Duke Unley Pty Ltd (ACN 080 195 606) v The Corporation of the City of Unley
[2020] SASC 224
•17 November 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
DUKE UNLEY PTY LTD (ACN 080 195 606) & ORS v THE CORPORATION OF THE CITY OF UNLEY
[2020] SASC 224
Judgment of The Honourable Justice Stanley
17 November 2020
LOCAL GOVERNMENT - POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY - PARTICULAR POWERS AND FUNCTIONS - POWERS OVER LAND - DISPOSAL
EQUITY - TRUSTS AND TRUSTEES - EXPRESS TRUSTS CONSTITUTED INTER VIVOS - DECLARATION OF TRUST - WHAT IS SUFFICIENT
EQUITY - TRUSTS AND TRUSTEES - EXPRESS TRUSTS CONSTITUTED INTER VIVOS - QUISTCLOSE TRUSTS
EQUITY - TRUSTS AND TRUSTEES - IMPLIED TRUSTS - CONSTRUCTIVE TRUSTS - COMMON INTENTION
This is a dispute in relation to a carpark on Unley Road, Unley, situated between Arthur Street and Mary Street (the carpark land).
In 1971 a number of ratepaying property owners in the vicinity of what is now the carpark land put a proposal to the defendant, the Corporation of the City of Unley (the council) for the creation of a permanent public carpark over land which, at that time, was owned by the council (the memorial land). The proposal was contained in a memorial. The ratepayers agreed to reimburse the council for the cost of constructing and maintaining the carpark on the memorial land. The memorial was presented to the council in accordance with s 218 of the Local Government Act 1934 (SA) (the 1934 Act).
The carpark is on land owned by the council. The plaintiffs are owners of nearby land who have a commercial interest in the maintenance of the carpark land as a carpark. The plaintiffs seek declaratory and injunctive relief for the practical purpose of preventing or inhibiting the council from developing the carpark land for any purpose other than its use as a carpark. The plaintiffs seek declarations that the carpark land is subject to a trust or dedication that precludes the council from exercising powers in relation to the land without the council taking steps to dissolve the trust or revoke the dedication.
The plaintiffs’ claim that the council resolution in 1973 that received the memorial and levied the separate rate, and the payment of that rate by the memorialists, gave rise to either a statutory trust under s 380(b) of the 1934 Act; a constructive trust created by reason of a joint endeavour between the council and the memorialists; or an express Quistclose trust and/or a charitable trust.
The council contends the plaintiffs are not entitled to the relief they seek. It did not declare a trust over the memorial land or the carpark land. Neither did it dedicate those lands to any irrevocable purpose. The carpark land has never been subject to any trust nor was it the subject of any dedication.
Held:
1. The carpark land is the result of the amalgamation of the post office land with the memorial land. That occurred in 2002. As the events relied upon by the plaintiffs to demonstrate the creation of a trust or dedication occurred prior to this date, any claim that all of the carpark land is affected by a trust or dedication cannot be sustained.
2. Features of the statutory scheme contraindicate the proposition that the declaration of a special rate in response to a memorial presented to the council and the collection of that rate could create a trust over, or dedicate, the council’s land.
3. The trust referred to in s 380(b) of the 1934 Act and s 193(b) of the Local Government Act 1999 (SA) is not to be understood wholly in its technical sense. Nonetheless there must be words or conduct that clearly evidence an intention to constitute the council as trustee of real or personal property.
4. A Quistclose trust analysis is not applicable. The evidence does not support a finding that there was an intention to create a trust which irrevocably and perpetually precluded the use of the land for any other purpose. However, even if it was applicable, no resulting trust would have arisen because the moneys paid under the separate rate were used for the purpose for which they were paid.
5. There was no joint endeavour between the plaintiffs and the council. Further, a constructive trust in favour of the plaintiffs could only be imputed if the circumstances were such that the council was bound in conscience to hold the property on trust for the plaintiffs. That is not the case here.
6. A constructive charitable trust was rejected by the High Court in Bathurst as unsuitable as a remedial device to be imposed by a court.
7. The memorial land was not dedicated as a carpark. Land is not dedicated for a particular purpose unless it is intended that the land be held on trust for that purpose. Lands appropriated and taken into use by the Crown for a particular purpose, without the creation of a trust, are not dedicated for that purpose and subsequently can be used by the Crown for another purpose.
8. Given the finding that neither the carpark land was affected by a trust or dedication within the terms of s 193(1)(b) of the 1999 Act, the council’s exclusion in 2001 of the memorial land from classification as community land was valid. Further, the council’s revocation in 2016 of the classification of the post office land as community land was valid.
9. In the circumstances it is unnecessary to decide the question of standing given the conclusion the plaintiffs are not entitled to the relief they seek. However, had it been necessary to determine the question the plaintiffs did enjoy standing to bring the proceedings.
10. The plaintiffs’ application is dismissed.
Local Government Act 1934 (SA) ss 5, 218, 219, 220, 221, 223, 224, 370a, 380, 382, 383 and 667; Local Government Act 1999 (SA) ss 193, 194, 201, referred to.
Randwick Municipal Council v Rutledge (1959) 102 CLR 54, applied.
Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; Dore v Leicestershire County Council [2010] EWHC 1387 (Ch), distinguished.
Rambaldi (Trustees) v Commissioner of Taxation, in the matter of Alex (Bankrupt) (2017) 107 ATR 1; Muschinski v Dodds (1985) 160 CLR 583, discussed.
Pettit v Pettit [1970] AC 777; Gissing v Gissing [1971] AC 886; Bryson v Bryant (1992) 29 NSWLR 188; Grant v Edwards [1986] Ch 638; Marriner v Australian Super Developments Pty Ltd (2012) 46 VR 213; Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; Baumgartner v Baumgartner (1987) 164 CLR 137; Chapman v Chapman [2000] SASC 195; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; Coastal Ecology Protection Group Inc v City of Charles Sturt (2017) 227 LGERA 1; Humphris v Foot (1934) SASR 25; Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund (1998) 194 CLR 247; Onus v Alcoa Australia Ltd (1981) 149 CLR 27; Allan v Development Allowance Authority (1998) 80 FCR 583; Clothier v Mitcham (1981) 45 LGERA 179, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Permanent works"
DUKE UNLEY PTY LTD (ACN 080 195 606) & ORS v THE CORPORATION OF THE CITY OF UNLEY
[2020] SASC 224STANLEY J:
Introduction
This is a dispute in relation to a carpark on Unley Road, Unley, situated between Arthur Street and Mary Street (the carpark land).
The carpark is on land owned by the defendant, the Corporation of the City of Unley (the council). The plaintiffs are owners of nearby land who have a commercial interest in the maintenance of the carpark land as a carpark. The plaintiffs seek declaratory and injunctive relief for the practical purpose of preventing or inhibiting the council from developing the carpark land for any purpose other than its use as a carpark. The plaintiffs seek declarations that the carpark land is subject to a trust or dedication that precludes the council from exercising powers in relation to the land without the council taking steps to dissolve the trust or revoke the dedication.
History of the carpark land
In 1971 a number of ratepaying property owners in the vicinity of what is now the carpark land put a proposal to the Unley council for the creation of a permanent public carpark over land which, at that time, was owned by the council (the memorial land). The proposal was contained in a memorial. The ratepayers agreed to reimburse the council for the cost of constructing and maintaining the carpark on the memorial land. The memorial was presented to the council in accordance with s 218 of the Local Government Act 1934 (SA) (the 1934 Act).
The memorial requested that the council “make available [its land] and to expend [moneys] in demolishing existing buildings and grading, fencing, draining and bituminous paving the said land for the purpose of providing and establishing parking facilities for motor and other vehicles for ratepayers in the area”. The memorial land was smaller than the carpark land but is wholly encompassed within the carpark land. The memorial stipulated that the memorialists agreed to pay a separate rate not exceeding 3.4 cents in the dollar on the value of their properties for 10 years. The plaintiffs were not memorialists. But they claim standing on the basis they are the successors in title to certain memorialists.[1]
[1] The first and second plaintiffs are the joint registered proprietors of the property located at 184-188 Unley Road. They are successors in title to Peter and Marjorie Nelson, who were the registered owners of that property and memorialists. The third and fourth plaintiffs are the joint registered proprietors of the property located at 132-134 Unley Road. The third plaintiff acquired 132-134 Unley Road on or about 17 August 1979. The third plaintiff is a successor in title to Lillian Maude Semmens, who was the registered owner and a memorialist.
On 12 October 1971 the council formally received and read the memorial and resolved that the memorial be received and referred to the council’s solicitors and that the town clerk then submit a finance report to a council committee.
In 1973 the council caused works to be undertaken on the memorial land creating a bituminised carpark. The net cost to the council for the works was $10,352.44.
On 4 June 1973 the council, having carried out the works on the memorial land creating a bituminised carpark, resolved to levy a separate rate to recover the costs of the works. The resolution was in the following terms:
That the Council of the Corporation of the City of Unley, having received a memorial dated the 7th October, 1971, from certain ratepayers of the Unley Shopping Area requesting that permanent works be carried out, viz. the provision and establishment of free customer car parking facilities on part lots, 6 and 49, section 238, Hundred of Adelaide, and having duly carried out said works at cost of $10,352.44, now, in accordance with s 221 of the Local Government Act, 1934-1972, for the purpose of recovering the said cost, declares a separate rate of three (3) cents in the dollar for 10 years payable on the 1972-1973 assessments of all of the properties mentioned in the memorial.
The separate rate was levied, not only against the properties mentioned in the memorial, but on all ratepayers within the area of the memorial land including ratepayers who were not memorialists. The separate rate was levied and paid for the period of 10 years.
In 2001 the council undertook further works involving the reconstruction of the carpark on the memorial land. These were called stage 1 works and cost $328,000. A separate rate was not levied in respect of these works.
By a notice published in the Government Gazette of 6 September 2001 council recorded its resolution pursuant to s 193(6) of the Local Government Act 1999 (SA) (the 1999 Act) to exclude the memorial land from classification as community land under that Act.
In 2002 the council acquired the adjoining land to the north of the memorial land. This is known as the post office land as the Unley post office was formerly situated on a portion of this land. Council paid $230,945 for the land. No separate rate was levied in relation to the acquisition of the post office land. When the balance of the post office land was purchased, a new single allotment was created by a plan of division comprising all of the carpark land.
Shortly thereafter the council spent a further $225,000 to construct and grade a carpark on the post office land and integrate it with the carpark on the memorial land. These were described as stage 2 works. This is the carpark land. The stage 1 and stage 2 works were funded by council by a combination of loans and the use of funds which had been earmarked for other purposes. There was no separate rate levied.
On 14 July 2016 the council revoked the classification of the post office land as community land pursuant to s 194 of the 1999 Act.
The plaintiffs’ case
The plaintiffs’ claim that the council resolution in 1973 that received the memorial and levied the separate rate, and the payment of that rate by the memorialists, gave rise to either a statutory trust under s 380(b) of the 1934 Act; a constructive trust created by reason of a joint endeavour between the council and the memorialists; or an express Quistclose trust and/or a charitable trust. The principal claim is for the imposition of a statutory trust. The claims for the imposition of the other trusts are put in the alternative and pressed faintly.
The plaintiffs submit that as a result, pursuant to s 193 of the 1999 Act, the carpark land is classified as community land because it is subject to a dedication or trust which can only be removed in accordance with the 1999 Act.
Upon the commencement of the 1999 Act all local government land, save for roads, was taken to be classified as community land unless the council resolved to exclude the land, within a period of three years; and the land was unaffected by the provisions of a reservation, dedication, trust or other instrument that would prevent or restrict its alienation pursuant to s 193(1)(a) and (b) of the 1999 Act. Pursuant to s 201(2)(a)(ii) of the 1999 Act, if the carpark land is community land it cannot be disposed of by the council unless its classification as community land has been revoked pursuant to s 194 of the 1999 Act.
The plaintiffs submit that the attempt by council in 2001 to exclude the memorial land’s classification as community land was invalid because the land was affected by a trust or dedication which, for the purpose of s 193(1)(b) of the 1999 Act, prevented its alienation.
They submit that as the classification of the carpark land as community land has not been lawfully excluded or revoked the council cannot dispose, or otherwise deal with, the carpark land in a manner inconsistent with its classification as community land.
The council’s case
The council contends the plaintiffs are not entitled to the relief they seek. It did not declare a trust over the memorial land or the carpark land. Neither did it dedicate those lands to any irrevocable purpose. The carpark land has never been subject to any trust nor was it the subject of any dedication. The council had no power under the 1934 Act to declare a trust for carparking purposes over land which it already owned so as to fetter the future use of that land. The council did not have power to dedicate its land for car parking purposes. Providing a public carpark and dedicating the land to that use in perpetuity are two entirely different matters.
The statutory provisions and matters relied upon by the plaintiffs as giving rise to the asserted trusts or dedication are incapable of doing so as a matter of law. The declaration and collection of a separate rate was a statutory process governed by the 1934 Act. Its application left no room or basis for the application of trust principles. The operation of the statutory scheme relevant to levying a separate rate does not involve the memorialists being part of a joint endeavour with the council. The separate rate was levied to recoup council’s expenditure on its own land for a purpose requested by the memorialists pursuant to the statutory scheme established by the 1934 Act. The separate rate was imposed on all ratepayers within the area including those who were not memorialists.
The council submits the carpark land is not community land under the 1999 Act. The memorial land was validly excluded from classification as community land in 2001. It was not affected by a dedication or trust. The community land classification of the post office land was revoked in 2016. The post office land was not the subject of the memorial. It was not acquired by the council until 2002.
The evidence
The plaintiffs rely on the:[2]
·Affidavit of Constantine Angelopoulos (and the exhibits CA1-CA15 attached thereto) sworn and filed on 22 November 2019;
·Second affidavit of Constantine Angelopoulos (and the exhibits CA16-CA28 attached thereto) sworn and filed on 2 December 2019;
·Third affidavit of Constantine Angelopoulos (and the exhibits CA29-CA31 attached thereto) sworn and filed on 12 December 2019;
·Fourth affidavit of Constantine Angelopoulos (and the exhibits CA32-CA33 attached thereto) sworn and filed on 25 March 2020
[2] The plaintiff did not rely upon some paragraphs of these affidavits.
The council relies on the affidavit of Peter Tsokas sworn and filed on 11 December 2019.[3]
[3] The defendant also did not rely upon some paragraphs of this affidavit.
There were objections taken to parts of the affidavit evidence. However, the parties agreed that it was unnecessary for any ruling to be made on those objections for the disposition of the application. It is common ground that the essential documents are not in issue. The evidence was admitted de bene esse. There was a suggestion that the parties were going to deal with the objections in due course. That did not occur. In the circumstances it is unnecessary to rule on the objections.
Relevant statutory provisions
Section 5 of the 1934 Act defined “public place” as:
“public place” includes every street, road, square, lane, footway, court, alley, and thoroughfare which the public are allowed to use, and whether formed on private property or not.
Sections 218-224 of the 1934 Act provided:
218. A majority of the ratepayers for any portion of an area may address a memorial to the council requesting that any works specified in the memorial be carried out for the benefit of that portion of the area.
219. The memorial shall-
(a) set forth a description of the proposed works; and
(b) define the portion of the area that would be benefited by the construction of the works.
220. The memorial, and the signatures thereto, shall be verified by the statutory declaration or declarations of one or more of the signatories.
221.If it appears to the council that it will be desirable to comply with the memorial, and that the proposed works will in no way be disadvantageous to the interests and requirements of any other portion of the area, the council may–
(a) cause plans, estimates, and full details of the proposed works to be prepared:
(b) for the purposes of the works, declare for one year, or annually, or for several years, a separate rate or separate rates:
(c) raise a loan for the purpose of carrying out the works in manner by this Act provided with respect to loans:
(d) cause the works to be carried out.
222.
…
(2) The rate or rates shall be payable by all the ratepayers within the portion of the area defined in the memorial.
(3) The resolution declaring the rate shall define the said portion in accordance with the memorial.
223.Whenever a separate rate is declared, the council shall–
(a) cause a separate and distinct account to be kept of all moneys collected, and of all payments and disbursements in respect of the rate; and
(b) apply the said moneys for the purposes for which the rate was authorized and not otherwise.
224.In the event of the abandonment or completion of the works for which a separate rate has been declared, or, as the case may be, the discharge of the loan raised for the purpose of carrying out the works, the unexpended balance of the rate shall be credited to the persons paying the same, as against the general rate payable next after the said abandonment or completion.
Section 370a of the 1934 Act provided:
(1) A council may grant a licence permitting any person–
(a) to use any portion of a public street, public road or public place for the supply of food and drink; and
(b) to place in the public street, public road or public place tables, chairs and other furniture for the convenience of persons consuming food or drink.
(2) A licence under this section may be subject to such conditions as the council thinks fit and includes in the licence.
(3) A fee fixed by resolution of the council shall be payable for a licence under this section.
(4) No action shall lie against the holder of a licence under this section for the obstruction of a public street, public road or public place arising from any act or omission authorized by the licence.
Section 380 of the 1934 Act provided:
The council may–
(a)purchase or otherwise acquire any real or personal property for the public use of the area:
(b)accept a gift, conveyance, or assignment of any real or personal property for any charitable or public purpose not connected with religious worship, and hold the same upon such trusts or for such purposes as are declared by the donor:
(c)accept any gift, conveyance, or assignment of real or personal property absolutely without any limitations of trusts or otherwise:
(d)accept any gift, conveyance, or assignment of real or personal property subject to conditions other than conditions connected with religious worship.
Section 382 of the 1934 Act provided:
(1)The council may demise, let, manage and improve any real or personal property acquired by, held in trust for or by, or placed under the care of, the council: Provided that–
(a) if any property is held in trust by the council or is placed under its control for any purpose the property shall be dealt with in a manner consistent with the trust or purpose;
...
(2) The council may sell or exchange any real or personal property acquired by the council and may, with the consent in writing of the Minister, dispose of the same other than for valuable consideration. Nothing in this subsection shall limit the operation of section 422 or authorize the council to deal with any real or personal property in a manner inconsistent with any trusts under or for which the same was acquired.
Section 193 and 194 of the 1999 Act provide:
193—Classification
(1) All local government land (except roads) that is owned by a council or under a council's care, control and management at the commencement of this section (the commencement date) is taken to have been classified as community land unless—
(a) the council resolves to exclude the land from classification as community land within three years after the commencement date; and
(b) the land is unaffected by provisions of a reservation, dedication, trust or other instrument that would prevent or restrict its alienation.
(2) Before the council resolves to exclude land from classification as community land under subsection (1)(a), it must follow the relevant steps set out in its public consultation policy.
(3) If land is under the care, control and management of a council but is not owned by the council, the council cannot resolve to exclude the land from classification as community land under subsection (1)(a) without the approval of the owner of the land.
(4) Local government land (other than a road) that is acquired by, or is brought under the care, control and management of, the council after the commencement date is taken to have been classified as community land unless—
(a) the council resolves before it becomes local government land that it is to be excluded from classification as community land under this section; and
(b) the land is not affected by provisions of a reservation, dedication, trust or other instrument that would prevent or restrict its alienation.
(4a) Land that formed a road or part of a road that is vested in a council after the closure of the road under the Roads (Opening and Closing) Act 1991 is taken to have been classified as community land unless the council resolves before, or at the time of, the making of the relevant road process order under that Act that it is to be excluded from classification as community land under this section.
(5) A council may, by resolution, classify local government land as community land if the land has previously been excluded from classification as such.
(6) A council must give notice in the Gazette of a resolution—
(a) to exclude land from classification as community land under subsection (4); or
(b) to classify, as community land, land that had previously been excluded from classification as such under subsection (5).
(7) For the purposes of this section, local government land does not include easements or rights of way.
194—Revocation of classification of land as community land
(1) A council may (subject to the following exceptions and qualifications) revoke the classification of land as community land in accordance with the following procedure.
Exceptions and qualifications—
(a) The classification of the Adelaide Park Lands as community land cannot be revoked unless the revocation is by force of a provision of another Act.
(b) The classification of land as community land cannot be revoked if the land is required to be held for the benefit of the community under Schedule 8, under a special Act of Parliament relating to the land, or under an instrument of trust.
(c) The classification of land as community land cannot be revoked if the power to revoke the classification of that land is excluded by regulation.
(d) The classification of other land as community land cannot be revoked unless—
(i) the Minister approves revocation of the classification; and
(ii) if the land is under the care, control and management of the council but is not owned by the council—the owner of the land approves revocation of the classification.
(2) Before a council revokes the classification of land as community land—
(a) the council must prepare and make publicly available a report on the proposal containing—
(i) a summary of the reasons for the proposal; and
(ii) a statement of any dedication, reservation or trust to which the land is subject; and
(iii) a statement of whether revocation of the classification is proposed with a view to sale or disposal of the land and, if so, details of any Government assistance given to acquire the land and a statement of how the council proposes to use the proceeds; and
(iv) an assessment of how implementation of the proposal would affect the area and the local community; and
(v) if the council is not the owner of the land—a statement of any requirements made by the owner of the land as a condition of approving the proposed revocation of the classification; and
(b) the council must follow the relevant steps set out in its public consultation policy.
(3) After complying with the requirements of subsection (2), the council—
(a) must submit the proposal with a report on all submissions made on it as part of the public consultation process to the Minister; and
(b) if the Minister approves the proposal—may make a resolution revoking the classification of the land as community land.
(4) The Minister must consult with the relevant council before a regulation is made under subsection (1) in relation to a specific piece of land.
(5) For the purposes of subsection (1)(a) (but subject to the exclusion of roads under section 193(1)), the Adelaide Park Lands will be taken to be any local government land within the Adelaide Park Lands, as defined (from time to time) under the Adelaide Park Lands Act 2005.
Section 201(2) of the 1999 Act provides:
(2) However, a council cannot dispose of community land or land forming a road or part of a road except as follows:
(a) the council may dispose of community land—
(i) if the land is to be amalgamated with 1 or more other parcels of land and the amalgamated land is to be (or to continue to be) community land; or
(ii) in any other case—after revocation of its classification as community land;
(b) the council may dispose of land that formed a road or part of a road after the closure of the road under the Roads (Opening and Closing) Act 1991;
(c) the council may grant a lease, licence, authorisation or permit under this Act;
(d) the council may grant an easement (including a right of way) over community land;
(e) the council may grant an easement (excluding a right of way) over a road or part of a road.
Consideration
The plaintiffs’ claim relies on four events. They are the presentation of the memorial to the council, its acceptance by the council and its resolution levying the separate rate, and the collection of that rate. The plaintiffs contend that these events created a trust or a dedication that affected the carpark land within the meaning of s 193(1)(b) of the 1999 Act. Accordingly, the council is prevented or restricted from alienating the carpark land.
It is important to recognise that the carpark land is the result of the amalgamation of the post office land with the memorial land. That occurred in 2002. With the exception of the revocation of the classification of the post office land as community land, which occurred in 2016, all the events relied upon by the plaintiffs as creating a trust or dedication of the carpark land occurred before the council acquired the post office land. That factual context strongly indicates that until 2016 when its status as community land was revoked under the 1999 Act the carpark land was not subject to a dedication or impressed with a trust that it be used as a carpark. That is fatal to any claim that all of the carpark land is affected by a trust or dedication. That leaves the question of whether that part of the carpark land constituted by the memorial land is affected by a trust or dedication within the meaning of s 193(1)(b).
The statutory procedure for declaring a separate rate cannot create a trust or dedication
The four events upon which the plaintiffs rely are all incidents of the statutory scheme of ratepayers petitioning the council to undertake specific works for which the ratepayers will meet the costs.
The statutory scheme under the 1934 Act was intended to facilitate development within the council area desired by specific ratepayers which the council was not otherwise prepared to fund from its general rate revenue.
The scheme provided that ratepayers, representing three-fourths of the assessed value of the property “within any portion of an area”, could address a memorial to the council requesting the council to construct any specific works for the benefit of that portion.[4] The memorial was required to describe the requested works, define the portion of the area to be benefited and name an amount that the signatories were willing to pay as a separate rate.[5] The council could decide whether to “comply with the memorial” by, inter alia, declaring a separate rate for the purposes of the works and carry out the works.[6]However, the separate rate could not exceed the amount mentioned in the memorial.[7] If the council declared such a rate it was imposed on all the ratepayers within the portion of the area defined in the memorial.[8] That is to say the separate rate was levied on ratepayers who were not memorialists as well as those who were. Necessarily if you were a ratepayer in the relevant area defined in the memorial opposed to the work you were nonetheless subject to the levying of the separate rate. The council was required to hold the moneys raised by the separate rate distinct from its general fund and to apply them for the purposes for which the rate was authorised.[9] If there was an unexpended balance, including because of the abandonment of the works, those funds would be credited to each relevant ratepayer against the general rate payable in the succeeding financial year.[10]
[4] Local Government Act 1934 (SA) s 218.
[5] Local Government Act 1934 (SA) s 219.
[6] Local Government Act 1934 (SA) s 221.
[7] Local Government Act 1934 (SA) s 222(1).
[8] Local Government Act 1934 (SA) s 222(2).
[9] Local Government Act 1934 (SA) s 223.
[10] Local Government Act 1934 (SA) s 224.
In the context of this matter, s 224 supports the proposition that the declaration of a special rate in response to a memorial presented to the council and the collection of that rate could not create a trust over, or dedicate, the council’s land. It is implicit in the terms of s 224 that the council was not obliged to commence or complete the works for which the separate rate had been declared and collected. So much follows from the provision that works could be abandoned with the consequence that the unexpended funds from the separate rate would be credited against the general rate payable in the following year.
There are other features of the statutory scheme which contraindicate that the separate rate procedure could create any form of trust or dedication. Section 383 which empowered the council to carry out specified permanent works and undertakings, such as the construction of a carpark, also authorised a variety of other works and undertakings including forming drains and roads, footways, culverts, jetties, bacteriolytic tanks, waterworks, gasworks, places for the deposit of refuse, nightsoil and rubbish, and urinals. While those works are characterised as permanent works and undertakings in the 1934 Act, undertaking those works does not impress a trust on land which the council already owned.
That conclusion is reinforced by the absence of any power in the 1934 Act for a council to declare a trust or dedicate land it already owned. Section 380(b) and s 382(1)(a) did not empower the council to impress a trust upon its own land. Those provisions are merely facilitative. They provide that the council may hold property on trust. Section 380(b) empowered a council to accept a gift or conveyance of real or personal property and hold the same on trust for any purpose declared by the donor. The memorialists were ratepayers. They were not donors. They did not donate, gift or convey the memorial land to the council. The council already owned it. Section 382(1)(a) did not authorise or provide for a council to declare a charitable trust over property that it owns. It simply provided that a council may act consistently with a trust or purpose already imposed on the land. Section 382(2) was a provision of limitation. It provided that the council’s power to sell or exchange any property it acquired did not authorise the council to deal with such property in a manner inconsistent with any trusts under or for which the property was acquired. The council is and was a creature of statute. It can and could only act in accordance with the powers conferred upon it by the legislature.
Statutory trust
The plaintiffs rely upon the High Court’s judgment in Bathurst City Council v PWC Properties Pty Ltd[11] in support of the proposition that the memorial land was impressed with a statutory trust. In that case the Local Government Act 1993 (NSW) (1993 Act) required a council to classify certain public land vested in it or under its control as operational land or community land. Community land was subject to certain restrictions, including those affecting sale, disposal, leasing and licensing, to which operational land was not. Clause 6(3) of Schedule 7 of the Act empowered a council by resolution, within a year from the commencement of the Act on 1 July 1993, to classify any public land vested in it or under its control at the commencement date which was not classified by operation of clause 6(2) of Schedule 7. By clause 6(2)(b) any land vested in a council under its control at the commencement of the Act which was at that time “subject to a trust for a public purpose” was taken to have been classified as community land on that date. Section 526 of the Local Government Act 1919 (NSW) (1919 Act) had provided:
The council may –
(a) accept and hold any real or personal property conveyed, assigned, devised, or bequeathed to it for any charitable or public purpose;
(b) act in the administration of such property for the purposes and according to the trusts for which the same may have been conveyed, devised, assigned, or bequeathed.
[11] [1998] HCA 59, (1998) 195 CLR 566.
Section 518 of that Act empowered a council to sell or exchange any land vested in it but excluded from that power “any public reserve, public place, or cemetery, or any land subject to a trust”.
A company owned land on which a shopping centre had been constructed under development consent issued by the council in 1979. The application for the development consent was made on the basis that there would be an adjacent, ground-level parking area surfaced in bitumen and it stated that such a parking area was essential. A carpark of that nature was constructed on land adjacent to the shopping centre owned or controlled by the council. Part of that land had been vested in the council by transfers from the applicant company, and its predecessor in title, for nominal consideration. The transfers were for the acknowledged purpose of providing land for use as part of the carpark and were made in partial satisfaction of the condition of the development consent relating to carparking. The developer paid the council a sum representing the cost of bituminising the carpark. In 1994, pursuant to clause 6(3) of Schedule 7 to the 1993 Act, the council purported by resolution to classify the land on which the carpark was situated as operational land.
The High Court held it was not open to the council to resolve to classify the land as operational land since it had been conveyed to and was held by the council for a public purpose within s 526(1) of the 1919 Act and was land subject to a trust for a public purpose within clause 6(2)(b) of Schedule 7 to the 1993 Act.
In its joint reasons the Court held that for the purpose of creating a trust formal words were not required provided it was clear there was an intention to constitute the council as trustee of the nominated land.[12]
[12] [1998] HCA 59 at [10], (1998) 195 CLR 566 at 574.
Council arranged for the work to be undertaken. The High Court said the term “trust”, in the context of the developer having paid the council the costs of bituminising the carpark and council arranging those works, was not to be understood wholly in its technical sense when construing the expression “land subject to a trust for a public purpose” in clause 6(2)(b) of Schedule 7 of the 1993 Act.[13]
[13] [1998] HCA 59 at [44], (1998) 195 CLR 566 at 585.
The Court said:[14]
Clause 6(2)(b) is concerned with land which, on the commencement of the Act, is to be taken to be classified as community land because it then was vested in or under the control of a council and was "subject to a trust for a public purpose". The phrase "for a public purpose" as it appears in such a statute is "a wide phrase" and should not be "read narrowly". In relation to the obligations imposed upon local government authorities with respect to land vested in them, the phrase has had a lengthy history. This involves the use of "trust" in a sense broader than a trust of a public nature which qualified as a charitable trust within the spirit and intendment of the Elizabethan statute.
[citations omitted]
[14] [1998] HCA 59 at [48], (1998) 195 CLR 566 at 586-587.
The Court held that the land, as part of the carparking site, was conveyed to and held by the council for a public purpose, namely, the achievement, or at least the advancement, of a town planning purpose. That purpose being the acquisition of land for a public carpark, to accommodate the increased demand for parking which would be created by the commercial development to be undertaken pursuant to the development approval which had been granted.[15] That public purpose was still operative when the 1993 Act commenced. The Court then turned to consider ss 518 and 526 of the 1919 Act which operated when the land was conveyed to the council in separate lots in 1981 and 1987. The Court held that the expression “the land subject to a trust” in s 518 of the 1919 Act included not only a private trust but also a public trust. The Court held that the land would have been, within the meaning of s 518, either part of a “public place” or “land subject to a trust”. The former was defined to apply to a “place which the public are entitled to use”.[16] The Court held that s 518 restricted the council in dealing with that land in circumstances where it had accepted the property for a public purpose and notwithstanding that the land was not transferred to and accepted by the council on trust in the strict sense of that term.[17] The Court said:[18]
The term "trust" in cl 6(2)(b) of Sch 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". 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".
[15] [1998] HCA 59 at [49], (1998) 195 CLR 566 at 587.
[16] [1998] HCA 59 at [54], (1998) 195 CLR 566 at 588.
[17] [1998] HCA 59 at [65], (1998) 195 CLR 566 at 592.
[18] [1998] HCA 59 at [67], (1998) 195 CLR 566 at 592.
The plaintiffs submit that the reasons of the High Court in Bathurst governs the determination of these proceedings such that the presentation of the memorial, the imposition of the separate levy and its collection for the purposes of the construction of the carpark on memorial land imposed a statutory trust for the purpose of s 193(b) of the 1999 Act. I do not accept this submission.
Bathurst is readily distinguishable. At issue in Bathurst was whether the land which had been conveyed to the council was subject to a trust for a public purpose at the time the 1993 Act commenced. The judgment turned on the council’s statutory power to accept land conveyed or bequeathed to it for public purposes and the statutory restrictions on using and selling land conveyed for such purposes. The land was conveyed to and accepted by the council for nominal consideration for the express public purpose of using the land as a carpark. PWC Properties paid the council to bituminise the carpark. The High Court held that the land was conveyed to and held by the council for a public purpose.
This distinguishes the facts of Bathurst from this case where there was no conveyance or gifting of the land. The memorial land always was owned by the council. In this case, for the reasons already explained, there could be no trust imposed where the memorial land was not gifted or conveyed to the council for the purposes of establishing a carpark. Further, the performance by ratepayers of the statutory obligation to pay the separate rate could not constitute a declaration of trust. Once the council had resolved to levy a separate rate the ratepayers were bound to pay it. Not only could the payment of the separate rate not constitute the imposition of a trust, any declaration of a trust by the council over land it already owned would have been beyond power under the 1934 Act.
Section 380(b) of the 1934 Act is a comparable provision to s 526 of the 1919 New South Wales Act considered in Bathurst. I accept, following Bathurst, that the provision of a public carpark can be characterised as a “public purpose” within the meaning of s 380(b). However, s 380(b) did not apply to this case because, unlike the position in Bathurst, the memorial land was not gifted, conveyed or assigned to the council by the memorialists for the purposes of establishing a carpark. Moreover, s 380(b) is conditioned on the property being held upon trust for a charitable or public purpose declared by the donor. For the reasons explained, the memorialists are not donors.
While I accept that Bathurst stands as authority for the proposition that the trust referred to in s 380(b) of the 1934 Act and s 193(b) of the 1999 Act is not to be understood wholly in its technical sense, nonetheless there must be words or conduct that clearly evidence an intention to constitute the council as trustee of real or personal property. That is what is conspicuously absent in this case.
There are sound reasons not to construe local government legislation as operating to impress a trust on council land so as to prevent or restrict the use of the land for some different purpose when an object of the legislation is to empower councils to fund and provide services to those resident in a council area. Over time the needs of those people might change so as to cause the council to use its land for different purposes.
As a matter of strict analysis the fact is that the memorialists did not pay for the construction of the car park on the memorial land. Council paid and then recovered the cost from ratepayers in accordance with the statutory scheme. That the cost of the carpark was recovered by council on that basis does not impress the memorial land with a trust. Particularly where the memorial land was always owned by the council. The ratepayers paid a separate rate for the cost of the work constructing the carpark. They did not pay for its subsequent upgrade and maintenance. They certainly did not pay a separate rate for the value of the memorial land.
Accordingly, I reject the submission that the carpark land was affected by a statutory trust that prevented or restricted its alienation.
Nonetheless I turn to consider the alternative submissions in respect of an express trust or a constructive trust.
Express trust
The plaintiffs first alternative submission is that there is some form of an express trust in the nature of a Quistclose trust or a charitable trust impressed upon the memorial land. The plaintiffs submit that the trust arises from the mutual intention of the council and the memorialists that the land be used for a charitable purpose as a permanent carpark, evidenced by the terms of the memorial and the subsequent declaration of a separate rate.
I do not accept this submission.
The nature of a Quistclose trust was considered in Rambaldi (Trustees) v Commissioner of Taxation, in the matter of Alex (Bankrupt)[19] where the Full Federal Court said:[20]
[19] [2017] FCAFC 217, (2017) 107 ATR 1.
[20] [2017] FCAFC 217 at [21]-[22], (2017) 107 ATR 1 at 5-6.
The term, “Quistclose trust” is derived from the decision of the House of Lords in Barclays Bank Ltd v Quistclose Investments Limited. That case was concerned with circumstances in which one party (the “lender”) advanced money to another party (the “debtor”) who owed money to a third party (the “creditor”) on the agreed basis that the advance would be used only to discharge the relevant debt, the debtor agreeing to pay the lender, at some future time, the amount of the advance. In Quistclose, Lord Wilberforce observed:
That arrangements of this character for the payment of a person's creditors by a third person, give rise to a relationship of a fiduciary character or trust, in favour, as a primary trust, of the creditors, and secondarily, if the primary trust fails, of the third person, has been recognized in a series of cases over some 150 years.
At 580‑581, referring to the decision in Toovey v Milne concerning a similar arrangement, his Lordship said:
The basis for the decision was thus clearly stated, viz., that the money advanced for the specific purpose did not become part of the bankrupt's estate. This case has been repeatedly followed and applied ... .
These cases have the support of longevity, authority, consistency and, I would add, good sense.
[citations omitted]
The plaintiffs submit that where a party (A) advances money to another party (B), with the mutual intention that it is to be used for an express purpose and not simply become part of B’s assets, then there will be implied a stipulation that the arrangement between A and B gives rise to a trust in B to hold and supply the money solely for the stated purpose.
In this case there was no declaration of such a trust. An intention to create an express trust will not be imputed and must be real.[21] Actual intention to create such a trust remains essential.[22] The existence of the relevant intention is to be found in the conduct of the parties. In this case that intention is to be found from the presentation of the memorial and the subsequent declaration of a separate rate. The relevant intention is not simply to establish a carpark. By the time the separate rate was resolved the carpark had already been constructed. Rather, the intention must be to create a trust which irrevocably and perpetually precluded the use of the land for any other purpose. The evidence does not rise so high.
[21] Pettit v Pettit [1970] AC 777; Gissing v Gissing [1971] AC 886; Bryson v Bryant (1992) 29 NSWLR 188 at 215-216.
[22] Grant v Edwards [1986] Ch 638 at 646-647, 651, 654.
In any event, such a trust is extinguished when the moneys are applied for the specific purpose, as occurred in this case.[23] But again there is a more fundamental problem for the plaintiffs. Where the position is regulated by a statute there can be no room for equity’s intervention by the imposition of a Quistclose trust.[24] The payment by the ratepayers of the separate rate was an obligation imposed by the statutory scheme established under the 1934 Act. Those statutory provisions covered the field with respect to obligations owed in respect of those moneys. The statutory obligation on council was to expend the money for the purpose for which the rate was declared. That occurred.
[23] Marriner v Australian Super Developments Pty Ltd [2012] VSCA 171 at [83], (2012) 46 VR 213 at 234.
[24] Legal Services Board v Gillespie-Jones [2013] HCA 35, (2013) 249 CLR 493.
Accordingly, even if a Quistclose trust analysis was applicable, no resulting trust would have arisen because the moneys paid under the separate rate were used for the purpose for which they were paid.
Constructive trust
The plaintiffs’ second alternative submission is that there is some form of constructive trust impressed upon the memorial land. The plaintiffs allege two kinds of constructive trust. The first is said to arise from a joint endeavour. The second is said to be a constructive charitable trust. I reject this submission.
Where a person has contributed to the acquisition, maintenance or renovation of property pursuant to a joint endeavour and that endeavour has failed in circumstances where blame cannot be attached to either party, courts have shown a willingness to impose a constructive trust, regardless of actual or presumed intention, requiring the legal owner of the land to hold on trust for the other party to the joint endeavour.[25]
[25] Muschinski v Dodds [1985] HCA 78, (1985) 160 CLR 583; Baumgartner v Baumgartner [1987] HCA 59, (1987) 164 CLR 137; Chapman v Chapman [2000] SASC 195.
The underlying basis of the constructive trust is founded upon unconscionable conduct. In Muschinski v Dodds[26] Deane J said:[27]
Like most of the traditional doctrines of equity, it operates upon legal entitlement to prevent a person from asserting or exercising a legal right in circumstances where the particular assertion or exercise of it would constitute unconscionable conduct: cf. Story, Commentaries on Equity Jurisprudence; Legione v. Hateley. The circumstances giving rise to the operation of the principle were broadly identified by Lord Cairns L.C., speaking for the Court of Appeal in Chancery, in Atwood v. Maude: where "the case is one in which, using the words of Lord Cottenham in Hirst v. Tolson, a payment has been made by anticipation of something afterwards to be enjoyed [and] where ... circumstances arise so that future enjoyment is denied". Those circumstances can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do: cf. Atwood v. Maude, and per Jessel M.R., Lyon v. Tweddell.
[citations omitted]
[26] [1985] HCA 78, (1985) 160 CLR 583.
[27] [1985] HCA 78, (1985) 160 CLR 583 at 619-620.
In this case there was no joint endeavour between the plaintiffs and the council. The plaintiffs were not memorialists. There could have been no joint endeavour between them and the council. Further, a constructive trust in favour of the plaintiffs could only be imputed if the circumstances were such that the council was bound in conscience to hold the property on trust for the plaintiffs.[28] The proposition that it would be unconscionable if the council land was not held on trust for the perpetual benefit of the plaintiffs is untenable. All of the memorialists have had the benefit of the provision of a free carpark on the council’s land for decades. Moreover, for reasons already explained, there is no room for the imposition of equitable relief where the parties’ relationship was regulated by the statutory scheme in s 218 to s 224 of the 1934 Act.
[28] Muschinski v Dodds [1985] HCA 78, (1985) 160 CLR 583 at 614-615; Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64, (1984) 156 CLR 41 at 125.
The second kind of trust propounded by the plaintiffs is a constructive charitable trust. I do not accept this submission. Such a trust was rejected by the High Court in Bathurst as unsuitable as a remedial device to be imposed by a court.[29] Again, the proposition that it would be unconscionable for the council to apply its land to another purpose, having made the land available as a free carpark for almost 50 years, and expended considerable sums of money on it, is untenable. There is no proper basis to consider that the imposition of such a remedial constructive trust is necessary to achieve equity between the parties.
[29] Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59 at [38]-[41], (1998) 195 CLR 566 at 583-585.
The plaintiffs also place some reliance upon the decision of the Chancery Division of the UK High Court in Dore v Leicestershire County Council.[30]This authority does not assist the plaintiffs.
[30] [2010] EWHC 1387 (Ch).
Dore recognised that an agreement by a council to receive funds for a specific purpose, namely, the development of a community building for use by a school and the community, impressed the property with a trust over the use of the building. Sales J, as his Lordship then was, explained:[31]
The significance of the agreement by LCC to develop premises, which would include a community centre and school hall which could be used part of the time for the benefit of the community, was that when LCC received the contribution it would thereafter have been inequitable for it to have treated that contribution as a simple accretion to the general funds of the Council. Instead, in my view, LCC became bound to hold the property comprising the Premises as property impressed with a trust to be used in part for the charitable purpose of providing premises which could be used for the benefit of the community and the parish. It was common ground between the parties that if this analysis were adopted, the relevant trust would again be a constructive trust, arising from the way in which LCC’s conscience as land-owner would be affected by the circumstances in which it accepted the contribution, so that no written record of the trust would be required.
[31] [2010] EWHC 1387 (Ch) at [110].
The building was not paid for by the levying of rates but by fundraising in the local community. The council accepted that it received these funds as moneys impressed with a charitable trust and that charitable trust affected the council’s ownership of the building. At issue was whether the committee members of the local community association came within the class of persons who had specific rights over the land having paid the moneys to the council, and how the land ought to be held. The Court rejected the association’s principal argument of the creation of a constructive trust which gave the association an equitable interest in the land. However, the Court found that there was a charitable trust given that was the basis upon which the association paid the moneys raised and the council accepted them. The Court also held that the Education Act 1946 (UK) required the council to convey the buildings in which the school was established to the trustees of the school to be held on trust for the purposes of the school. Accordingly, this is a case decided on its own facts and the particular provisions of the Education Act. Voluntary contributions were made by the association to the council for a particular purpose. This was not a case of the council imposing a separate rate pursuant to statute as occurred here. In any event, as discussed earlier, the High Court in Bathurst held that Australian law does not recognise a remedial constructive trust as a charitable trust.[32]
[32] [1998] HCA 59 at [41], (1998) 195 CLR 566 at 584-585.
For the reasons explained above, the invocation and use of the statutory scheme of undertaking work sought by a memorial of ratepayers and funded by levying a separate rate cannot impress the memorial land owned by the council with a trust.
Dedication
The plaintiffs submit that by the council’s receipt of the memorial the carpark on the memorial land was dedicated as a public place. I do not accept this submission.
The submission misunderstands the nature of dedication. As the High Court stated in Randwick Municipal Council v Rutledge[33] land is not dedicated for a particular purpose unless it is intended that the land will be held on a public trust for that purpose. At common law the only way in which land can properly be said to be dedicated for a public purpose is when it is dedicated as a highway.[34] However, in Rutledge, Windeyer J, with whom Dixon CJ, Fullagar and Kitto JJ agreed, held that in some states of Australia, including South Australia,[35] the legislature has used the term more broadly than its limited common law sense.[36] The word “dedicate” came into general use in connection with nature parks and playgrounds, particularly in the context of recreation reserves. In South Australia the Crown Lands legislation provided for the dedication of Crown lands. Crown land could be dedicated for a specified public use or particular purpose.[37] Importantly, the dedication of land by the Crown for such purposes, without the creation of a trust, did not prevent the Crown subsequently using the land for another purpose.[38]
[33] [1959] HCA 63, (1959) 102 CLR 54 at 75-76.
[34] [1959] HCA 63, (1959) 102 CLR 54 at 74; Coastal Ecology Protection Group Inc v City of Charles Sturt [2017] SASC 136 at [668], (2017) 227 LGERA 1 at 124.
[35] Humphris v Foot (1934) SASR 25 at 27.
[36] [1959] HCA 63, (1959) 102 CLR 54 at 74.
[37] Coastal Ecology Protection Group Inc v City of Charles Sturt [2017] SASC 136 at [671], (2017) 227 LGERA 1 at 124.
[38] Randwick Municipal Council v Rutledge [1959] HCA 63, (1959) 102 CLR 54 at 74-75.
The Crown Lands legislation permitted the Crown to dedicate land to local government for its use. The 1934 Act empowered council to hold land that had been dedicated by the Crown for a particular purpose. Sections 453, 586(5) and 588(1) authorised the council to hold or acquire previously dedicated land or request the Governor to dedicate certain land. That dedication occurred by proclamation. The council did not have power to dedicate land under the 1934 Act, it only had power to hold land that had been dedicated under the Crown Lands legislation.
In this case the land was not dedicated as a carpark. There was no express act of dedication. The receipt of the memorial occurred in accordance with the statutory scheme. Further, the memorial land was not used for the purpose of a highway or nature reserve, but for the purpose of a carpark. In any event, even if the council had dedicated the use of the land as a carpark that did not create an obstacle to the council subsequently using its own land for another purpose absent the memorial land being impressed with a trust.
In Rutledge, Windeyer J held that land is not dedicated for a particular purpose unless it is intended that the land be held on trust for that purpose. Lands appropriated and taken into use by the Crown for a particular purpose, without the creation of a trust, are not dedicated for that purpose and subsequently can be used by the Crown for another purpose.[39] There is no reason the principle enunciated by Windeyer J in Randwick Municipal Council should not apply also to local government.
[39] [1959] HCA 63, (1959) 102 CLR 54 at 74-75.
Under the 1934 Act even if there had been a dedication by the council of its own land that did not prevent the council subsequently using the land for another purpose. The position might be different if the land was donated to the council subject to a dedication under other legislation. But that is not the position here.
The memorial, the resolution and the rate
In any event, if the council was empowered to impress the memorial land with a trust, or dedicate the land as a carpark, the facts do not support the creation of a trust or dedication.
Conspicuously absent from the memorial is any request that the memorial land be used as a carpark in perpetuity or that there be any trust over the memorial land. The terms of the memorial do not mention any trust or dedication.
Equally, the terms of the resolution of 4 June 1973 do not declare a trust or state that the memorial land has been dedicated for the purpose of a carpark or any other purpose. The resolution described the request in the memorial as a request for “permanent works”. In fact, there is no reference to that concept to be found in the memorial. However, the plaintiffs submit that this reference to “permanent works” evidences an agreement by the council to establish a permanent carpark. In part I accept this submission but it does not advance the plaintiffs’ case. That is because I accept the submission of the council that the works requested in the memorial can be characterised as “permanent works” by way of contradistinction to “temporary works”. In this context I do not accept that “permanent” means “in perpetuity”. Rather, it means works that were intended to last “indefinitely”.
The expression “permanent works” has a long history in legislation concerning local government in South Australia.[40] Section 383 of the 1934 Act empowered the council to carry out a multiplicity of permanent works. The section listed the types of works which were “deemed permanent works and undertakings” and provided that a council may carry out such works. Section 383(1)(xxiv) empowered the council to carry out the construction of a carpark. But s 383(1) also authorised, for example, the construction of works for “the deposit of refuse, nightsoil and rubbish”, to “purchase, supply and install bacteriolytic tanks”, to “construct and purchase tramways by horse-traction, steam, electricity, petrol, or other motive power”, and to “construct, enlarge, and alter sewers and works connected with sewerage”. That these works are “permanent” is no basis to construe the statute as impressing the works with a trust for that purpose.
[40] The concept of “permanent works” was introduced by s 108 of the District Council Act 1887 (SA), which authorised a council to carry out certain work “which shall be deemed permanent works and undertakings”, therein setting out a list of the type of works which a council was authorised to undertake. The concept in the phrase “permanent works” was used in the Municipal Corporations Act 1903 (SA) which provided a list of works which were to be considered “permanent works”.
The characterisation of the carpark in the resolution as permanent works did not evidence an intention that the carpark was to exist in perpetuity. Rather, it is to be construed merely as meaning that the carpark as constructed was intended to have an indefinite existence rather than a limited existence. In any event, the characterisation of the carpark in the resolution being constituted as “permanent works” is of no evidentiary significance in determining whether a trust was created or a dedication occurred. The resolution recorded that the council, having received a memorial requesting that permanent works be carried out to provide and establish free carparking facilities, declared a separate rate of three cents in the dollar for 10 years for the purpose of recovering the cost of the works from the properties mentioned in the memorial. In its terms there is no reference to the memorial land being dedicated as a carpark or any declaration of the creation of a trust over that land. This is unsurprising given the statutory context in which the council carried the resolution. The reference to the ratepayers requesting the carrying out of permanent works merely is a recital to the declaration of a separate rate for the purpose of recovering from the ratepayers the cost of the work. The reference to “permanent” works is a reference to the character attributed to the works by statute.
The plaintiffs also rely on the collection by the council of the separate rate. In my view, this also has no evidentiary significance. The rate was collected in accordance with the statutory scheme established pursuant to s 218 to s 224 of the 1934 Act. Given the statutory basis of the obligation to pay the separate rate its collection does not support the creation of a trust or the dedication of the memorial land for the purpose of a carpark.
The plaintiffs’ alternative submission that the memorial land is a “public place”
The plaintiffs submit that the memorial land was dedicated as a carpark on the basis it was dedicated as a public place within the meaning of s 5 of the 1934 Act. I do not accept this submission. The plaintiffs submit that by reason of the acceptance of the memorial and the council’s passing of the 1973 resolution, the council dedicated the memorial land as a public place within the meaning of s 5, namely, as land to be used for public carparking purposes. They invoke the provisions of ss 5, 370a and 667 of the 1934 Act. None of these provisions had the effect that land which was a “public place” within the meaning of s 5 was subject to a dedication.
The plaintiffs submit that the memorial land was a “thoroughfare” and was therefore dedicated for the purposes of the 1934 Act as a “public place” and continues to be dedicated for the purposes of s 193(1)(b) of the 1999 Act. Section 5 of the 1934 Act defined “public place” to include a “thoroughfare which the public are allowed to use”. I do not accept this submission. The evidence does not establish the carpark was a thoroughfare in 1973 or that it was dedicated as such at that time.
They also submit that pursuant to ss 370a and 667 of the 1934 Act, the council was restricted from alienating the memorial land by licence except in accordance with the limited uses permitted by the 1934 Act for the licensing of public places. I do not accept that submission. It involves a misunderstanding of those provisions.
Section 370a(1)(a) provided that a council may grant a licence permitting any person to “use a portion of a public street, public road or public place for the supply of food and drink” and “to place in a public place tables, chairs and other furniture for the convenience of persons consuming food or drink”. Section 370a was a facilitative provision. It conferred power on a council to licence specified activities. It did not restrict the council from alienating the memorial land by licence. Section 667 provided a long list of purposes for which a council might make bylaws. Those purposes include the regulation of streets, roads and public places. This also was a facilitative provision. It empowered the council to enact bylaws regulating activities in its area. Nothing in s 667 restricted the council’s ability to alienate any land.
In any event, council did not grant a licence over the memorial land.
The 1934 Act did not confer on the council power to dedicate land it already owned.
The application of the 1999 Act
Given my finding that neither the carpark land, nor for that matter that part of the carpark land constituted by the memorial land, was affected by a trust or dedication within the terms of s 193(1)(b) of the 1999 Act, the council’s exclusion in 2001 of the memorial land from classification as community land was valid. Further, the council’s revocation in 2016 of the classification of the post office land as community land was valid. As a result, the council can dispose of the carpark land without complying with the requirements of s 194 of the 1999 Act.
Standing
At issue is whether the plaintiffs have standing to bring this action. In the circumstances it is unnecessary to decide this question given the conclusion that they are not entitled to the relief they seek. However, had it been necessary to determine the question of standing I would have found the plaintiffs enjoyed standing to bring the proceedings.
The general test for standing in cases where declarations are sought requires a person to have a special interest which is more than a mere intellectual or emotional concern.[41] The special interest need not be proprietary.[42] The special interest is not to be confined by a consideration of the scope and purpose of the legislation which is at issue in the proceedings.[43]
[41] Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53, (1980) 146 CLR 493 at 530-531, 537, 547-548; Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund [1998] HCA 49 at [46]-[49], (1998) 194 CLR 247 at 265-267.
[42] Onus v Alcoa Australia Ltd [1981] HCA 50, (1981) 149 CLR 27 at 44, 73.
[43] Allan v Development Allowance Authority [1998] FCA 112, (1998) 80 FCR 583 at 586-587.
The plaintiffs are adjoining landowners to the carpark land. They have more than a mere intellectual concern as to the status of that land as the registered proprietors of land abutting the carpark land.[44] Further, the plaintiffs, unlike members of the public broadly, have a special interest in preserving the carpark land as a carpark because of the negative impact on their commercial interests if the council ceased to use the land as a carpark.
[44] See Clothier v Mitcham (1981) 45 LGERA 179 at 186 and 188-192 where a potential memorialist under the 1934 Act was held to have standing to seek declarations that a purported memorial was unlawful.
Conclusion
I would dismiss the plaintiffs’ application. I would hear the parties as to costs.
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