Hillpalm Pty Ltd v Heaven's Door Pty Ltd
[2004] HCATrans 49
[2004] HCATrans 049
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S530 of 2003
B e t w e e n -
HILLPALM PTY LIMITED
Appellant
and
HEAVEN’S DOOR PTY LIMITED
Respondent
McHUGH ACJ
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 11 MARCH 2004, AT 10.06 AM
Copyright in the High Court of Australia
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR P.R. McGUIRE, for the appellant. (instructed by Bolster & Co)
MR T.F. ROBERTSON, SC: May it please the Court, I appear with MS L.M. BYRNE for the respondent. (instructed by Woolf Associates)
McHUGH ACJ: Yes, Mr Jackson.
MR JACKSON: Thank you, your Honour. Your Honours, may I just say something by way of introduction to the base facts. The appellant and the respondent are each successors in title to parts of a subdivision, effected by a Winchcombe Carson company, when the land was all owned by that company. We purchased not from Winchcombe Carson but from a purchaser from Winchcombe Carson. The position so far as the other side is concerned is that they purchased the land from Winchcombe Carson – I am sorry, your Honour, it was purchased from Mr Tagget who purchased from Winchcombe Carson.
Your Honours, neither the appellant nor the respondent played any part in the subdivision to which I have referred. Each in that sense is a subsequent registered proprietor and the land of which the appellant is registered proprietor is not the original subdivision or parcel which was effected by the Winchcombe Carson company. It is a remnant of one of the two parcels into which the land was then subdivided. Your Honours, because one of the conditions of subdivisional approval is said to have been that there would be access to the respondent’s land by a right of carriageway over a part of the land which is now ours, it has been held that we are liable to grant such an easement and also to provide for its construction.
Your Honours, if I could outline in very summary form our submissions, that contention does not give sufficient attention to the approval which was actually granted, to which I will come. It attributes to the provisions of the Environmental Planning and Assessment Act 1979 an operation which, in our submission, they are not capable of bearing. Thirdly, it does not give effect to the indefeasibility provisions of the Real Property Act.
KIRBY J: Just whilst you are still on the facts, would it be helpful for you to illustrate what you have just said by reference to the title documents which were annexed to the ‑ ‑ ‑
MR JACKSON: That is next, your Honour, I am about to do that.
KIRBY J: Pictures always help. As you get older, you like pictures.
MR JACKSON: Your Honour, personally I find them essential. Your Honours, may I, just before doing that, say one thing. I intend to go to the facts relating to the application for approval of the subdivision. May I note in passing that the respondent’s submissions seek to make much of the fact that this was an application for “development consent” under the interim development order then in being in relation to the area in question. The provision, your Honours, upon which reliance is placed in that regard is clause 11 of the interim development order and your Honours will see that in volume 1 at page 187.
That commences relevantly at page 187. Clause 11 is at page 189 in the left column, commencing about line 19. Your Honours will see that it provides in clause 11(1) that:
Subject to this clause land shall not be subdivided within Zone No. 1(a) or 1(b) unless ‑ ‑ ‑
this is Zone 1(a), I think, your Honours –
(a) each separate allotment to be created thereby has an area of not less than 40 hectares;
. . .
(c) the frontage of any such allotment to a main road is not less than 400 metres.
Your Honours will also see at page 190, in the right column, clause 35, which says:
If an application for permission under this Order could, but for provisions of this Order specifying minimum requirements as to the area or the frontage of any land, be granted by Council, such application may be so granted where the area or frontage of the land to which the application relates departs only to a minor extent from those minimum requirements.
Could I go then to the application which was actually made to the council. The relevant part is volume 1, pages 205 to 208. One sees there that on 21 November 1977, a firm of surveyors, John P Marendy & Associates, made application for subdivision of portions 306 and 342 in the parish of Cudgen. Could I take your Honours then to page 205. You will see it was described as a subdivision application. Your Honours will see then, at page 206, about line 20, the property which was to be subdivided with portions 306 and 342 – I will take your Honours to those in just a moment. Then at page 207, you will see the filled‑out application form. The application form, in paragraph 6, refers to the locality as being Clothiers Creek Road in Bogangar town or locality and then paragraph 7, portions 306 and 342, parish of Cudgen.
One can see portion 306 at page 195. Could I invite your Honours to note some matters about that plan. Your Honours will see portion 306; to the north of it is portion 308, the relevance of that I will come to in just a moment. You will see that immediately to the south of portion 306 is portion 178 and then, to the east of that portion, is portion 342. The road which is now called Clothiers Creek Road was not then in existence and Clothiers Creek Road – if I could hold this up, your Honours – would effectively go in that direction.
CALLINAN J: Mr Jackson, I am sorry. Then, it would link, as it were, what, about 294 and 308?
MR JACKSON: Yes, your Honour, I would not be exact about that, but it is in that area, but it appears more clearly in just a moment, your Honour. Could I just say though that your Honours will see that along the northern boundary of 306 there is a road dedication of some kind. That appears to have disappeared at some point before the application for subdivision in the present case.
CALLINAN J: That is what I do not understand, Mr Jackson. You say it disappeared. It had been dedicated, just not constructed. Did it remain dedicated?
MR JACKSON: Well, your Honour, it is difficult to say, other than what the evidence was, your Honour. No one suggested that that road along the boundary of 306 in that position was still such at the time of the application for subdivision. It may have gone at the time Clothiers Creek Road was dedicated.
CALLINAN J: What is the date of this certificate?
MR JACKSON: That certificate, your Honour, is quite an early one, but it is ‑ ‑ ‑
KIRBY J: This will be 1914, is it?
CALLINAN J: Notified 16 December 1914. About a third of the way down the middle of the page.
MR JACKSON: Thank you, your Honour. Your Honours, could I go then to ‑ ‑ ‑
HAYNE J: Before you do, what exactly is this document? Is it a registered instrument? Is it deemed to the Torrens system in some way, this document?
MR JACKSON: Well, I believe so, your Honour. I was working on that assumption, I must say, and I had thought that is the original document, the original plan, which was on the division of this area into portions and this was the one that related to this portion of it and was then the subject of various transactions later in relation to it, but, your Honour ‑ ‑ ‑
HAYNE J: But it would take its significance, for Torrens purposes, from its being referred to in some certificate of title, one assumes.
MR JACKSON: Yes. Your Honour, I was really simply indicating locations at the moment and really nothing more than that. Your Honour, portion 342 appears a little further on. It is at page 199. Your Honours will see in relation to portion 342 that there is running through it, more or less from the south‑west to north‑east, a road which appears to have been dedicated but unmade. Now, your Honours, the last thing, I referred to portion 308. That is the portion immediately to the north of 306. It appears at page 197.
CALLINAN J: This was banana country, Mr Jackson. It would be pretty hilly, I suspect.
MR JACKSON: Yes, your Honour, that is so, and the common name of one of the blocks presently in question, Heaven’s Door, suggests perhaps height rather than piety – perhaps beauty.
HAYNE J: It depends on your historical frame of reference, Mr Jackson.
MR JACKSON: That may well be right, your Honour. Could I go back then to the application for subdivision of approval.
McHUGH ACJ: Just before you do, at 197, in the blank section 306 you see “Road 100 wide”. Is that ‑ ‑ ‑
MR JACKSON: That is the one that seems to have disappeared, I think. That is the one on the southern boundary of 308. Coming then to the application for subdivisional approval, if I could just go back to page 205 for a moment, your Honours will see between lines 5 and 10 it appears to have been received by the council on 24 November 1977. I have taken your Honours to pages 206 and 207 and your Honours will see the letter accompanying it at page 208.
Your Honours will see from the accompanying letter – and that is in the second paragraph – that there was a plan of an “overall development as shown on Drawing No C439:00:02 prepared by Geoffrey Burchill & Partners” and that plan had been lost by the time of the hearing before the primary judge. That fact is referred to by the primary judge in volume 3, page 765, paragraph 26. However, he accepted, and it is not in issue, that the plan which was ultimately certified by the council and was the plan of subdivision showed the subdivision of these portions of land as had been proposed, although the plan appears to have been different from a larger plan that was referred to in that letter.
The plan that was actually approved is at page 217 in volume 1. A conveniently coloured version is attached to our learned friend’s submissions, and may I take your Honours to that. Your Honours will see that there are two lots: lot 2 and lot 1. They comprise the total of what was formerly lots 306 and 342. Your Honours will see the route of Clothiers Creek Road on that diagram. Lot 2, which is outlined in orange, is the former lot 306 plus most of that part of 342 which was north of the southwest-northeast road and some to the south of that road. Could I just say the outline, as it were, follows the top of 178, it goes down and then comes across up along the line of that road and then in a curious line up to the small piece that projects north and then goes round and then back up to the top right‑hand corner.
CALLINAN J: So the lime green is also the boundary of lot 2, is it?
MR JACKSON: No, the lime green is the proposed route of access that is in question, your Honour, in the proceedings.
CALLINAN J: Well, mine has other lines marked in lime green.
MR JACKSON: Your Honour, if I could call the lighter one yellow, perhaps.
McHUGH ACJ: It is 217, is it not, that you are ‑ ‑ ‑
MR JACKSON: Yes, 217, your Honour, and the copy that is attached to the respondent’s submissions has the colours on it.
McHUGH ACJ: The right of way is shown in greater detail, is it not?
MR JACKSON: Yes, in the top right hand corner.
CALLINAN J: I am sorry, I do apologise, Mr Jackson. Where is the eastern boundary of lot 2?
MR JACKSON: The eastern boundary of lot 2 commences, your Honour, in the top right hand corner, the north‑eastern corner. It goes more or less south. From there it goes slightly southwest, comes up again ‑ your Honours will see a very narrow piece which is part of lot 1 ‑ the boundary of lot 2 comes down again to that unmade road, follows the road down to the point that is there, and then comes due south on the line, which has marked 359 degrees, 18 minutes, on the left of it.
CALLINAN J: Thank you.
MR JACKSON: That means that lot 1 is the remainder of lot 342, plus the intrusion, as it were, into the former lot 306, constituted by the northern corner of lot 1. What is described in the diagram in the top right hand corner as:
PROPOSED RIGHT OF WAY 10 WIDE –
a measure is not given – goes from the northern corner of lot 1 to the southern boundary of lot 2, and then goes through part of 308 to join up with Clothiers Creek Road.
HEYDON J: The letter of 21 November 1977, in which Messrs Marendy & Associates applied – have they got the lots the wrong way around? That is page 208:
Physical access to Lot 2 from Clothiers Creek Road –
Should it not be physical access to lot 1?
MR JACKSON: Your Honour will see that Justice Sheahan, at paragraph 25, page 765, said in reference to that letter that the lot numbers in the letter reversed the actual subdivision, and we adopted that in our submissions, footnote 3. I think, in the end, what his Honour said is right, that the numbers in the plan of subdivision are reversed from those in the letter.
Now, if one looks at the plan of subdivision, one sees that the proposed access was both north and south of the northern boundary of lot 2 as shown on this diagram. The council then notified an approval, which appears at page 211. It was approved. The reference to:
a 45 hectare rural lot –
is a reference to the southern lot, which became lot 1 –
with right of way access to Clothiers Creek Road was approved by Council . . . subject to compliance with the following conditions:
(a) Provision of a constructed right of carriageway from Clothiers Creek Road. The track shall be at least 2.5 metres wide and constructed with 150mm consolidated thickness of gravel.
(b) Submission of final plans and payment of fees.
Now, your Honours, some months later there was the application which appears at page 212. That application to become, in a sense, intelligible, one needs really to read the plan which is at page 214. So could I invite your Honours to, in effect, have page 214 at the same time as one is reading 212. Your Honours will see that it said in the second paragraph:
It was originally envisaged that the right of carriageway was to follow the proposed route of a new road of which part is to be constructed in Stage 1 and part in Stage 3 of the overall development.
Your Honours, I will identify where that is in just a moment.
Physical access to the proposed new Lot can at present be gained by an existing track which follows the intended route of the road in Stage 3 but traverses the proposed allotments in Stage 1 as shown on the accompanying plan.
Could I pause there your Honours, to go to page 214. Your Honours will see from the plan that the point, which I can perhaps indicate here, that point which has the words “RURAL LOT” written below it is effectively the northern point of lot 1. The existing track - your Honours will see a reference at the top of the page, written in - is one leaving Clothiers Road on the west and following, in effect, this path until it gets to here, and that is the path that is said to be going through the allotments. From there, south to the northern point of lot 1, is what is described as a road proposed in stage 3 and the part of the road that was proposed, part of the road joining up to Clothiers Road that was proposed to be part of stage 1 is this part that has “DIFFICULT SECTION OF CONSTRUCTION” written beside it. Yes, your Honours, I was right in the nomination of stages, I am sorry.
If I could go back to the letter at 212, the third paragraph, it is said then:
It would be logical if the right of carriageway was to follow the existing track, however not wishing to involve ourselves in any possible legal entanglements at the time of development of Stage 1 the right of carriageway should follow the route of the proposed new road. This further poses the problem of the difficulty in construction of the carriageway over the section of road in Stage 1 because of the nature of the terrain.
That is the area referred to as “DIFFICULT SECTION OF CONSTRUCTION” on page 214. Your Honours, that really seems to relate to the part of the land that would have been the portion above the portions, the subject of the subdivisional application. Your Honours will see then in the last paragraph of the letter at page 212 ‑ ‑ ‑
McHUGH ACJ: Just let me get that clear. Is that north of the boundary of lot 2, is it?
MR JACKSON: Yes. Your Honours will see the last paragraph of the letter at page 212. Your Honours, the council’s response is at page 213 where it is said in the second paragraph that:
the arrangement for right of carriageway provisions as access to the proposed lot as described in your letter are acceptable to Council.
This acceptance is conditional upon the rural/residential estate development proceeding. Consequently your client company shall be required to declare by statutory document –
your Honours, I will come back to that expression in a moment –
as a condition of subdivision that a right of carriageway over the existing track shall be created in favour of the proposed rural lot if the new roads are not dedicated within two years of the date of this letter.
Your Honours, the “statutory document”, whatever precisely that means – whether it was meant to be a statutory declaration or whatever is not very clear – did not come into existence except perhaps as the notation on the plan of subdivision, to which I will come in a moment.
HAYNE J: I take it we will come to what is the statutory underpinning, if any, to this exchange of correspondence.
MR JACKSON: Your Honours, we have been to it really. It is clause 11.
HAYNE J: At some point I will need to be educated in what significance, if any, that is said to have. I can understand interim development orders say thou shalt or shalt not do these things and conditions can be imposed, but what is the next legal step that follows is not yet apparent to me and you will no doubt come to it.
MR JACKSON: I intend to, your Honour. What I was simply seeking to do at the moment was to indicate the course of events. I have nearly concluded that.
HAYNE J: Yes, I understand.
MR JACKSON: After that I was going to come to the statutory provisions that might effectuate what was in mind. Your Honours, I have gone to page 213. What happened then was that the plan of subdivision was simply lodged some time later. That is at page 215.
HAYNE J: When you say lodged, lodged with council?
MR JACKSON: Yes, your Honour, it was lodged with the council. Your Honours will see that enclosing it at page 215 and then at page 216 the council granted what it described as “final approval to the above subdivision” and it did so, your Honours, saying at page 216 in the first line of the letter:
Council is prepared to grant final approval to the above subdivision even though all the conditions of Council’s letters –
that is the two letters to which I have referred –
have not been complied with. However, you are hereby advised that Council will not take any responsibility for the fact that the existing track is outside the right of carriageway; nor will Council be involved in any dispute that may arise because the existing track is outside the right of carriageway.
Enclosed are the plan of subdivision and one copy, both duly certified.
That was then the document at page 217. Your Honours, if I could shorten it, that plan of subdivision was lodged with the Registrar of Titles at the Titles Office and titles for each of the two lots issued in consequence.
HAYNE J: What is the statutory basis for lodging with the registrar?
MR JACKSON: I will give your Honour a reference to that in just a moment, if I may. Your Honour will then see that the approval that was granted, if I could stay with this for just a moment, at page 217, the plan that was approved was one that contained on it the statement in the top right‑hand corner where it shows the proposed right of way, was that it described it as “PROPOSED RIGHT OF WAY 10 WIDE” – it is assumed 10 feet. Your Honours, what emerged from that was that the council had allowed the creation of two parcels of land on the basis that there was to be created a proposed right of way, but not yet. The right of way that was the subject of the approved plan was not a public road. It was to be a right of way created inter partes.
HAYNE J: That drives me back and back again to the statutory basis, because 216 says that approval is given even though all conditions are not complied with. One of those conditions was the construction of the road in question, was it not?
MR JACKSON: Well, the construction, your Honour, of a carriageway that was constructed, a right of carriageway from Clothiers Creek Road. That was not one for the public generally, as it were.
HAYNE J: I understand that.
MR JACKSON: Your Honour will see at page 213 that it was ‑ ‑ ‑
HAYNE J: But it seems to me to say that council approved the plan on which this notation appeared is right as a matter of fact, obviously, but its legal significance depends upon the statutory significance of granting approval.
MR JACKSON: Your Honour, could I just say one thing before coming to that and it is this. Your Honour will see at page 213 that I said it was to be an easement and your Honour will see in the last paragraph of 213 that it was expressed as being “a right of carriageway . . . in favour of the proposed rural lot” and the reference to new roads was a reference to a suggestion in the previous letter that roads would be created rather than an easement.
HAYNE J: Yes, and 216 says approved:
though all the conditions of Council’s letters dated 22nd December, 1977, and 22nd May, 1978, have not been complied with.
McHUGH ACJ: It raises the question, does it not, as to whether or not in some way the council has modified the condition at 211 or waived it or is it effective. What is the effect of the conditions at 211 after the letter of 216?
MR JACKSON: Your Honour, the position in our submission is simply this, that the circumstances were such that, under the interim development order, the council had power to approve or not to approve the subdivision and that power, one would assume, included the power to do so subject to conditions. What one sees is that there is an application then made, which is that of 4 April 1978 at page 212, for some amendment of the conditions which, effectively, amounts to an application for approval to a subdivision on a slightly different basis. One then sees a further application and the application is that which is the subject of, in effect, the letter at page 215 and the council is there saying we will grant final approval to the subdivision even though you have not complied with earlier conditions, the conditions which we earlier set, in relation to this subdivision.
McHUGH ACJ: It is the commonest thing in the world for councils to say, “We’ll approve this or that subject to these conditions”, and then there is a request that they be modified, deleted or substituted and then approval is given. Is it your submission that this is what occurred in this particular case, that the conditions that were set out in the letter at page 211 are spent, so to speak?
MR JACKSON: Your Honour, I will put it in alternative ways. Our submission is that, first of all, by the time the subdivisional plan was approved, the terms of approval were that there would be a plan which contained a proposal on it, which is a term of art and I will take your Honours to that, for a proposed right of way from lot 1 through lot 2 and on to other land then owned by Winchcombe Carson and it went no further than that.
However, your Honours, we would recognise that the terms of the letter at page 216 are capable of the view, because it refers to final approval and it refers to the earlier conditions, that those earlier conditions are ones which the council regards as conditions which are still in existence. A question, of course, is on whom those conditions would be binding and for what period of time. In the light of the later events that took place they would be binding, but the two views are open.
HAYNE J: What is the statutory warrant for a council saying, here is approval, on terms that in the future an event, or series of events, will occur?
MR JACKSON: Your Honour, the ability to do it derives, if it exists, from the provision of the clause to which I refer. Your Honour, undoubtedly, there seems no difficulty conceptually, if in an approval – and if one leaves aside use and consent to use cases, which are really different – there seems no reason why a condition could not have some subsequent effect. What I mean by that your Honour is that – and your Honours will see there is some question about whether these approvals are in rem or in personam, I will come to that a little later – but could I just say in relation to it, if you took the case, for example, that a subdivisional approval was granted on terms that there be a contribution of, say, $10,000 per intended lot, toward the cost of head works for something. It might be that the condition was one that allowed the money to be paid at a time which went beyond the time before the subdivision would be completed. A silly thing to do, your Honour, one might think ‑ ‑ ‑
CALLINAN J: Mr Jackson, usually councils require a bond.
MR JACKSON: I was going to say that, your Honour, and the councils would ‑ ‑ ‑
HAYNE J: On condition that you enter an agreement which we can sue on.
MR JACKSON: Indeed, your Honour ‑ ‑ ‑
HAYNE J: That I can understand.
MR JACKSON: ‑ ‑ ‑ which would be something that is in personam, for example. That is the point I come to. So, your Honour, I am expressing it in that way. It is possible for there to be conditions which do have an operation ‑ ‑ ‑
HAYNE J: That I can understand, but what I cannot yet understand – and I will not delay you further – is once council gives its approval, saying, “We recognise that we sought some conditions and you have not done them”, what life that is said to give to this annotation on the plan. I mean, the plan might contain annotations, for example, “Here is the site for the proposed 20‑flat development”, or what have you.
MR JACKSON: Well, I mentioned before, your Honour, that expression is, in fact, a term of art. May I come to why that is now? As the primary judge said in volume 3 at page 781, paragraphs 88 and 89, there are two ways of creating an easement. The starting point, your Honours, in relation to each, is the Conveyancing Act, section 88B. By section 88B(2)(c):
A plan shall not be lodged in the office of the Registrar‑General for registration . . . unless it indicates in the manner prescribed in respect of the plan, by regulations made under this Act, of the Real Property Act –
and I will come to the regulations which are relevant in just a moment. Then your Honours will see that paragraph (a) there is a reference to easements which are “appurtenant . . . to roads”; in paragraph (b) there are easements “referred to in section 88A”, and section 88A easements are easements in gross, which do not matter for present purposes. Then 88B(2)(c):
What other easements or profits á prende, if any, are intended to be created appurtenant to or burdening land comprised in the plan –
Your Honours, from there one goes to 88B(3), and I will omit the unnecessary words:
On registration . . . of a plan upon which any easement . . . is indicated in accordance with paragraph (a), (b), (c) or (d) of subsection (2) then, subject to compliance with the provisions of this Division:
. . .(c)any other easement . . . so indicated as intended to be created shall:
(i)be created,
(ii)without any further assurance . . . vest in the owner of the land benefited by the easement . . . notwithstanding that the land benefited and the land burdened may be in the same ownership at the time when the plan is registered or recorded . . . and
(iii)not be extinguished by reason of the owner of a parcel of land benefited by such easement . . . holding or acquiring a greater interest in a separate parcel of land burdened thereby ‑ ‑ ‑
CALLINAN J: Mr Jackson, where does the term “right of way” or “proposed right of way” come from? It does not seem to be a statutory term.
MR JACKSON: It is, actually, your Honour.
CALLINAN J: It is?
MR JACKSON: Yes. Although the provisions have changed a little over the years, it has, for present purposes, always been dealt with by two provisions of the Conveyancing Act, one being section 181A(1), which takes one to the statutory meanings of terms given by Schedule 8, Part 1 of that Act. Schedule 8, Part 1 indicates the ambit of entitlement of the holder of the benefit of a right of way. That is private right of way. Public rights of way are dealt with in another schedule. I just mention that because one needs to be careful.
Your Honours, could I just come back for the moment to section 88B. Section 88B provides that, in the circumstances to which it applies, the easement is created “on registration”, that is subsection (3). Could I refer also to section 88(1) of the Act, which says that:
an easement expressed to be created by an instrument coming into operation after the commencement of the Conveyancing (Amendment) Act 1930 . . . shall not be enforceable against a person interested in the land claimed to be subject to the easement or restriction, and not being a party to its creation unless the instrument clearly indicates –
and your Honours will see (a), (b) and (d). In section 88B(2), your Honours will see the reference to:
in the manner prescribed in respect of the plan by regulations made under this Act or the Real Property Act 1900 –
That reference takes one to the Conveyancing Act Regulations 1961. The relevant part of those is regulation 52A. In the copy I have, it is page 390. Your Honours, these regulations are a little taxing to follow, in a sense. May I say, if one goes first to regulation 52A(1), it says:
In any deposited plan lodged for registration in the office of the Registrar‑General no notation shall be entered referring to an intention to create easements . . . which are not intended to be created pursuant to section 88B of the Act.
What that seems to be saying is that, if you intend to create an easement on registration, you must not use any words which refer to an intention to do so or proposal to do so at any later time. Regulation 52A(2), however, allows the use of the term “proposed”. Your Honours will see that it says:
Notwithstanding the provisions of clause (1) of this Regulation, the diagram in such a plan may illustrate the site of an easement intended to be created by an instrument of grant or reservation, provided the designation of such site includes the word “proposed” or an abbreviation thereof and provided no written statement of such intention is entered elsewhere on the plan.
Your Honours, that is elaborated upon by sub‑regulation (3), which says:
The illustration and designation of the site of an easement in accordance with clause (2) of this Regulation shall not be taken for the purposes of the said section 88B to indicate in the prescribed manner an intention to create an easement.
So, your Honours, the use of the term “proposed right of carriageway” was a term to which 52A(2) applied. I said I would use the expression “a term of art” before. Your Honours, the effect of it was, as sub‑regulation (3) says, that it:
shall not be taken for the purposes of the said section 88B to indicate in the prescribed manner an intention to create an easement.
That is, knowing there is no intention to create an easement on registration of a plan. The primary judge at page 781 in volume 3, paragraphs 89 and 90 referred to the fact that that was the course that was being adopted.
I intend to go next, if I may, to the Real Property Act provisions and after that the provisions of the Environment Protection Act. Could I come to the Real Property Act ones first. Your Honours will see in section 41(1) it is provided that:
No dealing, until registered in the manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of this Act . . . but upon the registration of any dealing in the manner provided by this Act, the estate or interest specified in such dealing shall pass –
One then goes to section 42(1) which provides in the third line:
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 except –
Your Honours, (a)(1) was not there at the time of the subdivision. That came in later but is there now, of course. Subdivision (a)(1) refers to:
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.
None has been validly created. If it be that there is an entitlement to have one validly created under the other provisions to which my learned friend refers, then it may well be that the effect of (a)(1) is that it could be registered in priority to our land, but none has yet been created. In section 43(1) it is provided that:
Except in the case of fraud no person . . . taking or proposing to take a transfer from the registered proprietor of any registered estate or interest shall be required or in any manner concerned to inquire or ascertain the circumstances in . . . which such registered owner or any previous registered owner of the estate or interest in question is or was registered . . . or shall be affected by notice direct or constructive of any trust or unregistered interest . . . and the knowledge that any such trust or unregistered interest is in existence –
no doubt if there is one –
shall not of itself be imputed as fraud.
Now, your Honours, the terms of section 41 would make it apparent, in our submission, that until registration there could not be created an estate or interest in the easement, or by way of easement. That is hardly surprising, because one would expect an instrument of easement to be registered and to deal with the rights and liabilities in respect of the easement. I said that the term “right of carriageway” was defined, but there was nothing more defined, for example, as to obligations to repair, nor, indeed – perhaps hardly surprisingly, in view of the fact that it was a subdivision which to be effected by the one person, as it were, who owned all the land – was there any provision as to the cost of construction of it. By section 42, whilst the registered proprietor holds subject to registered interests, it also holds absolutely free from interests which are recorded.
HAYNE J: Do I find in the appeal book the folio which is said to record the estate or interests of the appellant?
MR JACKSON: Yes, your Honour, I will give you a reference to it, if I may. There was a chain of title; we have referred to it shortly with some references in our written submissions, because there were a number of different subdivisions of what had been lot 2, resulting in us now having lot 155.
HAYNE J: But, relevantly, it is the title which you now hold as recorded in the folio?
MR JACKSON: Yes, your Honour.
CALLINAN J: Which you got in 1998, I think.
MR JACKSON: Yes, your Honour. The transfer is referred to at least by the primary judge, at page 761, in paragraph 5, I think. It is referred to generally – I will see if I can find your Honour a more exact reference. Your Honour, may I come back to that?
HAYNE J: Of course.
MR JACKSON: Your Honour, there is a reference at page 121 – our learned friends came up to give me a reference to the actual memorandum of transfer to us.
HAYNE J: In Victorian terms, what I am after is the certificate of title.
MR JACKSON: Yes. The certificate of title, your Honour, I think is about page 220, which is the original one. Your Honour, I think I am wasting time doing this. I will get your Honour an exact answer.
HAYNE J: Please.
MR JACKSON: May I come then to the question – one can put it a number of ways – but why is the appellant liable to grant the easement and to construct it, the appellant, of course, having played no part in the initial subdivision of the land. Could I start with the provisions of the Environmental Planning and Assessment Act which relate to enforcement? They are sections 123 and 124, first of all. Your Honours will see that section 123(1) says:
Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act –
and section 124(1):
Where the Court is satisfied that a breach of this Act has been committed . . . it may make such order as it thinks fit to remedy or restrain the breach.
Your Honours, one notes immediately that the appellant has committed no breach of the Act. No obligation was placed by the subdivisional approval on the appellant. The appellant had no interest in the land at the time. I will return to that aspect in just a moment, if I may. Before doing so, could I just say this, that the way in which it is sought to bring in the appellant is by the expanded meaning given to “breach of this Act” by section 123(1). Your Honours will see that 123(1) says “to remedy or restrain a breach of this Act”. The term “breach of this Act” is referred to in section 122(a):
a reference to a breach of this Act is a reference to –
(i) a contravention of or failure to comply with this Act; and ‑ ‑ ‑
KIRBY J: The Act does not say a breach by whom, does it?
MR JACKSON: No, it does not, your Honour. It is a point I put to one side for just a moment.
KIRBY J: It is expressed in very general terms.
MR JACKSON: Yes. Could I just say that if one goes to section 122, section 122(a)(i), as I said, says that:
a breach of this Act is a reference to –
(i) a contravention of or failure to comply with this Act . . .
(b) a reference to this Act includes a reference to . . .
(ii) a consent granted under this Act; and
(iii) a condition subject to which a consent . . . was granted.
Your Honours, the approval, of course, in this case was not granted under this Act because the substantive provisions of this Act did not come into force until a later time. That date is 1 September 1980. At that point, as appears from page 216, final approval to subdivision had been given and in those circumstances either the condition was not subsisting or the only requirement was that the subdivider remain liable to declare that it would create the right of carriageway. When I use that phrase, what I am trying to convey is the possible meaning of the requirement that there be a statutory document recording the obligation. The third possibility was that the subdivider remained liable to create it.
The way in which the respondent seeks to make the appellant liable, notwithstanding that the obligation, if any, arose under the earlier enactment, is by reliance on some savings and transitional provisions. There are two such provisions. The first is section 7 of Schedule 3 to the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979. That Act provided in Schedule 3 - your Honours may have a page numbered 72 perhaps - section 7 or clause 7 of that schedule. It provides in subparagraph (1):
Any consent, approval or permission granted in respect of an application made under a former planning instrument –
which would include the order in question here –
and in force immediately before the appointed day, shall, subject to subclause (2), continue in full force and effect subject to –
two matters.
Now, the first, your Honours, in paragraph (a), related to any provision which placed a time limit, to put it shortly, on the operation of such a provision. It was not applicable in the present case; there was nothing particularly in the interim development order that said that there was a time limit. The second thing, your Honours, was in paragraph (b):
the operation of any condition (other than that referred to in paragraph (a)), restriction or limitation, subject to which that consent, approval or permission was granted.
What subsection (2) then said was that:
Where no provision or term or condition of the type referred to in subclause (1)(a) –
that is the time one –
operates in respect of a consent, approval or permission therein mentioned, the provisions of section 99 of the Environmental Planning and Assessment Act, 1979, shall apply to that consent, approval or permission as if it were a consent referred to in that section which had taken effect on the appointed day.
We have given your Honours a copy of the then section 99 as it was then and section 99, in effect, provided for a time limit after the appointed day within which the consent would remain. Section 99 is in a different form now, but at the time of the transitional provisions – we have given your Honours a copy of what was then section 99. It should be headed “Act No. 203, 1979”, page 72. Your Honours will see that it is said in section 99(1):
A consent granted under this Division to a development application shall lapse –
(a) unless the development the subject of that consent is commenced –
within two years, or, in some other circumstances, one year. In subsection (2), it referred to the various types of work, and, to put it shortly, provided for a lapsing period for such consents.
KIRBY J: What is the effect of the provision that you have just ‑ ‑ ‑
MR JACKSON: All I am simply saying, your Honours, is this, that if one looks at section 7, what one sees is that the consent that is relied on is one which, for it to be one which is applicable to the present case, would, first of all, have to be one which was to be treated as in force immediately before the appointed day. That is the first thing.
KIRBY J: Which was 1 September 1980?
MR JACKSON: Yes, your Honour, and has to be enforced immediately before that day. The point which we would seek to make about that is that that is a concept which is easy enough to understand in the case of, say, a consent use. It is easy enough to understand in the case of a subdivisional approval where the subdivision has not been completed, but there are difficulties in the case of a subdivisional approval where the land has been subdivided, separate titles exist in respect of the properties and the subdivided parts have been sold to different persons. The point we would seek to make about section 99 is that the terms of it indicate how inappropriate the application of section 7 to an approval of the present kind would be where the subdivision into the separate allotments has already taken place.
The second transitional provision, your Honours, on which reliance is placed by the respondent is clause 9 of some regulations, clause 9 being the regulation entitled the Miscellaneous Acts (Planning) Savings and Transitional Provisions Regulation 1980. That really does not take it any further. It simply says that:
For the purposes of Division 3 of Part 6 . . .
(a) a consent, approval or permission referred to in ‑
(i) clause 7(1) –
the provision to which I earlier referred –
shall be deemed to be a consent referred to in section 122(b)(ii) . . .
(b) a term or condition . . . shall be deemed to be a condition referred to in section 122(b)(iii) –
but would still have to be an approval which was subsisting on 1 September 1980. Your Honours, that takes me to the question adverted to by Justice Meagher in the Court of Appeal in paragraph 13 of his reasons at page 799 in volume 3, where it was held that:
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 –
and, your Honours, may I deal with it in two parts, in a sense. The first is the broader proposition that there is a right in rem and the second is the aspect referred to in Wilkie v Blacktown City Council, to which he there refers, and that is that the person who is the transferee of the lot is a person to whom sections 122 to 125 of the Act are applicable because of the nature of the consent.
Your Honours, the proposition that the council’s consent to the subdivision operated to create a right in rem is, in our submission, far too sweeping a statement. I will come to the cases in a moment, but it may well be true or most often true of consents to use land for particular purposes, which, indeed, is what the cases appear to be concerned with - it may well be true of a subdivisional consent which has yet to be implemented by the subdivision, but many of the terms of subdivisional consents are terms which require a proposed subdivider to do something and they are not terms which, in our submission, on any view would be regarded as binding the persons who acquired from the subdivider a parcel of the land into which the property has been subdivided.
I referred your Honours earlier to the simple case of a money obligation ‑ the money obligation to pay, for example, $10,000 a lot as a contribution towards the capital cost of services. No doubt that approval, including a term to that effect, could be relied on by a later purchaser from the person who obtained the approval if the purchaser wants to subdivide the land in the same way. It is no doubt in that sense, that rather limited sense, in rem, but the condition requiring the contribution is one which is binding on the developer, albeit the developer from time to time.
If the council allows the developer to obtain separate titles to the separate blocks and sell them before paying the whole of the contribution which is a thing that any experienced council, one would think, would not do or would not do without suitable security, the developer remains liable for the balance. It is difficult to see any very compelling reason why a purchaser of a block from the developer is also liable to the council for an aliquot perhaps, part of that money. That person has to pay the rates, of course, and any other taxes but there is no particular reason, in our submission, why the purchaser has to pay part of the money that a developer did not pay. In our submission, the passage by Justice Meagher states the position far too broadly.
The cases, if I could turn to those now, in our submission, do not go so far. Our learned friends have referred to a number of cases in their written submissions and may I go in support of the proposition identifying them as being the long series of cases at both State and federal level to which Justice Meagher refers in paragraph 13 at page 799, a phrase which we criticised in our written submissions. Could I go very briefly to the cases to which our learned friend has referred. The first is Winn v Director‑General of National Parks & Wildlife & Ors [2001] NSWCA 17 and the passages to which I would refer are, first of all, Chief Justice Spigelman in paragraph 4 of his reasons where he said that:
A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers.
No doubt, that is so, your Honour. If there is a development consent it can be used by a subsequent owner.
It is also a document intended to be relied upon by many persons dealing wit the original grantee . . . in such contexts as the provision of security. In some respects it is equivalent to a document of title.
And your Honours, in some respects, if one is selling land which has a consent attached to it, then the value of the land is affected by the existence of the consent which can be utilised by a subsequent purchaser.
His Honour then goes on to the point with which he is dealing, particularly:
It must be construed in accordance with its enduring functions.
As your Honours will see from the next paragraph, the question in the case was really the extent to which one can take into account documents not included in the consent itself. That is adverted to more specifically in the reasons of Justice Stein at paragraph 199, where he said:
As Hope J observed in Auburn Municipal Council v Szabo (1971) 67 LGRA 427, in determining what development a consent authorises, one looks primarily at the approval and construes it. The reason for this is that a consent is issued in rem and ‑ ‑ ‑
HAYNE J: One has to know what that means, in this context. It is a conclusory statement that is apparently intended to reflect some statutory consequence.
MR JACKSON: Yes.
HAYNE J: One goes back to the statute. One does not go to the description in rem.
MR JACKSON: Well, your Honour, indeed. What we would seek to say about it is a convenient short-hand way in some context to say that when a consent is granted it is a consent that has a relationship to the land, as distinct from being tied to the person who obtained it.
HAYNE J: That will be, if it be so, because that is what the statute provides.
MR JACKSON: Yes, and, your Honour, that appears to be the case now provided for by the Environmental Planning and Assessment Act, but it is not, with respect, a general proposition applicable to every consent. Your Honours, the other passage to which I wish to refer is paragraph 282, which is the valid paragraph referred to by my learned friends. The case relates to a consent use. Your Honours, may I go – and I will do so as briefly as I can – to the line of cases that are relied on, Auburn Municipal Council v Szabo (1971) 67 LGRA 427. The relevant passage is at the bottom of 433, going over to the top of 434. It is the last paragraph on page 433. It is speaking about what amounts to the approval, and then the last three lines:
The necessity to do this arises, inter alia, from the fact that a development approval does not enure only for the benefit of the applicant. It endures for the benefit of all future owners or occupiers –
and that goes down to about line 5. Your Honours will see also on page 434, about 10 lines from the bottom of the page, where he said:
those consents continued to be effective whether or not at any particular time in the future they were being availed of, subject only to the operation of cl 41(5) of the ordinance –
Your Honours, in the Environmental Planning and Assessment Act, section 76A(1) says that:
a person must not carry the development out on land to which the provision applies unless:
(b) such a consent has been obtained and is in force, and
(c) the development is carried out in accordance with the consent and the instrument.
That was previously section 76(2), which is referred to in one of the cases. Could I just say, I am not sure that there is a provision which quite says, in terms, that the benefit of a consent inures for the subsequent holder. That, I think, is something that is really derived from the case law on the topic, generally speaking.
HAYNE J: It is derived from the terms of 76A(1), is it not? It forbids a person from doing something unless “a consent has been obtained”. It does not say unless that person has obtained consent.
MR JACKSON: That is so. It is consistent with that notion. Your Honours, our learned friends rely on Cambridge Credit Corporation Ltd v Parkes Development Pty Ltd [1974] 2 NSWLR 590 at 615. These were proceedings between two parties. The council was not a party. The effect of the decision was that the variation of the proposed use that had been applied for and granted by the council was one that required further advertising. Because there had not been advertising, the grant of the consent, it was argued, was ultra vires and the consent was a nullity. That affected a joint venture. Justice Hutley, at page 615B, referred to the desirability of the Willoughby Council being a party and said:
The decision of the council approving a development application concerns many persons other than the parties to the application. It binds and runs with the land.
Well, “runs with” is true, “binds” in some circumstances. There is not an obligation to comply with it, to do the development, except in certain circumstances. Your Honours will also see the last five or six lines of that paragraph.
Reference is also made to what was said by Justice Stephen in this Court, with Justice McTiernan agreeing, in Eaton & Sons Ltd v Warringah Shire Council (1972) 129 CLR 270 at page 293. It is the passage commencing halfway down the page. He referred to:
two features of consents granted under schemes such as those here . . . First, although a consent will no doubt result from an application by an individual it is essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land –
Your Honours will then see the second reason he gave is on page 294, and that was a question whether it was continued by the Interpretation Act equivalent provision. Again, that does not really advance the matter significantly.
In House of Peace v Bankstown City Council (2000) 48 NSWLR 498 at page 504, your Honours will see Justice Mason, with whom the other members of the court agreed, in paragraphs 22 through to 24, in particular paragraph 23:
Emphasis upon the use as distinct from the person using the land reminds that a consent operates in rem. In an oft-cited dictum, Else-Mitchell J –
Your Honours will see the remainder of that paragraph. That is the sense in which he appears to be using the term “in rem”. Finally in relation to these cases, reference is made to the decision of the House of Lords in Wyre Forest District Council v Secretary of State for the Environment [1990] 2 AC 357. The relevant part is at page 370. Your Honours will see the paragraph commencing between letters B and C:
a planning permission is not a mere personal licence . . . but can be said to run with the land.
It is clear, of course, that the conditions if one has a consent to the use of the land for a particular purpose on particular terms that those conditions will bind a subsequent owner seeking to utilise it. Your Honours will see that referred to – and I do not think I need to take your Honours to it – in a decision in the New South Wales Court of Appeal, Rao v Canterbury Council (2000) 112 LGERA 360 at pages 364 and 373, where reference is made to the predecessor to section 76A, that predecessor being section 76(2). One does come down to the situation in the present case that those cases are concerned with matters which are ongoing.
Here, the land had been subdivided and it was in separate blocks. The separate blocks were sold to different people. In relation to those different people, they had nothing at all to do with the subdivision. They had nothing at all to do with obtaining the approval. They were simply persons who had purchased at a time after the approval. If one looked at all the plans, the best one would see is that there was a proposal to create a right of way.
CALLINAN J: Mr Jackson, can you remind me of the provision which requires the Registrar to register only a plan that is sealed by the council?
MR JACKSON: I will endeavour to give your Honour the reference to that, yes.
CALLINAN J: There are a couple of other things I want to ask you too, but when it is convenient, Mr Jackson.
MR JACKSON: Your Honour, it is convenient now. I was just going to go to what was really the last matter I wanted to deal with.
CALLINAN J: Well, first one was the provision that imposes upon the Registrar a requirement to register a plan only if it is sealed by the council. Do you know what the provision ‑ ‑ ‑
MR JACKSON: Well, your Honour, I will just have to check. It is either in the Conveyancing Act or in the Real Property Act.
CALLINAN J: I would like to know that and, like Justice Hayne, I would like to know where we find in the record a reproduction of the certificate of title of your client and, if there is one, of the respondent’s certificate of title. One other question I was going to ask you, your client’s land, first of all, as it was before the further subdivisions, but at the time of the original subdivision into two allotments, even though it had a frontage, I think, to Clothiers Creek Road, would it have derived any benefit from the proposed right of way?
MR JACKSON: Well, your Honour, the ‑ ‑ ‑
CALLINAN J: I will tell you why I ask that Mr Jackson. I am wondering whether there is any principle operating here, that if you get a benefit, you have to accept the burden that goes with it.
MR JACKSON: Your Honour, that proposition is one that is sometimes relied on in a slightly different context.
CALLINAN J: Well, party walls and things of that kind.
MR JACKSON: Yes, to see who pays for maintaining it.
CALLINAN J: Exactly, but I am not sure that it may not possibly have some application here. I am not saying it does. But, of course, the preliminary question is, is there any benefit to your land? For example, was it of any assistance in the further subdivision of what was, I think, lot 1?
MR JACKSON: Your Honour, what happened really was this. There was a plan – I do not use the term in a technical sense – for great development in the area, because Winchcombe Carson owned a number of blocks of land. One of the things that was intended to be done was to leave the respondent’s block of land as one of, I suppose, tranquillity, where the bananas could be grown or whatever done, but as rural land. The purpose of obtaining a right of carriageway was to obtain access to that land. There was a proposal, which appears in the diagram, that there might be a road there in fact. The road, of course ‑ ‑ ‑
CALLINAN J: Lot 2 had no other access, did it? It did not have any road frontage, did it?
MR JACKSON: Your Honour, there was a road dedicated, but unmade road. The judge at trial found there was no practical access to it, and if the case be, if we were successful in the proceedings, the means of obtaining access would be by an application under section 88K, I think, of the Conveyancing Act which is the provision which allows the court to create an easement but, of course, compensation is payable.
CALLINAN J: It is an easement of necessity, in effect?
MR JACKSON: It replaces, in effect, the easement of necessity. It gives the court a power. I think there is provision allowing that to be done, certainly in two States, Queensland and New South Wales, and also I think there may not be such a provision in all the States.
CALLINAN J: There is certainly one in Queensland.
MR JACKSON: There is certainly one in Queensland, your Honour, yes. I think the Queensland one was first, the New South Wales one second. So to obtain access, that is what would have to be done, but as a means of practical access, yes, this is the way into it.
CALLINAN J: All right then, the other question, any benefit to your client, your client’s land? It may not have been in evidence. I do not know, Mr Jackson. I am not asking you to talk outside the evidence, but it may be apparent from the documents.
MR JACKSON: Your Honour, if one looks at the series of actual plans that came in for further subdivision, what one sees is this corridor, as it were, being left as the top of a bottle, really, this bit of it leading between the other parcels into which this was divided.
CALLINAN J: There is always the road to Danzig. Even on the subsequent plans it was shown as, obviously, some kind of a right of way?
MR JACKSON: The same phrase has been used to indicate that area, yes.
CALLINAN J: Do those words appear on your client’s – I do not know about a New South Wales certificate of title. In Queensland, the title always contains a little plan of the parcel and the road frontages. That is why I want to see it. It may have been why Justice Hayne wanted to see the actual certificate of title.
In this case, the consent was implemented, and the condition appears in diagrammatic form on the face of a series of plans.
Could I just say, your Honours, his Honour may be right or may be wrong, but what he is saying in the second part of that sentence is that the condition appears in diagrammatic form. What the condition is is simply a condition that there is a proposed right of carriageway. It goes, really, no higher than that.
McHUGH ACJ: Mr Jackson, what do you say about the proposition that the effect of the letter of 22 May 1978 was to impose a third condition of consent? You say it:
shall be required to declare by statutory document as a condition of subdivision that a right of carriageway –
It is not necessarily a third condition, but a substituted condition.
MR JACKSON: Your Honour will recall that this morning I said that there seemed to be really three possibilities. The possibilities seem to be this. One was that the earlier condition as such was no longer subsisting. The second possibility was that the subdivider remained liable to create the easement. The third possibility was that there was a requirement, but that the requirement was now that the subdivider remained liable to declare, in one fashion or another, that it would create the right of carriageway.
Now, your Honour, that involves the assumption, of course, that when it says “declare by statutory document”, perhaps it is speaking about a statutory declaration.
CALLINAN J: It might have been talking about a bond, Mr Jackson.
MR JACKSON: It may have been, your Honour, but the point I was seeking to make about it was that if it be that it falls into that third category, it emphasises, we would submit, that the notion that the particular condition was one which is a condition, if I could use the expression, in personam on the developer, as distinct from a condition which relates to every successive owner of the subdivision.
McHUGH ACJ: There may have been a fourth category, namely, that this was an additional condition.
MR JACKSON: That is possible, your Honour. I accept the possibility.
CALLINAN J: Mr Jackson, is the proposed carriageway ever to become an actuality and, if so, when? What happens? Is it just all in limbo on the deposited plan?
MR JACKSON: It is in limbo, your Honour. I am not certain if limbo still exists actually but ‑ ‑ ‑
CALLINAN J: What happens? It just becomes meaningless, does it?
MR JACKSON: Your Honour, its use may be of greater efficacy to someone who is not to become a titleholder in fee simple. If I could put it this way: if it be that someone is obtaining finance for something, then the financier is, in effect, put on some form of notice that, in relation to this area, there may later be created a right of carriageway.
CALLINAN J: My response to that is, when?
MR JACKSON: Well, your Honour, that is it.
CALLINAN J: Unless you give it some meaning, it is just of no utility to anybody. It is just meaningless. The conditions are meaningless. The notation on the deposited plan is meaningless. According to your case, you can build on it, you can use it. Is that right?
MR JACKSON: Well, certainly, your Honour, but a notation of that kind is of more use if what is contemplated is a proposed public right, because in that case it really indicates the possibility that there will be resumption or something of that kind, or that there are other statutory rights that may be exercised in relation to it. But in relation to private rights, I accept, your Honour, that it performs very little practical function.
CALLINAN J: I still cannot see that it performs any on your case.
MR JACKSON: Well, your Honour may be right, but perhaps it does give an indication in circumstances where there may be some contractual right, your Honour, which is one which is sought to be implemented.
CALLINAN J: Well, specifically, what?
MR JACKSON: Well, your Honour, let us say that as between a subdivider and a purchaser of one of the lots it is shown that it has a proposed right, but there is also a contractual provision as between the two of them saying that in order to obtain access to some other land that there may be an easement created and there may be an obligation to do all things necessary.
CALLINAN J: That does not help. It just means that it has no efficacy without a contract.
MR JACKSON: It may be, your Honour, but ‑ ‑ ‑
CALLINAN J: You might as well draw a line on a plan on the contract.
MR JACKSON: Well, your Honour, I cannot advance it beyond that, I do not think, but if that is so, what it does demonstrate is that the position is one of fundamental weakness for ‑ ‑ ‑
CALLINAN J: An exercise in futility.
MR JACKSON: Well, your Honour can put it that way, but it does not have any operative effect so far as a subsequent purchase is concerned. Your Honours, could I come back to section 76A of the Environmental Planning and Assessment Act for a moment. Your Honours will see in section 76A that it refers to an “environmental planning instrument”. Your Honours, could I just say in relation to the definitions that an environmental planning instrument “includes a deemed environmental planning instrument” by the definition section that would take one to an interim development order under the previous legislation. But, your Honours one then has a situation of having to inquire what interim development is being carried out by a person.
Your Honours, it is, in our submission, drawing a very long bow to say it is the use of the land or any of the other features relied on by our learned friends and indeed, your Honours, I do not think I can take it beyond that. But, in our submission, it is to be drawing a very long bow indeed to say that for us to be using our own land in the manner in which we choose to, driving down this passageway if we want to, that that is making a use of our own land which is carrying out the development.
Your Honours, our learned friend referred to the agreement in volume 3 at page 746. That agreement actually relates to work carried out on the respondent’s land. I will take your Honours to that in a moment, but what explains that is the statement of Mr Weller, commencing at page 743, where he says, in paragraph 5, that he had conversations with Mr Tagget. Mr Tagget said he had previously owned the Heaven’s Door property – that is lot 1 – and your Honours will see what he said in paragraph 5. In paragraph 6, he said:
Mr Tagget told me he was an experienced road builder and after several discussions with him I agreed to pay him to upgrade the roads so that we could show prospective purchasers and investors the property, and to enable me to gain general access to the property.
This road construction was done during December 1997 and January and February 1998. It proceeded from Tanglewood Drive to the northern boundary of my property, and then into my property –
and he refers to the extent of it. Your Honours will then see:
The road construction was the subject of an agreement dated 14 November 1997.
That agreement was one referred to at page 746. In terms, as you will see from recital A, it is referring to the work being carried out in the respondent’s property. You will see that particularly picked up by the word “Property” and then clause 2(b) on the next page. Your Honours, the novation of that agreement at page 750 was said to be an agreement to purchase the respondent’s property, which, of course, has not gone ahead. And that is at a time when Mr Tagget had then formed Hillpalm.
Your Honours, our learned friends referred also to the transitional provisions and, in particular, the additional transitional provision that was inserted in 1995. If your Honours look at the additional provision, it simply refers back to section 7(1) in any event, so that would have to be satisfied. Your Honours, I think those are our submissions.
McHUGH ACJ: Thank you.
MR ROBERTSON: Your Honour, before Court adjourns, there was a matter that my learned friend referred to in reply which should have been dealt with in chief, and that is the submission that the council clerk’s certificate pursuant to section 327 stated, if you like, conclusively that the provisions of the Act had been complied with. Council clerk’s certificate is only in relation to subdivision. If you look at the box in the left-hand lower corner of my client’s title diagram, you will see that there were three possibilities that the council clerk could certify. One is road, another is subdivision. He only certified compliance with the Act in relation to subdivision, not road. The reference to the decision of Justice Lloyd in Hillpalm v Tweed Shire Council is (2002) 119 LGRA 86. If the Court pleases.
McHUGH ACJ: Thank you. The Court will reserve its decision in this matter and we will adjourn until 9.30 am in Canberra and 9.30 am in Sydney tomorrow.
AT 3.49 PM THE MATTER WAS ADJOURNED
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