F & D Bonaccorso Pty Ltd v City of Canada Bay City Council - [2007] NSWLEC 159

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: F & D Bonaccorso Pty Ltd v City of Canada Bay City Council [2007] NSWLEC 159

PARTIES:
APPLICANT:
F & D Bonaccorso Pty Ltd
FIRST RESPONDENT:
City of Canada Bay City Council
SECOND RESPONDENT:
Arinson Pty Ltd
THIRD RESPONDENT:
Omaya Holding Pty Ltd
FOURTH RESPONDENT:
Omaya Investments Pty Ltd
FIFTH RESPONDENT:
The Registrar General

FILE NUMBER(S): 40134 of 2003

CORAM: Biscoe J

KEY ISSUES: Judicial Review :- Real Property - council powerless to transfer community land under s 45 Local Government Act 1993 - whether land sold and transferred by council was community land - whether registration of transfer contravened ss 44 or 45 of Local Government Act 1993 - whether irreconcilable conflict between ss 44 or 45 of Local Government Act 1993 and indefeasibility provisions of Real Property Act 1900 - whether ss 44 or 45 override indefeasibility provisions of Real Propery Act 1900 - whether Land and Environment Court has power to order rectification of Register so as to again show council as registered proprietor - discretion - invalidity of development consent where development application not advertised as reuqired by law

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 68, 100, 123, 124
Land and Environment Court Act 1979 ss 20, 25B, 71
Local Government Act 1993 ss 25, 26, 27, 44-47, 672, 674, 676, clause 6 of Schedule 7
Real Property Act 1900 ss 31A(4), 31A(5), 41; 42; 43A
Aboriginal Land Rights Act 1983 s 40
National Parks and Wildlife Act 1974 s 40(1)

CASES CITED: Attorney General v Ashfield Municipal Council (1951) 18 LGR 123;
Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566;
Boyd v Mayor of Wellington [1924] NZLR 1174;
Breskvar v Wall (1971) 126 CLR 376;
Crago v McIntyre [1976] 1 NSWLR 729;
Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1;
Ferdinands v Commissioner for Public Employment (2006) 224 ALR 238;
F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306;
Frazer v Walker [1967] 1 AC 569;
Halloran v Minister Administering National Parks and Wildlife Act 1974 (2006) 224 ALR 79;
Hillpalm Pty Ltd v Heaven’s Door Pty Pty Ltd (2004) 220 CLR 472;
Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2002) 55 NSWLR 446;
Hughes v Schofield [1975] 1 NSWLR 8;
ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697;
Kogarah Municipal Council v Golden Paradise Corporation & Anor [2005] NSWCA 230;
Koompahtoo Aboriginal Land Council v KLALC Property & Investment Pty Ltd [2006] NSWSC 856;
Leichhardt Council v Roads and Traffic Authority of NSW [2006] NSWCA 353;
Lindsay Petroleum Company v Hurd, Farewell and Kemp (1874) LR5 PC 221;
Mansfield v Director of Public Prosecutions of Western Australia (2006) 228 ALR 214;
National Parks and Wildlife Service & Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573;
North Cronulla Precinct Committee Incorporated v Sutherland Shire Council (1999) 107 LGERA 274;
Palais Parking Station Pty Ltd v Shea [No. 3] (1980) 45 LGRA 216;
Pratten v Warringah Shire Council (1969) 17 LGRA 371;
Quach v Marrickville Municipal Council (1990) 22 NSWLR 55;
Re McBain; Ex Parte Australian Catholic Bishops Conference (2002) 209 CLR 372;
Roach v Bickle (1915) 20 CLR 663;
Scharer v State of New South Wales (2001) 53 NSWLR 299;
Seaton v Mosman Municipal Council (1996) 93 LGERA 1;
Shergold v Tanner (2002) 209 CLR 126;
South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603;
State of South Australia v Tanner (1988) 166 CLR 161;
Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19

DATES OF HEARING: 25-27 October 2006, 7-8 March 2007

DATE OF JUDGMENT:
30 March 2007

LEGAL REPRESENTATIVES:
APPLICANT:
Mr B Coles QC and Mr J Doyle, barrister
SOLICITORS
Thomson Playford
FIRST RESPONDENT:
Dr J Griffith SC and Mr S Free
FIFTH RESPONDENT:
Mr P Walsh
SOLICITORS:
FIRST RESPONDENT
Maddocks
FIFTH RESPONDENT
Department of Lands

JUDGMENT:

THE LAND AND

ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

30 March 2007

40134 of 2003

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

JUDGMENT

1 HIS HONOUR: These proceedings concern or are consequential upon the conduct of City of Canada Bay Council in relation to properties in Chapman Street, Strathfield. The applicant owns residential property in Chapman Street. It presses three claims:

Real Property Act 1900

RP Act

Local Government Act 1993

LG Act

RP Act

2 There are five respondents. Except for the council and the Registrar-General (the first and fifth respondents), they have filed submitting appearances. The submissions of the Registrar-General, who was joined to the proceedings after the hearing began, were limited to the indefeasibility issue arising in relation to Chapman Reserve. The second respondent is the owner of 2, 4, 6, 8, 10, 11, 13 and 21 Chapman Street. The third respondent purchased Chapman Reserve from the council in December 2003, and has also entered into an agreement with the second respondent to purchase the latter’s said land. The fourth respondent is the owner of 12 and 15 Chapman Street.

3 The adjacent lands at 17 and 19 Chapman Street, Strathfield are together known as Chapman Reserve. The relief claimed by the applicant in relation to Chapman Reserve mainly comprises the following:

community land

LG Act;

LG Act,

4 The council purchased 19 Chapman Street in 1976 and 17 Chapman Street in 1982. In 2000, the council contracted to sell Chapman Reserve to the second respondent Arinson Pty Ltd. In December 2003, Arinson Pty Ltd was put into liquidation, council cancelled its contract for sale with Arinson Pty Ltd and contracted with the third respondent, Omaya Holding Pty Ltd, to sell Chapman Reserve. On 8 August 2006, after these proceedings had been fixed for hearing, the transfer dated 9 December 2003, of Chapman Reserve from the council to Omaya Holding Pty Ltd, was stamped. On the 22 August 2006, the transfer was registered.

5 There are three main issues:

community land

LG Act

RP Act?

6 Section 45(1) of the LG Act provides:

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

7 The LG Act commenced on 1 July 1993. Part 2 (ss 25 – 54) of Chapter 6 is concerned with public land. “Public land” is defined in the Dictionary to the Act as being any land, including a public reserve, which is vested in or under the control of the council. Sections 25 and 26 require all public lands to be classified as either “community” or “operational”. Under s 45 of the LG Act, with presently immaterial exceptions, a council has no power to sell, exchange or otherwise dispose of community land. Community land must not be leased or licensed for more than 21 years: s 46(3). It may only be leased or licensed for more than five years if public notice of the proposal is given and, if objection is made, the Minister’s consent is obtained: s 47. These restrictions do not apply to operational land. Hence, there is an important distinction between the two classifications. Schedule 7 contains savings, transitional and other provisions. Clause 6 of Schedule 7 applies to all public lands within a council’s area at the commencement of Part 2 of Chapter 6 on 1 July 1993. On that date, land vested in or under the control of the council referred to in cl 6(2) is taken to have been classified as community land. Reclassification of public land may be made by a local environmental plan: s 27(1). For that purpose, a council must arrange a public hearing under s 68 of the Environmental Planning and Assessment 1979 (EPA Act). For a similar analysis see Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 at [4] – [5].

8 Clause 6 of Schedule 7 of the LG Act provides:

relevant commencement

community land

public reserve

Environmental Planning and Assessment Act 1979

and that is not classified by subclause (2).

…

9 Chapman Reserve was vested in or under the control of council on 1 July 1993 when Part 2 of Chapter 6 commenced. Was it then “a public reserve” within the meaning of cl 6(2)(a) of Schedule 7? If so, is it classified as community land?

10 “Public reserve” is defined in the Dictionary to the LG Act to include a “public park”. There is no definition of a “public park” but “park” is defined as follows:

park

11 “Bushland” is defined in the Dictionary to the LG Act to mean “land on which there is vegetation which is either a remainder of the natural vegetation of the land or, if altered, is still representative of the structure and floristics of the natural vegetation”.

12 Chapman Reserve is not bushland. It is an area of grassed open space similar in size to the two adjoining residential lots. It is open to Chapman Street but is surrounded on the other three sides by a paling fence which separates it from residential lots. The residential lots at its rear have a frontage to Leicester Avenue, which is parallel and to the east of Chapman Street. Some palings at the rear of Chapman Reserve have been removed by those residents to facilitate access between their houses and Chapman Reserve.

13 The report of the council’s general manager dated 24 May 1994, noted that when the LG Act came into force on 1 July 1993, the five categories of land referred to in cl 6 of Schedule 7 were automatically classified as community land. The report stated that those “five categories comprise, by far, the major portion of Council owned or controlled land... All other Council owned or controlled land, not included in the above five categories is unclassified and this report will make specific recommendations for all unclassified land which is shown in the attached schedule, to be classified as operational”. Included in that schedule or annexure were 17 and 19 Chapman Street, which were each described therein as “Land Reserve”.

14 As recommended in that report, on 24 May 1994, the council purported to resolve to make the land at 17 and 19 Chapman Street operational land under cl 6(3) of Schedule 7 of the LG Act.

15 If Chapman Reserve was a public park as at 1 July 1993, it was a public reserve. Therefore, it was community land which could not be sold; and the council’s 1994 resolution was ineffective. In these proceedings the attack on the 1994 resolution is indirect, for a declaration is sought that the subject land is community land.

16 The meaning of “public park” in the LG Act and the operation of cl 6 of Schedule 7 was considered by the Court of Appeal in North Cronulla PrecinctCommittee Incorporated v Sutherland Shire Council (1999) 107 LGERA 274 on an appeal from this Court. The Court of Appeal held that the land in issue in that case was a public park. It confirmed that no formal resolution or dedication is required to make land a public park and that the characterisation of land as a public park, turns on its use by the council rather than its status in formal terms. Sheller JA stated:

[8]

as of right

[13]

17 Beazley JA held at [50]: “It is therefore sufficient, in my opinion, for land to be categorised as a public park within Sch 7 cl 6(2)(a), for the council to have taken sufficient steps to use or to permit the use of the land as a public park”. Her Honours analysis included the following:

[74] The land remains landscaped and is well grassed with some bushy vegetation and has some planted flower beds. It is surrounded by low wooden log fencing to prevent vehicular access. For many years the land has been used by locals and visitors for recreational purposes such as picnicking, playing ball games, exercising dogs and flying kites. There are taps on two of the lots, used for various purposes. For example, beach-goers use the taps to wash sand from their feet and beach gear.
…
[77] Later again in time, the council decided to landscape and maintain the land as has been described. The manner in which it did so was said to be no different from the way it provided and maintained other coastal parks in the area. The council's use of the land in this way was authorised by ss 347 and 348 of the 1919 Act. That use had persisted for eight to nine years prior to its 1994 resolution to characterise the land as operational land.

18 Giles JA held:

[84] Park is defined to mean an open area of space used for recreation, not being bushland . The evidence of use of the land to which Beazley JA refers shows that as at 1 July 1993 the land was a park, being generally open space laid out and landscaped so as not, or no longer, to be bushland and used for recreation. Whether the use be regarded as use by those who resorted to the land for the purposes of recreation or as use by the council -- as O'Brien J said in Canobolas Shire Council v Orange City Council (1969) 20 LGRA 147 at 157 , two closely related questions -- the answer is the same. It may be that the definition of park so far as it refers to use for recreation calls for a different approach from the approach to phrases such as used as a public reserve : see Randwick Municipal Council v Rutledge (1959) 102 CLR 54 at 88; Canobolas Shire Council v Orange City Council (at 157), because looking to activity rather than status. I do not think it matters in this case.

[85] From the additional word public , a public park is something more than a park. An area will be a park if it meets the physical description, including as to use, in the definition of park , but an area of private or non public land may meet that physical description.
…
[88] The evidence of use of the land to which Beazley JA refers also shows that, prior to and as at 1 July 1993, those who used the land for recreation were members of the public and those for whose use the land was made available by the council were members of the public. The users of the land were not a class or group of users having some common characteristic or qualification other than as members of the public, and it seems that anyone who wanted to use the land for recreation could do so and did so: cf Australian Softwood Forests Pty Ltd v Attorney General (NSW) (1981) 148 CLR 121 at 135-136 per Mason J; (at 143-144) per Wilson J.
…
[106] The council acquired the land for mixed and sometimes unclear purposes, but generally for purposes which did not exclude development or use otherwise than as a park. In its representations prior to the 1980s it left open that the land might not in the future be treated as open space. But in the first half of the 1980s it developed the land expressly as a park, and in a similar manner to the other coastal parks in the Cronulla area . It did this in response to suggestion that the land be developed into a park, and while there was no evidence of a council resolution for the development of the land as a park it was implicitly adopted in minutes of the council's Works and Traffic Committee. There was then public use as a park, to the knowledge of the council and in accordance with its intention, without limitation on access by the public or some kind of stipulation for non-public status of the land; nor did the council indicate that the public use was to be conditional or temporary.
[107] The use of the park by members of the public was not trespassory. The members of the public must have been acting in the belief that they were entitled to use the park, and more importantly it must have been apparent to the council that they were acting in that belief. It was not a situation of mere tolerance of public use by the council, that is, permitted but conditional or temporary use by members of the public. In my view it should be inferred that, prior to 1 July 1993, the council intended that the park should be dedicated to public use, so that it was a public park as at that date.

19 The evidence establishes that when the council resumed 19 Chapman Street in 1976 and 17 Chapman Street in 1982, it did so for the purpose of a public park. That evidence includes the following. In 1974, the council wrote to the owners of 17 and 19 Chapman Street stating that properties may be required for public purposes. As part of the resumption process a council document entitled “Statement of Intent” was published which stated that Chapman Street would be developed into a public park. Council Finance Committee Meeting minutes of 28 January 1975, recorded that when 19 Chapman Street was acquired by the council it was “required for open space purposes in connection with the Residential 2(d) Redevelopment Zone…The whole of the property is required for parkland”. When council acquired 17 Chapman Street in 1982, it was zoned open space in the Concord Planning Scheme 2(d) Residential D Redevelopment Zoning and it was to be acquired by council for that purpose. On 31 October 1978, the Concord Planning Scheme 2(d) Residential D (Redevelopment) Zoned Code Maps showed Chapman Reserve as “open space”.

20 Evidence as to the use of Chapman Reserve was given by Kevin Riley and his wife Helen Lyons-Riley for the applicant, and Peter Sheehan for the council.

21 The evidence of Mr Riley, which I accept, was to the following effect. He lived at 11 Chapman Street, between 1950 and 2003. This property was originally owned by his mother and he inherited it from her when she passed away in 1985. In the mid 1970s, his mother received a letter from the council enclosing a development map, which showed the properties at 17 and 19 Chapman Street as parkland. In the early to mid 1980s the houses on 17 and 19 Chapman Street were demolished. The council grassed both blocks and erected a sign. In 1987 his wife, Helen Lyons-Riley, moved into the house at 11 Chapman Street. They have four children. Their children often played at Chapman Reserve and walked their two dogs there for exercise. People who lived in Leicester Avenue, (which runs parallel with Chapman Street) used Chapman Reserve as a back entrance to access their properties by removing some palings in the paling fence, which runs around Chapman Reserve.

22 The evidence of Helen Lyons-Riley, which I accept, was to the following effect. When she moved into her husband’s house at 11 Chapman Street in 1987 there was an area of grass and trees on Chapman Reserve, which remain there today. There was a sign at that location prohibiting dogs and the flying of model aeroplanes and other dangerous activities. During the years she lived at 11 Chapman Street, she observed that many people ignored the sign. Their children often played cricket and football at Chapman Reserve and their dogs ran around it for exercise. She often observed other people and their dogs there. Occasionally she would see people drinking cups of tea and having picnics there. Chapman Reserve was used by the local residents as well as by people who would drive to the area and park their cars near the train station on their way to work. Sometimes she observed people there on their way home from work.

23 Peter Sheehan has been employed in the council’s Parks and Gardens Department since 3 January 1984 and is its Parks and Sports Fields Co-ordinator. His evidence was to the following effect. The vacant block (as he called it), at 17 and 19 Chapman Street, comprises two vacant allotments of land covered in grass. It has been this way for as long as he can remember. Since he has been employed by council, the grass at the vacant block has been mowed as part of the council’s Community Nature Strip Mowing Program, approximately once every three to five weeks for the purpose of maintaining the properties in a healthy and safe state. Other council owned land included in that program are, for example, footpath nature strips, grass verges and other council owned vacant allotments. It has never had children’s play equipment, swings, or park benches installed. It has never been landscaped nor have any garden activities been carried out there except for mowing. Public parks, he said, are maintained by the council’s garden maintenance and park maintenance teams. These teams check for rubbish several days a week and carry out garden maintenance activities including watering, mulching, replanting, tree pruning, weed spraying and lawn mowing. The garden maintenance team has never maintained Chapman Reserve. He has never observed children playing, people recreating or picnicking on the vacant block or using it as a thoroughfare. I prefer to attribute that last statement to limited opportunity for observation rather than to conflict with the evidence of Mr Riley and his wife who regularly saw such activities, including at the relevant time in 1993 and for years before and after. Otherwise, I accept Mr Sheehan’s evidence. Since Chapman Reserve is a large grassed area, it is unsurprising that the council mows it. That casts no light on whether it is a park, as defined.

24 Towards the front of Chapman Reserve is a council metal sign on a metal pole, obviously intended to be read by the public. It was placed there before 1993. The sign reads as follows:

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

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

PENALTY

25 The sign also contains (in familiar form) eight diagrams or pictures with crosses over them, illustrating some of the prohibited activities, namely: flying model aeroplanes; motorbike riding; the taking in of horses or motor vehicles or unleashed dogs; the lighting of open fires; rifle shooting; and golf. Some modern park signs state that it is permitted to hug trees and walk on the grass. Not the sign at Chapman Reserve. But its necessary implication is that recreational activities are generally permitted other than those expressly stated to be prohibited. Although Ordinance 48 was repealed on 1 July 1993, the continued exhibition of the sign communicated to the public that they could continue to use the park for those permitted activities.

26 The applicant’s submissions placed some reliance on a council document dated 3 November 2006, entitled “Generic Plan of Management” which listed under the heading “Park Name” the names and addresses of many “reserves” or “parks”. Some were the subject of the 1994 council resolution, to which I have referred, and photographs of them were tendered in order to show that they looked like parks and to support a conclusion that Chapman Reserve was but one of a number of public parks which were purportedly and wrongly categorised as operational land by the 1994 resolution. In my view, this document and the photographs which post-date the relevant date of 1 July 1993 by some 13 years, do not significantly assist determination of the issue whether Chapman Reserve was a public park as at that date.

27 The council made three submissions as to why it should be concluded that Chapman Reserve was not a public park or public reserve as at 1 July 1993.

28 First, the council submitted that Chapman Reserve was not a park because it did not have such things as flower beds, bushy vegetation and taps which, according to the submission, are indicia of a park and to which Beazley JA referred in North Cronulla PrecinctCommittee Incorporated v Sutherland Shire Council (1999) 107 LGERA 274 at [74]. Those features happened to be present in the case of the land under consideration in that case. However, they are not required by the definition of “park” in the LG Act, nor are they essential elements of a park as commonly understood. The definition of a park in the LG Act poses the simple question, whether the land is an open area of space used for recreation, not being bushland. Chapman Reserve is not bushland. It is an open area of space used for recreation by the public. The council must have intended it to be so used.

29 Secondly, the council submitted that the sign at Chapman Reserve provided little or no support for the applicant’s claim that the land in question was a public reserve as at 1 July 1993. Its detailed reasoning was to the following effect. The notice, on its face, has its source in Ordinance 48 under the Local Government Act 1919. Ordinance 48 was made in April 1981 and operated until its repeal on 1 July 1993. By reference to the definition of “reserve” in Ordinance 48 it should be concluded that Chapman Reserve was not a public reserve. Clause 3 of the Ordinance defined “reserve” as follows:

Reserve

30 The council’s submission continued as follows. The “Act” referred to in this definition was the Local Government Act 1919, which defined “public reserve” as including a public park. The definition of “reserve” had two limbs. The first limb related to a “public reserve” as defined in the 1919 Act. The second limb related to other land under the control of the council which, in effect, was used for public purposes. Accordingly, under Ordinance 48, land could be a “reserve” notwithstanding that it was not a “public reserve” as defined in the 1919 Act. Under cl 20 of Ordinance 48, a council was empowered, by notice, to regulate the use of a reserve, in particular, regulate such matters as the lighting of fires, the taking of animals onto the reserve, vehicular access, the playing of games and so on. While there was reference in the second line of the notice at Chapman Reserve to certain activities being prohibited “in this public reserve”, elsewhere in the notice there were two separate references to the affected land being a “reserve”. This is consistent with the land falling within the second limb of the definition of “reserve” in the Ordinance and was also consistent with the physical attributes of the land at Chapman Reserve. The land comprised two vacant lots and had none of the “usual trappings” of a public park i.e. there was no landscaping, playground equipment, tables, barbeques or benches and so on. Further, the council’s general manager’s report described the land as a “land reserve” and not as a public park or public reserve.

31 The submission’s dissection of Ordinance 48 is, I think, of little assistance. The sign’s significance lies not merely in its prominent reference to “public reserve” but in the obvious fact that it was intended to be read by the public, who used the park and in its necessary implication that recreational activities by the public are generally permitted.

32 Thirdly, the council submitted that although it is true that 17 and 19 Chapman Street were acquired for the purposes of a park that changed critically by reason of the subsequent zoning history of the area in which Chapman Reserve was located, prior to 1 July 1993. That area has been called the “Strathfield Triangle”. It is bounded by Parramatta Road, Leicester Avenue and the main northern railway line at Strathfield. Chapman Street is to the west of and parallel with Leicester Avenue. The council’s zoning history submission may be summarised as follows. In 1989, council received an application for rezoning of the area to mixed commercial, residential and retail development. The applicant for rezoning submitted to the council that the area was likely to decline as a residential area because of its low level of residential amenity and was more suited to commercial development. The council resolved to prepare a draft local environmental plan. By February 1990, a report proposing rezoning had been prepared. The report noted that the applicant had suggested that the land be rezoned to 3(d) Business (Redevelopment). A letter dated 8 May 1991, from the mayor to residents, referred to the long running proposal to rezone and redevelop the area west of Leicester Avenue. By August 1991, the council was finalising an amended draft local environmental plan and development control plan for the proposed rezoning. In November 1991, the Department of Planning advised that its Director had decided not to approve the draft local environmental plan being certified for exhibition, but did not object to the council’s Chief Town Planner certifying a draft plan which incorporated certain principles. In January 1993, the Concord Local Environmental Plan No 34 was made. One of its aims was to rezone the relevant land to Zone No 10(b) – Enterprise Area. I note, however, that (a) another aim was to “encourage development for the purposes of residential and commercial use and to promote the coincidence of place of living and place of work”; (b) permitted purposes included residential as well as commercial; and (c) the objectives of Zone 10(b) – Enterprise Area included “permit development to be carried out for residential, commercial and recreational purposes”, “provide for a range of residential accommodation in the landscaped and integrated environment” and “create a park-like environment”.

33 The rezoning supplemented the range of permissible purposes for which the land could be used but, in my view, the rezoning history does not establish an abandonment by 1 July 1993, or at all, of the original intention of acquiring Chapman Reserve for the purposes of a park. I am unpersuaded that the rezoning history has any significant bearing on the issue whether Chapman Reserve was, at the relevant time, a public park.

34 In my opinion, having regard to the evidence that I have accepted, at the relevant time Chapman Reserve was a public park intended by the council to be so used and, accordingly, was community land. Consequently, the council sold it contrary to s 45(1) of the LG Act, which provides that a council has no power to sell community land.

Indefeasibility

35 The applicant seeks a declaration that registration of the transfer of Chapman Reserve was void and an order that the RP Act Register be rectified to show the council as the registered proprietor of the lots comprising Chapman Reserve. The council submits that registration of the transfer gave the third respondent an indefeasible title in Chapman Reserve by virtue of the indefeasibility provisions of the RP Act. The applicant, on the other hand, claims that ss 44, 45(1) and 46 of the LG Act override the indefeasibility provisions of the RP Act (although its submissions concentrated on s 45 and, to some extent, s 44) and that the Court has power to order rectification.

36 Sections 44 and 45(1) of the LG Act provide:

44 Pending the adoption of a plan of management for community land, the nature and use of the land must not be changed.

45(1)

37 Section 46 prohibits the granting of a lease, licence or other estate in community land except for limited purposes, which are inapplicable to the present case.

38 The Land and Environment Court has power to remedy or restrain a breach of the LG Act under ss 674(1) and 676(1) and (3) of the LG Act which provide:

674

676

39 A “breach of this Act” means a contravention of or failure to comply with the LG Act or a threatened or apprehended contravention of or failure to comply with the Act: s 672.

40 The Court also has jurisdiction and power under s 20 of the Land and Environment Court Act 1979 (Court Act). Section 20(1) gives the Court jurisdiction to hear and dispose of proceedings under s 674 of the LG Act (set out above). These are such proceedings. Section 20(2) gives the Court certain exclusive jurisdiction. I consider later in this judgment whether these proceedings are also proceedings within s 20(2). Sections 20 and 71 relevantly provide:

20

Local Government Act 1993

(a) any of the following Acts or provisions:
…

Local Government Act 1993

71

41 Part 2 of Chapter 6 of the LG Act (which is a planning or environmental law as defined in s 20(3)(a) of the Court Act) includes ss 44 to 46.

42 Such provisions conferring powers on the Court should be read giving their words full amplitude: Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 at [47], [83]; Mansfield v Director of Public Prosecutions of Western Australia (2006) 228 ALR 214 at [10]; National Parks and Wildlife Service & Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 578, 585.

43 The indefeasibility principle is expressed in ss 41, 42 and 43A of the RP Act which relevantly provide:

41

…

42

(a) the estate or interest recorded in a prior folio of the Register by reason of which another proprietor claims the same land,

(a1) in the case of the omission or misdescription of an easement subsisting immediately before the land was brought under the provisions of this Act or validly created at or after that time under this or any other Act or a Commonwealth Act,

(b) in the case of the omission or misdescription of any profit à prendre created in or existing upon any land,

(c) as to any portion of land that may by wrong description of parcels or of boundaries be included in the folio of the Register or registered dealing evidencing the title of such registered proprietor, not being a purchaser or mortgagee thereof for value, or deriving from or through a purchaser or mortgagee thereof for value, and

(d) a tenancy whereunder the tenant is in possession or entitled to immediate possession, and an agreement or option for the acquisition by such a tenant of a further term to commence at the expiration of such a tenancy, of which in either case the registered proprietor before he or she became registered as proprietor had notice against which he or she was not protected:

Provided that:

(2) In subsection (1), a reference to an estate or interest in land recorded in a folio of the Register includes a reference to an estate or interest recorded in a registered mortgage, charge or lease that may be directly or indirectly identified from a distinctive reference in that folio.

43A …

(2) No person contracting or dealing in respect of an estate or interest in land under the provisions of this Act shall be affected by notice of any instrument, fact, or thing merely by omission to search in a register not kept under this Act.

44 The question whether s 45 of the LG Act overrides the indefeasibility provisions of the RP Act is a lively one because the possibility of a negative answer was suggested by the majority and an affirmative answer by the minority in Kogarah Municipal Council v Golden Paradise Corporation & Anor [2005] NSWCA 230. Their views were obiter and expressed in a preliminary way. In the present case it is necessary to answer the question (assuming that the provisions are in conflict). Special leave to appeal to the High Court was refused in Kogarah.

45 Before more closely considering Kogarah, I propose to address, first, the principles and authorities relating to implied statutory repeal or amendment; and secondly, the recognised exceptions to the indefeasibility provisions of Torrens title legislation and their intersection with those principles.

46 Four High Court cases concerning the principles relating to implied statutory repeal or amendment may be mentioned. The first is Shergold v Tanner (2002) 209 CLR 126 where the High Court referred to:

Saraswati v The Queen

Butler v Attorney-General

Butler

contrariety

direct conflict

Travinto Nominees Pty Ltd v Vlattas

could stand together

47 The second High Court case is Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1. In this case Gleeson CJ, Gummow and Hayne JJ said:

Interpretation Act

Butler v Attorney-General

a comparatively rare phenomenon

unless actual contrariety is clearly apparent

Australia v Tanner

Kartinyeri v The Commonwealth

Shergold v Tanner

[44] No such actual contrariety clearly appears from the terms of s 32(7) of the 1999 Act...

48 The third High Court case is Ferdinands v Commissioner for Public Employment (2006) 224 ALR 238 where it was said (citations omitted):

[18] It has long been recognized that even though one statute does not expressly repeal an earlier statute, the later statute must be read as impliedly repealing the earlier, if the two are inconsistent. Inconsistency lies at the root of this principle. But, as Isaacs J pointed out in 1907, [i]t is very hard to formulate a rule which will apply to every case of implied repeal . There are, however, two cardinal considerations. First, as Gaudron J said in Saraswati v R , [t]here must be very strong grounds to support [the] implication, for there is a general presumption that the legislature intended that both provisions should operate . Secondly, deciding whether there is such inconsistency ( contrariety or repugnancy ) that the two cannot stand or live together (or cannot be reconciled ) requires the construction of, and close attention to, the particular provisions in question.

…
[47] No conclusion can be reached about whether a later statutory provision contradicts an earlier without first construing both provisions. If, upon their true construction, there is an [e]xplicit or implicit contradiction between the two, the later Act impliedly repeals the earlier. One example that may be given of an explicit contradiction is provided by the legislation considered in Michell v Brown where the later Act gave the same definition of an offence as had been stated in the earlier Act, but specified a different punishment, and varied the procedure to be followed for its prosecution. It was not possible to comply with both Acts simultaneously.

[48] In Rose v Hvric , a distinction was drawn between explicit or implicit contradiction on the one hand and merely inferential contradiction, as Lord Hatherley called it in Attorney-General v Great Eastern Railway Co on the other. Thus, it was said that to show that provisions of the later Act would ground a conclusion that the train of thought of those who drafted that later Act, if logically pursued, would have led the drafters to enact an exception to the operation of the former Act, would not suffice to demonstrate implicit contradiction. It would show only an inferential contradiction. It would not show implicit contradiction because, as Gaudron J said in Saraswati , the general presumption is that there is no contradiction between two Acts of the one legislature.

Shergold v Tanner

49 The general presumption that there is no contradiction between two Acts of the one legislature, referred to in Ferdinands, was applied in Leichhardt Council v Roads and Traffic Authority of NSW [2006] NSWCA 353 at [45] and [46]. The strength of the presumption is illustrated by the fourth High Court case to which I wish to refer, State of South Australia v Tanner (1988) 166 CLR 161 at 170, where Wilson, Dawson, Toohey and Gaudron JJ said: “The argument of inconsistency which succeeded before the Full Court was that there is a basic contrariety between reg. 37.2.1 made under the Waterworks Act and s 47 of the Planning Act. The former imposes a blanket and unqualified prohibition on a development; the latter permits a planning authority, having regard to the Plan, to give consent to the development. The regulation prohibits that which the later Act may permit”. The High Court referred at 171 to the “very strong presumption” that the state legislature did not intend to contradict itself. The Court held that the challenged regulation made under the Act was valid, although it prohibited that which the more general Act permitted with consent.

50 In ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697 Barrett J, after reviewing the authorities, said:

[111] …it can, I think, be regarded as settled law that the test of implied repeal is the test of contrariety or repugnancy. The covering the field approach taken in cases regarding inconsistency between State and Commonwealth statutes is not relevant in cases regarding inconsistencies between two State statutes. This is because there is a presumption that exists when comparing State statutes - and does not when comparing State statutes to Commonwealth statutes - that the legislature did not intend to contradict itself (see Butler per Fullagar J at 276, set out below).

[112] In applying the contrariety test, courts have been guided by several principles. Three of these principles are relevant here. They are the presumption of consistency, the rule of commonsense , and the maxim generalia specialibus non derogant .

Butler

Wenn’s Case

It should be pointed out in this connection that the position where contrariety is suggested between an earlier and a later State statute is not quite the same as the position where inconsistency, within the meaning of s 109, is suggested between a Commonwealth Act and a State Act. The Commonwealth Parliament is, within its sphere of power, paramount legislature, and there can be no presumption, either that it did, or that it did not, intend by its own Act to supersede or preclude from operation a State Act. But, where the comparison to be made is between two State Acts, there is a very strong presumption that the State legislature did not intend to contradict itself, but intended that both Acts should operate. It will often be found that the two may reasonably and properly be reconciled by reading the one as subject to the other.

Butler

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

51 Four general principles found in the High Court cases referred to earlier may be shortly summarised as follows:

52 I now turn to the application of, and recognised exceptions to, the indefeasibility principle of Torrens title legislation and their intersection with the general principles of implied repeal or amendment.

53 The essential and uncontroversial goals of the Torrens system were stated by Professor Sackville (now Sackville J) in “The Torrens System – Some Thoughts on Indefeasibility and Priorities” (1973) 47 ALJ 526 at 528, quoting Professor Hinde:

The first is to provide a register from which persons who propose to deal with land can discover all the facts relative to the title…The second object is to ensure that a person dealing with land which is subject to the system is not adversely affected by any infirmities in his vendor’s title which do not appear on the register, thus saving the difficulty and expense of going behind the register to investigate the title. Thirdly, the Torrens system aims to provide a guarantee by the State that the picture presented by the register – book is true and complete. If this turns out not to be the case, compensation is to be paid to any person who suffers loss either through the land being made subject to the system or else through the register not disclosing all the facts relevant to the title.

54 Consistently with those goals, registration of a forged instrument provides an indefeasible title. That was established by the Privy Council in Frazer v Walker [1967] 1 AC 569. In that case, a fraudulent mortgage was granted by one of two registered proprietors who forged the signature of the other registered proprietor. The mortgagee exercised its power of sale under the mortgage in good faith and sold the land. The purchaser was held to have acquired an indefeasible title. This was a case of absence of power, in my view, because a forger has no power to execute a registrable instrument. To that extent, it is analogous to the present case where the council was powerless to sell community land.

55 Consistently with the goals of the Torrens system, registration of a transfer expressly declared void by a subsequent statute is nevertheless effective to confer a good title on the transferee. That was the unanimous decision of the High Court in the leading case of Breskvar v Wall (1971) 126 CLR 376. There, a memorandum of transfer of land was executed, but at the time of execution the name of the purchaser was not inserted in the memorandum. Months later and in fraud of the transferor, a certain name was inserted in the memorandum of transfer. It was thus invalid under s 53(5) of the Stamp Act 1894 (Q) which provided: “No instrument of conveyance or transfer executed on or after the first day of November, 1918 of any estate or interest in any property whatsoever ... shall be valid either at law or in equity unless the name of the purchaser or transferee is written therein in ink at the time of the execution thereof. Any such instrument so made shall be absolutely void and inoperative, and shall in no case be made available by the insertion of a name or any other particulars afterwards”. The High Court held that the interest of the registered proprietor was not dependent on the antecedent instrument of transfer and so was not affected by the Stamp Act rendering the instrument void. A submission was rejected that the Stamp Act had effected an implied repeal pro tanto or an implied amendment of provisions of the Torrens title legislation, which would otherwise operate to give validity to registration of the transfer. Barwick CJ made the following classic statement (at 385):

Frazer v. Walker

Boyd v. Mayor, &c., of Wellington

Stamp Act

56 That passage was cited with approval in Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 at [52]; similarly see Halloran v Minister Administering National Parks and Wildlife Act 1974 (2006) 224 ALR 79 at [35]. If a void instrument achieves indefeasibility upon registration, it is consistent that so too does a transfer without power.

57 Consistently with the goals of the Torrens system, where land is resumed without statutory power, the title is indefeasible upon registration under Torrens title legislation: Boyd v Mayor of Wellington [1924] NZLR 1174. In that case land was purportedly resumed by the City of Wellington but it was contended that the instrument by which the resumption was affected was void as being beyond power. The Court of Appeal held that, assuming that to be so, as the title had been registered under the Land Transfer Act, it was unassailable. This decision was approved by the Privy Council in Frazer v Walker [1967] 1 AC 569 at 584 and by Barwick CJ in Breskvar v Wall (1971) 126 CLR 376 at 386. A similar case is Palais Parking Station Pty Ltd v Shea [No. 3] (1980) 45 LGRA 216 (SASC/FC). There, it was held that a purported compulsory acquisition of land was invalid because it was without statutory authority and therefore ultra vires. Nevertheless, it was held that registration vested indefeasible title to the land in the new registered proprietor. Boyd and Palais bear comparison with the present case insofar as they are powerless transfer cases. However, they are different in that they were concerned with the transfer of private land whereas the present case is concerned with the transfer of public lands. As discussed previously, special restrictions are applicable to community land (as defined).

58 Section 31A(4) and (5) of the RP Act (introduced by amendment in 1970) dealt with the indefeasibility of a registered but powerless resumption established in Boyd, by providing that the Registrar-General is not liable for damages by reason of an invalid resumption. However, the Registrar-General is given power to withhold registration of a resumption pending notice to the person affected, thus giving the latter the opportunity of contesting the resumption. These provisions confirm that registration of an invalid resumption, that is a purported resumption, which was without power, is effective to secure indefeasibility.

59 Some exceptions to Torrens title indefeasibility have been recognised. First, indefeasibility may be overridden by statutory proprietary rights, which do not depend upon registration for their efficacy. Such cases are distinguishable from the present case. Three cases in this category are South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603, Pratten v Warringah Shire Council (1969) 17 LGRA 371 and Quach v Marrickville Municipal Council (1990) 22 NSWLR 55. In the first, the High Court held that a first charge created by a statute on Torrens system land in respect of construction and maintenance rates, took priority over a registered mortgage. Dixon J said at 627 – 628:

As in all legislation giving effect to the Torrens system, a fundamental provision of the Real Property Act 1886 , South Australia, is that which makes the title of every registered proprietor of land absolute and indefeasible, subject to the encumbrances, estates and interests notified on the certificate of title and subject to certain specified exceptions. In the South-Australian Act statutory charges are not included among the specified exceptions: See sec. 69. After this provision comes the emphatic declaration that in all other cases than those specified the title of the registered proprietor of land shall prevail, notwithstanding the existence in the Crown or in any person of any estate or interest whatever derived by grant from the Crown or otherwise, which but for the Act might be held paramount or to have priority (sec. 70).

The unregistered charge for construction costs existed at the time when the appellant bank took its registered first mortgage, and to give it a priority over that security is, I think, in plain opposition to these provisions.

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

60 In Pratten (above) Street J held that the plaintiff had no title to land of which he was the registered proprietor, by reason of a statutory vesting of the fee simple in the council, which took effect almost half a century before he registered his transfer. Section 398 of the Local Government Act 1919 in its original form provided that “Where in the subdivision of any land, there has been provision made for a drainage reserve… the land so provided for a drainage reserve is hereby vested in the council in fee-simple for drainage purposes”. There was at that time no provision in the RP Act or in any other statute permitting the Registrar-General to make any entry of this automatic vesting in the Register, nor was there any legislative authority for the removal of the name of the previous registered proprietor from the Register. Street J held that s 398 overrode the indefeasibility provisions of the RP Act: at 379. Consequently, the council’s statutory title prevailed over the plaintiff’s registered title.

61 Quach (above) involved the creation of a statutory fee simple, without the need for registration under the RP Act, under s 398 of the former Local Government Act 1919, which provided that where, in a subdivision of land, there has been provision made for a drainage reserve, the land so provided is vested in the council in fee simple for drainage purposes. Young J felt obliged by authority to hold that this prevailed over the indefeasibility provisions of the RP Act, but with evident misgivings (at 61):

It is very difficult now to contend that the mainstream indefeasibility
provisions, such as s 42 of the Act, operate to defeat the statutory right of the Council. It has been well recognised, both by the textwriters and by the authorities that, although it is the weakest point in the Torrens System, statutory and public rights will override an indefeasible title…

It seems to me that, despite the very legitimate criticism that has been made by the textwriters, (see, eg, Sackville (1973) 47 ALJ 526 at 536 and Butt, Land Law , 2nd ed (1988) at 532) that provisions such as s 398 pose the greatest single threat to the operation of the Torrens System and make such substantial inroads into indefeasibility that it is impossible to rely on the register, I feel I must follow such a strong line of authority as holds that these statutory inroads do prevail over the ordinary indefeasibility provisions of the Real Property Act .

Quach

South-Eastern Drainage Board

Pratten

62 Another exception to indefeasibility was recognised by a minority of the High Court in Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 which was decided 18 months after Breskvar. Four of the judges in Travinto (where there was a bench of five) also sat in Breskvar (where there was a bench of seven). In Travinto there was a sale of land subject to an existing lease. The vendor did not disclose that the lease contained an option to renew. The purchaser sought compensation for error or misdescription of the property. The High Court held that there was no error or misdescription because the lease, and therefore the option, was void under s 88B of the Industrial Arbitration Act 1940 (NSW). It was held that the registration of the lease under the RP Act (NSW) had not validated the lease or given the tenant an indefeasible right to renew. Barwick CJ, McTiernan and Stephen JJ decided the case on the conveyancing ground that illegality of the option under s 88B would have been a bar to a suit by the tenant for specific performance of the option, and so the option to renew did not create an equitable interest in the land which would could be the subject of the indefeasibility provisions of the Real Property Act. Of more significance for the present case is the reasoning of Gibbs J that the provisions of the Industrial Arbitration Act, which made the lease void, having been enacted after the RP Act, prevailed over inconsistent provisions of that Act. Gibbs J said at 34:

Breskvar v. Wall

Stamp Act 1894

Real Property Acts

Stamp Act

Real Property Acts

Stamp Act

Real Property Acts

Industrial Arbitration Act

Real Property Act

Here, because of the effect of s 88B of the Industrial Arbitration Act, the tenant was not entitled to register the memorandum of lease as there was no lease

.

63 Travinto may be distinguishable from the present case because of the bellicose terms of s 88B of the Industrial Arbitration Act. Section 88B stated that a contract to which the section applied shall not be entered into unless the Industrial Commission or a specified committee “has approved” of its terms and conditions. The section went on to provide that where a contract is entered into without such approval (a) every person who is a party to the contract shall be liable to a prescribed penalty and (b) the contract shall be “void”. Thus a lease without such approval was not only expressly prohibited, it was expressly both illegal and void. Gibbs J commented at 33, “A conclusion that the lease was illegal and void may be surprising and unjust but is compelled by the wide provisions of s 88B”.

64 The statutory language and scheme in the present case is different from Travinto. There is no statement that a sale or other disposition contrary to ss 44 to 46 of the LG Act is void or illegal. The remedy, if any, lies in the discretionary powers of this Court if application is made to it: cf F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 at 327 per McHugh JA. Section 45 may be contrasted with s 40 of the Aboriginal Land Rights Act 1983 (NSW) which provides: “(1) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may not sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it, except in accordance with this Division. (2) Any sale, exchange, lease, disposal or mortgage of, or other dealing with, land in contravention of this Division is void. (3) This Division does not apply to land purchased as an investment under s 149 or 152” (emphasis added). Section 45 of the LG Act may also be compared with s 40(1) of the National Parks and Wildlife Act 1974 (NSW) which provides that “notwithstanding anything in the Crown Lands Consolidation Act 1913 or any other Act, no lands within a national park or historic site shall be sold, leased or otherwise dealt with except as provided in the Act or in the Snowy Hydro Corporatisation Act 1997” (emphasis added). The emphasised words arguably indicate an intention to override the indefeasibility provisions of the RP Act. The decision in the present case may have ramifications if a similar issue were to arise in the context of those Acts or other legislation with similar provisions. In Koompahtoo Aboriginal Land Council v KLALC Property & Investment Pty Ltd [2006] NSWSC 856 at [118] Gzell J identified such an issue, which he did not decide because it was unnecessary to do so, namely, whether s 40(2) of the Aboriginal Land Rights Act overrode ss 41 and 42 of the RP Act.

65 An illustration of the first exception to indefeasibility referred to above- if it is not another exception to indefeasibility- is an unregistered and unfulfilled council imposed development consent condition in relation to the continuing use of land: Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472. In Hillpalm, the question posed was whether a council-imposed condition on a subdivision development consent, that a landowner create an easement (a right of way) over land, could bind a later owner of the land so as to require the later owner to create the easement. The existence of the council condition was not recorded on the Certificate of Title at the time the appellant acquired title to the subject land (although the deposited plan bore the words “proposed right of way"). Section 76A of the EPA Act provides that a person must not carry out development on land to which the provision of an environmental planning instrument applies unless “the development is carried out in accordance with the consent and the instrument”. Section 4 defines “development” to include, inter alia, “the use of land” and “the subdivision of land”. The appellant sought two forms of order in the Land and Environment Court: a declaration and a mandatory injunction. The majority in the High Court said at 487 that the latter was sought pursuant to s 123 of the EPA Act. Although s 123 may be thought of as an open standing provision rather than a remedial provision and s 124 as the remedial provision, the majority did not mention s 124. However, their reasoning would apply equally to s 124.

66 The leading judgment in the Court of Appeal in Hillpalm was given by Meagher JA who said at (2002) 55 NSWLR 446:

[13] …the council’s consent to the subdivision operates to create a right in rem, so that it may be relied on (inter alia) by all later transferees of any lot. This has been decided by a long series of cases at both a State and Federal level. It has also been decided that the transferee from time to time of any lot which has the apparent benefit of any condition may enforce that condition…

Environmental Planning and Assessment Act 1979

Real Property Act 1900

Real Property Act's

67 In the High Court in Hillpalm (2004) 220 CLR 472 the majority (McHugh ACJ, Hayne and Heydon JJ, in a joint judgment) did not reach the question whether indefeasibility was overridden by the later statute because (on their view of the evidence) the council had not in fact imposed the condition and, even if it had, it was not a condition of continuing use such as to bind a subsequent purchaser. They held at [42] – [43] that “Where as here, the subdivision of the land was the relevant development, the subsequent purchaser of a subdivided lot does not ‘carry that development out’ by occupying, and thus using, one of the lots in the subdivision. It follows that, even if there was a relevant condition of the subdivision concerning the creation of a right of way, the appellant did not contravene s 76A of the EPAA by using the land without creating that right of way. It did not breach s 76A because it did not carry the development of subdivision out on the land”. Consequently, they held that s 123 did not apply. Thus, on the majority view, only an unfulfilled council consent condition that related to the continuing use of the land, as distinct from the once-only event of subdivision, could bind later registered proprietors. The majority touched on, but did not decide, the issue of consistency between a council consent and the effective operation of the Torrens title system and the issue whether a development consent creates a right in rem:

Real Property Act.

in case of fraud

Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded.

(None of the exceptions specified in s 42(1) was said to be engaged in the present matter.)

Breskvar v Wall

The Torrens system of registered title ... is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor.

It follows that, when the appellant became registered as proprietor of an estate in fee simple in the appellant's land, it obtained the title described in the certificate of title. That title was free from any encumbrance or interest of the kind which the respondent contends it is now entitled to have created.

Real Property Act

the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant

Frazer v Walker

may have as their terminal point orders binding the registered proprietor to divest himself wholly or partly of the estate or interest vested in him by registration

Breskvar v Wall

83 His Honour’s comments were not made in the context of s 44. They were made by way of adjudication on a riposte to a submission that the registered transferee of community land was in breach of s 47D of the LG Act, which prohibits the exclusive occupation or exclusive use of community land by any person (otherwise than in accordance with certain exceptions which were not applicable in that case). Tobias JA did not discuss whether registration affected a change in the nature of community land. His Honour’s discussion was directed to the antecedent question as to whether public land, as defined, continued to be public land upon registration. Sections 25 and 26 of the LG Act require all public land to be “classified” as either “community” or “operational”. Under the LG Act there is, in my view, a difference between the “classification” contemplated by those provisions and the “nature” of the land referred to in s 44. The word “nature” in s 44, when read in context, is not concerned with such statutory classification but with other matters being, or including, the physical characteristics of the land. For example, if the council were to build a commercial building on a public reserve, being a form of community land, that might change the nature of the community land. In my view, registration of a transfer of community land by the Registrar-General is outside the ambit of s 44.

84 Fourthly, the applicant submitted that (in the circumstances of this case) this Court is empowered to order rectification of the Register under s 138 of the RP Act. Section 138 is engaged in proceedings for the recovery of land. Section 138 relevantly provides:

138

85 I accept the submission. The terms of a grant of power to a court should be read with full amplitude. These proceedings are in effect for the recovery of land. The right to recover the land is based on the council’s breach of s 45 of the LG Act and the claim that s 45 overrides the indefeasibility provisions of the RP Act. However, as discussed below, it may also arise if s 45 and the remedies relating thereto operate sequentially with the indefeasibility provisions of the RP Act.

86 In addition, in my view, in such circumstances, s 20(2)(a) of the Court Act also empowers this Court to order rectification of the Register. Section 20(2)(a) provides that the Court has the same jurisdiction as the Supreme Court would, but for s 71, have to hear and dispose of proceedings “to enforce any right, obligation or duty conferred or imposed by a planning or environmental law” which subsection (3) defines to include the relevant provisions of the LG Act. Thus, this Court has the same power in relation to such enforcement of an environmental law (as defined) as the Supreme Court otherwise would have had, moreover, that power is exclusive to this Court. Section 20(2) is not limited to matters of statutory breach. In that respect it contrasts with the provisions of s 20(1) including s 20(1)(d) which expressly confers jurisdiction to hear and dispose of proceedings under ss 673 and 674 of the LG Act (those provisions are concerned with breaches of the LG Act).

87 The width of the Land and Environment Court’s power under s 20(2) is illustrated by Scharer v State of New South Wales (2001) 53 NSWLR 299. In that case the plaintiff commenced proceedings in the Supreme Court of New South Wales seeking a declaration that he had an enforceable right-of-way over Crown land which had become reserved as part of a national park under the National Parks and Wildlife Act 1974; an order restraining the State of New South Wales from obstructing the right-of-way; an order that the State furnish him with a key to locks securing the gates constructed across the alleged right-of-way; and an order for an enquiry into damages (at 301). The primary judge transferred the proceedings to the Land and Environment Court and his decision was upheld on appeal. Stein JA (Hodgson JA agreeing) held:

[45] …The declaration sought comes directly within the terms of s 20(2)(c) and the restraining and mandatory injunctions within s 20(2)(a) of the Land and Environment Court Act . They are plainly seeking to enforce a right conferred by a planning or environmental law.

[46] This leaves for consideration the claim for damages… In this respect, I am unable to see why it cannot be concluded that it is also part of the enforcement of the same right. Thus the Land and Environment Court would have jurisdiction…

same civil jurisdiction as the Supreme Court would, but for section 71

Land and Environment Court Act

88 The council was under a duty or obligation under s 45 not to sell community land. These proceedings are, in my view, proceedings to enforce that duty or obligation. If it sold community land, that obligation or duty could be effectively enforced, in my opinion, by a declaration in relation to the right or duty and an order that the Register be rectified so as to again show the council as registered proprietor. It has not been suggested that the Supreme Court would not have jurisdiction to grant such relief in these circumstances but for s 71 of the Court Act. Accordingly, I would hold that this Court has such power under s 20(2).

89 In a sense, there is no clear, irreconcilable conflict between s 45 of the LG Act and the RP Act, in which case there is no ultimate need to treat the LG Act as repealing or amending the RP Act pro tanto. The Acts may be viewed as operating sequentially. If an order is made to rectify the Register, the order creates a new right which arises from the making of the order. It is superimposed upon pre-existing rights. This is so notwithstanding any rights that to that time may have been enjoyed under the RP Act. In this sense, until an order is made by this Court exercising its discretionary power, the breach of, or failure to perform a duty or obligation or function under, the LG Act has no consequence and the registered transfer was indefeasible. Once the Court makes an order rectifying the Register, indefeasibility ceases. This reasoning closely follows that of Kirby J in Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 at [102] in the context of the EPA Act:

Court powers to create new rights:

clear

The reasoning of Callinan J was not dissimilar: at [128] - [129].

90 Lest that be an insufficient reconciliation of the texts of the two Acts, it is necessary to decide whether the legislature, by necessary implication, intended s 45 of the LG Act to repeal or amend pro tanto the indefeasibility provisions of the RP Act.

91 The authorities concerning exceptions to the indefeasibility principle are, I think, all distinguishable. This is not a case of a statutory scheme for first unregistered charges to secure rates, as in South-Eastern Drainage Board. That exception to indefeasibility, is probably inevitable. This is not a case of a statutory scheme for development consents, which overrides the indefeasibility provisions of the RP Act, as discussed in Hillpalm. This is not a case of an underlying transaction which the legislature has strongly declared to be expressly prohibited, void and subject to criminal penalties as in Travinto. This is not a case of powerless resumption, as in Boyd and Palais, or a case of powerless fraudulent transfer, as in Frazer, because they concerned private land, not public land to which special restrictions attach.

92 This is a case of a sale or transfer of community land, to which special restrictions on dealings attach, without statutory power. The potential scale of the issue is indicated by the fact that as at May 1994 most of the land owned or controlled by the respondent council was community land: see [13] above.

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

94 As regards the last point, the LG Act accords special status to community land and restricts dealings in community land, as discussed above at [7]. An analogy may be drawn with the special status accorded to national parks under the National Parks and Wildlife Act 1974 (NSW). In Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19, the Minister administering that Act signified his approval of a lease for a purpose which was prohibited or in breach of the EPA Act. Stein J held at 34:

I think it is clear from the legislation that national parks are held by the State in trust for the enjoyment and benefit of its citizens, including future generations. In this instance the public trust is reposed in the Minister, the director and the service. These public officers have a duty to protect and preserve national parks and exercise their functions and powers within the law in order to achieve the objects of the National Parks and Wildlife Act .

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

96 In my opinion, having regard to these considerations, the legislature impliedly intended s 45 of the LG Act to override the indefeasibility provisions of the RP Act.

Discretion

97 It is now necessary to address the discretion issue. The council submits that relief should be refused on discretionary grounds because of the long delay in bringing this application and, it is said, prejudice to the council and to the respondent who purchased Chapman Reserve. Its argument was to the following effect. The council has since 24 May 1994 dealt with the land as operational land; however, the applicant asks the Court to now hold that the land from 1 July 1993 was community land. Delay is recognised as a factor which may justify withholding of relief, on discretionary grounds, to quash a decision: Re McBain; Ex Parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at [107] – [108]. The council is said to have been prejudiced in having to respond to the challenge because of the amount of time which has passed since 1993 and the difficulty of preparing and responding to evidence about the use of the land in and before 1993. Prejudice arising from delay is recognised as a reason for declining relief: Hughes v Schofield [1975] 1 NSWLR 8 at 14; Crago v McIntyre [1976] 1 NSWLR 729 at 748. The council has dealt with Chapman Reserve as operational land since 1994, including by selling the land to the third respondent in December 2003.

98 The council submits that it has reasonably acted on the assumption that its resolution on 24 May 1994 was validly made. It submits that if the sale of the land in 2003 was invalid, both the council and the third respondent would be significantly prejudiced. It submits that where a party has acted reasonably in reliance on the validity of an instrument or state of affairs, an applicant who has delayed in bringing an action to challenge the instrument or state of affairs ought to be refused relief on discretionary grounds. This is an application of the general principle that relief should be refused where it would be practically unjust to give a remedy because of circumstances arising from the delay: Lindsay Petroleum Company v Hurd, Farewell and Kemp (1874) LR5 PC 221 at 239 – 240. It was pointed out that the challenge in the North Cronulla case was much more proximate in time to 1993.

99 The applicant submits that it is important to the issue of discretion that, according to a transcript of a court examination of Lea Rosser, the general manager of the council, when contracts for the sale of houses in Chapman Street were exchanged, the sales were for the purpose of liquidating the value of the land before it was transferred to another council as a result of a boundary adjustment between municipalities. I do not feel that this is a weighty discretionary consideration.

100 The matters raised by the council are entitled to some weight, although there is no direct evidence of prejudice to the council in respect of preparing and responding to evidence about the use of the land in and before 1993. As to prejudice to the registered transferee, (the third respondent), in Hillpalm (2004) 220 CLR 472 at [103], Kirby J said:

clean

Hillpalm

[P]articularly if there is no hint of this condition [of a subdivision] on the title documents … the Court may decline as a matter of discretion to order compliance with it, or may order compliance only subject to conditions, including conditions requiring payment of money by the person seeking the order if that person’s acts or omissions have contributed to the problem.

101 I also take into account the following matters. The transferee made no submission as to prejudice. If the Register were to be rectified, it would be left with such rights as it might have against the council. There is no suggestion or evidence that the transferee knew of the breach of s 45 of the LG Act when it contracted to purchase the subject land in 2003. The third respondent did not attend to stamping or registration of its 2003 transfer until August 2006. By this time it knew from the pleadings that the applicant was alleging Chapman Reserve was community land. No explanation for the delay in stamping or registration has been provided. It may be inferred that it was initially in order to obtain financial advantage and ultimately to raise a barrier of indefeasibility to the applicant’s claim. Section 45 of the LG Act would be set at nought if the discretion is automatically exercised against rectifying the Register. Finally, there is a strong local public interest in community land not being transferred.

102 After weighing all the circumstances, I propose to exercise my discretion by ordering rectification of the Register.

103 The applicant claims

104 The council conceded at the hearing that this development consent was invalid on the ground that the development application was not advertised as required by law. It consents to the relief sought on the basis the consent be set aside rather than quashed (to which the applicant agreed during the hearing). It raises no discretionary consideration, nor any consideration under s 25B of the Court Act nor any other consideration, which might bear upon whether that relief should be granted. The applicant sought to press additional grounds for that relief but, during the hearing, I decided that there was insufficient utility in spending further time in hearing and adjudicating on those additional grounds.

105 I am satisfied the applicant has established it should be granted the relief that it seeks and that there are no discretionary or other considerations, which weigh against the granting of that relief. Accordingly, I will make the declaration and order sought.

106 The applicant claims:

107 On 6 July 2006, an interlocutory injunction was granted restraining the second and third respondents until further order from carrying out any further works on 4, 6 and 8 Chapman Street other than such works as may be directed by the council or Workcover as temporary works to secure the property for public safety.

108 After the hearing in these proceedings began and before it concluded, the third respondent lodged a development application DA 649/2006 for the demolition of all houses in Chapman Street including the subject houses. In February 2007, the council purported to approve the development application. The applicant has filed a fresh application in this Court challenging the validity of that new consent (proceedings No 40171 of 2007). There is overlap in the grounds of review in those proceedings and the grounds of review in these proceedings. The respondents to whom the orders sought are directed, have entered submitting appearances. The council says it has no interest in and therefore has not defended this part of the case. The application for reinstatement is therefore unopposed. However, in view of the recent development consent and the subsequent court challenge to it, the applicant submits that this demolition issue not be determined at this time and that it should be stood over to be dealt with together with the new proceedings. I accept the submission

E. Orders

109 I propose to grant the following relief subject to giving the parties an opportunity to address me as to its form:

(1) A declaration that the development consent in respect of development application no 336/2003 for the premises at 2 – 10 and 13 – 21 Chapman Street, Strathfield granted by the first respondent on 1 July 2003, permitting the demolition of existing buildings and the erection of a residential flat building and basement carparking is invalid and of no force or effect.

(2) Order that the said development consent be set aside.

(3) Declaration that the land known as 17 and 19 Chapman Street Strathfield, and collectively known as Chapman Reserve, is community land within the meaning of the Local Government Act 1993.

(4) Order that the Register under the Real Property Act 1900 be rectified to show the council as the registered proprietor of the lots comprising Chapman Reserve.

(5) Direct that the Second Further Amended Application insofar as it relates to paragraphs 11 and 12 be heard together with proceedings No 40171 of 2007.

(6) Save as aforesaid, the proceedings are dismissed.

(7) The exhibits may be returned.

110 The proceedings will be listed before me on 5 April 2007 together with proceedings No 40171 of 2007 for the purpose of making final orders in these proceedings, to hear any application for costs, and to make directions for the progress of proceedings No 40171 of 2007 and the outstanding demolition issue in these proceedings.

Citations

F & D Bonaccorso Pty Ltd v City of Canada Bay City Council [2007] NSWLEC 159

Most Recent Citation

Cases Citing This Decision

7

Arinson Pty Ltd v City of Canada Bay Council [2015] NSWCA 199

City of Canada Bay Council v F & D Bonaccorso Pty Ltd [2007] NSWCA 351

Bechara v Bonacorso (No. 4) [2010] NSWDC 234

Cases Cited

31

Statutory Material Cited

43

Webb v McCracken [1906] HCA 45

Randwick Corporation v Rutledge [1959] HCA 63

Actions

Download as PDF Download as Word Document

CITATION:	F & D Bonaccorso Pty Ltd v City of Canada Bay City Council [2007] NSWLEC 159
PARTIES:	APPLICANT: F & D Bonaccorso Pty Ltd FIRST RESPONDENT: City of Canada Bay City Council SECOND RESPONDENT: Arinson Pty Ltd THIRD RESPONDENT: Omaya Holding Pty Ltd FOURTH RESPONDENT: Omaya Investments Pty Ltd FIFTH RESPONDENT: The Registrar General
FILE NUMBER(S):	40134 of 2003
CORAM:	Biscoe J
KEY ISSUES:	Judicial Review :- Real Property - council powerless to transfer community land under s 45 Local Government Act 1993 - whether land sold and transferred by council was community land - whether registration of transfer contravened ss 44 or 45 of Local Government Act 1993 - whether irreconcilable conflict between ss 44 or 45 of Local Government Act 1993 and indefeasibility provisions of Real Property Act 1900 - whether ss 44 or 45 override indefeasibility provisions of Real Propery Act 1900 - whether Land and Environment Court has power to order rectification of Register so as to again show council as registered proprietor - discretion - invalidity of development consent where development application not advertised as reuqired by law
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss 68, 100, 123, 124 Land and Environment Court Act 1979 ss 20, 25B, 71 Local Government Act 1993 ss 25, 26, 27, 44-47, 672, 674, 676, clause 6 of Schedule 7 Real Property Act 1900 ss 31A(4), 31A(5), 41; 42; 43A Aboriginal Land Rights Act 1983 s 40 National Parks and Wildlife Act 1974 s 40(1)
CASES CITED:	Attorney General v Ashfield Municipal Council (1951) 18 LGR 123; Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; Boyd v Mayor of Wellington [1924] NZLR 1174; Breskvar v Wall (1971) 126 CLR 376; Crago v McIntyre [1976] 1 NSWLR 729; Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1; Ferdinands v Commissioner for Public Employment (2006) 224 ALR 238; F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306; Frazer v Walker [1967] 1 AC 569; Halloran v Minister Administering National Parks and Wildlife Act 1974 (2006) 224 ALR 79; Hillpalm Pty Ltd v Heaven’s Door Pty Pty Ltd (2004) 220 CLR 472; Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2002) 55 NSWLR 446; Hughes v Schofield [1975] 1 NSWLR 8; ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697; Kogarah Municipal Council v Golden Paradise Corporation & Anor [2005] NSWCA 230; Koompahtoo Aboriginal Land Council v KLALC Property & Investment Pty Ltd [2006] NSWSC 856; Leichhardt Council v Roads and Traffic Authority of NSW [2006] NSWCA 353; Lindsay Petroleum Company v Hurd, Farewell and Kemp (1874) LR5 PC 221; Mansfield v Director of Public Prosecutions of Western Australia (2006) 228 ALR 214; National Parks and Wildlife Service & Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573; North Cronulla Precinct Committee Incorporated v Sutherland Shire Council (1999) 107 LGERA 274; Palais Parking Station Pty Ltd v Shea [No. 3] (1980) 45 LGRA 216; Pratten v Warringah Shire Council (1969) 17 LGRA 371; Quach v Marrickville Municipal Council (1990) 22 NSWLR 55; Re McBain; Ex Parte Australian Catholic Bishops Conference (2002) 209 CLR 372; Roach v Bickle (1915) 20 CLR 663; Scharer v State of New South Wales (2001) 53 NSWLR 299; Seaton v Mosman Municipal Council (1996) 93 LGERA 1; Shergold v Tanner (2002) 209 CLR 126; South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603; State of South Australia v Tanner (1988) 166 CLR 161; Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19
DATES OF HEARING:	25-27 October 2006, 7-8 March 2007
DATE OF JUDGMENT:	30 March 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr B Coles QC and Mr J Doyle, barrister SOLICITORS Thomson Playford FIRST RESPONDENT: Dr J Griffith SC and Mr S Free FIFTH RESPONDENT: Mr P Walsh SOLICITORS: FIRST RESPONDENT Maddocks FIFTH RESPONDENT Department of Lands