City of Canada Bay Council v F & D Bonaccorso Pty Ltd

[2007] NSWCA 351

New South Wales

Court of Appeal

CITATION:	City of Canada Bay Council v Bonaccorso Pty Ltd [2007] NSWCA 351
HEARING DATE(S):	26 September 2007
JUDGMENT DATE:	10 December 2007
JUDGMENT OF:	Mason P; Tobias JA; Young CJ in Eq
DECISION:	(a) Appeal allowed; (b) Set aside Declarations 2 and 3 and Orders 2 and 3 made by Biscoe J on 5 April 2007; (c) Reserve liberty to the parties to apply in writing only by 4pm on or before 30 January 2008 with respect to Order 5 made by Biscoe J on 5 April 2007 and as to whether this Court should make any orders with respect to the costs of the proceedings in the Land and Environment Court; (d) The first respondent to pay the costs of the appeal but to have a certificate under the Suitor’s Fund Act, 1951 if otherwise qualified.
CATCHWORDS:	BUILDING CONTROL AND TOWN PLANNING – Community Land – Classification of land as Community Land - Local Government Act 1993, Sch 7 cl 6(2) - ENVIRONMENT LAW – Parks and reserves – Whether Community Land - Local Government Act 1993, Sch 7 cl 6(2) - TORRENS SYSTEM – Indefeasibility of title – Whether statute forbidding transferor to dispose of land overrides indefeasibility of transferee’s registered title - STATUTES – Implied Repeal – Inconsistent statutes – Sequential effect – Whether a later statute which renders a transfer of land null and void is inconsistent with the indefeasibility provisions of the Real Property Act - Local Government Act 1993, s 45(1) - COURTS AND JUDGES – Courts – Jurisdiction and Powers – Power of courts to order rectification of the Torrens Register - Land and Environment Court Act 1979, s 20(2), Real Property Act 1900, s 138 - WORDS AND PHRASES – Community Land -
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Local Government Act 1919 Local Government Act 1993 Real Property Act 1900
CASES CITED:	Andrew Garrett Wine Resorts v National Australia Bank Ltd (No 6) [2005] SASC 292; (2005) 92 SASR 419 Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSWSC 341 Beames v Leader [2000] 1 Qd R 347 Boyd v The Mayor of Wellington [1924] NZLR 1174 Brantag Pty Ltd v Minister for Mines (No 3) (Supreme Court of New South Wales, Young J, 29 March 1995, BC9504440, unreported) Breskvar v Wall (1971) 126 CLR 376 British American Cattle Co v Caribe Farm Industries Ltd [1998] 1 WLR 1529 Butler v Attorney General (Vic) (1961) 106 CLR 268 Caldwell v Rural Bank of New South Wales (1951) 53 SR (NSW) 415 Clements v Ellis (1934) 51 CLR 217 Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151; (2005) 219 ALR 692 Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 Ex parte Little (1958) 58 SR (NSW) 173 Ex parte Smart (1867) 6 SCR 188 Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 Frazer v Walker [1967] 1 AC 569 Hill v Hall (1876) LR 1 Ex D 411 Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472 Horvath v Commonwealth Bank of Australia [1998] VSCA 51; [1999] 1 VR 643 Hypec Electronics Pty Ltd v Registrar General [2005] NSWSC 1056 In re Silver Brothers Ltd [1932] AC 514 ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697; (2003) 53 ATR 527 Kogarah Municipal Council v Golden Paradise Corporation & Anor [2005] NSWCA 230; (2005) 12 BPR 23,651 Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 Loke Yew v Port Swettenham Rubber Co Ltd [1913] AC 491 Miller v The Minister of Mines [1963] AC 484 North Cronulla Precinct Committee Incorporated v Sutherland Shire Council [1999] NSWCA 438; (1999) 107 LGERA 274 Palais Parking Station Pty Ltd v Shea [No 3] (1980) 24 SASR 425 Pirie v Registrar General (1962) 109 CLR 619 Pratten v Warringah Shire (1969) 90 WN (Pt1) (NSW) 134 Quach v Marrickville Municipal Council (1990) 22 NSWLR 55 Re Lehrer and The Real Property Act (1960) 61 SR (NSW) 365 Re Pirie (1961) 79 WN (NSW) 701 Re White (1887) 21 SALR 6 Saraswati v The Queen (1991) 172 CLR 1 Scharer v State of New South Wales [2001] NSWCA 360; (2001) 53 NSWLR 299 Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126 South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 State of South Australia v Tanner (1989) 166 CLR 161 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 Vickery v Strathfield Municipal Council (1911) 11 SR (NSW) 354
PARTIES:	City of Canada Bay Council F&D Bonaccorso Pty Ltd Arinson Pty Ltd Omaya Holdings Pty Ltd Omaya Investments Pty Ltd The Registrar-General
FILE NUMBER(S):	CA 40263/07
COUNSEL:	A: J Griffiths SC / S J Free 1R: B Coles QC / J Doyle 3&4R: J A Ayling SC / M Sahade 5R: P Walsh
SOLICITORS:	A: Maddocks Lawyers, Sydney 1R: Thomson Playford, Sydney 3&4R: DLA Phillips Fox, Sydney 5R: Department of Lands, Sydney
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 40134/03
LOWER COURT JUDICIAL OFFICER:	Biscoe J
LOWER COURT DATE OF DECISION:	5 April 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	F & D Bonaccorso Pty Ltd v City of Canada Bay City Council [2007] NSWLEC 159

CA 40263/07
LEC 401374/03

MASON P
TOBIAS JA
YOUNG CJ in EQ

Monday 10 December 2007

CITY OF CANADA BAY COUNCIL v F&D BONACCORSO PTY LTD & ORS

This matter concerns two neighbouring parcels of land, Nos. 17 and 19 Chapman Street, Strathfield, known collectively as ‘Chapman Reserve’ and comprising part of what was known as the ‘Strathfield Triangle’. The properties had come into the possession of the Council in 1982 and 1976 respectively pursuant to a proposal to turn the area into public open space. The appellant’s predecessor, Concord Council, had the buildings on both parcels demolished and grassed the land so that it gave the appearance of a single area of grassed open space land with some trees around the perimeter. Its rear and side boundaries were fenced but its front boundary was open to the street. The Council kept the grass mowed and local residents used it for various recreational purposes. Some time prior to 1993 the Council erected a sign forbidding certain recreational activities, but which expressly referred to the land as a ‘public reserve’.

The Council’s plans for the area changed and an application was made in 1989 to rezone the area to mixed commercial/residential. On 22 January 1993 Concord Local Environmental Plan No.34 was gazetted under which the Strathfield Triangle was designated as Zone 10(b) – Enterprise Area.

In 2003 the appellant, as the successor of Concord Council, contracted to sell Chapman Reserve to the third respondent. That contract was completed on the same day as it was entered into but the transfer was not registered until 22 August 2006.

There were three main questions on the appeal:

1. Was Chapman Reserve ‘Community land’ within the meaning of the Local Government Act 1993 when that Act came into effect on 1 July 1993?

2. Does s 45(1) of the Local Government Act 1993, which provides that a ‘Council has no power to sell, exchange or otherwise dispose of community land’, contradict and therefore override the indefeasibility provisions of the Real Property Act 1900?

3. If so, should the Court exercise its discretion to order the Registrar-General to rectify the Register accordingly.

Held by the Court:

1. There does not need to be evidence of a positive intention on the part of a council that land be used for recreational purposes to render it a public park and, therefore, ‘community land’.

North Cronulla Precinct Committee Incorporated v Sutherland Shire Council [1999] NSWCA 438; (1999) 107 LGERA 274, approved.

2. The evidence established that not only was Chapman Reserve as at 1 July 1993 by virtue of its physical attributes a ‘park’ as defined in the Local Government Act, but also it had been relevantly dedicated by Concord Council to public use for recreational purposes.

3. A transfer by a council of community land in breach of s 45(1) of the Local Government Act 1993 is properly described as a transfer without power and therefore invalid. However, once that transfer is registered the transferee obtains an indefeasible title to the land unless there is an implied repeal by s 45(1) of the indefeasibility provisions of the Real Property Act 1900.

South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603, applied.
Pratten v Warringah Shire (1969) 90 WN (Pt1) (NSW) 134, considered.
Breskvar v Wall (1971) 126 CLR 376, applied.

4. There was no such implied repeal as 45(1) of the Local Government Act 1993 and the indefeasibility provisions of the Real Property Act 1900 could stand together even if they are taken to operate sequentially. Any person could have moved the Land and Environment Court for an order restraining the registration of the transfer before it occurred. However, once the transfer was registered there was virtually a new Crown grant of the fee simple in the land whereby the transferee obtained a clean title.

Breskvar v Wall (1971) 126 CLR 376, applied.
Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1, doubted.
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472, applied.
Kogarah Municipal Council v Golden Paradise Corporation & Anor [2005] NSWCA 230; (2005) 12 BPR 23,651, considered.

5. (Obiter) Section 138 of the Real Property Act 1900 only provides an ancillary remedy to the granting of other substantive relief in proceedings for the recovery of land. It is a remedy of last resort and there are difficulties with the proposition that it could be used in a case such as the present where a third party was seeking to re-vest the title of the relevant land in the transferor who itself was not seeking recovery of that land and in fact opposed it.

Re White (1887) 21 SALR 6, approved.
Hypec Electronics Pty Ltd v Registrar General [2005] NSWSC 1056, approved.
Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSWSC 341, approved.

CA 40263/07
LEC 401374/03

MASON P
TOBIAS JA
YOUNG CJ in EQ

Monday 10 December 2007

CITY OF CANADA BAY COUNCIL v F&D BONACCORSO PTY LTD & ORS

Judgment

1 THE COURT: This appeal raises two issues of substance of which the second is of general importance. The first is whether two parcels of land known as Nos. 17 and 19 Chapman Street, Strathfield (referred to in the proceedings as “Chapman Reserve”) which were vested in the predecessor of the appellant as at 1 July 1993, were to be taken to have been classified as “community land” pursuant to cl 6 of Sch 7 to the Local Government Act 1993 (the LG Act). The second, which assumes an affirmative answer to the first issue, is whether, notwithstanding the sale and transfer by the appellant to the third respondent of Chapman Reserve in breach of s 45(1) of the LG Act, upon registration of the transfer pursuant to the Real Property Act 1900 (the RP Act) the third respondent gained an indefeasible title to the land comprising that Reserve.

2 In the Land and Environment Court, the primary judge, Biscoe J, answered the first issue in the affirmative and the second in the negative, holding that s 45(1) of the LG Act overrode the indefeasibility provisions of the RP Act. Accordingly, in the exercise of his discretion, his Honour ordered the fifth respondent, the Registrar-General, to amend the Register maintained under the RP Act to show the appellant as the registered proprietor of the lots comprising Chapman Reserve: F&D Bonaccorso Pty Ltd v City of Canada Bay & Ors [2007] NSWLEC 159.

3 The appellant appeals to this Court from the primary judge’s decision on both questions. It contends first, that Chapman Reserve as at 1 July 1993 was not a “public reserve” as defined in the Dictionary to the LG Act and, therefore, was not “community land” as at that date. Second, if its submissions on the first question are not accepted, it contends that the indefeasibility provisions of the RP Act were neither contradicted nor overridden by s 45(1) of the LG Act with the result that, notwithstanding a breach of s 45(1), the third respondent obtained upon registration an indefeasible title to Chapman Reserve.

4 In the proceedings before the primary judge the second, third and fourth respondents filed submitting appearances. Apart from the appellant and the first respondent, the only other party to make submissions before his Honour was the fifth respondent, the Registrar-General and then only on the second issue. On the hearing of the appeal the third and fourth respondents, as well as the fifth respondent, were represented by counsel. The fifth respondent made submissions with respect to the second issue whereas the third and fourth respondents only made submissions with respect to para 1 of the first respondent’s Notice of Contention. That Notice asserted that the appellant could not allege in defence to the first respondent’s claim, the indefeasibility of title to land of which another party (the third respondent) was the registered proprietor. In other words, the third and fourth respondents only sought to argue that, contrary to the first respondent’s contention, it was open to the appellant to assert that it had transferred to the third respondent an indefeasible title to Chapman Reserve.

The relevant factual background

5 Chapman Street falls within what is known as the “Strathfield Triangle” being an area bounded by Parramatta Road, Leicester Avenue and the northern railway line at Strathfield. The appellant acquired No.19 Chapman Street in 1976 and No. 17 Chapman Street in 1982. In 2000 it contracted to sell Chapman Reserve to the second respondent, Arinson Pty Ltd (Arinson). In December 2003 Arinson was placed in liquidation whereupon the appellant cancelled its contract of sale with that company and, on 9 December 2003, entered into a contract to sell Chapman Reserve to the third respondent. That contract was completed on the same day as it was entered into but the transfer remained unregistered until 22 August 2006, approximately one month after the first respondent amended its Points of Claim to raise issues with respect to the status of Chapman Reserve.

6 The properties in Chapman Street including the lots comprising Chapman Reserve were zoned 2(d) Residential “D” (Redevelopment) under the Concord Planning Scheme Ordinance gazetted on 22 August 1969. On or about July 1974 Concord Council (the Council), the predecessor of the appellant and within whose local government area the Strathfield Triangle was located, had prepared a detailed plan of development pursuant to cl 61 of the Concord Planning Scheme Ordinance in respect of the 2(d) Redevelopment Zone. That plan proposed that Chapman Street be closed and the land on either side of it, including Chapman Reserve, be public open space. The redevelopment scheme, including what were referred to as Code Maps, was publicly exhibited in August 1974. The Statement of Intent of the scheme stated, relevantly, that “Chapman Street and part of Mason Road will be developed into a public park”.

7 When the owners of 19 Chapman Street requested the Council purchase the property, the Council’s Finance Committee of 28 January 1975 recorded that the property was

“required for open space purposes in connection with the Residential 2(d) Redevelopment Zone …the whole of the property is required for parkland.”

On 28 May 1976 the Council purchased No. 19 Chapman Street accordingly.

8 The position did not change with respect to No. 17 Chapman Street and in a meeting of the Council in October 1982, the minutes record that that property was zoned “open space” to be acquired under the 2(d) Residential “D” scheme. A zoning certificate dated 16 July 1982 with respect to the property noted that it was required for open space purposes as part of the Council’s acquisition program in the 2(d) zone. The property was transferred to the Council on 22 November 1982.

9 The Council resolved to demolish the house on No. 17 Chapman Street on 23 November 1982 and adopted a recommendation from its engineer on 23 July 1985 to demolish the house on No. 19 Chapman Street in 1986.

10 Prior to the commencement of the LG Act on 1 July 1993, the Council rezoned the land within the Strathfield Triangle. The rezoning process commenced in 1989 when the Council received an application to rezone the area to mixed commercial, residential and retail development. On 25 July 1989 the Council resolved to prepare a draft local environmental plan to rezone the area to mixed commercial/residential and associated uses. Ultimately, on 22 January 1993 Concord Local Environmental Plan No.34 was gazetted under which the Strathfield Triangle was designated as Zone 10(b) – Enterprise Area. This zoning did not contain any specific designation of any particular land as public open space/park although one of its objectives was to permit development to be carried out for recreational as well as other nominated purposes.

11 After the demolition of the houses on Chapman Reserve, the Council grassed the land so that it gave the appearance of a single area of grassed open space land with some trees around the perimeter. Its rear and side boundaries were fenced but its front boundary was open to the street. The evidence of local residents, which his Honour accepted, was that the Council kept the grass mowed and that children often played cricket and football on the Reserve and residents used it to exercise their dogs. Furthermore, from time to time local residents recreated or picnicked upon the land and some used it as a thoroughfare to properties at its rear.

12 Prior to 1993 but after 1981, the Council erected a notice on a metal pole at the street frontage to Chapman Reserve which read as follows:

“ MUNICIPALITY OF CONCORD
Ordinance 48 Local Government Act 1919
These are some of the activities prohibited in this public reserve
The taking of consuming of alcoholic liquor, depositing rubbish, the breaking of any bottle, glass or glass receptacle, camping or staying overnight, interfering with Council furniture, or with flora, fauna and gardens, golf, archery, flying model aeroplanes and any game or the doing of any act likely to injure, endanger, obstruct, inconvenience or annoy any person, discharging of rifles or firearms; the taking in of motor vehicles (except in a proclaimed parking area) the riding of cycles or mini-bikes; the taking in of horses, cattle, goats, greyhounds, or unleashed dogs; the lighting of fires (except in fireplaces constructed by Council for that purpose or in portable barbecues 18” from ground level).

Council permission must be obtain prior to
Advertising, trading, distributing handbills, collecting money, the erection of canvas structures or awnings, or using sound amplifying and lighting devices in this Reserve.

PENALTY

A Maximum fine of up to $500 is provided by the ordinance in respect of any of the above mentioned activities. Authorised Council Officers may remove offenders from the Reserve.”

The decision of the primary judge on the community land issue

13 With respect to the issue of whether Chapman Reserve was to be taken as classified as community land as at 1 July 1993, the primary judge held (at [34]) that, having regard to the evidence of the local residents which he accepted, Chapman Reserve was up to and including 1 July 1993 used as a public park, intended by the Council to be so used and, accordingly, was to be taken as classified as community land. In reaching this conclusion his Honour reasoned as follows:

(a) Clause 6(2) of Schedule 7 to the LG Act provided that upon the commencement of that Act (1 July 1993) land comprising a “ public reserve ” which was vested in a council was taken to have been classified as community land . As Chapman Reserve was so vested in the Council as at 1 July 1993, the question was whether it was “ a public reserve ” within the meaning of cl 6(2)(a) of Schedule 7.

(b) “ Public reserve ” was defined in the Dictionary to the LG Act to include a “ public park ”. Although there was no definition of that expression, the word “ park ” was defined as follows:

"‘ park ’ in relation to land, means an area of open space used for recreation, not being bush land.”


(c) Chapman Reserve was not bushland. It was an area of grassed open space similar in size to the two adjoining residential lots. It was open to Chapman Street but surrounded on the other three sides by a paling fence that separated it from the adjoining lots.

(d) The meaning of “ public park ” in the context of the operation of cl 6 of Schedule 7 was considered by this Court in North Cronulla Precinct Committee Incorporated v Sutherland Shire Council [1999] NSWCA 438; (1999) 107 LGERA 274. In that case the Court confirmed that no formal resolution or dedication was required to make land a public park and that the characterisation of land as a public park turned on its use by the council rather than its status in formal terms. Sheller JA thus observed (at 276 [1]) that much depended on the use members of the public made of the land that was said to comprise a public reserve within the meaning of cl 6(2)(a) of Schedule 7. At 278 [8] his Honour concluded that it was sufficient if a council was shown to have intended, by laying out the park and thereafter permitting the public to use it “ as of right ”, to provide a public park or to dedicate the land as such. No formal act was required. Rather, the question was whether on the evidence it had been shown that the council acted in a way which indicated that it intended to dedicate the land in question for use as a public park.

(e) In the same case, Beazley JA adopted a similar approach observing (at 286 [50]) that it was sufficient

“for land to be categorised as a public park within Schedule 7 cl 6(2)(a) for the council to have taken sufficient steps to use or permit the use of the land as a public park.”
Her Honour further observed (at 289) that the land in that case had been landscaped and well grassed with some bushy vegetation and some planted flowerbeds. It had been used for many years by locals and visitors for recreational purposes such as picnicking, playing ball games, exercising dogs and flying kites. She therefore found (at [78]) that the land had been used for the purposes of a park and not for any other purpose. The council’s actions in relation to the land had been of a public nature. In so dealing with the land the council had not at any time indicated that its intentions were temporary.


(f) Giles JA after noting the definition of “ park ” in the LG Act and the evidence of the use of the subject land to which Beazley JA had referred as a park, being generally open space laid out and landscaped and used for recreation, observed (at 290 [85]) that an area would be a “ park ” if it met the physical description, including as to use, in the definition of “ park ” but that that was insufficient unless the park was open to use by the public as of right. At 291 [88] his Honour stated that the users of the land in that case were not a class or group of users having some common characteristic or qualification other than as members of the public and that anyone who wanted to use the land for recreation could do so and did so.

(g) In the present case the evidence established that the Council acquired Chapman Reserve for the purposes of a public park and the zoning history of the land confirmed this. The evidence of local residents, which his Honour accepted, further established its continued use by members of the public for recreational purposes.

(h) His Honour rejected a submission that Chapman Reserve was not a park (as defined) because it did not have such things as flowerbeds, bushy vegetation and play equipment or other forms of recreational equipment such as was the case in North Cronulla . Those indicia were not, his Honour held, required by the definition of “ park ” in the LG Act and they were not essential elements of a park as commonly understood. Chapman Reserve was an open area of space used for recreation by the public and intended by the Council to be so used.

(i) His Honour also rejected an argument by the appellant that the sign referred to in [12] above was of no significance given that cl 8 of Ordinance 48 defined “ reserve ” to include not only a “ public reserve ” as defined in the Local Government Act 1919 (the 1919 Act ) but also other land under the control of a council being land used, inter alia, for the purpose of recreation. Although the 1919 Act defined “ public reserve” as including a “ public park ”, the definition of “ reserve ” had two limbs, of which the second was more appropriately applied to Chapman Reserve than the first. His Honour found that the significance of the sign lay not merely in its prominent reference to “ public reserve ” but in the obvious fact that it was intended to be read by the public who used the Reserve and that by necessary implication it permitted recreational activities by the public other than those specified.

(j) His Honour then rejected a submission by the appellant that although Chapman Reserve was originally acquired by the Council for the purposes of a park, that changed when the land known as the Strathfield Triangle was rezoned in January 1993. He considered that the rezoning history did not have any significant bearing on this issue of whether Chapman Reserve was, as at 1 July 1993, a public park . His Honour considered that the although the January 1993 rezoning supplemented the range of permissible purposes for which the land within the Strathfield Triangle could be used, nevertheless the rezoning history did not establish an abandonment by 1 July 1993 or at all of the original intention of the Council in acquiring Chapman Reserve that it was to be used as public open space.

(k) Irrespective of its zoning at that time, his Honour therefore held that Chapman Reserve had all the physical attributes of a “ park ” as defined and that it was being openly used by the public at that time for recreational purposes, a use which had continued uninterrupted since approximately 1986.

The appellant’s appeal with respect to the community land issue

14 The appellant firstly submitted that in contrast to the evidence in the North Cronulla case, in the present case the evidence was that Chapman Reserve was a vacant block which did not have children’s play equipment, swings or park benches installed and which was not maintained or landscaped in the same manner as other public parks in the Council’s area. It was therefore submitted that the primary judge had not had sufficient regard to the principle articulated by Giles JA in North Cronulla at [107] that land is not “used” as a public park where there is a “mere tolerance of public use by the council, that is, permitted by conditional or temporary use by members of the public” and that there must be sufficient evidence to justify an inference that the Council intended “that the park should be dedicated to public use”.

15 It was secondly submitted that the evidence relating to Chapman Reserve established that it was a vacant lot on which the appellant and its predecessor had tolerated the conduct of public activities but that this was a temporary state of affairs pending resolution of various development proposals in respect of land within the Strathfield Triangle.

16 Although it was accepted that there was no need for a formal act of dedication by the Council to create Chapman Reserve as a public park, it was nevertheless submitted that the concept of a “public park” required a positive intention on its part that the land be used for recreational purposes and not merely acquiescence by the Council of limited public use pending a decision as to the land’s ultimate use. The practical consequences of the approach adopted by the primary judge, it was submitted, was that any vacant land owned by a council as at 1 July 1993 which the public in fact used for recreational purposes must be taken to be a “public park” unless the council could demonstrate that it took active steps to preclude such activities.

17 In our opinion there is no substance in these submissions and they should be rejected for the reasons advanced by the primary judge. There is nothing in the decision of this Court in North Cronulla for instance that requires the disqualification of land as a public park unless it contains children’s play equipment, swings or park benches or some form of landscaping. In the present case Chapman Reserve was a vacant area of grassed land open to the street upon the frontage of which was erected a sign by the Council purporting to have been erected pursuant to Ordinance 48 made under the 1919 Act in which the land was referred to “as a public reserve” and which listed the specific activities which were prohibited upon the land thereby enabling the public to draw the inference (which on the evidence they did) that recreational activities other than those prohibited were permitted. Furthermore, the evidence accepted by the primary judge established that Chapman Reserve was in fact used for recreational purposes by members of the public as of right. No attempt was made by the Council at any time up to and including 1 July 1993 to limit the public’s recreational activities upon Chapman Reserve other than by way of the Ordinance 48 sign.

18 Furthermore, and significantly, there is no doubt that Chapman Reserve was acquired by the Council for the purpose of public open space and that it was used for that purpose up to and including 1 July 1993. Although steps were taken from 1989 to 1993 to prepare and make a local environmental plan which would change the zoning of the Strathfield Triangle including Chapman Reserve, no attempt was made by the Council to inhibit its use by the public as a public park or to lawfully bring that use to an end.

19 It follows that not only was Chapman Reserve as at 1 July 1993 by virtue of its physical attributes a “park” as defined in the LG Act, but also it had been relevantly dedicated by the Council to public use for recreational purposes. In these circumstances his Honour was correct in holding that Chapman Reserve was as at 1 July 1993 a “public park” and, therefore, a “public reserve” within the meaning of cl 6(2)(a) of Schedule 7 to the LG Act and was accordingly taken to have been classified as community land as at that date.

Decision on the community land Issue

20 Accordingly, as Chapman Reserve had not been reclassified as operational land in accordance with the provisions of s 28(1) of the LG Act, its sale and transfer by the appellant to the third respondent on 9 December 2003 was in breach of s 45(1) of the LG Act.

The statutory provisions relevant to the indefeasibility issue

21 We now pass to the main question in this appeal, namely, whether the third respondent, the current registered proprietor of Nos 17 and 19 Chapman Street, obtained an indefeasible title to those properties on registration of the appellant’s transfer to it on 22 August 2006.

22 Section 45(1) of the LG Act was at all material times in the following terms:

“A council has no power to sell, exchange or otherwise dispose of community land.”

Section 46 prohibited the granting of a lease, licence or other estate in community land except for limited purposes – none of which were applicable in the present case.

23 The Land and Environment Court had power under ss 674(1) and 676(1) and (3) to remedy or restrain a breach of the LG Act. Those provisions were in the following terms:

“ 674 (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act.
676 (1) If the Land and Environment Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
…
(3) The functions of the Court under this section are in addition to and not in derogation of any other functions of the Court.”

24 Relevant also to the jurisdiction of that Court to grant the relief sought by the first respondent was s 20 of the Land and Environment Court Act 1979 (the Court Act) which conferred jurisdiction upon the Court to hear and dispose of proceedings under s 674 of the LG Act.

25 Section 20(2) was in the following terms:

“ 20 …
(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings:
(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law …
(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law …
(c) to make declarations or rights in relation to any such right, obligation or duty or the exercise of any such function, and …”


For the purposes of s 20(2)(a), a planning or environmental law included the provisions of Pt 2 of Chapter 6 of the LG Act which included s 45.

The decision of the primary judge on the indefeasibility issue

26 After dealing with the relevant statutory background, the primary judge referred to the indefeasibility principle expressed in ss 41(1), 42(1) and (2) and 43A(2) of the RP Act. In this regard it is a basic principle of the Torrens system of land titles that upon registration of a person as proprietor of an interest in land subject to the RP Act, that person obtains an indefeasible or conclusive title with respect to that interest. Although the expression “indefeasibility of title” is not employed in Torrens title statutes, it was described by the Privy Council in Frazer v Walker [1967] 1 AC 569 at 580 as being

”a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which [the registered proprietor] is registered, which a registered proprietor enjoys. This conception is central to the system of registration”.

27 The primary judge noted that the question of whether s 45(1) of the LG Act overrides the indefeasibility provisions of the RP Act was referred to in the decision of this Court in Kogarah Municipal Council v Golden Paradise Corporation & Anor [2005] NSWCA 230; (2005) 12 BPR 23,651. According to his Honour the majority suggested the possibility of a negative answer to that question whereas the minority suggested an affirmative answer. However, the views of the members of the Court in that case were obiter and expressed only in a preliminary way as the issue did not directly arise for determination. However, it did so arise in the present case.

28 His Honour then discussed the principles relating to implied statutory appeal or amendment referring to the decisions of the High Court in Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126 at 137 [34] and [35]; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at 13-14 [43] and [44]; Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 at 137-138 [18]; 251, 145-146 [47]-[48]; 162 [108] and 163 [110]; State of South Australia v Tanner (1989) 166 CLR 161 at 170-171.

29 He then distilled (at [51]) the following four general principles from the judgments of the four High Court cases referred to:

“(a) A provision of a later statute impliedly repeals or amends pro tanto a provision of an earlier statute if, upon their true construction, the later provision explicitly or implicitly and clearly contradicts the earlier;
(b) There is a general presumption that there is no contradiction between two Acts of the same legislature;
(c) There must be very strong grounds to support the implication of a repeal or amendment; and
(d) There is no contradiction if the later and earlier statutory provisions can stand or live together (or can be reconciled).”

30 His Honour next referred to a number of decisions dealing with the issue of indefeasibility, namely, Frazer v Walker; Breskvar v Wall (1971) 126 CLR 376 at 385; Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472 at 490 [52], concluding (at [56]) that

“if a void instrument achieves indefeasibility upon registration, it is consistent that so too does a transfer without power”.

The significance of this conclusion to the present case is that a transfer by a council of Community land in breach of s 45(1) is properly described as a transfer without power.

31 The primary judge also referred to the decision of the Court of Appeal of New Zealand in Boyd v The Mayor of Wellington [1924] NZLR 1174 which was approved by the Privy Council in Frazer v Walker and by Barwick CJ in Breskvar v Wall. A similar case, his Honour said (at [56]), was the decision of the Full Court of the Supreme Court of South Australia in Palais Parking Station Pty Ltd v Shea [No 3] (1980) 24 SASR 425 where it was held that a purported compulsory acquisition of land was invalid because it was without statutory authority and, therefore, ultra vires. Nevertheless, it was held that registration vested indefeasible title to the land in the new registered proprietor.

32 Although his Honour (at [57]) considered that Boyd and Palais bore some comparison with the present case insofar as they were transfer cases without power, they were nonetheless different “in that they were concerned with the transfer of private land” whereas the present case was concerned with the transfer of public land in respect of which special restrictions were applicable. His Honour relied upon this differentiation in coming to the conclusion he did. However, in our opinion it is not a principled distinction, as we will seek to demonstrate: see [85] below.

33 His Honour then turned (at [59]) to those exceptions to Torrens title indefeasibility that had been judicially recognised. The first category was where indefeasibility was over-ridden by statutory proprietary rights which did not depend upon registration for their efficacy: South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603; Pratten v Warringah Shire Council (1969) 90 WN (Pt1) (NSW) 134; Quach v Marrickville Municipal Council (1990) 22 NSWLR 55. His Honour considered that each of those cases was distinguishable from the present case, a conclusion with which we would agree.

34 The second category of exception his Honour suggested (at [62]), was that recognised by a minority of the High Court in Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 at 34 where Gibbs J held, with the apparent agreement of Menzies J, that s 88B of the Industrial Arbitration Act 1940 (NSW) rendered the lease the subject of that case void and not merely some document or transaction from which the title of the lessee was derived. His Honour in that case therefore concluded that if the RP Act was to be held to have the effect of validating the lease, its provisions would be irreconcilable with those of s 88B which declared the lease to be void.

35 The primary judge (at [63] and [64]) distinguished Travinto from the present case as s 88B provided that a lease entered into without the approval of the Industrial Commission was expressed to be both illegal and void. On the other hand in the present case s 45(1) of the LG Act did not provide that a sale or other disposition of community land contrary to its provisions was void or illegal.

36 After referring to various passages from the judgments of the High Court in Hillpalm and those of this Court in Golden Paradise, the primary judge considered (at [77]) that the present case represented either a clash or co-existence between two key principles: indefeasibility under the Torrens title statutes and overriding planning statutes. He observed (at [78]) that the sale and transfer of Chapman Reserve as community land, although a breach by the appellant of s 45(1) of the LG Act, did not necessarily result in that transaction being void and of no effect. As already observed, the subsection was not so expressed. In his Honour’s opinion the LG Act evinced an intention that a breach of that Act only had the consequences for which that Act or any other Act provided. This was because the legislation prescribed exhaustively the civil remedies available in respect of a breach of the LG Act which could only be claimed in proceedings instituted in the Land and Environment Court: see ss 674 and 676 of the LG Act and s 20 of the Court Act.

37 His Honour then noted that in the present proceedings the first respondent did not seek a declaration that the sale or transfer of Chapman Reserve was void; rather, it sought a declaration that the registration of the transfer was void with the consequential order that the Register be rectified.

38 Having determined (at [79]) that a breach of s 45(1) of the LG Act did not render the transaction void but only attracted the civil remedies provided under the LG Act and the Court Act to which we have referred, his Honour considered the appellant’s submission that even if registration of the transfer of Chapman Reserve to the third respondent was a breach by the appellant of s 45(1) of the LG Act, s 676 did not empower the Court to make a remedial order against anyone including the Registrar-General. The primary judge accepted the proposition that s 676 of the LG Act only empowered the Court to make an order against the party in breach: see Hillpalm. Neither the third respondent nor the Registrar-General fell into that category.

39 However, his Honour accepted (at [85]) a submission on behalf of the first respondent that the Land and Environment Court was empowered to order rectification of the Register under s 138(1) of the RP Act on the basis that the present proceedings were for the recovery of land within the meaning of that provision. He was further of the view (at [86]) that s 20(2)(a) of the Court Act empowered the Court to order rectification of the Register: Scharer v State of New South Wales [2001] NSWCA 360; (2001) 53 NSWLR 299 at 306 [33], 307 [45].

40 Having held that the Land and Environment Court had power either under s 138 of the RP Act or s 20(2)(a) of the Court Act to order the Registrar-General to rectify the Register, his Honour then turned to whether such an order should be made. In determining that issue he adopted (at [89]) reasoning which mirrored that of Kirby J in Hillpalm at 506 [102] where, in the context of the Environmental Planning and Assessment Act 1979 (the EPAA), Kirby J said:

“ Court powers to create new rights : When properly analysed, the order of the Land and Environment Court that the appellant challenges creates new rights which arise from the making of the order. They are superimposed upon the rights of the parties, by force of the EPAA. This is so notwithstanding any rights that the parties to that time may have enjoyed under the RPA. In this sense, there is no irreconcilable conflict between the two Acts. There is no ultimate need to treat the EPAA as repealing or amending the RPA pro tanto. The Acts simply operate sequentially. Until the order is made by the Land and Environment Court, the appellant’s title was indeed clear , although in this case the appellant was on notice of the respondent’s claim for relief once made and, possibly (as I shall show) much earlier.”

41 In applying that reasoning to the present case, the primary judge observed (at [89]):

“In a sense, there is no clear, irreconcilable conflict between s 45 of the LG Act and the RP Act , in which case there is no ultimate need to treat the LG Act as repealing or amending the RP Act pro tanto. The Acts may be viewed as operating sequentially. If an order is made to rectify the Register, the order creates a new right which arises from the making of the order. It is superimposed upon pre-existing rights. This is so notwithstanding any rights that to that time may have been enjoyed under the RP Act. In this sense, until an order is made by this Court exercising its discretionary power, the breach of, or failure to perform a duty or obligation or function under, the LG Act has no consequence and the registered transfer was indefeasible. Once the Court makes an order rectifying the Register, indefeasibility ceases. …”

42 As an alternative ground upon which relief would be granted to the first respondent, the primary judge turned to the question of whether the legislature, by necessary implication, intended s 45(1) of the LG Act to repeal or amend pro tanto the indefeasibility provisions of the RP Act. He reasoned as follows:

“91 The authorities concerning exceptions to the indefeasibility principle are, I think, all distinguishable. This is not a case of a statutory scheme for first unregistered charges to secure rates, as in South-Eastern Drainage Board . That exception to indefeasibility, is probably inevitable. This is not a case of a statutory scheme for development consents, which overrides the indefeasibility provisions of the RP Act , as discussed in Hillpalm . This is not a case of an underlying transaction which the legislature has strongly declared to be expressly prohibited, void and subject to criminal penalties as in Travinto . This is not a case of powerless resumption, as in Boyd and Palais , or a case of powerless fraudulent transfer, as in Frazer , because they concerned private land, not public land to which special restrictions attach.
92 This is a case of a sale or transfer of community land, to which special restrictions on dealings attach, without statutory power. The potential scale of the issue is indicated by the fact that as at May 1994 most of the land owned or controlled by the respondent council was community land: see [13] above.

93 Factors favouring an affirmative answer to the question whether s 45 of the LG Act overrides the indefeasibility provisions of the LG Act include obedience to the law made later in time; priority to the law on a subject which is more specific over one that is more general; and precedence to public rights over land to which special statutory restraints on dealings apply, over private rights: Hillpalm at [100] – [101] per Kirby J.

94 As regards the last point, the LG Act accords special status to community land and restricts dealings in community land, as discussed above at [7]. An analogy may be drawn with the special status accorded to national parks under the National Parks and Wildlife Act 1974 (NSW). In Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19, the Minister administering that Act signified his approval of a lease for a purpose which was prohibited or in breach of the EPA Act . …

95 A further factor, which tends to suggest that the legislature intended the indefeasibility provisions to be overridden is that the classification of land as community land is readily ascertainable. That is because s 54 of the LG Act obliges a council to provide, on application and payment of a prescribed fee, a conclusive certificate stating the classification of public land as at the date of the certificate.”


His Honour concluded (at [96]) that having regard to the foregoing considerations, the legislature impliedly intended s 45(1) of the LG Act to override the indefeasibility provisions for the RP Act .

The appellant’s appeal on the indefeasibility issue

43 As all parties acknowledged, the principle of indefeasibility was conclusively considered by the High Court of Australia in Breskvar v Wall. In that case, s 53(5) of the Queensland Stamp Act of 1894 provided that no transfer -

“shall be valid either at law or in equity unless the name of the purchaser or transferee is written therein in ink at the time of the execution thereof.
Any such instrument so made shall be absolutely void and inoperative … “.

However, a transfer not complying with that section was in fact registered. The High Court unanimously held that the registered proprietor had acquired an indefeasible title notwithstanding that the transfer was by statute rendered void and of no effect.

44 The applicable principles are those articulated by Barwick CJ in the following well-known passage (at 385-386):

“The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void. The affirmation by the Privy Council in Frazer v. Walker of the decision of the Supreme Court of New Zealand in Boyd v. Mayor, &c., of Wellington , now places that conclusion beyond question. Thus the effect of the Stamp Act upon the memorandum of transfer in this case is irrelevant to the question whether the certificate of title is conclusive of its particulars.”

45 The approach taken by the High Court in Breskvar v Wall following the decision of the Privy Council in Frazer v Walker is that upon registration the previous title is extinguished and a new title certified as if there had been a new Crown grant. Accordingly, the fact that the transfer upon which the Registrar-General acted in bringing about the registration was forged or a nullity is of no moment. Moreover, generally speaking, the Registrar-General ought not, as Jacobs J observed in Re Lehrer and The Real Property Act (1960) 61 SR (NSW) 365 at 376 (and see also Beames v Leader [2000] 1 Qd R 347 at 361 [59(a)]),

“to refuse registration of an instrument because he forms the view that in law it is a void instrument, unless by registration some validity could be given to the instrument which it would not otherwise have, or some estate or interest could by registration be created beyond that purported to be dealt with in the instrument itself”.

46 However, apart from fraud and the exceptions set out in s 42(1)(a)-(d) of the RP Act, it is clear that rights in land under the Torrens system might arise outside the RP Act and that in some circumstances those rights effectively supplant the rights under that Act. Thus, before the enactment of legislation such as the Roads Act 1993 (NSW), which vested the fee simple of public roads in a local council as the relevant roads authority (see ss 7(4) and 145(3)), the common law right of the public to use a dedicated highway could not be defeated by the registered proprietor of the land on which the highway was located. Thus in Vickery v Strathfield Municipal Council (1911) 11 SR (NSW) 354 at 362, Rich AJ said:

”It is clear, therefore, that a registered proprietor holds his land absolutely free from all encumbrances, liens, estates, or interests whatsoever other than those notified on the grant or certificate of title, save in the cases expressly mentioned. Is this language sufficiently wide to cover public rights of highway? I am of opinion that it is not. The language of s 42 itself suggests that the interests referred to are such as are capable of existing in an individual; this is inconsistent with its applicability to public rights of user. But, apart from this, public highways appear to lie wholly outside the scope of the Act. …”

47 Again, in Pratten v Warringah Shire Council at 137 Street J held that a council’s statutory title under s 398 of the 1919 Act to a drainage reserve prevailed over the title of the registered proprietor of the land over which the reserve was situated. Although the land remained registered in the name of the previous registered proprietors for an estate in fee simple therein, s 398 operated on the land to divest the ownership from the registered proprietor and to vest that ownership in the council in fee simple for drainage purposes. Thus at 142 his Honour said:

”… The absolute indefeasibility ordinarily flowing from registration ( Frazer v Walker ) will not avail where the fee simple has, by an overriding statute, been in effect removed from the registration system. Moreover, not only was the then registered proprietor incapable of calling back his fee simple, but no act of the Registrar-General otherwise than consequent upon the written request of the council pursuant to s 14 of the Real Property (Amendment) Act 1921 could be recognized as effective to trench in any way upon the council’s fee simple. …”

48 In South-Eastern Drainage Board, the relevant legislation provided that money owed to a public authority for rates to pay for a drainage scheme was a first statutory charge on the land, the High Court holding that despite the principles of indefeasibility, on the true construction of the statute the statutory charge took priority over a duly registered mortgage under the South Australian Real Property Act. Thus Dixon J said (at 627-628):

”It follows, therefore, that the question upon which our decision must turn is whether in the enactments creating the statutory charges such a clear intention is expressed to include land under the Real Property Act and to give to the charges an absolute and indefeasible priority over all other interests that, notwithstanding s 6 of that Act, no course is open but to allow the intention so expressed in the later enactments to be paramount over the earlier Real Property Act . In my opinion this question ought to be answered that such an intention so plainly appears that no other course is open.”

49 In the same case Starke J (at 622) said that the charges were complete and effective by reason of the statutes creating them so that no room was left for the operation of the Real Property Act with the result that the explicit and express provisions of the statutes creating the charges must prevail.

50 In the instant case, the title of the third respondent is questioned because the transfer which was registered so as to purportedly endow it with an indefeasible title was, as now appears, executed in breach of s 45(1) of the LG Act which provided that “a council has no power to sell, exchange or otherwise dispose of community land”.

51 As we have already noted (at [43]), Biscoe J held (at [96]) that, in the circumstances of this case, the legislature impliedly intended s 45(1) of the LG Act to override the indefeasibility provisions of the RP Act. In Quach it was noted by Young J (at 61) that notwithstanding the difficulty of operating under the Torrens system if there were extraneous statutory rights, nevertheless in those cases where the legislation clearly so provided, the statutory rights “trumped” indefeasibility. His Honour expressed the problem in the following terms:

”It is very difficult now to contend that the mainstream indefeasibility provisions, such as s 42 of the Act, operate to defeat the statutory right of the Council. It has been well recognised, both by the textwriters and by the authorities that, although it is the weakest point in the Torrens System, statutory and public rights will override an indefeasible title. The point might be worth making that the present right claimed by the Council is, in a strict sense, not a public right. The point can be illustrated by reference to a road. Before the Local Government Act , it was quite possible for X to have a fee simple in the soil of a road, Y to have a private right-of-way over the road and for the public generally to have the right to pass and repass because the road was a public road. Y's interest in holding a private right-of-way and the public's interest in having a right to pass and repass were two different rights and the cessation of the public right may not necessarily interfere with the exercise by Y of his private right. In that sort of situation public rights to roads can easily be said to override private land rights because, in effect, they are supplementary rights of user, completely separate from the congeries of rights which make up a fee simple. However, when one is talking about a council not only having a right to pass drainage pipes through the land, but also owning the fee simple itself, it is very debatable whether the dichotomy between public rights in land which it overrides and private rights is maintainable. However, although that may be the philosophic position, the authorities say otherwise: see, eg, South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia (1939) 62 CLR 603.
It seems to me that, despite the very legitimate criticism that has been made by the textwriters, (see, eg, Sackville (1973) 47 ALJ 526 at 536 and Butt, Land Law , 2nd ed (1988) at 532) that provisions such as s 398 pose the greatest single threat to the operation of the Torrens System and make such substantial inroads into indefeasibility that it is impossible to rely on the register, I feel I must follow such a strong line of authority as holds that these statutory inroads do prevail over the “ordinary” indefeasibility provisions of the Real Property Act .”

52 However, it must be noted that the cases in this category are few and the reported ones at least deal with situations where there was an ongoing effect of the statute found to trump indefeasibility. Thus in Vickery there was the ongoing use of a public road; in South-Eastern Drainage Board an ongoing statutory charge; in Pratten and Quach the continuous use of drainage reserves. These were not cases where there was a once and for all breach of a statute prohibiting a dealing with RP Act land.

53 As we have noted in [42] above, Biscoe J at [91] held that the authorities concerning what might be termed the statutory exceptions to indefeasibility which he had considered were all distinguishable from the present case including decisions such as South-Eastern Drainage Board. At least so far as that line of cases was concerned, his Honour was clearly correct.

54 More problematic is the view of Gibbs J in Travinto (at 34) to which we have referred in [34] above. In that case the statutory provision which purportedly conflicted with the indefeasibility principle was not a void instrument but rather s 88B of the then Industrial Arbitration Act which rendered void any contract under which a person leased or agreed to lease premises in which hairdressing was to be carried out unless it had been approved by the Industrial Commission or some other industrial body.

55 In brief, the facts were that there was a lease of a hairdressing shop at Marrickville which contained an option. The plaintiff sought specific performance of its exercise of the option to renew. It succeeded at first instance but lost in this Court. On appeal to the High Court, four justices dismissed the appeal on the basis that the transaction was illegal and so could not be enforced by way of specific performance. However, Gibbs J distinguished Breskvar v Wall on the basis that in that case the Queensland Stamp Act and Real Property Act could stand together because whilst the transfer itself was rendered void under the former statute, the latter resulted in the registration of the void transfer being effective to pass title. However, he continued (at 34-35) in these terms:

“In the present case the Industrial Arbitration Act renders void the lease itself and not merely some document or transaction from which the title of the lessee was derived. If the Real Property Act were held to have the effect of validating the lease, its provisions would be irreconcilable with those of s 88B which declares the lease to be void.
… Although the Real Property Act is of the greatest importance in relation to land titles it is not a fundamental or organic law to which other statutes are subordinate. The question is simply whether the provisions of the later enactment, s 88B of the Industrial Arbitration Act, override the inconsistent provisions of the Real Property Act, and for the reasons I have given I consider that they do.”

56 At least at first blush there is a difficulty in reconciling this reasoning of Gibbs J in Travinto with what the High Court, of which Gibbs J was a member, said in Breskvar v Wall. In Travinto Gibbs J was clearly conscious of the decision in Breskvar v Wall on which he had sat, there being a clear distinction in his mind between the effect of the relevant statutory provisions in terms of their impact upon the indefeasibility provision of the Torrens legislation in Travinto compared with that in Breskvar v Wall. It would seem that he thought that the critical distinction was that the lease itself was void in Travinto, not merely some document or transaction from which the title of the purchaser was derived, as was the case in Breskvar v Wall.

57 If this was his Honour’s line of reasoning, then in view of our analysis of the authorities, it would seem to be inconsistent with the approach taken by the majority of the judges of the New Zealand Court of Appeal in Boyd v The Mayor of Wellington and by the Full Court of South Australia in Palais Parking Station which have been accepted by high authority. If we had to, we would join with Ormiston JA's observations in Horvath v Commonwealth Bank of Australia [1998] VSCA 51; [1999] 1 VR 643 at 659 with respect to the judgment of Gibbs J’s in Travinto, see [70] below.

58 We shall assume for the moment that s 45(1) of the LG Act renders the transfer from the appellant to the third respondent void although that does not accord with its terms. On that assumption the primary judge’s conclusion (at [96]) that that provision overrode the indefeasibility provisions of the RP Act is inconsistent with the approach taken by the New Zealand Court of Appeal in Boyd v The Mayor of Wellington.

59 In that case, s 15 of the New Zealand Public Works Act 1908, provided that certain resumptions were not to be effected without the previous consent of the Governor in Council or the consent in writing of the owner of the land resumed. The defendant Corporation resumed land without either of those consents and obtained a registered title. The question for the Court was whether that title prevailed. The majority, Stout CJ, Sim and Adams JJ held that even assuming that the resumption was void, the Corporation on registration under the Land Transfer Act obtained an indefeasible title. The Register was conclusive. Stringer and Salmond JJ dissented.

60 As Biscoe J observed at [57] of his judgment, Boyd was significant because it was not a case where the transfer was void or forged; rather, it was the underlying incapacity of the Corporation to lawfully resume the land which brought about possible invalidity. This has a parallel in the present case where the appellant did not have the capacity to transfer the relevant land.

61 Similarly, in Palais Parking Station land was purportedly resumed by the Director General of Medical Services, but invalidly because the appropriate resuming authority was the Minister of Works. However, Mr Shea, who was the Director-General, became registered as proprietor. The majority of the Full Court of the Supreme Court of South Australia held that Mr Shea obtained an indefeasible title notwithstanding that the notice of acquisition was void. They applied Frazer v Walker and Breskvar v Wall, King CJ observing (at 220) that since Frazer v Walker established the concept of “immediate indefeasibility”, the principle known as “deferred indefeasibility” enunciated by Dixon J in Clements v Ellis (1934) 51 CLR 217 at 237 was no longer good law. The majority further held that there was no equity that would enable the former registered proprietor to upset the Director General’s title because he had done nothing unconscionable. If it were not for the indefeasibility provision of the relevant Torrens legislation the former owner would have been able to reclaim the land at law as owner, but was denied doing so by the statute.

62 The majority in Palais Parking Station adopted the reasoning of the majority of this Court in Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537, where Hutley JA, with whom Reynolds JA agreed, upheld (at 542-543) the indefeasibility of the transferee’s title on registration even if the purported exercise by the Council of its statutory power of sale of the relevant land for overdue rates was invalid (which their Honours held it was not). Mahoney JA, who dissented, considered that there was an equity in the former owner sufficient to enable him to regain title.

63 We should note at this point that the Full Court in Caldwell v Rural Bank of New South Wales (1951) 53 SR (NSW) 415 came to the opposite result to that in Palais Parking Station, preferring the minority judgments in Boyd. However, that case followed the doctrine of “deferred indefeasibility” to which we have referred in [61] above. It is clear from the judgments in Breskvar v Wall, that Caldwell and Clements v Ellis on which it was based, must now be considered to have been wrongly decided in the light of Frazer v Walker. Caldwell was regarded as overruled by the majority in Palais Parking Station at 221 and as “moribund” by the Victorian Court of Appeal in Horvath at 649 [13], 655 [27] and 670 [66].

64 Whilst on the subject of the now discredited theory of deferred indefeasibility, it is appropriate to refer to the submission founded upon the remarks of Kirby J in Hillpalm at 506 recorded in [40] above, that apparently conflicting legislation can operate “sequentially”, that some type of deferred indefeasibility doctrine has been revived. With great respect, we do not read his Honour’s remarks as evincing such an intention. In any event, if he did so intend, his dissenting judgment is not binding upon us.

65 Submissions also were made with respect to two other cases. The first was the decision of the Privy Council in British American Cattle Co v Caribe Farm Industries Ltd [1998] 1 WLR 1529, an appeal from the Court of Appeal of Belize. Under the Belize Aliens Land Holding Ordinance 1973 (the Ordinance), aliens were not permitted to hold land without a ministerial licence. The defendant held a licence in respect of 2,000 acres but subsequently 24,000 acres were transferred into his name under a transfer certificate of title and he became registered proprietor thereof. The plaintiff, which held an equitable title to part of the land, sought a declaration that the certificate of title was void and of no effect as the 24,000 acres were not the subject of a licence. It relied on s 5 of the Ordinance which provided as follows:

“Any deed conveyance, certificate of title … whatsoever purporting to convey, transfer, vest or evidence title to a legal or equitable estate in land to or in an alien contrary to the provisions of this Ordinance shall for that purpose be void and of no effect.” (Emphasis added)

66 The Privy Council held (at 1533) that whilst it was critical to keep to a minimum the number of matters which might defeat the title of the registered proprietor, the Ordinance actually provided that a certificate of title purporting to evidence title was void and of no effect. As the Ordinance was a later statute to the Law of Property Ordinance and was inconsistent with its provisions which conferred absolute and indefeasible title on the registered proprietor, it operated so as to render the certificate of title to the land void and of no effect. The Board followed its decision in Miller v The Minister of Mines [1963] AC 484 where it was held that the Crown’s mining rights prevailed over an otherwise indefeasible title under the New Zealand Torrens legislation. The following passage appears in the Board’s opinion at 1534:

“A similar approach has been adopted by the majority of the High Court of Australia in Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 in which Gibbs J said at p 35:
‘Although the Real Property Act is of the greatest importance in relation to lands titles it is not a fundamental or organic law to which other statutes are subordinate. The question is simply whether the provisions of the later enactment … override [it]’. ”

We will return to Travinto below, but we should note that the Board was in error to count Gibbs J in Travinto as part of the majority. He was not.

67 The other thing to note about British American Cattle was that the Board noted that Caribe, the alien, had mortgaged the land to a bank. The bank was not an alien and the Board appears to have contemplated, without deciding, that despite the fact that the registered proprietor’s fee simple interest was invalid, the bank’s registered interest as mortgagee was unaffected by the invalidity of the title of its mortgagor.

68 The second case to which submissions were directed was that of the Victorian Court of Appeal in Horvath. Section 49(a) of the Supreme Court Act 1986 (Vic) provided that loan contracts entered into by a minor were void. A bank advanced moneys to a married couple and their son to enable them to complete their joint purchase of Torrens title land. The son was a minor. The Court held that notwithstanding that the son was a minor and its mortgage was void as against him, the bank derived an indefeasible title to a mortgagee’s interest in the jointly owned land immediately upon registration of its mortgage.

69 The decision is another example of the instrument which brought about registration being void rather than the underlying transaction. However, the case is significant because not only do the judgments contain a full and thorough discussion of the relevant principles but also their Honours make it clear that there was no real problem in holding that although the mortgage was void as against the son, the Registrar-General’s action in registering the mortgage created an indefeasible title in the bank with respect to the son’s interest in the mortgaged land.

70 Of particular significance is the manner in which Ormiston JA dealt (at 659) with Travinto. His Honour said

“I would be inclined, with the greatest respect, to consider Gibbs J’s observations on this issue as incorrect and inconsistent with Breskvar v Wall and the later observations on indefeasibility in Bahr v Nicolay (No 2) (1988) 164 CLR 604 and Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407: see also per Gleeson CJ in Story v Advance Bank Australia Ltd (1993) 31 NSWLR 722 at 736 .”

The authorities to which Ormiston JA referred merely underline the sanctity of the indefeasibility principle without adding anything further to the present discussion.

71 It is thus necessary to consider further Hillpalm. The majority, McHugh ACJ, Hayne and Heydon JJ, did not need to consider the question as to whether or not the indefeasibility principle under the RP Act was overridden by the provisions of a later statute. However, the minority, Kirby and Callinan JJ, in separate judgments, held that the council’s condition of development consent overrode the indefeasibility principle.

72 Biscoe J at [69] said he agreed with Professor Butt in his note on Hillpalm in (2005) 79 ALJ 143 at 144, that a condition of a council development consent that relates to the continuing use of land can bind later registered proprietors but that a condition which involves a once only requirement and has no continuing operation only binds the proprietor who carries out the development. We are not bound by the minority views in Hillpalm and in any event, the statutory language on which Kirby J relied (at 505-506 [101]) for his conclusion that the EPAA was later in time to the RP Act and its relevant provision more specific and particular than the RP Act, is distinguishable from those with which we are concerned in the present case.

73 The foregoing review of the authorities should not conclude without referring to the decision of this Court in Golden Paradise which directly concerned s 45(1) of the LG Act. In that case, there was a strip of land adjoining the Princes Highway at Blakehurst which was community land vested in the appellant council. The council transferred it to the respondent who became registered as proprietor. This Court held that once the land had been transferred from the council it ceased to be community land and that as the respondent had not breached the LG Act in taking the transfer, the Land and Environment Court had no jurisdiction to divest it of its land. Tobias JA indicated, obiter, that he favoured the view that the transferee’s title could not be impeached even if the transfer was void as a consequence of s 45(1) of the LG Act. Basten JA was not convinced of that and the Court considered it was better not to reach a final conclusion on the point until it had been fully and properly argued.

74 A concern which the Court voiced during argument, but which was never properly answered was: if the title of the original transferee is defeasible, what is the position of subsequent transferees, mortgagees or lessees etc? Under New South Wales law there would not seem to be any room for applying a bona fide purchaser for value without notice test, as that only applies to equitable and not legal interests. It may be that until a possessory title is obtained, the title of any transferee etc is subject to being displaced by restoring the council to the Register in cases where the original transaction has fallen foul of s 45(1). This might appear to be the logical solution. The difficulty in otherwise answering the question is due to the rejection by the courts of the doctrine of deferred indefeasibility.

75 The critical question is whether s 45(1) of the LG Act, being a later enactment, prevails over the RP Act. To adopt what Ormiston JA in Horvath regarded as the determinative issue (at 655 [28]), the question to be resolved is this: does a transfer of land in breach of s 45(1) of the LG Act deny the conclusive nature of the third respondent’s title to the land comprising Chapman Reserve? Is such a breach so inconsistent with the indefeasibility provisions of the RP Act that s 45(1) must prevail over those provisions? As Ormiston JA observed (at 655 [29]), such an inconsistency would only be relevant and prevalent in its consequence if it works an implied repeal pro tanto of the relevant provision of the RP Act. The legislature must, by enacting s 45(1), have intended that that provision was one with which the indefeasibility provision of the RP Act could not stand.

76 In this context Biscoe J cited either directly or by reference five decisions of the High Court. The earliest in point of time was Butler v Attorney General (Vic) (1961) 106 CLR 268. That case involved a perceived clash between the provisions of s 10 of the Discharged Servicemen’s Preference Act 1943 (Vic) which gave preference in promotion in favour of discharged servicemen and s 32 of the Public Service Act 1946 (Vic) which provided that promotion was according to relative efficiency and relative seniority. The majority held that the later Act prevailed and impliedly repealed the earlier Act. The majority comprised Kitto, Taylor and Menzies JJ. Fullagar and Windeyer JJ dissented. Four of the justices set out tests as to when a later statute impliedly repealed an earlier statute. Fullagar J (at 275) said that the situation was a comparatively rare phenomenon but

“such a repeal will not be held to have been effected unless actual contrariety is clearly apparent.”

Kitto J at 280, quoting Viscount Dunedin in In re Silver Brothers Ltd [1932] AC 514 at 523, said:

“The question must be whether they could stand together, ‘live together’ “.

77 Taylor J (at 285) spoke in terms of direct conflict and whether the competing provisions could stand together or not. Windeyer J (at 290) adopted expressions from Cleasby B in Hill v Hall (1876) LR 1 Ex D 411 at 414, which in turn were quoted from a 19th century textbook on statutes that one construes the later statute as impliedly repealing the former

“only so far as it is clearly and indisputably contradictory and contrary to the former Act in the very matter, and the repugnancy is such that the two Acts cannot be reconciled.”

78 In Saraswati v The Queen (1991) 172 CLR 1 at 17, Gaudron J approved of what had been said in Butler observing:

“It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless the intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other … “.

In Shergold v Tanner at 137, five justices approved of what Gaudron J had said in Saraswati and what had been said in Butler. Again, in Dossett v TKJ Nominees Pty Ltd , the same approach was adopted.

79 Finally, in Ferdinands v Commissioner for Public Employment at 138, Gummow and Hayne JJ said:

“There are, however, two cardinal considerations. First, as Gaudron J said in Saraswati v The Queen ,
‘There must be very strong grounds to support [the] implication, for there is a general presumption that the legislature intended that both provisions should operate.’
Secondly, deciding whether there is such inconsistency … that the two cannot stand or live together … requires the construction of, and close attention to, the particular provisions in question.”

80 The primary judge referred to other cases, but in view of the high authority of the authorities to which we have referred above, it is unnecessary to refer to them. However, in Butler at 290 and, again, in a decision of Barrett J in ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697; (2003) 53 ATR 527 at 559[114], a passage in the 8th edition of Maxwell on Statutes at 147 (not republished in the latest (12th) edition) was relied upon which reads:

“A sufficient Act ought not to be held to be repealed by implication without some strong reason. It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments on the statute-book, or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention.”

81 The appellant submitted that although the primary judge correctly set out the test, he did not actually apply it. It is to be noted that in all the citations referred to by his Honour, a very high bar had been established for determining whether there had been an implied repeal. In particular, the appellant submitted that by applying the second cardinal principle referred to by Gummow and Hayne JJ in Ferdinands, his Honour ought to have concluded that on any reasonable construction of s 45(1) in the context of the indefeasibility provisions of the LP Act, the two were not irreconcilable but could stand together as there was, to adopt and adapt the words in Maxwell cited above, a clear opportunity to escape from a contrary conclusion.

82 Thus although the appellant acknowledged that s 45(1) of the LG Act had the effect of invalidating the transaction between it and the third respondent, it submitted that any person could have moved the Land and Environment Court for orders restraining the third respondent as transferee from registering the transfer from the appellant and otherwise setting the transaction underlying the transfer aside. However, once the Registrar-General registered the transfer, the indefeasibility provisions of the RP Act were engaged and prevented that occurring.

83 In our view this submission should be accepted. The authorities are clear that a court should read statutes together if it possibly can. Thus we can accept the word “sequential” adopted by Kirby J in Hillpalm insofar as the statutes do have effect sequentially, that is, that up until registration the transaction or transfer is null and void but on registration, as Breskvar v Wall holds, there is virtually a new Crown grant of the fee simple in the land, so that from that moment the transferee obtains a new clean title: see [45] above. The result is that the transferee’s title is wholly derived from the act of registration by the Registrar-General and not upon the transfer or the antecedent transaction which gave rise to the transfer.

84 The primary judge commenced his final conclusions in [93] of his judgment (see [42] above) by considering whether there was an implied repeal or inconsistency between s 45(1) of the LG Act and the indefeasibility provision of the RP Act. He held that the factors favouring an affirmative answer to that question included

“obedience to the law made later in time; priority to the law on the subject which is more specific over one that is more general; and precedence to public rights over land to which special statutory restraints on dealings apply, over private rights”.

These factors, as his Honour acknowledged, were derived directly from the judgment of Kirby J in Hillpalm at 505 [100].

85 However, Kirby J in Hillpalm at [101] observed, in our opinion correctly, that the last factor afforded little guidance in a case where there was a public interest both in the observance of planning laws and in upholding the indefeasibility provisions of the RP Act which transcended the private rights of parties expressed in certificates of title under that Act. However, the primary judge at [94] concluded that LG Act accorded “special status” to community land. However, in our view such a conclusion ought not to have been drawn unless the later statute creating the public right in the relevant land impliedly repealed the indefeasibility provisions of the RP Act with respect to that land so that a clear legislative intention that the two could not stand together was demonstrated.

86 We put to one side the minority view of Gibbs J in Travinto which, with respect, we regard as irreconcilable with Breskvar v Wall. The exception to indefeasibility involving the statutory creation of public rights, the subject of the authorities referred to by the primary judge in [33] above, were correctly acknowledged by him as distinguishable from the present case. That leaves only the key question as to whether the relevant provisions of the LG Act and the RP Act can operate together. In our view the appellant’s submission that they can should be accepted. Until registration there was the opportunity to set the transaction aside and prevent registration; after registration that opportunity was lost.

87 The primary judge did attempt to reconcile the two Acts. He said at [89] that they could be viewed as operating sequentially. However, his Honour’s approach to that issue was to hold that if an order was made to rectify the Register, that created a new right which arose from the making of the order and which was superimposed upon pre-existing right including the right to indefeasibility. One particular problem with that method of reconciliation which we do not favour is the limited power of the Land and Environment Court to “rectify” the Register.

88 More fundamentally, however, is the fact that the two sets of provisions can stand together. There was no implied repeal by s 45(1) of the LG Act of the indefeasibility provisions of the RP Act. The careful terms of s 45(1) merely deny to a council the power to sell or otherwise dispose of community land. It neither declares any transfer (let alone a registered transfer) of such land to be void and of no effect nor does it invalidate or render unlawful the acquisition of the title to the land obtained by the purchaser or disposee. In these circumstances in our opinion it is impossible to discern a legislative intent that s 45(1) was to operate to deny to a transferee of community land the benefit upon registration of indefeasibility of title.

Decision on the indefeasibility issue

89 It follows from what has been said that we respectfully differ from his Honour on the indefeasibility issue. We are of the view that the third respondent obtained an indefeasible title by registration to the land comprising Chapman Reserve, notwithstanding the breach by the appellant of s 45(1) of the LG Act.

Some general comments and conclusion

90 We wish to add some general comments about the operation of the RP Act.

91 The Registrar-General was criticised for registering the subject transfer. We have already referred (at [45] above) to the observation by Jacobs J in Re Lehrer and the Real Property Act at 376 that the Registrar-General’s duty is to register what appears to be on its face a valid instrument and not to make extensive enquiries into its validity. But ss 121 and 122 of the RP Act allow the Registrar’s decisions to be reviewed though the ambit of the sections have not been fully explored: see Ex parte Smart (1867) 6 SCR 188; Re Pirie (1961) 79 WN (NSW) 701 at 702-3 and on appeal, Pirie v Registrar General (1962) 109 CLR 619 at 624, 639 and 644. Unless there is such an application for review, the bona fide acts of the Registrar-General, even though they affect former proprietors’ rights, will stand.

92 There are also provisions in the RP Act for adjustments to the Register. For instance, under s 12(d) the Registrar-General may of his own motion correct what he considers to be errors and omissions in the Register. If in so doing he makes an error, then although the correction stands the person deprived of an interest in land may sue for deprivation under the compensation provisions of the Act: see Brantag Pty Ltd v Minister for Mines (No 3) (Supreme Court of New South Wales, Young J, 29 March 1995, BC9504440, unreported).

93 It was submitted that s 138 of the RP Act, which in proceedings for the recovery of any estate or interest in any land, relevantly empowers a court to make an ancillary order that the Registrar-General amend or cancel a folio of the Register, warranted a court of competent jurisdiction to order that the Register be rectified where, as in the present case, the third respondent had become registered pursuant to an invalid transfer. It is difficult to see how this can be so. Section 138 is a section of last resort: Hypec Electronics Pty Ltd v Registrar General [2005] NSWSC 1056; Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSWSC 341 at [36]. One of the reasons for this is that it is against the public interest to have the duplication of cancelled folios of the Register circulating in the community.

94 The traditional way in which s 138 is approached is that it is does not empower a court to make a primary order under the section to rectify the Register. What it does is to allow a court, where litigation is before it to recover land, to deal with the Register by way of an ancillary order to give effect to the grant of primary relief. In very early cases such as Re White (1887) 21 SALR 6, it was held that an order could only be made under s 138 where the court had already determined rights and it was necessary to give effect to that order by tidying up the Register. This approach fits in well with the use of the word “ancillary” in s 138(1).

95 In Loke Yew v Port Swettenham Rubber Co Ltd [1913] AC 491, there was a claim before the Privy Council for an order for rectification of the Register. However, the Board declined to make such an order preferring to make an in personam order that the fraudster transfer the registered land to the successful party. However, as Woodman and Nettle note in the loose leaf edition of their Torrens System in NSW at [138.20]:

“The judgment does not make it clear whether, in cases of registration obtained dishonestly, the court should make a direct order for rectification of the Register, or whether it should order the registered proprietor to execute the necessary dealings.”

The learned authors opine, however, that where a dealing is void ab initio the appropriate course is a direct order to rectify the Register.

96 It is true that in recent years courts have been more ready to make a direct order for rectification; see eg Andrew Garrett Wine Resorts v National Australia Bank Ltd (No 6) [2005] SASC 292; (2005) 92 SASR 419. Further, in cases of management schemes where areas of forests have been subdivided into a large number of tenancies in common, the section has been applied rather creatively; see eg Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151; (2005) 219 ALR 692; Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd supra.

97 However, with respect, we consider that the primary judge in this case extended s 138 further than was justified. It is essentially an ancillary remedy to the granting of other substantive relief and we cannot agree, with respect, with his Honour’s comment at [85] that the principle that the terms of a grant of power to a court should be read with full amplitude applies in the case of s 138. In any event, his Honour’s use (in [84]) of s 138 was dependant upon his finding that as s 45(1) of the LG Act overrode the indefeasibility provisions of the RP Act, the proceedings by the first respondent were for the recovery of land within the meaning of s 138(1). There are a number of difficulties with this proposition particularly as the first respondent was not claiming to itself recover the relevant land but to have it re-vested, as it were, in the appellant who opposed any such claim. However, given our conclusion on the indefeasibility issue, the point is academic but it is one to which attention should be drawn.

98 The primary judge made declarations first, that a development consent granted by the appellant on 1 July 2003 with respect to, inter alia, Chapman Reserve was invalid and of no force or effect; second, that Chapman Reserve was “community land” within the meaning of the LG Act; and third, that the sale of that land by the appellant to the third respondent was in breach of s 45(1) of the LG Act. There is no challenge to the first declaration as it appears to have been common ground that the consent was invalid for reasons unrelated to the issues in the present appeal. The second and third declarations reflect our findings on the issues to which they related. However, given our conclusion on the indefeasibility issue, they have no utility and should be set aside.

99 His Honour also made seven orders but Orders 2 and 3 and possibly 5, which reflect the primary judge’s finding on the indefeasibility issue, cannot stand in light of our conclusions on that issue. Whether this Court needs to make any orders with respect to the costs in the Land and Environment Court is a matter upon which we will reserve liberty to apply.

100 It follows that the appeal must be allowed with costs. The formal orders of the Court are as follows:

(a) Appeal allowed.

(b) Set aside Declarations 2 and 3 and Orders 2 and 3 made by Biscoe J on 5 April 2007.

(c) Reserve liberty to the parties to apply in writing only by 4pm on or before 30 January 2008 with respect to Order 5 made by Biscoe J on 5 April 2007 and as to whether this Court should make any orders with respect to the costs of the proceedings in the Land and Environment Court;

(d) The first respondent to pay the costs of the appeal but to have a certificate under the Suitor’s Fund Act , 1951 if otherwise qualified.

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