Duke Unley Pty Ltd v The Corporation of the City of Unley

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
DUKE UNLEY PTY LTD v THE CORPORATION OF THE CITY OF UNLEY
[2021] SASCA 91
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Blue)
2 September 2021
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
The appellants brought an action in the Supreme Court seeking amongst other relief a declaration that certain land owned by the respondent is subject to a statutory trust under section 380(b) of the Local Government Act 1934. A Judge dismissed the action, holding that no trust arose: Duke Unley Pty Ltd v The Corporation of the City of Unley [2020] SASC 224.
The appellants appeal against the dismissal of the action. On appeal, they do not contend that section 380(b) or the Local Government Act 1934 more generally created a trust. They contend that equity recognises as a species of trust a “public or statutory trust”, being a purpose trust that arises in equity within the framework created by a statute and such a trust arose in the present case.
Held by the Court (dismissing the appeal):
1Equity does not recognise as a species of trusts a “public or statutory trust” as formulated by the appellants (at [87]).
2There is no basis to extend the application of section 380(b) of the Local Government Act 1934 beyond the acceptance of a gift, conveyance or assignment of property to a council subject to a constraint and in the present case there was no such gift, conveyance or assignment (at [88]).
3Appeal dismissed (at [94]).

Local Government Act 1934 (SA) 214, 216, 218-224, 226, 227, 229-233, 380-382, 453, 588; Local Government Act 1999 (SA) 193; Local Government Act 1919 (NSW) 526, Sch 7 Cl 6; Local Government Act 1993 (NSW) 25, 26, referred to.
Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; Fouche v The Superannuation Fund Board (1952) 88 CLR 609; Town Investments Ltd v Department of the Environment [1978] AC 359; Williams v The Attorney-General for New South Wales (1913) 16 CLR 404, considered.

DUKE UNLEY PTY LTD v THE CORPORATION OF THE CITY OF UNLEY
[2021] SASCA 91
Court of Appeal: Kelly P, Doyle JA and Blue AJA

THE COURT: The four appellants (collectively Duke) brought an action in the Supreme Court seeking amongst other relief a declaration that certain land owned by the respondent Council is subject to a statutory trust under section 380(b) of the Local Government Act 1934. A Judge dismissed the action, holding that no trust arose.[1]
[1] Duke Unley Pty Ltd v The Corporation of the City of Unley [2020] SASC 224.
The appellants appeal against the dismissal of the action. On appeal, they do not contend that section 380(b) or the Local Government Act 1934 more generally created a trust. They contend that equity recognises as a species of trust a “public or statutory trust”, being a purpose trust that arises in equity within the framework created by a statute and such a trust arose in the present case.
The Council contends by way of alternative contention that, even if a trust arose, the Council validly excluded the land from having status as community land pursuant to subsection 193(1) of the Local Government Act 1999 (SA) because it was not affected by an instrument of trust that would prevent or restrict its alienation.
Background
As at 1970 the Council was the registered proprietor of land at 168 Unley Road Unley comprised in Certificate of Titles Register Book Volume 1159 Folio 145 and Volume 297 Folio 28 (the Land).
The Council had purchased the first parcel (Folio 145) in 1964 for £2,750 and the second parcel (Folio 28) for £8,500. When the Land was acquired by the Council, it was a residential property being used as a photographic studio and parking.
The Land is an L-shaped block with a frontage to Unley Road to the east of 20 metres, a depth of 115 metres and a rear frontage of 40 metres, including 12 metres fronting the end of Birdwood Avenue to the west.
On 7 October 1971 various ratepayers (the Memorialists) who owned land with a frontage to Unley Road between Charles Street and Arthur Street on the west and Maud Street and Oxford Terrace on the east (defined as the Shopping Area) signed a Memorial addressed to the Council (the Memorial). The Memorial was presented to the Council pursuant to section 218 of the Local Government Act 1934 (SA) (the Former Act). The Memorialists comprised more than 50 per cent in number and more than 75 per cent in assessed value of the Shopping Area. Paragraphs 2 and 3 of the Memorial provided:
2.Your Memorialists request the Council to make available those pieces of land coloured green in the said plan being [the land] of which the Council is the registered proprietor and to expend an amount estimated at twelve thousand dollars ($12,000.00) 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.
3.The whole of the Shopping Area will benefit by the provision of such parking facilities and the maintenance and improvement thereof.
Paragraph 5 of the Memorial contained an offer in relation to expenses in the following terms:
5.Your Memorialists are willing and have agreed as follows:-
(i) To repay to the Council such amount as may be expended by the Council as aforesaid and also for the purpose of providing the finance required to meet the cost of the maintenance and improvement of the said land as a public car park and your Memorialists agree to pay any such separate rate as may hereafter be declared by the Council pursuant to the provisions of Section 221 of the Local Government Act and in accordance with this Memorial. Such rate shall not exceed 3.4 cents in the dollar of the assessed value of ratable property set forth opposite their respective names in the said Schedule if repayment is to be made within a period of ten (10) years or 2.3 cents in the dollar of such assessed value over a period of twenty (20) years whichever period may be agreed upon by the respective ratepayers with the Council.
(ii) To properly maintain the said land as a public car park from and after the date when the Council shall have completed the said works according to the Certificate of the City Surveyor.
On 12 October 1971 the Memorial was presented and read to a meeting of the Council. The Council resolved to receive the Memorial and refer it to its solicitors and that the Town Clerk then submit a report to the Finance Committee.
The Council’s solicitors sent a letter to the Council expressing the opinion that the Memorial complied with section 218 of the Former Act because the Memorialists comprised the requisite majority of the ratepayers in the Shopping Area.
On 6 December 1971 the Finance Committee of the Council recommended to the Council that:
·it agree to carry out the works requested by the Memorialists;
·plans and estimates be prepared; and
·a separate rate be determined for the requested works as provided by section 221 of the Former Act, the separate rate to be payable for 10 years from 1 July 1972.
Although the minutes of the meeting by the Council that considered that recommendation were not tendered, we infer from the recommendation and the fact that the Council subsequently undertook the works that the Council resolved to agree to carry out the works requested by the Memorialists and that plans and estimates be prepared.
By June 1973 the Council had completed the works and calculated their cost. The works involved demolishing the existing building and improvements and constructing and bitumising a car park.
On 4 June 1973 the Council received a report. The report stated:
The Local Government Act requires Council to declare a separate rate on the ratepayers within the portion of the area defined in the memorial requesting Council to make available certain portions of land for a car park and to expend certain moneys for the purpose of providing parking facilities.
After receipt of the Postmaster-General’s Department’s contribution to cost of constructing roadways and drainage, an amount of $10,352.44 remains as the cost of constructing the off-street car park adjacent to the Unley Post Office. If maintenance is assessed as $150 per year and interest charged at five per centum per annum, it is calculated that the ratepayers in the benefiting shopping area should be charged a separate rate of three cents in the dollar in order to recover this amount in ten years. The memorialists agreed to a rate not exceeding 3.4 cents in the dollar for this period. If Council agrees, it will be necessary to pass the following resolution …
On 4 June 1973 the Council accepted the recommendation in the report and passed the following resolution (the Resolution):
That the Council of the Corporation of the City of Unley, having received a memorial dated the 7^th 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 the said works at a cost of $10,352.44, now, in accordance with Section 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 ten years payable on the 1972-1973 assessments of all of the properties mentioned in the Memorial.
The separate rate was levied on land within the Shopping Area over the following 10 years. The total amount raised was $13,048. The third appellant acquired one of the properties comprised in the Shopping Area in 1979.
On 1 January 2000 the Local Government Act 1999 (SA) (the Current Act) came into force. Section 193 creates a dichotomy in respect of all council land (owned or under the care control and management of a council) between community land and other land (excluded land). Community land is not defined in a substantive way.[2] However, the context of its use in Chapter 11 indicates that it is land acquired or held for community or public purposes (whether or not actually used for such purposes).
[2] Subsection 4(1) defines community land in a procedural way by defining it as “local government land” classified as community land under Chapter 11.
Subject to irrelevant exceptions,[3] section 201 prohibits the sale or other disposal (subject to section 202) of community land (except roads[4]) while it remains community land: the only way in which such land can be sold is by first revoking its classification as community land.[5] Section 202 empowers a council to grant a lease or licence for a term up to 42 years over community land if either it follows the relevant steps in its public consultation policy or the grant is for a term up to five years and is authorised by an approved management plan.
[3]     Section 201(2)(a)(i) empowers amalgamation with other land to create a larger parcel of community land. Section 201(2)(d) empowers the grant of an easement over community land.
[4]     The disposal of community land comprising a road is covered by section 201(2)(b) and (e).
[5]     Section 201(2)(a)(ii).
Under section 193, all council land (except roads) as at 1 January 2000 was taken to have been classified as community land unless a council resolved within three years to exclude it.[6] A council could only resolve to exclude such land if it was unaffected by provisions of a reservation, dedication, trust or other instrument that would prevent or restrict its alienation[7] and the council followed its public consultation policy process.[8]
[6] Section 193(1)(a).
[7] Section 193(1)(b).
[8] Section 193(2).
Section 194 empowers a council to revoke a classification of land as community land but only after following the relevant steps set out in its public consultation policy[9] and only with the approval of the Minister.[10]
[9] Section 194(2).
[10] Section 194(1)(d)(i) and (4).
In 2001 the Council undertook reconstruction works of the car park on the Land at a cost of approximately $440,000.
On 27 August 2001 the Council purportedly resolved pursuant to section 193 of the Current Act to exclude the Land (amongst other land) from community land. Notice of the exclusion was published in the Government Gazette on 6 September 2001.
In June 2002 the Council purchased from the Australian Postal Corporation (APC) the rear half (the Post Office Carpark Land) of the land situated at 166 Unley Road Unley which is adjacent to, and immediately to the north of, the Land. APC retained the front half of the land with the frontage to Unley Road on which was or had been situated a post office (the Post Office Land). The rear half of the land had been used by APC as a car park. The Post Office Carpark Land had a width of 20 metres and a depth of 54 metres. The Council paid $230,945 for the Post Office Carpark Land. The acquisition was effected by the deposit of a Plan of Division that adjusted the boundaries between APC’s land and the Land such that the Land now encompassed the Post Office Carpark Land.
Following deposit of the Plan of Division, a new certificate of title Register Book Volume 5880 Folio 539 encompassing both the Land and the Post Office Carpark Land was issued.
In December 2011, the Council purchased from APC the Post Office Land for $2.1 million.
On 27 June 2016 the Council resolved pursuant to section 194 to exclude the Post Office Carpark Land from community land. Notice of the exclusion was published in the Government Gazette on 14 July 2016.
The statutory regime under the Former Act
Part XII of the Former Act was entitled “Rates” and empowered the levying of rates by councils.
Section 214 empowered a council to declare a rate (a general rate) on property assessed in the forthcoming financial year for the general purposes of the Act.
Sections 216, 226 and 227 empowered a council, with the consent of the ratepayers at a special meeting, to declare a rate (a special rate) on property assessed in the forthcoming financial year if:
· the general rate is insufficient for carrying out any purpose by this or any other Act authorized to be carried out by the council, and if the same has not been provided for by a separate or other rate; or
· for the purpose of renewing or repaying any loan, in whole or in part.
Sections 218 to 224 empowered a council to declare a rate (a separate rate) on property within a defined area assessed in the forthcoming financial year or forthcoming financial years to fund proposed works if the requisite majority of ratepayers by memorial requested works to be carried out for the benefit of the defined area and the council considered it desirable to comply with the memorial.
Sections 218 to 224 as in force between 1971 and 1973 provided:
218    Memorial for specific works
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    Contents of memorial
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    Verification of memorial
The memorial, and the signatures thereto, shall be verified by the statutory declaration or declarations of one or more of the signatories.
221    Power of council to declare rates and execute works in accordance with memorial
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    Liability for payment of separate rates
(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    Account for separate rate
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    Appropriation of unexpended balance of separate rate
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 224 envisaged that the council might resolve under section 221 to carry out the works and levy a separate rate and then the works might be abandoned. It is not clear whether this conferred on a council an unfettered right to abandon works after making a section 221 resolution or only applied if the works were abandoned due to an act of God or other circumstances beyond a decision by the council not to proceed with the works. However, if the works were abandoned, the council was required to credit any separate rate collected in favour of each ratepayer from whom it was collected and apply it to the next general rate payable by that ratepayer. If the works were completed, under sections 223 and 224 the council could only apply the money raised by the separate rate towards the cost of the works (the purposes for which the rate was authorised) and was required to apply any surplus in favour of ratepayers from whom the rate was collected against the next general rate due by them.
Sections 229 to 233 empowered a metropolitan municipal council to declare a rate on property of ratepayers who are signatories to a memorial assessed in the forthcoming financial year or forthcoming financial years to fund proposed works if those ratepayers by memorial requested works to be carried out for the purpose of providing lighting in any public street, road, or place adjacent to the rateable property of those ratepayers and the council considered it desirable to comply with the memorial. The regime was largely the same as the regime for a separate rate under sections 218 to 224.
Part XVIII Division 2 of the Former Act was entitled “Certain Powers with respect to Land and Chattels” and amongst other things empowered the purchase, improvement, lease, management and sale of land by councils.
Sections 380 to 382 as in force between 1971 and 1973 provided:
380Power to acquire real and personal property
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.
381Power of council to hold land outside the limits of area
The council may acquire lands outside the area for effectuating any purpose for which the council may purchase and hold lands within the area.
382    Power of council to let, manage, and improve
(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:
(b)     no lease shall be granted for a term exceeding fifty years.
(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.

Part XXII of the Former Act was entitled “Squares, Park Lands, and Reserves”. Section 453 empowered the assumption by a council of the care, control, and management of land dedicated for the use and enjoyment of the inhabitants of an area within the council’s area. It provided:
453Power of council to assume control of certain lands
(1)If in any area, any land is dedicated and set apart for the use and enjoyment of the inhabitants of the area or any part thereof, the council may by a resolution of the council, assume the care, control, and management of the said land as if the same had been conveyed or transferred in fee simple to the council and the said land shall be maintained by the council for the use and enjoyment of the said inhabitants.
(2)Notice of every such resolution of the council shall be published in the Gazette, and shall be given in writing to the Surveyor-General
(3)Nothing in this section shall authorize the council to assume the care, control, and management of any land held by any trustees under any deed or other instrument of trust.
Part XXX of the Former Act was entitled “Cemeteries”. Section 588 provided for the dedication as park lands of land comprising a closed cemetery. It relevantly provided:
588Provision as to closed cemeteries
(1)If any land comprised in any cemetery closed pursuant to section 587 of the Act No. 19 of 1862, is vested in or under the care, control, and management of the council, the council may petition the Governor praying that the Governor may-
(a)     determine any trust upon which the land is held by the council:
(b)     dedicate the land as park lands.
…
(3)If the Governor is satisfied that the powers given by this section should be exercised, the Governor may by proclamation declare-
(a)     that any trust upon which the council holds the land, shall be determined; and
(b)     that the said land shall be dedicated as park lands.
Judgment of the trial Judge
Duke’s case as pleaded was that the Council’s acceptance of the Memorial, passing of the Resolution, declaration of the separate rate by the Resolution and collection of the separate rate:
·manifested an intention by the Council and the Memorialists to create an express (Quistclose-type) trust, or alternatively a charitable trust, under which the Land was to be used for a permanent car park;
·in the alternative, comprised a declaration of a statutory trust under section 380(b) of the Former Act;
·in the alternative, represented a joint endeavour between the Council and the Memorialists to establish and maintain a permanent public car park on the land giving rise to a constructive trust or alternatively a constructive charitable trust; or
·in the alternative, involved a dedication of the Land as a public place to be used for public car parking purposes, such that it became subject to restrictions on alienation under sections 5, 370a and 667(1) of the Former Act.
Duke’s case as pleaded was that, by reason of the alleged trust or dedication, the Land was affected by a “trust” or “dedication” that would prevent or restrict its alienation within the meaning of section 193(1)(b) of the Current Act and hence it could not be validly excluded from being community land in 2001.
The Judge rejected Duke’s contention that any of the types of trust or the dedication alleged arose. In rejecting Duke’s case that an intentional trust arose, the Judge said:
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. Actual intention to create such a trust remains essential. 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.
…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.[11]
[11] (Footnotes omitted)
In rejecting Duke’s case that a constructive trust arose, the Judge said:
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.
…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. 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. …
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. 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. [12]
[12] (Footnotes omitted)
On appeal, Duke do not pursue their contentions that there was an intentional trust or a constructive trust or a dedication. The sole contention is that the Judge erred by not finding that a “public or statutory trust” came into existence.
Duke’s contention at trial was that the statutory trust was created by the statute. However, on appeal, Duke contends that a “public or statutory trust” arose in equity within the framework created by the statute.
In rejecting Duke’s case that a statutory trust (as argued at trial) arose, the Judge said:
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. …
There are… 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.
…
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… 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.
A public trust?
The essential contention by Duke on appeal must be understood against the background of what Duke characterises as “the private law of trusts” or “the law of private trusts”.
Established species of trusts
Equity recognises two types of trust: intentional trusts and constructive trusts. Intentional trusts may be express or implied.
An express trust is one in which the creator or creators of the trust express an intention that a person (the trustee) hold property on trust for another person or persons or class of persons (the beneficiary) or for a purpose that equity recognises as eligible for the purpose of creating a trust. The principal eligible purpose is a charitable purpose, although it is arguable that equity recognises trusts for the erection or maintenance of monuments and graves or for the maintenance of animals.[13] To constitute an express trust, there must be certainty of the intention to create a trust, as to the terms of the trust and as to the object or objects of the trust.[14]
[13] See Pooley v Royal Alexandra Hospital for Children (1932) 32 SR (NSW) 459 at 463 per Long Innes J; Public Trustee v Nolan (1943) 43 SR (NSW) 169 at 172 per Roper J; and Pedulla v Nasti (1990) 20 NSWLR 720 at 722-723 per Needham J.
[14] J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia (LexisNexis, 8^th ed, 2016) [5-02], [5-24], [5-25].
An implied trust is one in which there is no expressed intention to create a trust but the requisite intention can be implied from the words or conduct of the creator or creators. Examples are resulting trusts[15] and Quistclose trusts.[16] An implied trust requires certainty of the same matters as an express trust.
[15] J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia (LexisNexis, 8^th ed, 2016) [12-01].
[16] Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567.
Although Duke contended at trial for an intentional trust, on appeal it does not complain of the Judge’s rejection of, and disavows reliance on, an intentional trust.
A constructive trust does not require an intention to create a trust. There are several categories in which it is recognised that a constructive trust will be imposed as a result of the conduct of the parties in circumstances in which it is necessary to recognise a constructive trust to avoid unconscionability. However, the mere establishment of unconscionability is insufficient in itself to give rise to a constructive trust. A constructive trust, like an intentional trust, requires certainty as to the trustee, object of the trust and terms of the trust albeit that certainty is a result of judicial analysis of conduct of the parties and a judicial decree. Although Duke contended at trial for a constructive trust, on appeal it does not complain of the Judge’s rejection, and disavows reliance on, a constructive trust.
In addition to equitable trusts, statutes can create statutory trusts. If a statute evinces the requisite intention, a statutory trust need not be subject to the same constraints as equitable trusts. For example, the legislature could create a trust for a purpose other than a charitable purpose or other eligible purpose recognised by equity. An example of a trust created by a statute is “The Superannuation Fund” created by the Superannuation Act 1938 (Tas), which the High Court in Fouche v The Superannuation Fund Board[17] treated as a trust created by the statute (albeit without characteristics distinguishing it from an ordinary equitable trust).
[17] (1952) 88 CLR 609 at 636 per Dixon, McTiernan and Fullagar JJ.
In the public law field, a decision by a council might be the subject of a public law remedy such as judicial review. Obviously, the mere availability of a public law remedy to a party with standing against a council does not entail that the council acted in breach of trust. Duke did not at trial and does not on appeal rely on any public law remedy in respect of the Council’s decisions or conduct.
A public trust?
Duke’s contention on appeal is that the Judge fell into error in concluding that there was no public or statutory trust (as defined by Duke on appeal) in respect of the Land. First, Duke contend that, in order for a public or statutory trust to arise, there is no requirement that the land the subject of the trust be conveyed to the Council because a public or statutory trust (as formulated by Duke on appeal) does not depend on section 380(b) of the Former Act. Secondly, Duke contend that there is no requirement that the memorialists be donors; that is to impress upon the transaction a technical form from the private law of trusts that is inapplicable to a public or statutory trust. Thirdly, Duke contend that the absence of words or conduct evidencing an intention to constitute the Council as trustee was irrelevant because that is only required by the private law of trusts and is not applicable to a public or statutory trust. Fourthly, Duke contend that the absence of a statutory mechanism under the Former Act for land to cease to be the subject of a trust following changes over time inverted orthodox analysis.
Given that on appeal Duke contend for a public or statutory trust arising in equity within the framework of the statute (which for convenience we term a public trust) rather than a statutory trust created by the statute (which for convenience we term a statutory trust), their criticisms of the Judge’s reasons for rejecting their statutory trust case at trial are inapposite. Indeed, Duke do not contend on appeal that a statutory trust (as we have defined it) arose and hence do not challenge the Judge’s conclusion that a statutory trust (as we have defined it) did not arise. They contend that the Judge should have concluded that a public trust arose.
As the Council does not object to the different manner in which Duke puts its case on appeal, we address Duke’s contention that a public trust arose in equity within the framework of the statute on its merits.
Duke identifies the elements of a public trust as:
·a dealing in real or personal property referable to an exercise of power under a statute;
·the exercise of that power is for a public purpose recognised by the statute;
·an essential element of the exercise of the power involves the statutory entity accepting to deploy the property for the specified public purpose; and
·the acceptance by the statutory entity renders it unconscientious to deal with the property at its will or otherwise precludes it from dealing with the property at its will.
Duke contends that this concept of a public trust, and its elements, were authoritatively established by the decision of the High Court in Bathurst City Council v PWC Properties Pty Ltd.[18] The only other cases identified by Duke in which this concept is said to have been recognised, albeit no trust was found on the facts of either case, are Williams v The Attorney-General for New South Wales[19] and Town Investments Ltd v Department of the Environment.[20]
[18] (1998) 195 CLR 566.
[19] (1913) 16 CLR 404.
[20] [1978] AC 359.
It is necessary to consider the facts and the judgment in Bathurst City Council v PWC Properties Pty Ltd[21] in detail. In 1979 Gurdon Motors Pty Ltd (Gurdon) owned land at 208-218 Howick Street Bathurst together with adjacent land comprising 1,199 square metres contained in Lot 21 and 370 square metres contained in Lot 22. Gurdon entered into a contract with PWC Properties Pty Ltd (PWC) to sell to PWC or transfer in accordance with its directions all of that land. In December 1979, PWC in its application sought and obtained from the Council development approval for the development of a shopping centre on the land at 208-218 Howick Street. PWC referred to a credit for 41 car parking spaces in return for transfer to the Council of an area of land by Gurdon [Lot 21] and offered to transfer to the Council for no consideration a further area [Lot 22 (which later became Lot 12)] for a further credit. It was a condition of the development approval (condition 11) that the developer provide 60 off-street car parking spaces, which were to be provided by Council granting credits of 41 spaces upon conveyance of Lot 21 to the Council, 12.6 spaces upon conveyance of Lot 22 to the Council and the balance of 6.4 spaces upon the developer paying a cash contribution of $4,160 to the Council.
[21] (1998) 195 CLR 566.

Pursuant to the agreement between the developer and the Council and condition 11 of the development approval, in February 1980 Gurdon entered into a contract to transfer Lot 21 to the Council for a nominal consideration ($800) and the Council agreed to give a credit of 41 car parking spaces. Lot 21 was transferred by Gurdon to the Council in November 1981 and Lot 22 was transferred by PWC to the Council in June 1987 for a nominal consideration ($1). Between 1980 and 1986, the Council acquired additional land for the purpose of constructing a car park and ultimately owned or controlled 8,600 square metres (including Lots 21 and 22). In most if not all instances, the land was acquired for a nominal sum on the basis that a car park would be constructed on it and the vendor would be provided with car parking space credits. In April 1986 PWC paid to the Council $8,715 being the cost of bitumising an agreed part of the car parking site. In about 1986 or 1987, the Council constructed a 200 space car park on the combined area of 8,600 square metres.
At the time of its dealings with PWC (and the other vendors), the Local Government Act 1919 (NSW) applied. Section 526 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."
Section 518 empowered a council to sell or exchange land vested in it but not a public reserve, “public place” or any “land subject to a trust”.
On 1 July 1993 the Local Government Act 1993 (NSW) came into operation. Sections 25 and 26 created a dichotomy between community and operational land. Subject to immaterial exceptions, a council had no power to dispose of community land and could not lease or licence it for more than 21 years. Clause 6 of Schedule 7 provided that all public land vested in or under the control of a council that was “land subject to a trust for a public purpose” was taken to have been classified as community land.
In May 1994 the Council purported to classify the car parking site (including Lots 21 and 22) as operational land on the implicit assumption that it was not “land subject to a trust for a public purpose” within the meaning of Clause 6 of Schedule 7. In February 1996 the Council resolved to advertise for expressions of interest to acquire the car parking site and develop it for retail/commercial purposes (on the basis that any development must provide for the existing car parking spaces as well as additional spaces to accommodate the proposed development).
In February 1996 PWC commenced a proceeding seeking a declaration that the car parking site was subject to a trust for a public purpose, namely car parking. A Judge of the Land and Environment Court upheld PWC’s claim. The New South Wales Court of Appeal held that no intentional trust arose but a constructive trust arose and granted a declaration that the car parking site was subject to a trust for a public purpose.
The High Court identified that the Court of Appeal had found that there was a trust in the “technical” sense and then identified formidable difficulties in the way of finding that there was a constructive charitable trust in the present case. Gaudron, McHugh, Gummow, Hayne and Callinan JJ started and ended their discussion about such a trust with the following passages:
It will be apparent that in the Court of Appeal the term "a trust", as employed in the expression "land subject to a trust for a public purpose" in cl 6(2)(b) of Sch 7 of the Act, was given its technical meaning. Attention was then given to the application of the principles concerning constructive trusts and charitable trusts.
…
In the present appeal, the question is whether the declaratory and injunctive relief with respect to the purported reclassification of land, including the nominated lots, was properly granted by the Court of Appeal. These were adequate remedies to deal with the legal situation of the Council if consideration of the matter is taken from the proper starting point. There then arises no occasion for the imposition of a constructive trust as the foundation for the orders made by the Court of Appeal.[22]
[22] At [31], [43].
Under the heading “‘Trust in a non-technical sense”, the Court then said:
The determinative consideration is that the term "trust" in the expression "land subject to a trust for a public purpose" in cl 6(2)(b) of Sch 7 of the Act is not to be understood wholly in its technical sense.
It is true that, as a general rule, a term such as "trust" is to be taken, unless a contrary intention appears, as having been used by the legislature in its legal and technical sense. However, it is necessary to keep in mind statements by Dixon J and by Lord Diplock…
…
The statement by Lord Diplock was made in Town Investments Ltd v Department of the Environment. His Lordship emphasised that the term "trust" is not a term of art in public law, even where it is used to describe the capacity in which property is held by a public authority and "where the person to be benefited is a subject". This must particularly be so where the property in question is land conveyed to such an authority for other than commercial value and consequent upon the exercise of powers to implement planning policy…
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.[23]
[23] At [44]-[45], [47]-[48]. (Footnotes omitted)
The Court referred at length to the provisions of sections 518 and 526 of the Local Government Act 1919 (NSW). The Court said:
…It is a fair construction of cl 6(2)(b) that it embraced lands held under the authority conferred upon the Council by s 526 of the 1919 Act when the new legislation commenced on 1 July 1993. Section 526 used the disjunctive expression "charitable or public purpose".
…
That there was a distinction between public purposes and charitable purposes had been settled by the House of Lords in 1901 [in] Blair v Duncan…[24]
[24] At [52], [57].
The Court referred to evolution of the use of the term “trust” to apply to a governmental or political obligation rather than a true or technical trust. The Court said:
There developed also, in decisions such as Kinloch v Secretary of State for India, the notion that an obligation assumed by the Crown, even if it be described as a trust obligation, may be characterised as a governmental or political obligation rather than a "true trust". Later, Tito v Waddell [No 2] emphasised that although not a trustee the Crown might "nevertheless [be] administering ... property in the exercise of the Crown's governmental functions".
This development is to be understood with the acceptance in Blair v Duncan that a trust for public purposes would fail because purposes of a public character would not necessarily qualify as charitable purposes. In Williams v Attorney‑General (NSW), the Court received with scepticism the submission that the setting apart by the Crown of land for a particular public purpose was tantamount to a trust in favour of the aggregation of people resident in New South Wales and was akin to a charitable trust for a public purpose within the fourth class of the categories listed by Lord Macnaghten in Commissioners for Special Purposes of Income Tax v Pemsel.
It is against that background that the recasting apparent in s 526 of the 1919 Act of the earlier legislation is to be understood. In particular, a council might accept real or personal property for a public purpose in the sense of that term, by then long understood in New South Wales, even though that purpose was not a charitable purpose and the property was not transferred to and accepted by the council on trust in the strict sense of that term. The council then would be restricted by s 518 in its dealings with that land, and subject to restraint at the suit of the Attorney‑General.[25]
[25] At [63]-[65]. (Footnotes omitted)
The Court concluded:
At the commencement of the Act on 1 July 1993, the nominated lots were held by the Council for a public purpose within the meaning of s 526 of the 1919 Act. Land so held was then, with the repeal of the 1919 Act, to be considered as vested in or under the control of the Council and as subject to a trust for a public purpose, within the meaning of cl 6(2)(b) of Sch 7 of the Act.
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".
It follows that it was not open to the Council to resolve to reclassify land including the nominated lots in purported exercise of the power conferred by cl 6(3) of Sch 7 of the Act.[26]
[26] At [66]-[68]. (Footnotes omitted)
Contrary to Duke’s submissions, the fact that the Council in Bathurst accepted and held Lots 21 and 22 for “a public purpose” within the meaning of and pursuant to section 526 of the Local Government Act 1919 (NSW) was an essential step in the reasoning of the High Court. The Court said that the Council’s obligations under section 526 were enforceable by the Attorney-General, not because there was a charitable trust (or indeed any trust) recognised by equity, but because the Attorney-General has standing to seek to restrain action incompatible with "the due exercise of the powers of the [C]ouncil or the due discharge of its duties". The source of the Council’s obligations relating to the use of Lots 21 and 22 was section 526 rather than equity. In turn, the High Court held that the word “trust” in the phrase “land subject to a trust for a public purpose” in clause 6 of Schedule 7 to the Local Government Act 1919 (NSW) extended beyond trusts recognised in equity to purely governmental responsibilities.
If equity recognises a separate species of trust being a public trust as defined by Duke, it may be expected that this species of trust would have been explicitly recognised by the High Court in Bathurst and recognised in other cases. It may also be expected that its elements would have been determined. However, there is no case cited by Duke in which this has occurred.
Duke cite Williams v The Attorney-General for New South Wales[27] in support of the contention that equity recognises public trusts. In that case, on the relation of three citizens, the Attorney-General for New South Wales representing the Crown in right of New South Wales brought an action against Williams as a nominal defendant representing the Crown in right of New South Wales seeking a declaration that the land on which the former Government House was situated vested in the Crown in right of the United Kingdom and was dedicated to the public purpose of a residence for the Governor. The informants accepted that the Crown in right of the United Kingdom could revoke the dedication at will but contended that otherwise the dedication was continuous. The defendant did not dispute the existence of the dedication but contended that it gave rise to no rights in the people of New South Wales recognisable at law or in equity. The High Court identified as a problem the fact that the Crown in right of the United Kingdom was not a party to the suit. The High Court held that in any event the people of New South Wales had no interest recognisable at law or in equity in the land.
[27] (1913) 16 CLR 404.
Barton ACJ held that the absence of the Crown in right of the United Kingdom was fatal, and after a lengthy consideration of history concluded that the land had passed from the Crown in right of the United Kingdom to the Crown in right of New South Wales. Barton ACJ held that in any event the land had passed under the control of the legislature of New South Wales, in the course of which his Honour said:
…In the first place, it does not seem to me that the argument of Mr. Knox establishes any right enforceable by the Attorney-General as representative of the parens patriæ. I cannot think that in respect of this particular area as a place of residence for the King's representative in New South Wales the people of New South Wales can look upon themselves as entitled to some beneficial right or interest. It is of course not asserted that they have any proprietary interest. How then is their interest defined? If it is not proprietary, how can it be a right to have the Governor's residence located there and nowhere else; and, if it is not proprietary, under what head does it fall? It seems to me both undefined and indefinable, and I cannot see that it is the subject of any trust... It may be that a wrong is threatened, or has even been begun. On that it is not for this Court to pronounce an opinion unless it is an invasion of some right recognized by the law, for we can deal only with legal rights and wrongs.[28]
[28] At 429.
Isaacs J also held that the absence of the Crown in right of the United Kingdom was fatal. In that context Isaacs J said:
Nor, with great respect, am I able to accept the view presented by the learned Chief Justice of New South Wales. His Honor says:—"In the case of a residence provided for the King's representative, the public are only benefited in the same sort of way as they are in the case of offices or residences provided for the carrying on the ordinary executive government of the State or Commonwealth, any difference being only one of degree. ... When such lands and buildings have once been provided, I conceive that the public would have an interest in seeing that they are not diverted from that purpose without lawful authority."
In a sense, no doubt, the public are interested in seeing public property lawfully dealt with; but, unless the interest is of a special nature, it is an interest the protection of which resides in the Crown as the representative of the whole community, and not in the Crown in its parental character, but in the Crown as Sovereign, and as the legal owner of the property, and the only owner whom the law can recognize... to provide redress for a supposed wrong done by the Crown to itself in the same right, for a violation by the Crown of its own jura regia, is an unprecedented and unthinkable proceeding.
…
The dedication is said by Mr. Knox to be in the nature of a public charity—to be really in law what, in other words, I would term a trust. If it be so, then it is necessary to consider its full nature when constituted, say, in 1835 or 1836.
At that time, if dedicated or devoted or clothed with a trust, to hold the land as a Governor's residence, the trust must have been commensurate with the purpose; and as the purpose of sending Governors was and still is unlimited in point of time, so also must we consider the trust. It is, therefore, irrevocable even by the King regarded Imperially: it would be a breach of faith or a breach of the trust to depart from the purpose. And in that event the Imperial King, unless admitting the irrevocable trust, must be, at least, a defendant.
To condense, then, the informant's position as to parties, it is this:— The Crown of England has from 1835 or 1836 held, and it still holds, this land in trust for a purpose which is in the legal nature of a public charity, the objects being the public of New South Wales, and the purpose being the non-user of the premises unless by the State Governor. And, further, though the Imperial Government stands by observant, but inactive, and though the State Governor is contentedly, and perhaps preferably, occupying another residence, the local Government is, even in the absence, and without the consent, and perhaps against the will, of the real owner, charged with the parental duty of enforcing the rights of the objects of this novel and negative charity, because the property is impressed with the trust.
I can only say, with the deepest respect for the contrary opinion, that I am wholly unable to perceive any right of complaint resident in the present informant, even assuming the unlawfulness of the local Government's interference with the property as against the Imperial authorities.[29]
[29] At 433-434, 435-436. (Footnotes omitted)
Contrary to Duke’s contention, this passage does not support the concept of a public trust advocated by Duke.
Isaacs J concluded, like Barton ACJ in relation to the merits, after a lengthy consideration of history, that the land had passed from the Crown in right of the United Kingdom to the Crown in right of New South Wales.
Higgins J held that there had been no permanent dedication of the land and the land had passed under the control of the Crown in right of South Wales.
Gavan Duffy and Rich JJ held that no right had been conferred on the public of New South Wales against the Crown in relation to the use of land. Their Honours said:
The informant's claim in this case is based on the hypothesis that there has been a dedication or setting apart of land by the Sovereign so as to constitute something in the nature of a trust for the benefit of the public of New South Wales, and that the right so created can be enforced, and any interference with its exercise can be prevented, by the Attorney-General of New South Wales suing on behalf of the public of New South Wales.
…
On a consideration of the evidence we find no ground for saying that there is any such right in the public of New South Wales. It is true that the land was reserved, and has long been used, as a residence and domain for the Governor of New South Wales; but the reservation was not intended to confer on the public of New South Wales any rights as against the Sovereign. Its intention and its effect were to retain the land for the purpose of the King's Government in the Colony. It created no right which could be enforced in a Court of law by any individual or set of individuals, or by the public of New South Wales; the Sovereign still retained complete and undivided ownership and dominion, and he alone could complain of any interference with the land or with the method of dealing with it. The reservation gave to the public no more than it would have given had the land been reserved and used for a post office, a Court of Justice, or a Custom house. Such purposes are commonly called public purposes, but the public has no right with respect to them which can be enforced in a Court of law, apart from the proprietary right which the Sovereign can enforce and defend.[30]
[30] At 466, 467.
Powers J agreed with the other Justices.
Williams does not support Duke’s contention.
Duke also cite the judgment of Lord Diplock in Town Investments Ltd v Department of the Environment[31] in support of the contention that equity recognises public trusts. In that case a lease was expressed to be granted to the tenant named as “The Minister of Works for and on behalf of Her Majesty." The issue arose whether the tenant was the Minister of Works or the Crown. The House of Lords (by majority) held that the tenant was the Crown. Lord Diplock said:
My Lords, I would not exclude the possibility that an officer of state, even though acting in his official capacity, may in some circumstances hold property subject to a trust in private law for the benefit of a subject; but clear words would be required to do this and, even where the person to be benefited is a subject, the use of the expression " in trust" to describe the capacity in which the property is granted to an officer of state is not conclusive that a trust in private law was intended; for "trust" is not a term of art in public law and when used in relation to matters which lie within the field of public law the words " in trust" may do no more than indicate the existence of a duty owed to the Crown by the officer of state,
as servant of the Crown, to deal with the property for the benefit of the subject for whom it is expressed to be held in trust, such duty being enforceable administratively by disciplinary sanctions and not otherwise. But even if the legal relationship of trustee and cestui qui trust under a trust in private law is capable of existing between an officer of state in his official capacity and a subject, the concept of such relationship being capable of existing between him as trustee and the Crown as cestui qui trust is in my view wholly irreconcilable with the legal nature in public law of the relationship between the Crown and its servants or, in more modern parlance, the government and the ministers who form part of it.[32]

[31] [1978] AC 359.
[32] At 382. (Citations omitted)

The judgment of Lord Diplock in Town Investments Ltd does not support Duke’s contention.
The present case
Although Duke does not contend on appeal that an intentional or constructive trust arose or that a statutory trust (in the sense that we have defined it) was created by the Act, it is instructive to summarise why those species of trust did not arise in the case before turning to Duke’s contention on appeal that a public trust arose.
Section 380(b) of the Former Act is the counterpart, although expressed in somewhat different terms and having a somewhat different effect, to section 526(a) of the Local Government Act 1919 (NSW). There are two alternative constructions of section 380(b). The first construction is that it modifies the law of trusts in equity to permit a trust for a non-charitable purpose provided that the trust is of land transferred to a council for a public purpose pursuant to the section. The second construction is that it provides for a council to accept the transfer of property subject to a trust for a charitable purpose but if it is transferred for a non-charitable public purpose the obligation of the council to hold it for that purpose is a governmental obligation (enforceable by the Attorney-General) of the type identified by the High Court in Bathurst City Council v PWC Properties Pty Ltd.[33]
[33] (1998) 195 CLR 566.
It is not necessary to resolve this question of construction. On the first construction, there is no statutory trust in the present case because the Land was not transferred to the Council for the public purpose of car parking (the Land already being owned by the Council before the presentation of the Memorial). Section 380(b) therefore has no application in the present case. For the reasons given by the Judge, sections 218 to 224 do not on their proper construction create a statutory trust of land improved by a council pursuant to the memorial process. For the reasons given by the Judge, the expressions and the conduct of the parties did not give rise to an intentional trust.
On the second construction, the Land was not transferred to the Council for the public purpose of car parking (the Land already being owned by the Council before the presentation of the Memorial). Section 380(b) therefore has no application in the present case. The other provisions of the Former Act do not impose a statutory trust or a constraint on the use of the Land (whether enforceable by the Attorney-General or otherwise) of the type identified by the High Court in Bathurst City Council v PWC Properties Pty Ltd.[34]
[34] (1998) 195 CLR 566.
Turning to Duke’s contention that a public trust arose in the present case, equity does not recognise the existence of a public trust of the type contended by Duke, at least one applicable in the present case. In the absence of an intentional trust, constructive trust or statutory trust (as we have defined it) arising or section 380(b) of the Former Act having application (in the manner identified by the High Court in Bathurst City Council v PWC Properties Pty Ltd[35]), Duke has no cause of action against the Council or right to the declaration that it sought.
[35] (1998) 195 CLR 566.
Section 380(b) of the Former Act acknowledges the existence of a trust for a public purpose in one of the two senses referred to at [84] above. Duke’s contention that section 380(b) acknowledges the existence of a public trust arising in equity must be rejected for the reasons given above. Whether section 380(b) creates or implicitly recognises the creation of a trust for a public purpose, there is no basis to extend its application beyond the acceptance of a gift, conveyance or assignment of property to a council subject to a constraint and in the present case there was no such gift, conveyance or assignment.
It does not follow that there could never be an intentional trust or a constructive trust arising in a case in which the memorial procedure was followed. It is possible to conceive of dealings between memorialists and a council that would give rise to an intentional trust or a constructive trust. It may also be that other remedies would be available against a council which sought to use land contrary to the arrangements made for improvements to it funded by a separate rate, such as judicial review or a suit in equity based on unconscionable conduct. However, none of these bases for relief arise in the present case.
It follows that the appeal must be dismissed.
Notice of alternative contention
As noted above, the Council contends by way of alternative contention that, even if a statutory trust arose, the Council validly excluded the land from having status as community land pursuant to subsection 193(1) of the Current Act because it was not affected by an instrument of trust that would prevent or restrict its alienation.
The Council contends that, on its proper construction, the reference in section 193(1)(b) to “a reservation, dedication, trust or other instrument” connotes that a “trust” within the meaning of that provision must arise under an instrument. Duke takes issue with this contention.
In light of our conclusion that no public trust arose, it is unnecessary to consider this contention.
Conclusion
We dismiss the appeal. We will hear the parties as to costs.

[2021] SASCA 91

2 September 2021

Key Legal Topics

Areas of Law

Equity & Trusts

Administrative Law

Statutory Interpretation

Legal Concepts

Constructive Trust

Appeal

Judicial Review

Standing

Statutory Construction

Remedies