Bathurst City Council v PWC Properties Pty Ltd (S141-1997) [1998] HCA 59 30 September 1998
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation:
W R Davison SC with D R Parry for the appellant (instructed by McIntosh, McPhillamy & Co)
B W Walker SC with B J Preston and A S Bell for the respondent (instructed by Clayton Utz) (Mr Preston did not appear in Court)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Bathurst City Council v PWC Properties Pty Limited
Local government – Council resolution – Validity – Classification of land – Whether land "operational" or "community" – Whether land "subject to a trust for a public purpose".
Trusts – Charitable trust – Trust for purpose beneficial to the community – Vesting of land in local authority for purpose of publicly accessible free car park.
GAUDRON, McHUGH, GUMMOW, HAYNE AND CALLINAN JJ. The essential issue in this appeal is whether certain land which at the commencement of the Local Government Act 1993 (NSW) ("the Act") was vested in the appellant, Bathurst City Council ("the Council"), and which was used for a car park was "land subject to a trust for a public purpose" within the meaning of cl 6(2)(b) of Sched 7 of the Act. If the land answered this description, then the Council dealt with it in a fashion beyond its powers. Clause 6(3) of Sched 7 empowered a council by resolution, within one year after the commencement of the Act on 1 July 1993, to classify as community land or operational land any public land vested in it or under its control which was not classified by cl 6(2). By resolution dated 18 May 1994, the Council classified land which included the car park as operational land. However, if the subject land comprised "land subject to a trust for a public purpose" under cl 6(2), it was not open to the Council to reclassify it in exercise of the power conferred by cl 6(3). Reclassification of community land as operational land could be achieved only by a local environmental plan, pursuant to s 27(1) of the Act.
The litigation was commenced by the respondent, PWC Properties Pty Ltd ("PWC"), in the Land and Environment Court which is constituted by the Land and Environment Court Act 1979 (NSW) ("the LEC Act"). It is convenient first to indicate the source of the jurisdiction exercised…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59
Case
[1998] HCA 59
Decision Date
CaseChat Overview and Summary
In Bathurst City Council v PWC Properties Pty Ltd, the High Court of Australia considered a dispute between PWC Properties Pty Ltd, the owner of a shopping centre, and Bathurst City Council concerning land used for a car park adjacent to the shopping centre. PWC sought to enforce an alleged obligation on the Council to maintain the land as a publicly accessible car park. The central issue was whether the land, transferred to the Council under the *Local Government Act 1919* (NSW), was subject to a trust for a public purpose, thereby restricting the Council's ability to reclassify it as operational land.
The High Court was required to determine whether the land, transferred to the Council by PWC and another vendor, was held by the Council subject to a trust for a public purpose at the commencement of the *Local Government Act 1993* (NSW) on 1 July 1993. This involved interpreting the provisions of the repealed *Local Government Act 1919* (NSW) and the transitional provisions of the later Act, specifically whether the Council's acquisition of the land created a "statutory trust" that bound its disposition. The Court also considered the nature of such a trust and the standing of parties to enforce it.
The Court reasoned that the land was held by the Council for a public purpose within the meaning of s 526 of the *Local Government Act 1919* (NSW). This section allowed councils to accept property for public purposes even if not strictly on trust in the private law sense. The Court found that the term "trust" in the transitional provisions of the *Local Government Act 1993* (NSW) was broad enough to encompass these governmental responsibilities, creating a "statutory trust" that controlled the Council's freedom to dispose of the land. The Court noted that the absence of a specific beneficial owner with standing to enforce the trust in equity did not negate the existence of this statutory constraint, as the Attorney-General retained the power to restrain actions incompatible with the Council's duties. Consequently, the Council's resolution to reclassify the land was invalid. The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
The land was vested in the Council at a time when the Local Government Act 1919 (NSW) ("the 1919 Act") was in force. Accordingly, it will be necessary to have regard to the provisions of that legislation in determining whether on 1 July 1993 the land was "subject to a trust for a public purpose".The facts PWC was formerly named Permewan Wright Consolidated Pty Ltd. The change of name occurred on 18 July 1986. PWC is the owner of a shopping centre at 208‑218 Howick Street, Bathurst, which is known as the Payless Plaza Shopping Centre. A 200 space car park ("the car parking site") is provided on an adjacent bitumen surfaced area of land comprising approximately 8,600 square metres. The land is owned or controlled by the Council. The car parking site is in the centre of the block bounded by William, Howick, Bentinck and Russell Streets, Bathurst. It has a vehicular ingress and egress available to the car parking site and a loading dock in the Shopping Centre from Bentinck and Russell Streets. The land the subject of the relief which has been granted in these proceedings comprises Lot 21 in Deposited Plan No 258221 and Lot 12 in Deposited Plan No 609772. Lot 12 was transferred by PWC to the Council by a transfer dated 15 June 1987. The only consideration stated in the transfer is $1. It appears to have been preceded by a contract for sale but this is not in evidence. The land in Lot 21 was transferred by Gurdon Motors Pty Ltd ("Gurdon") to the Council by transfer dated 5 November 1981. This states a consideration of $800. The transfer was preceded by a contract for sale dated 29 February 1980 between Gurdon and the Council. Special condition 2 thereof stated:"The purchaser agrees that it will give the benefit of 41 car spaces to the land owned by the vendor adjacent to the subject land comprising premises 210‑218 Howick Street Bathurst. 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 210‑218 Howick Street Bathurst who wishes to develop 210‑218 Howick Street Bathurst. It is agreed that this condition will not merge on completion of this contract." Whilst special condition 2 was expressed so as not to merge on completion of the contract, it fell short of expressing an intention that the land in Lot 21 was to be held by the Council not as owner but solely as trustee. Formal words were not required, provided there was made clear an intention to constitute the Council trustee of the land. However, the intention manifested in special condition 2 was directed to another objective. This was the attachment of a car park space "benefit" to a development application which might be made by a party which, for the time being, owned 208‑218 Howick Street. The text of special condition 2 may be compared with that of a letter which was held by the Privy Council in Brisbane City Council v Attorney‑General for Queensland[5] to constitute that Council trustee of a charitable trust.[5][1979] AC 411 at 421‑422.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH, GUMMOW, HAYNE AND CALLINAN JJ
It is against that background that the recasting apparent in s 526 of the 1919 Act of the earlier legislation is to be understood. In particular, a council might accept real or personal property for a public purpose in the sense of that term, by then long understood in New South Wales, even though that purpose was not a charitable purpose and the property was not transferred to and accepted by the council on trust in the strict sense of that term. The council then would be restricted by s 518 in its dealings with that land, and subject to restraint at the suit of the Attorney‑General.Conclusion At the commencement of the Act on 1 July 1993, the nominated lots were held by the Council for a public purpose within the meaning of s 526 of the 1919 Act. Land so held was then, with the repeal of the 1919 Act, to be considered as vested in or under the control of the Council and as subject to a trust for a public purpose, within the meaning of cl 6(2)(b) of Sched 7 of the Act. The term "trust" in cl 6(2)(b) of Sched 7 is apt to include those governmental responsibilities which, whilst not imposing a trust obligation as understood in private law, may fairly be described as a "statutory trust" which bound the land and controlled what otherwise would have been the freedom of disposition enjoyed by the registered proprietor of an estate in fee simple. The trust was "not a trust for persons but for statutory purposes"[82]. It would be no answer to the existence of such a constraint that there was lacking a beneficial owner of the nominated lots with standing in a court of equity to enforce observance by the Council of the dedication of the nominated lots to the provision of parking spaces. It had been within the competence of the Attorney‑General to seek to restrain action incompatible with "the due exercise of the powers of the [C]ouncil or the due discharge of its duties"[83].[82]See Fouche v The Superannuation Fund Board (1952) 88 CLR 609 at 640. See also Harmer v Federal Commissioner of Taxation (1991) 173 CLR 264 at 274.[83]Attorney‑General v The Council of the City of Parramatta (1949) 49 SR (NSW) 283 at 291. It follows that it was not open to the Council to resolve to reclassify land including the nominated lots in purported exercise of the power conferred by cl 6(3) of Sched 7 of the Act. The appeal should be dismissed with costs.
Ratio Decidendi
Legal Principle Established
Established by:
HUGH, GUMMOW, HAYNE AND CALLINAN JJ