do not think that is ‑ ‑ ‑
CALLINAN J: Why are you not in the same position as the applicant or plaintiff there?
MR WALKER: I suppose I am not quite sure in what sense.
CALLINAN J: You would be affected by the change in use involved in the classification.
MR WALKER: Yes, in that sense we are in the same position. Perhaps I have been at cross purposes.
CALLINAN J: And then you would also be entitled, if the classification were done pursuant to - what is it, section 30?
MR WALKER: Yes.
CALLINAN J: You would presumably have some right of participation or objecting then, would you?
MR WALKER: Yes, in common with other people but with a special interest because of the overt connection of the trust with our land.
CALLINAN J: I think that is the situation in Day v Pinglen, is it not?
MR WALKER: I am obliged to my friend. I have been striving too hard. Section 674 of the Local Government Act 1993, your Honour.
GAUDRON J: It is a right of standing to anyone, is it?
MR WALKER: Any person.
CALLINAN J: What section is that, Mr Walker?
MR WALKER: Section 674.
CALLINAN J: Of the Local Government Act, is it?
MR WALKER: Yes. It is the equivalent in that court of section 123 of the Environmental Planning and Assessment Act for that Act.
GUMMOW J: The court got its jurisdiction under section 20(2) of the Land and Environment Court Act of 1979.
MR WALKER: Yes, your Honour.
GUMMOW J: Because it was enforcing the requirements of the Local Government Act.
MR WALKER: Yes, your Honour. Section 674 grants jurisdiction as well, I suppose:
Any person may bring proceedings in the Land and Environment Court -
It does not go on to say much else about the jurisdiction, unlike the Land and Environment Court Act itself.
Your Honours, could I then turn to section 526 of the 1919 Act, in other words, going back from 1 July 1993 to the respective dates when the land was conveyed to the Council. We do submit - - -
GAUDRON J: We do not have the benefit of the entire Act. Is there anything else in that Act that refers to land held subject to a trust, besides 526?
MR WALKER: Section 518 is one which I have already mentioned in relation to one of Mr Justice Roper’s decisions.
GAUDRON J: And is there any definition of anything that is relevant in the Act?
MR WALKER: No, there is no relevant definition, certainly for the purposes of my argument, or the issues which I apprehend are before the Court. The matters that we put about section 526 are as follows: first, that the Council did accept and did hold real property; second, that it was conveyed to it; third, that it was, for the reasons of fact that I have drawn to the Court’s attention before the adjournment, conveyed to it for a purpose; next, that that purpose was public, for all the reasons we have tried to make good.
Next and in the alternative, if it is in the alternative, that it was charitable. Whether the expression “charitable or public” truly describes something which goes beyond the charitable in the strict sense has not, so far as we can see, ever been considered.
GUMMOW J: Well, it could have some origins, though that would not necessarily dictate it, in the Crown lands legislation which provides for Crown grants for public purposes, which might be a Kinloch‑type trust.
MR WALKER: Yes, and then it is referred to by Mr Justice Roper. It is not quite Kinloch in the sense that it positively contemplates that it would be called a public trust, not charitable, public because it is a Crown grant for what might be called municipal purposes.
GUMMOW J: Yes.
MR WALKER: That was a meaning of “public” which would perhaps cut the word down to being narrower than “charitable” rather than being a word which both encompasses but goes further than “charitable”.
GUMMOW J: Be wider.
MR WALKER: Yes. We would urge on your Honours that it would be better to construe “public” as being wider.
GUMMOW J: In other words, it is to stop people worrying about category 4.
MR WALKER: That is right, yes, that if it is something which in the nature of things a council has accepted and held and it answer the description of public purpose, excessive locality or change of perceptions, in other words, it is not going to be a matter for a Chancery judge to determine whether this is something which it is in the power of the municipality to accept and hold.
Your Honours, those provisions of course do not say anything about the way in which the trust is created. In our submission, the way in which a trust can be created upon land being accepted and held goes beyond what might be called formal, written, express declarations of trust. For example, to return to constructive trusts, a majority in this Court in Bahr v Nicholay [No 2] 164 CLR 604, which we have not cited and which I am afraid occurred to me in considering an answer to Justice McHugh. I do not think I need to take your Honours to it in any detail at all. It suffices to say that the knowledge and acceptance of the reconveyance obligation was held to be enforceable in equity by Justices Wilson, Brennan and Toohey by a trust they described as constructive.
True it is that Justices Mason and Dawson held that the same trust was express, in our submission, highlighting a distinction which perhaps does not make much difference, which also applies in this case. The words of recognition and acceptance are, if anything, in this case plainer, so it may have been an express trust, and it does bring to mind some of the learning in relation to secret trusts, be they fully or half secret.
We accept the strictures that can be uttered upon our introducing secret trusts into the debate, in that this is a long way away from testamentary cases, but there is a reason we did so, because there was a generalisation uttered against us as if it were a rule and as if constructive trust could be seen as some homogeneous class explicable in just one way, and therefore vulnerable to being dealt with by a set of hard and fast rules. It was said against us that charitable trusts could be, and could only be, express. In our submission, the one way to test that is to inquire whether there is a form of trust which is not express which nonetheless can be charitable. In our submission, the kind of trust described by Chief Justice Dixon as constructive in Birmingham v Renfrew, which arises in relation to mutual wills, is one example. There is absolutely no reason why that cannot create a charity. The same is true in secret trusts. That is ‑ ‑ ‑
GAUDRON J: Does the notion of constructive trust, as in Birmingham v Renfrew, indicate any more than obligations which will be enforced in equity?
MR WALKER: Yes and no. Yes, it does more precisely, in Birmingham v Renfrew, deal with the particular difficulty of the ambulatory nature of a will, and the floating trust, so called. But, no, it does not go any further than that. There is danger, of course, of seeking to reduce to a single point, which will become too general to be useful, the explanation of a constructive trust.
GAUDRON J: What I am wondering really is whether in relation to clause 6, given that one is talking about property held by a public body, one is talking about anything other than land which is subject to an obligation which is enforceable in equity. Forget at whose suit, it does not really matter.
MR WALKER: It does not matter at whose suit; the only inquiry is whether it answers the description within the meaning of the statute, we stress, of a trust. In our submission, a working definition for the purposes of the statute of a trust is the enforcement by equity in relation to property of obligations which entrench upon the full beneficial enjoyment of legal ownership.
HAYNE J: How then do you marry 526 of the 1919 Act and 6(2)(b) of the 1993 Act? In particular, is all land of the kind dealt with in 526 of the 1919 Act land within 6(2)(b) of the 1993 Act?
MR WALKER: Yes. The expression in that clause is easily apt to include all of, held for charitable or public purpose. Your Honour, for example, will be well aware that in many of the texts, as well as the authorities, the word or “public”, or ie “public”, is often used almost in apposition to charitable, in the description of charitable trusts in the technical sense. Your Honours, in elaboration of my answer to Justice Gaudron, we would, at the risk of outstaying our welcome in the testamentary area, draw to your attention the way in which Justices Fullagar and Kitto, in Voges v Monaghan 94 CLR, which we have noted in our written submissions but not put in our list, so we will hand up copies - the particular passage is at 240. Their Honours referred to the House of Lords’ decision in McCormick v Grogan, and that decision, in turn, had been noted in the Irish decision from which they quote Lord Davey in the House of Lords, French v French. In the Irish decision McCormick v Grogan had been cited, I think, in the Court of Appeal. I think there is no authority cited in the House of Lords.
Justices Fullagar and Kitto accept, they say, “probably as clear an exposition of the principle as is to be found in the books”, Lord Davey’s expressions, which asserts that is has been settled since the time of Lord Hardwicke. We would, in particular, draw to your Honours’ attention that what their Honours are adopting by that quotation is the notion that one cannot obtain property, in that case by saying nothing by way of reneging before the relevant death, and then seek to enjoy beneficially the legal ownership you have obtained by your silence, acquiescence or agreement. And that, about two‑thirds of the way down the page:
it is said that this jurisdiction is based upon fraud, and so it is, because if you once get to this, that it is a trust which is imposed upon the conscience of the legatee, then if the legatee betrays the confidence in reliance upon which the bequest was made to him, then it is what I should think everybody would consider a fraud, though I take the liberty to say that the moral turpitude of any particular case must vary infinitely according to the circumstances of the particular case.
We are not in this case, your Honours, in any need to worry about applying inverted commas to the word fraud, or to add the epithet, equitable, or to add comments of that kind. We are free, in our submission, by reason of the later Australian authorities to which we have made reference in our outline, simply to adopt the formulation, unconscionable, against conscience, and the like.
In our submission it does partake of what your Honour Justice Gaudron has pointed out, that equity will, in ways which have fallen to be described as the imposition of a trust obligation, and if it needs to be classified by some academic taxonomy, constructive trust, has undertaken to the enforcement of certain obligations accepted. The passage in Birmingham v Renfrew that we would draw your Honours’ attention to, in particular in elaborating an answer to Justice McHugh - we have not cited this; I will simply give you the references - 57 CLR 666. The particular passage in Mr Justice Dixon’s reasons are at page 682 to 683 and in particular the middle of page 683, and then a passage which commences at page 687 and goes over the page to 688, where his Honour quotes from McCormick v Grogan, and finally a passage on page 690 where his Honour is commenting upon Dufour v Pereira, and ends up by speaking, in our submission, in a way that entirely adapts to this case, of the reason for the intervention of equity and the ability of equity to shape itself to, in that case, the peculiar circumstances of a mutual wills.
GUMMOW J: One can accept all of that, but that is all about creating private trust.
MR WALKER: But, your Honour, secret trusts can be for charities; there is no reason why mutual wills cannot be made for charities.
GUMMOW J: I agree with that. There is a case which we were not referred to called Cullen v Attorney-General for Ireland (1866) LR 1 Eng & Ir App 190, which is just that. I will grant all that, but is there a constructive trust - is there a charitable trust here?
MR WALKER: Your Honours, can I answer that. Can I just for the record hand up two decisions. They are, I think, the two decisions which are - they are English decisions referred to in Scott on Trusts, in the passage that we have excerpted in our written submissions. They are In re Wedgwood (1915) 1 Ch 113 and O’Brien vTyssen 28 Ch D 372. I do not want to take your Honours to them. In our submission they are demonstrations by decision of cases where secret trusts were found in relation to charities. Your Honour Justice Gummow asked me, is this a charitable trust? There are no doubt a number of different sequences one could adopt to demonstrate that; we would say the following:
One, the legal title ‑ ‑ ‑
GUMMOW J: And, if there is, why is not what Mr Justice Raper said in one of those cases on 526 applicable? Plainly, you had to have the Attorney-General ‑- that is what the case decided.
MR WALKER: Yes.
GUMMOW J: But he is not here.
MR WALKER: Would your Honour wish me to address my incompetence to put the argument or to put the argument first?
GUMMOW J: Sequentially.
MR WALKER: The Attorney‑General need not be here. We are competent to put the argument. The argument we put is that the legal title in this case does not entitle the Council to deal with this property as if it were its own beneficially because it obtained that legal title only on the strength of an assurance that the land would be used for what it was required for, namely, car parking. In terms of inter vivos private trusts, that has its exact analogy in cases like Bannister v Bannister, Bahr v Nicolay [No 2], Loke Yew v Port Swettenham.
So far as concerns the constructive nature of the trust, we argue that there is no reason, witness secret trusts and mutual wills, for that to be any objection or any doubt about its capacity also to be charitable. On that point the sentence which was first written in the first edition of Jacobs on trusts and has been repeated is in a context which is not addressing this matter at all. Interestingly, a very similar first sentence in a similar extraneous context is found in the sixth edition of Sir Frederick Jordan’s chapters on equity at page 36 at the beginning of Chapter 4 where Sir Frederick said a charitable trust is a special kind of express trust, but there was no attempt - and the context in neither work of authority supplies any reason to suppose that the subject matter of the present controversy informed the statement and it simply does not address the question.
McHUGH J: One thing that has been worrying me since the start of this appeal is what jurisdiction the Land and Environment Court had, even under a pendent jurisdiction, to make declarations concerning possible breaches of trust.
MR WALKER: Yes.
McHUGH J: Plainly enough they had jurisdiction to declare that the resolution purporting to reclassify the land was of no effect and no doubt they had jurisdiction to determine that as at the commencement of the Local Government Act 1993 the land was held on a trust for public purpose, but what about breaches of trust? Is that not a matter for the equity jurisdiction?
MR WALKER: Yes.
GUMMOW J: Then the Charitable Trusts Act applies and there are charitable trust proceedings and you have got to have the Attorney‑General - the Act says so - unless you get special permission from the Supreme Court.
MR WALKER: Your Honour, in our submission, they are not charitable trust proceedings.
GUMMOW J: Within the definition in the Act, section 5(1).
MR WALKER: Because what we are doing is seeking to restrain a breach of proposed conduct under Part 2 of Chapter 6 of the Local Government Act. It happens to involve a determination along the way of a matter of law concerning charities, which makes it no more a charitable trust case than it would make it a contract case if the effect of a contract had to be construed in order to find out whether land was in a particular state or not.
GUMMOW J: Maybe both.
MR WALKER: Yes, your Honour. In our submission, this is not preferably to be described as a charitable trust case because there is nothing by way of enforcement of the trust which was sought.
GUMMOW J: There would have to be to fall within the definition.
MR WALKER: It was simply restraint of local government conduct under the Local Government Act.
GUMMOW J: To be with respect to its administration, the definition says.
MR WALKER: Your Honour, that would be to push the phrase “with respect to” far too far, in our submission. This was with respect to, as a matter of characterisation, the conduct of a council which was apparently not keen on the new democratic procedures in relation to community land. That is what it was with respect to. In my submission, it is, if not incidental, certainly not the essential characteristic of the dispute that it concerned the charitable trust.
That much was emphasised by the fact that the charitable trustee comes to court and says, and we do not dispute it, that they are observing the trust so, in our submission, your Honours, for those reasons, coupled with what I have already said and do not wish to repeat about the public nature of the purpose and the charitable nature of that public purpose, it was and is a charitable trust. It was and is one since the land was conveyed, and certainly by 1 July 1993, and we were entitled below to seek to restrain the Council because it was dealing with community land or threatening to deal with community land. That was the essential characteristic that attracted the case in a way which it could not do.
McHUGH J: Is the Attorney-General bound by any of these findings concerning the nature of the trust? For example, you have put forward a particular construction as to what the trust is. Is the Attorney bound by that?
MR WALKER: Probably not, your Honour. probably not.
McHUGH J: What is the point of these proceedings, other than a declaration that they had no power - that the resolution purporting to reclassify the land as operational land was invalid.
MR WALKER: None. That is the point of them.
GAUDRON J: That is all you have ever sought.
McHUGH J: You have sought a lot more than that.
MR WALKER: No, we have been exorbitant, your Honour.
GAUDRON J: But now that is all you seek?
MR WALKER: It is all I can defend.
GUMMOW J: You want to hang on to the orders you got in the Court of Appeal?
MR WALKER: I do want to hang on to them, yes, your Honour.
GUMMOW J: But you do not want anything more. There is no cross appeal?
MR WALKER: No.
CALLINAN J: No cross appeal about those other parcels that the Court of Appeal did not deal with.
GUMMOW J: No notice of contention.
MR WALKER: No.
GUMMOW J: The relief of the Court of Appeal included injunction.
MR WALKER: Yes, that is an injunction that we say aimed at the restraint on a breach of the Local Government Act though.
GUMMOW J: I see.
MR WALKER: Another hallmark, your Honour, of how far it is from a recognisable suit in relation to a charitable trust.
A couple of loose ends, your Honours; section 94 of Environmental Planning and Assessment Act has been referred to several times in relation to clause 6 because it is suggested it might give flavour to what that clause was concerned with. We adopt that. I have also drawn your Honours’ attention to section 32 of the 1993 Act.
Could I remind your Honours that under a previous form of section 94 in fact there was an express trust imposed by subsection (3) in relation to monetary contributions. Those monetary contributions were to be held in trust for the purpose for which the payment was required and the consent authority was obliged to apply the money towards providing public amenities, et cetera. The reference to trust has since been removed. If anything, that adds force in light of what Mr Justice Glass had said in Tandel to this kind of case being the very kind of case intended by the clause, clause 6, to be put into the, initially, community land classification.
Your Honour Justice Callinan drew to our attention the decision of the High Court in Belcaro in relation to what might be called the correlative obligation on the Council when there is an obligation or, pursuant to condition, a payment of some such contribution, in that case in relation to provisions which governed the cost sharing of drainage works. Justice Windeyer at 110 CLR 263, agreeing in the result but giving his own separate reasons said, this being hypothetical, not the facts of the case, that, the last couple of sentences:
I do not doubt that the Council could not lawfully require money to be paid to it for a particular purpose and apply it to another purpose.
That is the closest in the case to this notion of correlative obligation. The majority, of course, deal with the case on the basis that the developer in that case had, as it were, jumped the gun, it had spent the money and could not, under the relevant provisions, claim that there would be cost sharing because they construed it as imposing no obligation on the Council to build at all, let alone at any particular time. So it was otherwise off the point. His Honour Mr Justice Windeyer did address the point but in a way which did not call for the analysis that we have had to undertake in this case.
CALLINAN J: The other case I think your attention may have been drawn to is Marine Developments, where a similar sort of approach to that of Mr Justice Windeyer was - - -
MR WALKER: Your Honours, there is nothing I want to say about Marine Developments. In our submission, it does not go beyond anything that is contained in the matters we have already put in relation to the restriction on the power to impose conditions.
CALLINAN J: Although it helps you a bit - - -
MR WALKER: It does.
CALLINAN J: - - - on the notion of some kind of a special category of - or special kind of restriction imposed upon a council obtaining property for a town planning purpose.
MR WALKER: And we accept that that is how it contributes. Finally, your Honours, we did not put on our list, in relation to the general principles, if there are any, of constructive trusts to enforce an obligation undertaken. We have, of course, cited Muschinski v Dodds and Baumgartner v Baumgartner. We should also draw to your Honours’ attention the majority reasons of Justice McLachlin in Korkontzilas v Soulos, which, in the report we have, your Honours, is 146 DLR (4th), at 214. Her Ladyship was in the majority and, in particular, there are passages at 221 to 225 in the Dominion Law Reports that we rely upon. Among other things, this is said, at page 226:
Good conscience addresses not only fairness between the parties before the court, but the larger public concern of the courts to maintain the integrity of institutions like fiduciary relationships which the courts of equity supervised.
That, of course, was the case of a real estate agent who decided to buy for himself and his wife, rather than for his client - his principal - which, in one sense, is a long way removed from a local council and its obligations. However, our case, in our submission, is the stronger for the difference, and the same approach, in our submission, of equity justifies a conclusion that there was here a trust, with whatever taxonomical subtleties it may involve. That is all we need to show; it was a trust and it was for public purposes and that, accordingly, the administrative law governing the local Council’s treatment of the land fell out in a way which was enforced by the Court of Appeal. May it please your Honours.
GAUDRON J: Thank you, Mr Walker. Yes, Mr Davison.
MR DAVISON: Your Honours, I indicated to my friend at lunch time that I had not fully answered Justice Hayne’s question about the power of acquisition which existed in the 1919 Act. That power is specified in section 532, and that which I had in mind in answering your Honour’s question was that the Council may acquire land beyond the particular public purpose, but only so that that land - any proceeds from the sale of that land could be used to effectuate that public purpose. That arises in section 532(3). So that the shorter answer to your Honour’s question would be, yes, land may only be acquired for a public purpose.
My friend addressed the respondent’s intention expressed in respect of the land, and articulated in terms of that which it asserts is the obligation. Those matters were addressed in concert by the trial judge at 114 of the appeal papers.
His Honour identified those elements which the evidence went to in terms of the desire of the respondent, and they commence at line 14:
The evidence discloses: -
a) The proponent intended to purchase the land subject of the development application from the then owner, Gurdon Motors Pty Ltd.
b) The developer envisaged a need for 100 car spaces at the rear of the proposed development.
More than its land could have provided.
c) The car parking area, required to service the proposed development, needed to be paved so that shopping trolley access was available to customers.
d) The proponent was aware of council’s intention to construct a car park for 250 cars on land acquired from owners of premises which adjoined the subject development.
That is the say, the scheme.
The other finding that his Honour made in that context is the one that I have already referred to at page 121 line 10:
There can be no suggestion that the council does not intend to ensure that parking provision -
contemplated by this consent would continue.
My friend asserted that the question of the Statute of Frauds was not pleaded. The Land and Environment Court is not a court of pleading, but to the extent that there was put in issue trust questions, it arises in paragraph 7 of the points of defence which are found at page 14 of the appeal papers where there is a denial of any trust at all. It was then incumbent upon the respondent, if it wished to assert an express trust or some intention associated with a constructive trust, to prove what that intention was, and if there were a document, one expects that that document would have been forthcoming on the pleadings, such as they were, from the respondent.
The Ordinance does not, as I apprehended it may have done, have a clause which is often present in such ordinances, that the Council may approve of development either unconditionally or subject to conditions. It is usually only that bland form of words that is used, but even those are absent in this document. I hand up the copies of the document.
So that in terms of the power to impose conditions, it is the common law and we accept that the relevant authorities are set forth in the respondent’s submissions. In response to Mr Justice Callinan’s request, could we say that we would articulate the obligation which we accept has been, one, to provide for the development of Bathurst by the provision of car parking, initially at ground level ‑ ‑ ‑
CALLINAN J: Just a little more slowly, thank you.
MR DAVISON: I am sorry, your Honour. What I might do is - we endeavoured to obtain some typing facilities at lunchtime but failed in that endeavour. We can certainly have copied this document so that your Honours do not have to write it down.
GUMMOW J: Well, read it onto the transcript.
MR DAVISON: Yes. To provide for development of Bathurst by the provision of car parking initially at ground level and ultimately in a building which will be either a car park structure or a component of a joint venture for development of the car park land, and two, to provide for access to the respondent’s loading dock.
GUMMOW J: What does “joint venture” mean?
MR DAVISON: It means in the context of the correspondence with the Bank of New South Wales, your Honour, a development of the land which could contemplate either the totality of title passing to a developer/purchaser with an obligation to provide a certain amount of car parking, or a requirement for strata where the public areas are identified as strata and are retained in ownership of the strata by the public body.
GUMMOW J: That is something you could not have done under the old 518 if what had taken place fell within 526? You could not have solved it in this way?
MR DAVISON: No, you could not.
CALLINAN J: How do you say - well, what is the nature of that obligation? Is it a contractual obligation, or a ‑ ‑ ‑
MR DAVISON: No, your Honour, we say it is an administrative obligation of the Kinloch type. In that context, your Honour directed our attention to Marine Developments v Brisbane. We would say that that which is relevantly the subject of Mr Justice Hart’s judgment at 217 is a reference to a Kinloch type obligation, rather than a true trust obligation.
McHUGH J: What is the factual foundation for the reference to “joint ventures” in paragraph 1 of the obligation? Where does that come from?
MR DAVISON: It can only come from the Bank of New South Wales’ correspondence, your Honour. So far as 526 is concerned, we say that that is not a provision of the Act which operates so as to construe activities of the Council, it is an empowering provision. The heading is apt to describe that which the text provides. It provides for a power to accept trusts. It follows that they must necessarily be express trusts because otherwise the Council cannot be in the position of accepting them and being in a position to understand its obligation to administer the property in accordance with them.
In our respectful submission the provision is therefore no more than an empowerment of the Council to accept public trusts which are of a charitable nature and no more.
HAYNE J: And are the words therefore “all public” otiose?
MR DAVISON: They are no more, your Honour, than a recognition that there are some minor exceptions to the charitable trust criteria of the type that are referred to in the authorities, but not so as to create an entirely separate form of public trust. We say, your Honours, that the question remains, was there, by the circumstances that surrounded the transfer of the subject land, relevantly the acceptance of a trust, and as an express trust, as we say it would have to be?
McHUGH J: But why do you say it would have to be an express trust? Supposing the Council had got into some situation where it acted unconscionably and the courts imposed a charitable trust of some nature, why would not 526 authorise the holding of ‑ ‑ ‑
MR DAVISON: Your Honour, what 526 is directed towards is the circumstances which apply at the time the property comes into the Council’s hands and there the Council must accept the property which is conveyed, subject to the particular charitable or public purpose; we say, charitable purpose. So that the necessary intention to create the trust must be apparent and must be accepted by the Council as trustee in accepting the trust. Those are elements of an express trust. The only point of avoidance of those elements is where there is an absence of writing so as to satisfy a Statute of Frauds provision, and that is why my learned friends in their submissions referred to secret trusts; secret trusts are no more than a form of express trust where the obligation for writing is absent and they are a form of trust which equity operates upon so as to ensure that the statute, which is to relieve fraud, does not operate so as to create fraud.
The proposition is put, your Honours, that section 30 exists, so what is the problem? Section 30 exists in the Local Government Act 1993 of New South Wales. As my friend, with respect, properly concedes, he cannot characterise the trust which is said to operate here or the obligation which is said to operate here.
But the problem which is capable of flowing from a decision which recognises such a trust in these circumstances applies not to New South Wales but to other legislatures where the powers of councils are proscriptive, as the Local Government Act 1919 was and the Local Government Act 1993 is not. The drafting of the 1993 Act has turned local government power around so as to empower generally rather than specifically. So far as I understand it, no other local government Act in Australia adopts that approach ‑ ‑ ‑
HAYNE J: I do not think that is right. I think you will find the Victorian Act gives councils now all of the powers of a natural person.
MR DAVISON: Then I withdraw that proposition, your Honour. Indeed, I think that partly the New South Wales Act is derived from the Victorian Act, as I recall it, but the result is that other legislation would have similar proscriptive provisions such that what is the problem for New South Wales would not resolve the effect of this decision here in other jurisdictions. The question which ultimately has to be answered is not a question of discretion as to whether there is a need for the remedy or not, but whether on the facts there is the creation of such a public trust of the type contemplated by clause 6(2)(b) of the schedule and that comes back, in our respectful submission, necessarily to the type of trust that it is referring to as being an express trust.
There is no evidence here, nor could there be, of the Council’s acceptance of the obligation which this trust is said to cast upon it, namely, the perpetual holding of this land for the purpose of the type of car park that the respondent wishes. It is clear from the Bank of New South Wales’ material that the Council for entirely appropriate town planning reasons would never have accepted that obligation and, that being so, there could not relevantly have been an express perpetual trust for that purpose.
GAUDRON J: For present purposes, does it matter if the purpose is simply to provide parking, no matter on what level? If one accepts that it is held on a trust, and that that is a purpose which is a public purpose, then one would think that the planning restrictions come into operation anyway.
MR DAVISON: Yes, your Honour, and we say we accept those, but they operate in a way - - -
GAUDRON J: Yes, you would still not be able to deal with this other than as community land.
MR DAVISON: We say no, your Honour.
GAUDRON J: Why? If one assumes there is a trust, the trust is to provide public parking, whether on some or all of the land, or on some or all stratas of it, and one accepts that that is the public purpose, why is the land not then community land?
MR DAVISON: It is the fact, your Honour, of trust. We say, your Honour, that there is no trust created by these circumstances. There is an obligation or a duty which is capable of being enforced - - -
GAUDRON J: In equity? Where else?
MR DAVISON: Not in New South Wales, your Honour. In New South Wales, the appropriate place for enforcement is the Land and Environment Court, but it is exercising an equitable jurisdiction in that respect.
GAUDRON J: But there is no statutory provision creating that obligation that you point to?
MR DAVISON: No, your Honour, there is not. In terms, the duty of the Council is, firstly, that which we see in section 8, which is not a legally enforceable duty, but one which recognises the way in which council holds land, and the duty which it has to manage lands which it holds for the benefit of the whole of Bathurst. To impose a limitation of this type is to - for the benefit of the respondent - to avoid the Council acting as it always intended to act for the benefit of the whole of the ratepayers of Bathurst. It is not to the point to say that the Act - - -
GAUDRON J: Well, you have to say there was no trust.
MR DAVISON: We say there is no trust, your Honour.
GAUDRON J: But if there is a trust, whatever that means for the purposes of clause 6 - - -
MR DAVISON: If there is a trust for a public purpose - - -
GAUDRON J: - - - then it does not matter whether you are obliged to use it for public parking and nothing else or whether you are obliged to provide it for public parking and may as well provide something else, surely.
MR DAVISON: No, your Honour, it does not. If there is a trust, and the trust has those two elements, then it does not. But the second element - that which contemplates sale - is totally inimical to the concept of a trust for a public purpose contemplated by clause 6(2)(b), or for section 526; that is, that that sort of obligation is an obligation for the Council to manage land it holds efficiently and for the benefit of all of its ratepayers, and that is an obligation which is different from a trust - enforceable, nonetheless, but different from a trust.
The reference to section 31(3) - the Act my learned friend was reading from in the 1996 version is somewhat different, though perhaps not different in effect, from the Act which came into force in 1993 which is the one which necessarily created the obligations here. What 31(3) provided in that Act was that:
A Council must not resolve under this section that land be classified as operational.....if the resolution would be inconsistent with any other Act, the terms of any trust applying to the land or the terms of any instrument executed by the donor or transferor of the land.
Again, bespeaking an express trust of which the terms are clear. Those, your Honour, are the submissions we are putting.
GAUDRON J: Yes, thank you, Mr Davison. The Court will consider its decision in this matter.
AT 3.44 PM THE MATTER WAS ADJOURNED
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