Hobsons Bay City Council v Gibbon

[2011] VSC 140

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8376 of 2008

BETWEEN

HOBSONS BAY CITY COUNCIL	Plaintiff
and
ANDREW GIBBON & ORS	Defendants

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3, 4, 5 February and 31 March 2010 (last written submission received 18 November 2010)
DATE OF JUDGMENT:	12 April 2011
CASE MAY BE CITED AS:	Hobsons Bay City Council v Gibbon & Ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 140	First Revision:  13 April 2011

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EQUITY - Estoppel – Proprietary estoppel – Encouragement and standing by – Claims for irrevocable licences over municipal land – Persons encouraged to build boatsheds in fishing village on municipal land 45 years before – Numerous subsequent transfers – Current occupiers unable to establish that predecessors had reasonable expectation of permanent tenure induced by conduct of Council – Subsequent payments and improvements insufficient to establish irrevocable licences or other equities – Estoppel claims also confronted by statutory provisions – Estoppel claims not made out – Local Government Act 1958 (as amended from time to time) ss 3, 8, 236, 237, 238, 239, 240A; Local Government Act 1989 ss 189, 190, 191, 192.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Appudurai, solicitor	Russell Kennedy
For the Defendant	Mr T. J. Sowden	Stynes Dixon Lawyers

HIS HONOUR:

Introduction and overview:  the Fishing Village and the Council

1. On the northern bank of the Kororoit Creek in Altona is an area known as the Kororoit Creek Fishing Village.  The Fishing Village was established during the nineteen-twenties when the land was privately owned by a Mr Knowles.  Various rudimentary structures described as fishing huts or boatsheds formed part of the Village.  Mr Knowles made them available for use for a modest annual fee.

1. Pursuant to a resolution made in 1946 Williamstown Council, the predecessor of the plaintiff, compulsorily acquired the Fishing Village area, as part of a larger parcel of land, in 1947.  The land as a whole was acquired for a place of public resort and recreation.[1]  However the Fishing Village remained and the existing arrangements for the use of the structures continued, save that the annual fees were thereafter paid to the Council, which maintained records of the identities of the users of the respective structures and of any changes in that regard.  Rates were also imposed from the time of the acquisition.[2]

   [1]See Minutes of ordinary meetings of Council of 20 August 1946 and 15 October 1946; Victoria Gazette, October 30, 1946, p 3469; Victoria Gazette, February 26, 1947, p 1533.

   [2]This was ultimately common ground:  transcript pp 101, 458-459.

1. By the early 1960s the structures in the Fishing Village had deteriorated badly.  In about 1963 or 1964 the Council decided that they should all be demolished or removed and that anyone who wished to retain or take over a site should construct a new building on it within a limited time, to the Council’s engineer’s requirements, but at their own expense.  The entire Village was rebuilt accordingly between about 1965 and 1967.  Two angling clubs built substantial brick clubhouses.  The other buildings erected at that time (and afterwards) have usually been referred to in the evidence as boatsheds, but sometimes as fishing huts.  For ease of reference I will hereafter refer to them as boatsheds although, controversially, some of them have been fitted out and used for temporary or permanent human occupation from time to time.

1. In about 1966 water was supplied to the Village for the first time, under arrangements with the Council that involved some expense for the holders of some of the boatsheds.  Since then repairs and improvements have been made to various boatsheds at the expense of the relevant boatshed holders.

1. In June 1994 Williamstown Council went out of existence and was succeeded by the plaintiff, Hobsons Bay City Council.

1. The Fishing Village is notionally divided into numbered sites.  The sites were rearranged, reduced in number and renumbered as part of the arrangements for the rebuilding of the Village.  Two of the sites are still occupied by the clubhouses of the angling clubs.  There are boatsheds on most of the other sites.  The land has not been subdivided.  Until recently, transfers of boatshed sites occurred informally, sometimes for monetary consideration, and the Council was merely notified of each transfer after the event.  There were no written leases or formal licence agreements.  Numerous transfers have occurred since the rebuilding of the Village in 1965-67.

1. The boatshed sites are in a Public Conservation and Resource Zone under the Hobsons Bay Planning Scheme.

1. In about 2006 the plaintiff Council resolved to introduce a more formal licensing system.  It took the position that the existing boatshed holders had no more than a bare annual revocable licence.  It proffered to each of the existing boatshed holders a 3 year written licence agreement containing various other terms.  The proposal met with stiff resistance from many of the boatshed holders, although about half of the boatshed holders have since signed up.  The resisters banded together under the banner of the Kororoit Creek Historical Fishing Village site holders and users group.[3]

   [3]See letter of 20 November 2006:  Court Book (CB) document 127.

1. The Council demanded that those who would not sign should in due course depart.  Twelve boatshed holders refused to sign and refused to go.  They said that they were legally entitled to remain permanently.  Eventually, in September 2008, the Council brought this proceeding against them, seeking declarations that the twelve were trespassers, and mandatory injunctions requiring them to vacate the sites and to remove their improvements and property from the sites.

1. During the hearing of this case two defendants (Robert Eagles and James White)  have dropped out of the dispute after transfers of their boatsheds to others, and have been removed as parties.  The ten remaining defendants (“the defendants”) were given leave during the hearing to file an amended defence and to add, for the first time, a counterclaim.  They assert that they have an irrevocable licence or irrevocable licences over the land in question, on equitable principles.  They rely in particular on the principles of proprietary estoppel.[4]  They say that they are entitled to remain in occupation of their sites indefinitely, subject to payment of reasonable licence fees and Council rates, and to transfer their rights to others as they see fit.  Alternatively, they seek equitable compensation or equitable damages.  Their claims have significant common features, and to a large extent they make common cause.  It seems that they are now associated together under the name of the Kororoit Creek Progress Association, which is an unincorporated, unregistered association that presently exists mainly for the purpose of conducting this case,[5] but which may be the same as, or a successor to, an organisation of the same name that for decades had represented persons associated with the Village.[6]

   [4]As exemplified in cases such as Ramsden v Dyson (1866) LR 1 HL 129 and Plimmer v Mayor of Wellington (1884) 9 App Cas 699.

   [5]See the evidence of Kimberley McAdam at transcript pp 230-231.

   [6]The Kororoit Creek Progress Association is referred to in numerous old documents included in the Court Book.  Any relationship between the Association and the abovementioned Kororoit Creek Historical Fishing Village site holders and users group was not explored in the evidence, although it seems that they may now have merged.

1. Nine of the ten defendants claim to be, in effect, successors in title to persons who took boatshed sites in 1965-67.  It seems that the other defendant, Mr Ray Baker, took a boatshed site himself at that time and still has it.  The defendants’ equitable claims are principally based on the events of 1965-67, taken in their historical and general context.  That context included the history of the Village, the levying of rates on the boatshed holders, and the practice of each Council of acknowledging direct transfers of boatsheds after they happened.  Further or alternatively the defendants rely on events and circumstances occurring after 1965-67, including the continued levying of rates; the continued practice of acknowledging direct transfers; the making of improvements to the boatsheds, in some cases with Council approval; and, again, the historical or heritage features of the Village, as recently recognised in a Council heritage study.  Although the details are not pleaded, various defendants also rely on what they have paid individually for a boatshed or what they have done individually by way of improvements or repairs, and they seek to fix the plaintiff with acquiescence to such steps.  However some of the defendants, with little or no explanation, have not been called to give evidence.

1. The plaintiff Council joins issue with the defendants’ allegations generally.  It contends that the defendants merely had revocable licences which had all come to an end before the commencement of this proceeding.  Further, it contends that any estoppels that might otherwise have arisen have been prevented from arising by statutory provisions relating to local government in force in Victoria from time to time during the periods in question.  On the other hand, during the hearing of this case, the plaintiff Council made an open offer of settlement to the defendants under which, subject to the defendants paying the Council’s costs of the proceeding, each claimant would be granted a fresh licence with a term of 5 years, which is now the standard term applicable to the other boatshed holders at the Village.  The offer was not accepted.

1. Even apart from statutory considerations, I am not satisfied that any of the defendants has, at this time, any continuing equity in or in relation to the land.  The statutory provisions reinforce that conclusion and, in any event, they rule out any irrevocable or permanent licence.  In all the circumstances it would not be appropriate to make any award of equitable compensation or equitable damages.  The defendants’ defence and counterclaim fails and the plaintiff Council is entitled to relief against them.  However, for reasons I will explain, my provisional view is that there should be at least some allowance in the defendant’s favour in relation to costs.

Common ground:  the plaintiff’s title

1. The defendants accept that from April 1948 until June 1994 the subject land was vested in the Williamstown Council as registered proprietor and that the plaintiff Council has been the registered proprietor, and the beneficial owner, of the land since June 1994 in succession to the Williamstown Council.

The ultimate claims made by the defendants

1. The defendants expressly concede that, because they (and their predecessors) have been required to pay “annual site rental”, their (claimed) equity falls short of a right to a conveyance of the land.[7]  However they submit that their equity is capable of being satisfied on the basis that their right to occupy the land is perpetual and that they be able to transfer their interests.  They would accept that they and their successors should continue to be required to pay rates and “reasonable annual site fees”.[8]

   [7]Defendants’ undated written outline of submissions, para 31.  See also transcript p 127.

   [8]Ibid.

1. In their counterclaim the defendants express the relief they seek as follows:

“A.     A declaration that the defendants occupy the said land          according to an irrevocable licence on the following terms and           conditions:

(a)the defendants to pay rates levied from time to time by the plaintiff;

(b)the defendants to pay a reasonable annual licence for the occupation of the sites;

(c)the licence is perpetual;

(c)[sic]the licence be capable of being assigned by the licensee on terms determined by the licensee.

B.In the alternative a declaration that the defendants occupy the said land according to an irrevocable licence according to such terms and conditions as this Honourable Court deems appropriate;

C.A permanent injunction restraining the plaintiff its servants and officers from removing the defendants from the said land;

D.Alternatively compensation for loss of expection [scil expectation] in the event that the plaintiff succeeds in obtaining possession of the said land;

E.Costs.

F.Such further or other order as this Honourable Court deems appropriate.”

1. The defendants’ claims have an “all or nothing” character.  Both the primary claim and the alternative claim depend on establishing a right to remain permanently.  Neither in their pleadings nor in their submissions have they ever expressly included a claim in the further alternative for a right to remain for a limited period or for equitable compensation or damages assessed by reference to something less than the loss of a right to remain on the land permanently (on the terms claimed).  Indeed they made no claim for equitable compensation or damages at all until after the trial began, and then only after vacillating about it.[9]  Nevertheless, out of caution, I have considered whether any such lesser relief might be appropriate in all the circumstances.  However, as indicated above, I have arrived at the conclusion that it would not be appropriate to grant any relief at all to the defendants, save (provisionally) as to costs.

   [9]See transcript 39-40, 54-55, 57-58.

Burden of proof on the defendants

1. The defendants accept that the legal burden of proof in respect of the facts necessary to support their equitable claims lies on them in all respects, and that unless they discharge that burden the plaintiff Council is entitled, in substance, to the relief it seeks.[10]  That concession is properly made.[11]  Indeed in Svenson v Payne[12] the High Court approved observations made in earlier cases to the effect that a person is not to be deprived of his legal rights by estoppel “unless he [sic] has acted in such a way as to make it fraudulent in the equitable sense for him to set up those rights” and that “the party setting up the estoppel must prove the case by strong and cogent evidence”.[13]

   [10]Transcript p 7.

   [11]Ramsden v Dyson(1866) LR 1 HL 129 at 151; Thompson v Palmer (1933) 49 CLR 507 at 545 (Dixon CJ); Commonwealth v Verwayen (1990) 170 CLR 394 at 416; Pacific National (ACT) Limited v Queensland Rail [2006] FCA 91 (Jacobson J) at 668(9).

   [12](1945) 71 CLR 531.

   [13]At 542-543, referring to Wilmott v Barber (1880) 15 Ch D 96 at 105-106 and Dann v Spurrier (1802) 7 Ves. Jun. 231 [32 ER 94]. See also Roy v Lagona [2010] VSC 250 (Hansen J) at [306]-[309].

Commencement of the alleged equity

1. The defendants effectively concede that no equity arose in this matter until, at the earliest, the rebuilding of the Village in 1965-67.[14]  That concession, also, is correctly made, because in the period leading up to the rebuilding of the Village everyone must have accepted that the Council was within its rights in requiring the demolition of the previous structures and in requiring site holders either to walk away or rebuild at their own expense.  Hence, as the defendants’ counsel acknowledged, at that stage what the site holders had was probably “just a bare licence”.[15]  Further, as mentioned above, none of the defendants was involved with the Village in 1965-67 except (as I would hold) Mr Ray Baker.  Apart from Mr Baker, none of them built on the Council’s land.  Rather, they took transfers from third parties at later times.  I turn next to the evidence about Mr Baker’s position.

   [14]Transcript p 85.

   [15]Ibid.

The particular position of the defendant Ray Baker

1. Mr Baker did not give evidence in this proceeding.  He occupies a site which is currently designated as site 17 in the Council’s records.  He is known to Ms Kimberley McAdam who, although not a defendant herself, was the Secretary of the Kororoit Creek Historical Fishing Village site holders and users group and who appears now to be the principal of the Kororoit Creek Progress Association.  She has had connections with the Village since about 1987.  She gave evidence about Mr Baker.  She said that she believed that Mr Baker had been at the Village since the early 1960s.  She described him as a hermit.  She said that he gets up at about 4 am each day; goes down to the local train station; spends the day riding the trains; goes back to the “sheds” after dark; and is rarely seen.[16]  I accept that evidence.  Ms McAdam also said that Mr Baker paid 250 pounds for “his” shed in 1963 and that she knew this because she had seen the document.[17]  Unfortunately the document referred to was not produced nor further identified.  It is the defendants’ own case that all of the existing boatsheds were required to be demolished in 1965-67 and the plaintiff has not contradicted this.  On that basis, if Ms McAdam’s recollection is correct, Mr Baker must have had to erect a new boatshed in 1965-67 despite having paid 250 pounds for the old one only two or three years earlier.

   [16]Transcript p 231-232.

   [17]Transcript p 235.

1. There are two express references to the current site 17 in the documentary evidence.  A handwritten site-holder list of unknown authorship dated 13 March 1990 (discovered by the plaintiff) records the holder of site 17 as R Baker (of a specified address in Newport).[18]  A heritage study done on behalf of the Council in 2004 noted that “R. Baker’s hut 17 had beds, sink and a TV with a clothes line full of washing at the back”.[19]  Other evidence indicates that the layout and numbering of the sites in the Village was changed significantly as part of the arrangements made for the rebuilding of the Village in 1965-67.  A Senior Health Inspector’s report of 5 October 1962 had stated that a fisherman’s hut, then designated as no 28, was “for sale”, and the then owner was named.[20]  A handwritten amendment to that 1962 report indicates that the owner of no 28 had become R.L. Baker (of a specified address in Newport, though different from the address in Newport given for R. Baker in 1990 as indicated above).  This broadly tallies with Ms McAdam’s evidence.  A witness called by the Council, Mr Davison, recollected Mr Baker having had a fishing boat at the Village in about 1973.[21]

   [18]CB Document 88.

   [19]CB Document 101.

   [20]CB Document 27.

   [21]Transcript p 299.

1. I am prepared to assume in Mr Baker’s favour that he paid for an existing shed in 1962 or 1963, that it was required to be demolished in 1965-67, and that he also paid for the erection of a replacement shed at that time.  The documentary evidence indicates that the approximate cost in 1965-67 of erecting a boatshed in accordance with the Council’s requirements was between 150 and 200 pounds.  I am prepared to assume that Mr Baker paid something broadly reflective of that level of cost for the construction of his boatshed. 

1. Thus I find that Mr Baker himself caused the boatshed currently on site 17 to be built (on the Council’s land) between 1965 and 1967, whereas all of the other defendants acquired their boatsheds later from third parties.  As will be seen, that distinction may mean that the principles of proprietary estoppel would operate a little differently as between Mr Baker and the other defendants, but in the end the outcome is the same in this case. 

Proprietary estoppel:  the principles

1. As mentioned above, the defendants rely on proprietary estoppel.  In his leading work on estoppel by conduct and election published in 2006 Mr Justice Handley states that proprietary estoppels comprise estoppels by standing by and estoppels by encouragement; that they are of long standing in the law; and that they differ from other estoppels, except promissory estoppel, because they give rise to equitable causes of action which prevent the unconscionable enforcement of the other party’s legal rights and confer proprietary rights on the claimant.[22]

   [22]The Honourable Mr Justice K.R Handley, Estoppel by Conduct and Election, 2006, para [11-001].

1. Mr Justice Handley summarises estoppel by standing by as follows:

”If B infringes A’s proprietary rights in the belief that his actions are lawful and A, aware of his rights and of B’s acts and mistaken belief, fails to assert them and B acts to his prejudice, A will be estopped from asserting his rights against B”.[23]

[23]Handley, op cit para [11-002].

1. The learned author quotes the following passage from the speech of Lord Cranworth LC in Ramsden v Dyson[24] as stating the principles:

“If a stranger begins to build on my land, supposing it to be his own, and I, perceiving his mistake, abstain from setting him right … a Court of Equity will not allow me afterwards to assert my title to the land on which he had expended money.  It considers that when I saw the mistake … it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain wholly impassive on such an occasion, in order afterwards to profit by the mistake which I might have prevented.  But … to raise such an equity two things are required, first, that the person expending his money supposes himself to be building on his own land; and secondly that the real owner … knows that the land belongs to him and not to the person expending the money.  For if a stranger builds on my land, knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of the expenditure made on it.  There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights.  It follows … that if my tenant builds on land which he holds under me, he does not thereby, in the absence of special circumstances, acquire any right to prevent me taking possession of the lands and buildings when the tenancy had determined.”

[24](1866) LR 1 HL 129, 140-1.

1. As to estoppel by encouragement, Mr Justice Handley states (omitting footnotes):

“Where a person has been encouraged to construct permanent improvements on the land of another or otherwise alter his position in the expectation of obtaining a proprietary interest equity may require the owner to give effect to the expectation he has created or encouraged.  Lord Eldon LC said in Dann v Spurrier that the Court of Chancery ‘will not permit a man knowingly … to encourage another to lay out money under an erroneous opinion of title’.  Lord Kingsdown stated the principles in his dissenting speech in Ramsden v Dyson:

‘If a man, under a verbal agreement with a landlord for a certain interest in land, or what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of such landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation’.

This statement of principle was followed in Plimmer where Sir Arthur Hobhouse said:

‘ … the landowner has, for his own purposes, requested the tenant to make the improvements …  Their Lordships consider that this case falls within the principle stated by Lord Kingsdown as to expectations created or encouraged by the landlord, with the addition that in this case the landlord did more than encourage the expenditure, for he took the initiative in requesting it’.

Later cases established that other detriments can support this form of estoppel, which need not be financial, but must be substantial, and the test is that stated by Dixon J in Grundt.  The party bound induces ‘an assumption as to the future acquisition of ownership’ but a voluntary promise or statement of intention without more is not enough.  The High Court of Australia has said that ‘The critical element is the conduct of the defendant after the [promise] in encouraging the plaintiff to act upon it’, and it approved this statement of McPherson J in Riches v Hogben:

‘ … what attracts the principle is not the promise itself but the expectation it creates.  It is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting on the expectation to which it gives rise’.”[25]

[25]Handley, op cit, para [11-003].

1. Comparing estoppels by encouragement with estoppels by standing by, Mr Justice Handley makes the following pertinent observations:

“Most of the proprietary estoppel cases decided since World War II involved estoppels by encouragement, which became important in cases arising from domestic or family relationships.  Estoppels by standing by are rare.  The simplification of the land law in 1925, the spread of registered land, the intensification of land use, and the imposition of planning controls have made it unlikely that anyone will now improve land under a mistaken view of their title although it can still happen.  It was never easy to establish this form of estoppel but the principles, stated by Fry J in Willmott v Barber, were well settled:

(1)The person infringing the rights of the owner must be mistaken about his rights;

(2)The owner must know his rights are being infringed;

(3)He must know that the infringer is mistaken;

(4)The owner must fail to warn the infringer or assert his rights;

(5)The owner’s silence must induce the infringer to continue in his mistaken belief;

(6)The infringer must have altered his position on the faith of his mistaken belief by spending money or doing work on the property. 

In Willmott v Barber a subtenant claimed an estoppel by standing by against the owner.  He had been allowed into possession of part, without the consent of the owner as required by the head lease, under an agreement with the tenant which gave him an option but the owner refused his consent to the assignment.  He knew the subtenant was in possession and spending money on improvements but had forgotten that his consent was necessary, did not know that the subtenant believed that consent was not required, and had not encouraged that belief.  The subtenant failed.  As Oliver J said in Taylors Fashions:

‘This was a pure acquiescence case where what was relied on was a waiver of the landlord’s rights by standing by without protest.  It was a case of mere silence where what had to be established by the plaintiff was some duty on the landlord to speak’.

The landlord’s ignorance would not have protected him from an estoppel by encouragement.  There is no estoppel by standing by where the owner notified the other party of his objection which he is not bound to repeat.”[26]

[26]Handley, op cit paras [11-006]-[11-007].  Footnotes omitted.

1. Another succinct and helpful summary of the principles of proprietary estoppel is contained in the judgment of Brereton J in Greek Macedonian Club Ltd v Pan Macedonian Greek Brotherhood NSW Ltd[27], as follows:

“49The basis in equity of the Club’s claim is properly to be seen as falling in the rubric of equitable proprietary estoppel.  Equity comes to the relief of a plaintiff who has acted to its detriment on the basis of a fundamental assumption in the adoption of which the defendant has played such a part that it would be unfair or unjust if the defendant were left free to ignore it; equity intervening on the footing that it would be unconscionable for the defendant to deny the assumption [Grundt v Great Boulder Gold Mines Limited [1937] HCA 58; (1937) 59 CLR 641, 675; Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507, 547; Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; (1988) 164 CLR 387, 404 (Mason CJ and Wilson J)]. It is essential to an equitable estoppel that the defendant knows or intends that the party who adopts the assumption will act or abstain from acting in reliance on it [see Crabb v Arun District Council [1976] Ch 179, 188; Waltons v Maher, 423 (Brennan J)]. Such knowledge or intention may easily be inferred where the adoption of the assumption or expectation is induced by the making of a promise, though it may also be found where the defendant encourages a plaintiff to adhere to an assumption or expectation already formed, or acquiesces in an assumption or expectation when in conscience, objection ought to be stated [Waltons v Maher, 423 (Brennan J)]. The unconscionability which attracts the intervention of equity is the defendant’s failure, having induced or acquiesced in the adoption of the assumption or expectation, with knowledge that it would be relied on, to fulfil the assumption or expectation or otherwise to avoid the detriment which that failure would occasion [Waltons v Maher, 423 (Brennan J)].

50Generally speaking, the matters that a plaintiff must establish to found such an equitable estoppel may be characterised as including certain conduct of the plaintiff, certain conduct of the defendant, and certain qualities of the subject matter which may be sufficiently summarised as follows [cf Young v Lalic [2006] NSWSC 18, [74]; O’Neill v Williams [2006] NSWSC 707, [40]]. First, as to the conduct of the plaintiff, that the plaintiff acted, or abstained from acting, in reliance upon an assumption or expectation that a particular relationship existed, or would exist, between the plaintiff and the defendant, or that the plaintiff had or would acquire some interest in the defendant’s property. Secondly, as to the conduct of the defendant, that the defendant induced the plaintiff to adopt the assumption or expectation and encouraged the reliant activity of the plaintiff, or at least failed to deny the assumption or expectation with knowledge that the plaintiff was relying on it to the plaintiff’s potential detriment and that the expectation could be fulfilled only by transfer of the defendant’s property, a diminution of the defendant’s rights, or an increase in the defendant’s obligations. Thirdly, as to the subject matter, that the assumption or expectation in respect of it was one that the defendant could lawfully satisfy [see generally Waltons v Maher, 428-429 (Brennan J); Meagher, Gummow & Lehane, Equity: Doctrines & Remedies, 4th ed, [17-105]].”

The matter last mentioned by Brereton J – the requirement that the assumption or expectation be one that the party said to be estopped could lawfully satisfy – is a further significant hurdle for the defendants in this case.    However, for the sake of convenience and ease of reference I will defer consideration of the statutory provisions and the principles and authorities relevant to their application until after I have finished dealing with the general estoppel principles and the facts.

[27][2007] NSWSC 92 at [49]-[50]: appeal dismissed [2008] NSWCA 7. This statement of the principles by Brereton J is summarised and treated as correct by Young, Croft and Smith, On Equity, 2009 at [12.180].

1. So far as the grant of any relief in an estoppel by encouragement case is concerned, the general principles are comprehensively dealt with in the following passage from the joint judgment of Handley AJA (with whom Allsop P[28] and Giles AJA agreed) in what I believe to be the most recent Australian appellate decision in this area, namely Delaforce v Simpson-Cook[29]:

   [28]Alsop P delivered short concurring reasons which are also enlightening for present purposes.

   [29][2010] NSWCA 84.

“54In Sullivan v Sullivan [2006] NSWCA 312 I considered the principles which govern the grant of relief in an estoppel by encouragement case. What follows is based on paras [11]-[32] in that judgment.

55A proprietary estoppel by encouragement may be established where the conduct of the party estopped did not define the expectation: Plimmer v Mayor of Wellington (1884) 9 App Cas 699, 713; Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712 CA, 738-9, 742, 743; Gillett v Holt [2001] Ch 210 CA, 226 per Robert Walker LJ. ‘[T]he quality of the assurances which give rise to the claimant’s expectations’ is an important factor: Jennings v Rice [2003] 1 P & CR 100, 112, 114 per Robert Walker LJ repeating what he said in Gillett v Holt [2001] Ch 210, 225: ‘the quality of the relevant assurances may influence the issue of reliance [and] reliance and detriment are often intertwined’, which was approved by the Privy Council in Henry v Henry [2010] UKPC 3; [2010] 1 All ER 988 PC, 995, 1000.

56Although there are statements in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7, 164 CLR 387 and Commonwealth v Verwayen [1990] HCA 39, 170 CLR 394 that relief in these cases must be limited to removing or reversing the detriment suffered by the party entitled to the estoppel, the joint judgment in Giumelli [1999] HCA 10, 196 CLR 101, 120, 125 established that there is no such restriction. The detrimental reliance that supports the estoppel need not constitute, in any sense, a consideration moving to the party bound. It is a unilateral element of the estoppel and not the price paid for it.

57Relief depends very much on the facts and, as the Privy Council said in Plimmer (1884) 9 App Cas 699, 714:

‘... the court must look at the circumstances in each case to decide in what way the equity can be satisfied’.

58This statement has frequently been approved: Chalmers v Pardoe [1963] 1 WLR 677 PC, 682; Crabb v Arun DC [1976] Ch 179 CA, 188, 193; Giumelli (above) at 113, 125.  The Court does not exercise an unfettered discretion but adopts a principled approach: Giumelli (above) at 123-4, 125; Gillett v Holt [2001] Ch 210 CA, 225 and Jennings v Rice [2003] 1 P & CR 100 CA, 112.

59It has been said that the Court should frame the relief to enforce ‘the minimum equity to do justice to the plaintiff’: Crabb v Arun DC [1976] Ch 179 CA, 198 per Scarman LJ. This principle has frequently been applied in England: Yaxley v Gotts [2000] Ch 162 CA, 175; Gillett v Holt [2001] Ch 210 CA, 235, 237; and Jennings v Rice [2003] 1 P & CR 100 CA, 110, 113; however, as Robert Walker LJ said there it ‘does not require the Court to be constitutionally parsimonious, but ... recognise[s] that [it] must also do justice to the defendant’. The minimum equity principle was applied in Verwayen [1990] HCA 7, 170 CLR 394 by Mason CJ at 441, and Brennan J at 429, 430, but since Giumelli is probably not the law in this country.  It was only mentioned once, and then only in passing in the speeches in Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776. This was to the statement of issues in the Court of Appeal: ibid at 792.

60Relief may be moulded to recognise practical considerations such as the need for a clean break: Pascoe v Turner [1978] EWCA Civ 2; [1979] 1 WLR 431 CA, 438-9; Giumelli (above) at 113-4, 125; Gillett v Holt [2001] Ch 210 CA, 237; Jennings v Rice [2003] 1 P & CR 100 CA, 115. The Court must also take into account the impact of its orders on third parties and any hardship or injustice they would suffer: Giumelli (above) at 113-4, 125; Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712 CA, 749, 750.

61Relief may be refused or reduced if the plaintiff’s equity has been diminished by later events.  In Sledmore v Dalby [1996] EWCA Civ 1305; (1996) 72 P & CR 196 CA the Court held that the plaintiff’s equity based on his improvements had been fully amortized over 18 years of rent free occupation. Subsequent events may also enlarge the plaintiff’s equity as in Crabb v Arun DC [1976] Ch 179 CA where the defendant’s repudiation of the expectation had landlocked the plaintiff’s land for five years: ibid at 189, 199.

62Relief may also be limited where the enforcement of the plaintiff’s expectation would be out of all proportion to the detriment: Jennings v Rice [2003] 1 P & CR 100 CA, 104, 111, 115. This is particularly so where the expectation was not defined and the Court has a broader discretion: ibid at 114.  A gardener had looked after an elderly widow and been promised that ‘he would be alright’ and ‘this will all be yours one day’.  He was awarded £200,000, and the Court of Appeal rejected his claim to the house and contents worth £435,000.

63The Court should, prima facie, enforce a reasonable expectation which the party bound created or encouraged: Meagher Gummow & Lehane ‘Equity Doctrine and Remedies’ 4th ed 2002, pp 567-8.  In Ramsden v Dyson (1866) LR 1 HL 129, 170 Lord Kingsdown said: ‘If a man ... under an expectation created or encouraged by the landlord that he shall have a certain interest [acts to his detriment] upon the faith of such expectation ... a Court of equity will compel the landlord to give effect to such ... expectation’ (Lord Kingsdown’s principle). In Chalmers v Pardoe [1963] 1 WLR 677 PC, 681-2, the Privy Council said that if such an estoppel is established ‘a court of equity will prima facie require the owner ... to fulfil his obligation’. In Attorney General of Hong Kong v Humphreys Estate (Queen’s Gardens) Ltd [1987] AC 114, 121 Lord Templeman said:

‘The authorities expound and illustrate the principle upon which a litigant who is led to believe that he will be granted an interest in land and who acts to his detriment in that belief is enabled to obtain that interest’.

64In Giumelli (above) the joint judgment at 123 quoted with approval this statement of Deane J in Verwayen [1990] HCA 39, 170 CLR at 443:

‘Prima facie, the operation of an estoppel by conduct is to preclude departure from the assumed state of affairs. It is only where relief framed on the basis of that assumed state of affairs would be inequitably harsh, that some lesser form of relief should be awarded’.

65The joint judgment continued:

‘The prima facie entitlement to which his Honour had referred would be qualified if that relief ‘would exceed what could be justified by the requirements of conscientious conduct and would be unjust to the estopped party’.

66See also Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712 CA, 749.

67In Sledmore v Dalby [1996] EWCA Civ 1305; (1996) 72 P & CR 196 CA, 203 Roch LJ, delivering the principal judgment, approved the statement in Snell’s Equity 29th ed p 576 derived from Griffiths v Williams (1978) 248 EG 947, 949 per Reginald Goff LJ, and In re Basham [1986] 1 WLR 1498, 1510 per Nugee QC:

‘The extent of the equity is to have made good, so far as may fairly be done between the parties, the expectations of A which O has encouraged’.

68Sledmore v Dalby was followed in Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1998) 81 FCR 475, 517-8.

69In Jennings v Rice [2003] 1 P & CR 100 CA, 114 Robert Walker LJ said:

‘ ... there is a category of case in which the benefactor and the claimant have reached a mutual understanding which is in reasonably clear terms but does not amount to a contract.  ...  In such a case the Court’s natural response is to fulfil the claimant’s expectations.  But if a claimant’s expectations are uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered, the Court can and should recognise that the claimant’s equity should be satisfied in another (and generally more limited) way’ (emphasis supplied).

70I was in the minority in Sullivan v Sullivan (above) but my summary of the principles was not challenged and was approved in Donis v Donis [2007] VSCA 89 at [19] footnote 12, [39], [40]; per Nettle JA; Fifteenth Eestin Nominees Pty Ltd v Rosenberg [2009] VSCA 112 at [269] footnote 239; Barnes v Alderton [2008] NSWSC 107 at [43] per Young CJ in Eq; Weeks v Hrubala [2008] NSWSC 162 at [40] per Young CJ in Eq, and in Dable v Peisley [2009] NSWSC 772 at [200] per Ward J. Special leave was refused in Donis v Donis [2007] HCA Trans 609.

71The House of Lords has since considered estoppel by encouragement in Cobbe v Yoeman’s Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752 (Cobbe), and Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776, as did the Privy Council in Henry v Henry [2010] UKPC 3; [2010] 1 All ER 988.

72In Cobbe, where the parties were in a commercial relationship, Lord Scott with whom Lord Hoffmann, Lord Brown and Lord Mance agreed, referred (at pp 1763-4) to Lord Kingsdown’s principle (above [59]) and approved its reformulation by Oliver J in Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133, 144:

‘ ... if A under an expectation created and encouraged by B that A shall have a certain interest in land, thereafter, on the faith of such expectation and with the knowledge of B and without objection by him, acts to his detriment in connection with such land, a court of equity will compel B to give effect to such expectation’.

73Lord Scott emphasised that there was no lack of certainty in the case before Oliver J.

74In Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 the parties were in a family relationship, and the claimant had worked on the deceased’s farm without wages for many years . The House of Lords upheld an estoppel by encouragement based on promises by the deceased that he would leave the farm to the claimant on his death. Lord Scott referred at p 784 to cases where the promisee has been promised an immediate interest where the ‘representor is estopped from denying that the representee has the proprietary interest ... promised’.

75Lord Walker, with whom Lord Hoffmann, Lord Rodger, and Lord Neuberger agreed, referred at p 796 to the approval of Lord Kingsdown’s principle by Lord Scott in Cobbe’s case [2008] UKHL 55; [2008] 1 WLR 1752, 1763 noted above [66].

76In Henry the Privy Council upheld a proprietary estoppel by encouragement based on an informal promise to leave the promisor’s share in a property to the promisee. Sir Jonathan Parker, who delivered the judgment of the Board, said at p 1002:

‘Proportionality lies at the heart of the doctrine of proprietary estoppel and permeates its every application’.

77The Board did not enforce the expectation but awarded a half share in the deceased’s interest as ‘the minimum equity required to do justice to’ the claimant, without otherwise explaining why the expectation was not enforced.  In my opinion, and with respect there is no positive requirement for a plaintiff to prove that the relief sought is proportionate.  The principle, a negative one, is that enforcement of the expectation must not be disproportionate.

78Proportionality was not mentioned in the speeches in Thorner v Major (above).  With respect the Board in Henry did not explain why statements not made expressly but by ‘implication and inference from indirect statements and conduct’ and ‘in oblique and allusive terms’ by the promisor in Thorner v Major (at 778, 779) established a proprietary estoppel for the interest promised, but similar statements in Henry established a proprietary estoppel for only half that promised.”

The defendants’ principal argument

1. As finally presented, the defendants’ case relies on a range of circumstances and events, both individually and cumulatively.  However the arrangements made for the rebuilding of the Village and the supply of water in 1965-67 are relied on the most heavily, presumably because they are said to have involved actual encouragement and because, as Mr Justice Handley points out, estoppel by encouragement is more likely to be successfully pleaded these days than estoppel by standing by.  Ironically, the events that occurred in 1965-67 were not referred to in the defendants’ pleadings until the amended defence and counterclaim was filed by leave during the trial.  Counsel for the defendants frankly acknowledged that until the plaintiff Council gave discovery of documents in this matter none of the defendants had even been aware of those events,[30] although, as indicated above, I now think that Mr Baker himself was probably involved in the rebuilding of the Village.  Presumably Mr Baker had forgotten about the matter or, being a hermit, had not been asked about it.  Nevertheless, the defendants now say that there is a close parallel between this case (especially in relation to the events of 1965-67) and Plimmer v Mayor of Wellington,[31] which counsel for the defendants treats as his best case.  It is desirable therefore to consider the judgment of the Judicial Committee of the Privy Council in Plimmer, which was delivered by Sir Arthur Hobhouse, in some detail.

Plimmer’s case

[30]Transcript pp 7-8, 10-11.

[31](1884) 9 App Cas 699.

1. The question for decision in Plimmer was whether the appellants had any estate or interest which would entitle them to compensation under certain legislation of New Zealand in respect of the vesting in the respondents of the land in question under the provisions of certain other legislation of New Zealand.  The appellants’ predecessor in title, Mr John Plimmer, had in 1848 erected a wharf and store on the shores of Wellington Harbour, with the permission of the Crown.  In 1855, after an earthquake had raised the ground level of the harbour and so reduced the depth of the water, Mr Plimmer, in order to carry on his business as a wharfinger, erected a jetty extending to a considerable distance from the shore.  It was about 190 feet in length.  No permission was obtained for this work.

1. At all relevant times the harbour, including the land occupied by Plimmer, was, under one form or another, continuously vested in Government for public purposes.  The use made of it by Plimmer was consistent with those purposes; and, in comparing Plimmer with the present case, it is important to note the Privy Council’s statement that “Plimmer might by contract with the Government have acquired a perpetual interest in it for such purposes”.[32]

   [32](1884) 9 App Cas 699 at 706. See further below.

1. By June 1856 John Plimmer, at the instance of the Provincial Government, had extended his jetty about 112 feet further into the harbour.  He also reclaimed some land and, at the suggestion of the provincial authorities, built thereon a warehouse or shed for the accommodation of immigrants, and charges were paid to him by the Government and others for such use.

1. In 1857 the Government sought and obtained the permission of Plimmer to cut away part of his jetty.  Plimmer made adjustments accordingly and, subject thereto, his jetty or wharf was continually used as a landing place for passengers and goods from 1848 until the assumption of possession by the respondents pursuant to statute in about 1880.  And in the year 1872 the Government, acting under statutory provisions, declared it to be a legal quay or landing-place.

1. In 1872 the appellants became yearly tenants of John Plimmer.  In 1875 John Plimmer sold to Jacob Joseph his interest in the jetty, then described as a certain freehold wharf which had been duly legalised as a landing-place, subject to the yearly tenancy of the appellants.  Mr Joseph subsequently granted to the appellants a lease for the term of twenty-one years, commencing from the first day of January 1879 at an annual rental of 75 pounds.

1. The statute under which compensation was claimable enabled every person who had “any estate or interest in, to or out of” the lands concerned to make a claim, and it provided that the Compensation Court should not be bound to regard strict legal rights only, but might award compensation in respect of any claim which it may consider reasonable and just, having regard to all the circumstances.

1. Their Lordships held that by the transactions of 1856 Mr Plimmer’s licence had ceased to be revocable at the will of the Government.

1. Their Lordships took the law to be as stated by Lord Kingsdown in a now famous passage from his dissenting judgment in Ramsden v Dyson part of which is set out above as extracted by Mr Justice Handley in his learned work.  (See also the several references to “Lord Kingsdown’s principle” in the above quotation from his Honour’s judgment (as Handley AJA) in Delaforce v Simpson-Cook).

1. Their Lordships’ judgment highlights the distinction, referred to in Mr Justice Handley’s book, between mere standing by and positive encouragement.  The judgment shows by reference to that distinction that there had been no disagreement among the judges in Ramsden v Dyson as to the relevant principles of law.  Their Lordships emphasised that the appellants’ equity was not claimed because the landowner had stood by in silence while his tenant had spent money on the land.  Rather, Plimmer was a case in which the landowner had, for its own purposes, requested the tenant to make the improvements.  The Government had been engaged in the important work of introducing immigrants into the country, and had applied to John Plimmer to make his landing-place more commodious by a substantial extension of his jetty and the erection of a warehouse for baggage.  In those circumstances their Lordships asked rhetorically:

“Is it to be said that, when he had incurred the expense of doing the work asked for, the Government could turn around and revoke his licence at their will?  Could they in July, 1856, have deprived him summarily of the use of the jetty.  It would be in a high degree unjust that they should do so, and that the parties should have intended such a result is, in the absence of evidence, incredible.”[33]

[33]At 712.

1. Their Lordships were also of the view that the dealings between John Plimmer and the Government during the period of about 22 years after June 1856 were explicable only on the basis that the Government acknowledged that Plimmer had attained a right of permanent occupation.

1. As to the appropriate remedy, Sir Arthur Hobhouse said:

“In this case their Lordships feel no great difficulty.  In their view, the licence given by the Government to John Plimmer, which was indefinite in point of duration but was revocable at will, became irrevocable by the transactions of 1856, because those transactions were sufficient to create in his mind a reasonable expectation that his occupation would not be disturbed; and because they and the subsequent dealings of the parties cannot be reasonably explained on any other supposition.  Nothing was done to limit the use of the jetty in point of duration.  The consequence is that Plimmer acquired an indefinite, that is practically a perpetual, right to the jetty for the purposes of the original licence, and if the ground was afterwards wanted for public purposes, it could only be taken from him by the legislature.”[34]

Applying Plimmer’s case and the associated principles to the events of 1965-67:  evidentiary difficulties and points of distinction

[34]At 714.

1. Plimmer’s case does assist the defendants to a certain extent.  It affirms Lord Kingsdown’s principle as stated in Ramsden v Dyson.  It indicates that Lord Kingsdown’s principle can apply as against the Crown and other public bodies.  It affirms that the notion of an irrevocable licence over land is a notion known to the law, or at least to equity, and that, at least in certain circumstances, an irrevocable licence can amount to an interest in land and be assignable accordingly.[35]

   [35]See also Hill v AWJ Moore & Co Pty Ltd (1990) 5 BPR 11,359; Hamilton v Geraghty (1901) 1 SR(NSW) Eq 81.

1. On the other hand, Lord Kingsdown’s principle itself includes the following qualification:

“If, on the other hand, a tenant being in possession of land, and knowing the nature and extent of his interest, lays out money upon it in the hope or expectation of an extended term or an allowance for expenditure, then, if such hope or expectation has not been created or encouraged by the landlord, the tenant has no claim which any Court of Law or Equity can enforce.”[36]

The same qualification is also contained in the speech of Lord Cranworth LC, speaking for the majority, in Ramsden v Dyson.[37]

[36]Ramsden v Dyson (1866) LRI HL 129 at 170; Plimmer v Mayor of Wellington (1884) 9 App Cas 699 at 711. See also Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd (1925) 36 CLR 230 at 292-293 (Higgins J dissenting in part).

[37]See above.

1. In determining how the relevant principles might apply in a particular case, questions of fact will frequently arise.  In the present case the arrangements for the rebuilding of the Village and the supply of water to it will not have generated an equity unless (among other things) it be proper to hold that there had been conduct on the part of the Williamstown Council which in fact encouraged the persons concerned to form an expectation of permanent tenure or at least lengthy tenure.[38]  Further, the Court might not enforce the expectation unless it were a reasonable one.[39]

   [38]Compare Rogers v Moonta Town Corporation (1981) 37 ALR 49 (HC).

   [39]See Delaforce v Simpson-Cook [2010] NSWCA 84 at [63] (set out above).

1. The defendants face significant evidentiary hurdles.  The events in question happened more than 44 years ago.  There is no direct evidence of the subjective beliefs or expectations of any of the persons who built a boatshed or commissioned the building of a boatshed at that time.  Putting aside Mr Baker, none of the other defendants had any involvement with the Village at the time.  Mr Baker has given no evidence.  The relevant documentary evidence is of little assistance.  It is not possible even to identify many of the people who took part in the rebuilding of the Village.  Nor is it easy at this distance in time to assess objectively what they might reasonably have expected.  It is not suggested that the Council made any express promise to them of permanent or lengthy tenure.

1. Nevertheless the defendants invite the Court to make the necessary findings of fact by inference.  In effect, that is what the Privy Council did in Plimmer, some 29 years after the happening of the principal events.  However their Lordships had the benefit of a carefully prepared statement of facts contained in a special case reserved for the opinion of the Court, albeit not including any express statement as to the subjective beliefs or expectations of the persons concerned.

1. The present case was set down for hearing on the basis of an assurance by the parties that an agreed statement of facts would be filed in advance of the hearing.  But that was not done.  As a somewhat unsatisfactory substitute, the parties agreed that the Court should treat every document in the original 3 volume Court Book (apart from the pleadings and other court documents) as evidence of the truth of its contents.  More documents were added to the Court Book, on the same basis, as the hearing progressed.  A document prepared on behalf of the plaintiff entitled Amended Summary of Facts/Chronology was handed up by consent on the final day of the hearing, but it was little more than a long list of documents in chronological order.  In addition a large, unpaginated, unindexed folder of archival material assembled by the plaintiff was handed up by consent on the last day of the hearing, again on the basis that it was to be treated as evidence for all purposes.  For the most part it consists of an incomplete set of copies of faded, barely legible or illegible, microfiche records of Council meetings held between 1945 and 1970.  After long and tedious examination of it in chambers, it appears that the bulk of it is irrelevant.  Needless to say, it has not been an easy task to endeavour to make sense of the evidentiary material in this case since the close of the oral hearing.  Nor would it be profitable to seek to encapsulate or summarise it all in these reasons.

1. The defendants submit that the necessary inferences as to encouragement and (reasonable) expectation in relation to the 1965-67 period should be drawn mainly from the following undisputed facts:  that the Fishing Village had existed since the 1920s; that rates were charged from about 1947 on; that from the beginning the Council had permitted direct transfers and sales of boatshed sites whereby a market for the same had developed; that in 1965-67 the Williamstown Council had not merely encouraged but had required any person who wished to continue as, or to become, a site holder to demolish any existing structure on the relevant site and to erect a new structure at his or her own expense to the satisfaction of the Council’s engineers; that in letters to three existing or potential site holders on 22 October 1965 the Council made offers to allocate sites at an annual site rental of 5 pounds per year without saying anything about duration;[40] that the Council agreed to the supply of water to some of the boatsheds in the Village in 1966; that the Kororoit Creek Progress Association supplied labour for the extension of the water supply and agreed to the Council’s requirement that the costs incurred by the Council for the necessary materials would be amortised in site fees; and that the extension of the water supply was also intended to benefit, and did benefit, the nearby recreational grounds owned and operated by the Council. 

   [40]CB Documents 47, 48 and 49.

1. I am not persuaded by these points to the requisite degree.  Even apart from the statutory background (to which I will come), I am not satisfied, on the limited relevant evidence now available, that all or any of the boatshed “builders” of 1965-67 had an expectation of obtaining a permanent interest in the land, much less that any such expectation would have been reasonable.  Nor am I satisfied that any such expectation was created or encouraged by conduct of the Council.

1. I will consider the matters relied on more or less in chronological order.

1. The prior history of the Village is of limited significance because by 1965-67 the buildings in the Village had deteriorated very badly and all needed to come down.

1. Nor is the levying of rates on the boatsheds of great importance.  There is no evidence about the amount that was being levied in rates prior to 1965-67.  It may be accepted that at all times each boatshed holder had paid rates in respect of the land itself, being the whole of the land comprising the relevant site, not merely in respect of the shed.  However the levying of rates signifies principally that the Council was of the view, and that the boatshed holders apparently agreed, that the boatshed holders were liable for rates under the relevant statutory provisions as in force from time to time.  The land being municipal land, such liability depended, generally speaking, upon occupation of the premises.[41]  In Mayor of Port Melbourne v Loach[42] Madden CJ said that the word “occupy” is equivocal, and can encompass the occupation of a street for an instant by walking along it, but that such momentary occupation is not occupation in the sense intended by the statute.  Rather, his Honour said, the statute fastened on occupation “which is to some extent permanent and exclusive”.[43]  However, Madden CJ was using the word “permanent” in contrast to the word “momentary”.  His Honour was not intending to convey that liability for rates under the relevant provisions fell only upon those with a right to remain in occupation forever or indefinitely.  The rest of his Honour’s judgment makes that very clear. 

   [41]See for example s 251(3) of the Local Government Act 1958 (as first enacted); compare now s 156(3) of the Local Government Act 1989.

   [42](1900) 25 VLR 619.

   [43]At 621.

1. There is scant evidence about transfers or sales of boatsheds prior to 1965-67. Admittedly, the abovementioned Senior Health Inspector’s report of 5 October 1962 refers to a particular fisherman’s hut being “for sale” at that time.[44]  In addition, on 25 November 1963, the Council resolved (abortively) to specify a 3 year term of occupancy once the Village was redeveloped and to insert a clause “restricting the sale or transfer of boat sheds without the prior consent of Council”, thus implying that the Council may have been of the view that at least some sales or transfers had taken place without its consent.  However, there is no evidence as to the frequency of transfers nor as to the prices at which any transfers had taken place prior to 1965-67.  They might well have been very low.

   [44]The report is mentioned above in relation to Mr Ray Baker’s position.

1. It would not be surprising if any transfers prior to 1965-67 had occurred for little or no consideration.  Views had been expressed over the years that the Village was or might become a slum.  Further, it had been officially stated from time to time by or on behalf of the Council that boatsheds could only be occupied “during Council’s pleasure”.  Statements to that effect are recorded in Council minutes dated 18 April 1950, 26 June 1951 and 4 February 1957.  The entry for 26 June 1951 indicates that Council had resolved that the City Inspector interview three named people living in the fishing huts and “inform them that they can only occupy them during Council’s pleasure and they must endeavour to seek other accommodation as the Council does not approve of the buildings concerned being occupied as permanent residences”.[45]  The plaintiff’s counsel asserted before me that, generally speaking, Council meetings in Victoria have always been open to the public and the minutes have always been public documents, and the defendants’ counsel did not contradict him.[46]

   [45]Contained in the additional volume of archived material.

   [46]And see eg, Local Government Act 1958, s 183(4) (All ordinary meetings to be held with open doors); Local Government Act 1989, s 89 (Meetings to be open to the public); Local Government (General) Regulations 2004 reg 11(f) (Minutes of Council meetings to be available to the public).

1. Further, the evidence indicates that for decades a close community has existed at the Fishing Village and that the Progress Association has had close and regular links with the Council.[47]  The Progress Association was in existence well before 1965-67 and was involved in the arrangements for the rebuilding of the Village.[48]  It is unlikely that Council’s policies from time to time relating to the Fishing Village would not have been known to all or most of the members of the Village, especially those closely connected to the Progress Association.  Sometimes the affairs of the Village even reached the local newspaper.  There was a report in the Williamstown Chronicle of 7 December 1956 entitled “Boatsheds at Kororoit Creek” reporting that a Councillor had moved that a certain individual’s application for permission to erect a boat shed be given “at Council’s pleasure” and that “Council’s pleasure means that Council could rescind the permit at any time they wished”.

   [47]See, eg, the evidence of Peter John Gook at transcript p 166 lines 8-12, p 167 lines 17-31.

   [48]See, eg, CB document 59, Minutes of Meeting of Reserves Foreshores and Properties Committee, 15 September 1966, recording receipt of a detailed report from the Secretary of the Progress Association as to progress made in the redevelopment of the ”fishing hut area”.  See also CB document 60, letter from Council to Progress Association dated 20 October 1966 re arrangements for water supply.

1. As the defendants really concede (as mentioned above), the very fact that the Council was able successfully to insist that all of the old structures be demolished or removed is antithetical to any suggestion that existing site holders had any more than a bare licence prior to the rebuilding of the Village in 1965-67.  In effect, the Village was to be razed to the ground.  The approach then adopted by the Council in relation to the rebuilding of the Village did not truly indicate a radical change in the Council’s position or suggest a radical change in the site holders’ entitlements.  The sites were reduced in number and reconfigured.  The Council adopted what it considered to be a reasonable and equitable allocation policy, under which anyone who wished to remain, or to come in, was obliged to build within a strictly limited period, and in accordance with the Council’s engineer’s requirements.  A permit had to be obtained for each building.  Apart from the clubhouses, each proposed building was designated as a “boatshed”, not a fishing hut or anything else, in the relevant permit application, so far as the evidence shows.  The only drawings of the proposed boatsheds attached to the applications are extremely simple and basic.  None appears to have been professionally prepared.  None shows with any clarity what was proposed (if anything) by way of flooring or foundations.  It may well have been envisaged that the new boatsheds would be readily removable after they were erected.  It seems that many of the boatsheds built in 1965-67 have since been altered or replaced.  However one of the defendants, Mr Bill Iggleden, referred to his boatshed, on site 23, as being in substantially original condition apart from the addition of an awning, and he described it as being a Myers-style kit form garage “with double opening doors at one end a couple of windows and maybe another single door on the side”.  He said that it “was just like a galvanized iron garage that was built in the 60’s”.[49]  Counsel for the defendants made no attempt to establish that Mr Iggleden’s boatshed was not typical of the kinds of boatsheds that were approved and built in 1965-67.  The boatsheds were all smaller than the sites on which they were placed.  The sites were not individually fenced.  The areas around the boatsheds were open to the public.

   [49]Transcript p 149.  See also at pp 150, 153, 156.

1. As mentioned above the typical anticipated cost in 1965 for the erection of a boatshed was between 150 and 200 pounds.[50] Neither party led evidence of the equivalent present day dollar value of that cost range. However I indicated to the parties, twice, that I was interested in that matter,[51] and I said that I presumed that they would agree on it or authorise me to make my own inquiries.[52]  They did not notify me of any agreement, but they did not say I should not make my own inquiries.  Proof is not required about knowledge that is not reasonably open to question and is capable of verification by reference to a document the authority of which cannot reasonably be questioned.[53]  According to the Reserve Bank of Australia’s published Pre-Decimal Inflation Calculator, 150-200 pounds in 1965 was the equivalent, in terms of purchasing power, of approximately $3,440-$4,587 in 2010.[54]  Whether or not it is appropriate for me to have regard to that information, and even if those dollar figures should be doubled or trebled, the defendants have not satisfied me that there is any real comparison between the level of expenditure involved in the erection of the boatsheds and the level of expenditure (and general commitment) made by Mr John Plimmer which is referred to and relied upon in Plimmer’s case, although I accept that the level of expenditure on the boatsheds was not insignificant.

   [50]See the permit applications.

   [51]Transcript pp 256, 457.

   [52]Transcript p 457.

   [53]Evidence Act 2008 (Vic) s 144(1). See also s 144(4). In my view both parties were given a sufficient opportunity to make submissions, and to refer to relevant information, for the purposes of s 144(4).

   [54]Reserve Bank of Australia website, accessed on 4 April 2011.

1. Plimmer’s case is distinguishable on another ground too.  Contrary to submissions made by Mr Sowden on behalf of the defendants,[55] there is no indication in the law report that Mr Plimmer paid site rental on an annual basis, or any fee at all, to the Government.  Quite the opposite.  The judgment records that from the year 1856 to the year 1863 Mr Plimmer’s jetty and warehouse were largely used by the immigrants “and charges were paid to him by the Government and others for such use”.[56]  It is true that in Ramsden v Dyson the claimants had paid annual ground rent to the landowner, and that Lord Kingsdown would nevertheless have upheld their claims for perpetually renewable 60 year leaseholds or full compensation, but his Lordship was in dissent, and the very fact that the claimants had chosen to pay relatively low annual ground rents rather than enter into binding leases at higher rentals was one of the features which, in the eyes of the majority of the House of Lords, told against them.[57]

   [55]See written submissions, para 18.

   [56](1884) 9 App Cas 699 at 706.

   [57](1866) LR 1 HL 129 at 143.

1. So also here, in my opinion.  No copies of actual contemporaneous correspondence between the Council and existing or potential site holders, apart from the abovementioned three letters of 22 October 1965, are contained in the evidence.  However, treating those letters as typical, the Council was requiring an “annual site rental” of 5 pounds per annum.  The letters made no provision for adjustment of the “annual site rental” in accordance with inflation or as may be reasonable or in any other way.  Although the letters said nothing about duration apart from the use of the word “annual”, it is difficult to accept that any reader of such a letter could reasonably draw from it the inference that the Council was intending to restrict its own rights in respect of the land for any greater period than one year, much less forever.  After decimalization in 1966 the site fee became $10 per year and it remained at that level until 1990 (ie, for 24 years).  It was then raised to $100 per year and remained at that level until about 2005 (ie, for some 15 years).

1. Further, in the minutes of the ordinary meeting of Williamstown Council of 26 June 1967, which incorporated Report No 8 of the Reserves, Foreshores and Properties Committee 1966-67, it was recorded that the Council resolved to grant “permissive occupancy” of sites 10, 21 and 23 (each of which was then vacant and unimproved) to specified persons “subject to the usual conditions laid down by Council.”  Sites 10, 21 and 23 are included in the present dispute.  The expression “permissive occupancy” has long been used in relation to dealings with Crown lands in New South Wales.[58]  Thousands of “permissive occupancies” have been granted in that State.[59]  The relevant legislation in New South Wales provided that permissions granted to occupy Crown lands “shall be terminable at will by the Minister”.[60]  The expression “permissive occupancy” is not used in any extant Victorian legislation and as far as I am aware has never been used in Victorian legislation.[61]  However it has been used in agreements that have been the subject of discussion in a few Victorian cases,  including Leahy v City of Camberwell,[62] State of Victoria v Bradto Pty Ltd[63] and Bradto Pty Ltd v State of Victoria.[64]  In the last mentioned case, by a written agreement made in 1927 the St Kilda Foreshore Committee granted to a certain person “permissive occupancy” of a part of the St Kilda foreshore reserve for the purpose of building and occupying what became the Palais Theatre.  The specified period of occupancy was 21 years.  Having examined the terms of the agreement, Harper J held that it “doubtless gave the occupier an interest in the fabric of the Palais Theatre … “ but that “if it gave the occupier any interest in the land at all, that interest was at most that of a lessee”.[65]  So it seems that the expression “permissive occupancy” may cover anything between an occupancy terminable at will and the equivalent of a lease for 21 years.  However the sense in which it is used in the Council minutes of 26 June 1967 seems to be closer to the former than to the latter.  The Council might be expected to have written to the successful applicants for sites 10, 21 and 23 to convey its decision, although no copy of any such correspondence has been produced.  Any such correspondence might well have included the expression “permissive occupancy” or a like expression.[66]  In any event, the decision was apparently made in a public forum and recorded in a public document.  This has implications not only for the defendants presently occupying sites 10, 21 and 23 but also for the other defendants. 

   [58]See Broadcast Australia Pty Ltd v Minister Assisting the Minister for Natural Resources (Lands) (2004) 221 CLR 178 at 181-182 [2]-[3]. See also Peter Butt, Land Law, 6^th Edition, 925-926.

   [59]Ibid.

   [60](2004) 221 CLR 178 at 182 [4].

   [61]But see City of South Melbourne v State Electricity Commission of Victoria [1968] VR 684 at 700.

   [62][1973] VR 589 at 590.

   [63][2006] VCAT 2299.

   [64][2007] VSC 140 (Harper J).

   [65][2007] VSC 140 at [15].

   [66]There was also a reference to “permissive occupancy” in an undated report of the Williamstown City Engineer which appears to have been written in the early 1960s:  CB document 17.

1. I would place little weight on the arrangements for the supply of water.[67]  It is true that they involved a benefit to the Council’s sporting grounds, but they also benefited those site holders who received the water.  It is not clear that the arrangements involved much expense overall.  The Council itself agreed to incur the initial cost of the pipes and fittings which amounted to only $300 in total.  That sum was to be recovered by the payment of a $20 fee by each of the 15 or so proposed subscribers plus one dollar per year increased rental to meet the cost of water used.  The Progress Association was to supply all labour, under the supervision of a licensed plumber.  However, the evidence does not indicate whether the scheme was actually implemented in the exact way proposed, or, if it was, the amount or value of the labour involved. 

   [67]See Council resolution of 19 September 1966:  CB 59 and letter from Williamstown Council to Progress Association dated 20 October 1966:  CB 60.

1. I acknowledge that site holders who had erected a boatshed at a cost of between 150 and 200 pounds in 1965-67 and who had been involved in the arrangements for the supply of water might possibly have been surprised and disappointed if the Council had decided to require them to leave at the end of their first year of occupancy.  However it is quite possible that any such surprise or disappointment would have arisen entirely from misplaced confidence in the intentions of the Council or in the potency of the relationship between the Progress Association and the Council.  If so, no equitable claim would have arisen at all.[68]  If not, then, subject to the statutory considerations to which I will come, the site holders might have been able, at or shortly after that time, to persuade a court of equity to grant them some relief under the principles of proprietary estoppel.  But at this distance in time I am far from satisfied that the court would have declared, or that this Court should now find, that the site holders of 1965-67 had gained irrevocable or perpetual licences to occupy their respective sites, a fortiori at such a low annual site rental as five pounds per annum (or the decimal currency equivalent).  There is every likelihood that such a declaration would have been considered disproportionate to the detriment involved.[69]  After all, any encouragement was only to build simple boatsheds, not family homes[70] or places of business;[71] and the land in question was sensitive riverside land which had been acquired by the Council with ratepayers’ funds as a place of public resort and recreation.[72]  Although the Council gained some benefit from the supply of water, and may have gained some benefit from the building of new boatsheds on its land in accordance with its requirements (at least insofar as the “historical” Fishing Village was thus revived and the prospect of the recurrence of a slum was reduced), the Council did not propose to charge, and did not charge, commercial rentals or fees, and the main beneficiaries of the building of the new boatsheds and of the supply of water, as time went on, were the site holders themselves.[73]  At best, in my view, the court would have fixed a term of some 3-7 years, a term that, whether or not it was assignable, would have expired by the early 1970s at the latest.

   [68]Ramsden v Dyson (1865) 1 HL 129; Plimmer v Mayor of Wellington (1884) 9 App Cas 699 at 711-712; Rodgers v Moonta Town Corporation (1981) 37 ALR 49 at 52-53.

   [69]See and compare Sledmore v Dalby [1996] EWCA Civ 1305; (1996) 72 P+CR 196 (CA); Fisher v Brooker [2009] UKHL 41 at [11] (Lord Walker); Delaforce v Simpson-Cook [2010] NSWCA 84 esp at [61], [77] (see above).

   [70]Compare Ramsden v Dyson (1865) 1 HL 129.

   [71]Compare Plimmer v Mayor of Wellington (1884) 9 App Cas 699.

   [72]See CB document 71.  See also and compare Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd (1925) 36 CLR 230 at 272, 276 (Isaacs J); RANSA Sydney Squadron Ltd v Rushcutters Bay Maritime Reserve Trust [1999] NSWSC 569; Hawley v Rangitikei District Council [2007] NZHC 1343 at [20]-[31].

   [73]See and compare Mazzuchelli v Mazzuchelli [2006] WASC 124 (Hasluck J) at [70], [88].

1. It follows that, even apart from statutory considerations, I am not satisfied that the history of events up to and including 1965-67, without more, generated a permanent equity for Mr Baker, or any equity for the other site holders of 1965-67 that would have lasted long enough to be assigned as property to any of the other defendants in this proceeding all of whom came along very much later.

The additional matters relied on by the defendants generally:  circumstances and events after 1965-67

1. This Court’s conclusion that the history of events up to and including 1965-67 is not a source, without more, of any continuing, current equity does not mean that that history becomes irrelevant.  As the defendants submit, it remains part of the general circumstances of the case upon which they may rely.

1. In addition, as mentioned above, the defendants as a group rely on the continued levying of rates on the boatsheds; the fact that for a further 40 years or so the Council continued to acknowledge direct transfers of boatsheds after the event; the fact that improvements have been made to the boatsheds over the years, some with Council approval; and the further entrenchment, and recent recognition, of the historical or heritage values of the Village.  Further, some of the defendants as individuals rely on their own spending or work or both.

1. In my view the continued levying of rates is of little assistance to the defendants.  The matters set out above in relation to the levying of rates before 1965-67 are also applicable to the current situation.  In any case, the rates paid by the defendants are substantially less than normal residential rates.[74]  The Council’s longstanding valuer, Mr Robinson, gave evidence that for the purposes of levying rates, the boatshed sites are valued at around 20% of the value of surrounding industrial land.[75]  The valuations of the sites are greatly discounted to take account of the restricted permitted uses and the fact that people are not allowed to live on the sites.[76]  This has resulted in the defendants having been charged only $213.15 to $267.75 per annum in rates in 2008/09.[77]

   [74]Transcript p 340.

   [75]Transcript p 341-343.

   [76]Transcript p 343, 346.

   [77]Exhibit 150.

1. As to the continued acknowledgment of transfers, it is true that the Councils’ practice of acknowledging and implementing transfers after the event continued until 2005 or 2006.  As indicated above, the significance of this, according to the defendants, is that the Councils thereby signalled to siteholders that they, not the Councils, could determine who would occupy the sites and in that way the Councils encouraged, or at least permitted, the continuation or the development of a market in rights to occupy the boatsheds; and that this in turn, in combination with other matters, encouraged people, including themselves, to spend money on the acquisition and/or improvement of boatsheds.

1. Counsel for the plaintiff, Mr Appudurai, accepted that this might be a matter of very considerable significance if substantial prices had generally been paid for the transfers and if the Council had routinely been notified of the prices being paid.[78]  However he did not accept that there was any or any sufficient evidence to establish either of those points.

   [78]Transcript p 388.

1. In any event, it seems that if Mr Waters has any cause for complaint, his complaint should be directed principally, if not exclusively, to Mr Kilby.  On Mr Waters’ own evidence, he knew nothing of the history of the Village except what Mr Kilby told him, and Mr Kilby must have known that any potential entrant who became aware of the Council’s licensing proposal before taking a transfer could not rely on that history and could not seek to remain except on the Council’s terms. 

1. Shortly after paying out the $40,000 and taking over shed 11 Mr Waters consulted an unidentified lawyer friend who drafted for him a letter dated 14 November 2006 which Mr Waters sent to Mr John Thomas of the Council.  The letter asserts that Mr Kilby had already surrendered possession but had given Mr Waters insufficient documentation.  The letter asked Mr Thomas to provide a copy of the current or previous lease agreement, and a disclosure statement about outgoings and other payments.  Mr Thomas responded by a letter dated 15 December 2006 enclosing a copy of the proposed licence agreement.  There is no evidence that Mr Waters replied with a complaint about any failure on the part of Mr Thomas to mention the licensing system earlier.

1. Mr Waters apparently chose not to pursue Mr Kilby.  Rather, he set about doing major repairs and renovations to the boatshed without reference to the Council.  Over a period of about two years he stripped it back to the frame on the inside, poured a slab (because the floor would have been toxic), insulated the shed and lined it and had the electrical wiring redone safely.  The rooms were reduced to two, a workshop at the back and a front room for reading and relaxing.  It has furniture and electricity, but no water.  No boat is kept in it.  The cost of these repairs and renovations was not specified.  That matters not however, because, in my view, Mr Waters did this work with his eyes open.  He cannot rely on it to advance his claim of proprietary estoppel against the Council.  Nor is any such claim maintainable in relation to Mr Waters’ payment to Mr Kilby.

1. Therefore, even apart from statutory considerations, the Councils’ claim against Mr Waters must succeed and his counterclaim must fail.

Site 12:  Mark Turner (Estate of A J Turner)

1. Andrew J Turner became the holder of the boatshed on site 12 in 1987.  He retained it until he died by his own hand in that very boatshed in 2006.  Mark Turner, his brother, is the administrator of his estate.[122]  Andrew Turner’s mother, Margaret McAdam, is the beneficiary of the estate.[123]

   [122]Transcript p 246, cf transcript p 233.

   [123]Ibid.

1. The evidence about the late Mr Andrew Turner and site 12 comes mainly from his sister, Allison Wellington.[124]  To a lesser extent it comes from Kimberley McAdam, who was his sister-in-law and who is  the sister-in-law of Allison Wellington.[125]  There is also a small amount of relevant documentation.  Neither the administrator (Mark Turner) nor the beneficiary (Margaret McAdam) was called.

   [124]Transcript pp 242-249.

   [125]Transcript pp 232-235.

1. Mr Andrew Turner was involved with two sites at the Village.  He was the person mentioned above to whom on 16 February 1987 the Williamstown Council resolved to allocate a then vacant site – site 14 – for the parking of a boat or trailer on conditions including that “the occupancy shall continue only at Council’s pleasure”.  Although this was a different site and the conditions included a condition that no structure be built on it, and Mr Turner relinquished it after some 6 years, still the express imposition of the requirement that the occupancy was to continue only at Council’s pleasure represents a difficulty now for Mr Turner’s estate.  Presumably the requirement  came to Mr Turner’s attention.  It was imposed during the same year that Mr Turner took over site 12.  There is some evidence that this was the Councils’ declared policy in relation to all sites at the time (including “purchased” sites) and that this policy was made known to Mr Turner.  In the very unfortunate circumstances of Mr Turner’s case, the defendants have not been able to call any direct evidence to the contrary.

1. Mr Turner paid $15,000 for site 12 in 1987.[126]  It was then a bare, run down tin shed.  Mr Turner was a fisherman but he was also a craftsman with timber.  He installed polished timber bench tops, timber book shelves and a gabled timber ceiling, and he lined the walls with timber beams.  He did this work “[o]ver the whole duration that he lived there”, bit by bit.[127]  He also installed a new, wide window or door at the front which can be opened to allow access for a boat and which can be held up on struts so as to serve as a veranda.  The floor consists of carpet over a concrete slab.  Mr Turner also had plans to extend the shed towards the north (or road) end of the site.  However in the last years of his life he was a diabetic and contracted Ross River Fever and then chronic fatigue syndrome and was bedridden for a number of years before taking his own life in 2006.  So there was little work done in the last years of his life. 

   [126]Transcript p 242.

   [127]Transcript p 243.

1. There is a dispute between the parties as to whether and to what extent Mr Turner obtained Council permission for works done at site 12.  Mrs Wellington claims that it was all the subject of stamped permits from Williamstown Council that she has seen with her own eyes.[128]  However Mrs Wellington also said that her brother burnt a lot of his documents the night before he committed suicide.[129]  In cross-examination she was shown copies of letters that the plaintiff Council wrote to the solicitors for the estate in 2006 and 2007 asserting that there were a number of non-compliance issues at site 12, including unauthorised building works, illegal discharge of wastewater and encroachment onto an adjoining site.[130]  Mrs Wellington disputes the suggestion of unauthorised building works.[131]  However no evidence on those matters has been given by the administrator of the estate, Mr Mark Turner, or by the solicitors handling the estate.  Some documents relating to permits for work done on the site were later obtained by Mr Sowden and handed up.[132]  They relate to the year 1991 only.  They are  incomplete and rather vague, but Mr Appudurai ultimately accepted that there must have been a planning permit and a building permit of some kind in 1991.  Nevertheless Mr Appudurai contended that the works performed had not complied with the permits.  I cannot resolve that debate finally on the material before me.  At best from the defendants’ point of view, it may be accepted that in 1991 the Williamstown Council was prepared to authorise works on site 12 of a kind that apparently needed both a planning permit and a building  permit.

   [128]Transcript p 245-246.

   [129]Transcript p 246.

   [130]CB document 116, 130, 137.

   [131]Transcript p 246, 248.

   [132]Transcript pp 249, 293, 411-412.

1. There is no evidence as to the financial cost to the late Mr Turner of the works carried out to the shed on site 12.  The shed is presently used by Mr Turner’s mother, Margaret McAdam, and her family.

1. In my view the evidence in this case is insufficient to establish that either Council played such a part in the adoption by Andrew Turner of any assumption he may have made about his tenure of site 12 that it would have been unfair or unjust if, immediately before his death, the plaintiff Council had been free to ignore any such assumption.  He had paid only $15,000 to his predecessor.  He may well have been aware from the outset of the Councils’ professed policy that sites were only to be held at the Councils’ pleasure.  His improvements to the shed were no doubt valuable and impressive, but to an extent they represented a personal indulgence, and it is not clear that they were all fully authorised by, or even known to, the Council.  The Council had no key to the boatshed.  In any event Mr Turner had the benefit of the site at low municipal rates and at a non-commercial site fee for about 19 years.  In all the circumstances, to have granted him an irrevocable licence, or any further rights, over the site would have been disproportionate to any expectation Mr Turner could reasonably have had.  He did not in truth have an interest in the land capable of passing to his estate.

1. Accordingly, even apart from the statutory restrictions, the Council should succeed against Mark Turner (on behalf of the estate of Andrew Turner) and the corresponding counterclaim should be dismissed.

Site 17:  Ray Baker

1. All of the evidence relating to site 17 and Ray Baker has already been mentioned in one way or another.

1. I have already concluded that the events of 1965-67 did not generate a permanent equity for Mr Baker.  Since then Mr Baker has presumably paid the modest annual rates and the modest annual licence fees.  However it is not suggested that those payments themselves have given him any equitable claim and there is no evidence that he has made any other relevant payment or carried out any repairs or improvements to the boatshed on site 17 since 1967. 

1. Accordingly, even apart from statutory considerations, the plaintiff must succeed against Mr Baker and his counterclaim must be dismissed.

Site 18:  Peter Gook

1. The defendant Mr Peter Gook actually works for the plaintiff Council as a gardener.  He has worked on and off for the local council and other employers in the area for 35 years and claims to have a fair knowledge of the boatshed area.  In about the year 2000 he was offered the boatshed on site 18 by the then holder, Mr O’Keefe.  The boatshed was in disrepair and smelly.  Mr O’Keefe was an elderly man and had been unable to maintain it.

1. Mr Gook and Mr O’Keefe agreed on a price of $11,000.  Mr Gook paid a deposit and agreed to pay the balance upon the registration by the Council of the transfer.  He and Mr O’Keefe went down to the office of the Council and spoke to the abovementioned Mr John Thomas.  Mr Thomas told Mr Gook that he was not to live there.  Mr Thomas mentioned that he was aware that people had been living at the Village but stated that it was not permissible to do so or to conduct a business from a boatshed.  There was no mention of a lease or anything of that kind, but on the transferring of the site fee Mr Gook assumed the site fee to be “his evidence of a lease or whatever”.[133]

   [133]Transcript p 164.

1. Asked what he thought he was purchasing, Mr Gook said:

“Well I believed as Johnny [O’Keefe] believed that we were on a 99 year lease and that was my understanding on buying it off him and again once I’d had the site fee transferred, I was confident that that was the case.”[134]

Mr Gook went on to explain that he had thought that there was an existing (99 year) lease “probably from the 40’s”; and he said that a lot of elderly people down at the Village had thought that at the time.  Under cross-examination on this point, Mr Gook confirmed that when he went to the Council he simply organised the transfer and that nothing was said by anyone about a 99 year lease on that occasion.  Mr Gook had simply assumed (based on what he had been told at the Village) that the site fee was associated with the 99 year lease.  Mr Gook then said that he and others believed that nearby land now occupied by the Mobil Oil company had previously been part of the land acquired compulsorily by the Council for recreational purposes in 1947; and that the Mobil land was now held on a 99 year lease; and that the Villagers had been “given the same right”.

[134]Ibid.

1. I accept that Mr Gook and some others did actually believe that a 99 year lease applied to the Village.  However that particular belief was not reasonable and was not properly attributable to anything said or done by either of the Councils.  It would have been easy to check the story officially.  A simple inquiry of the Council would have revealed that it was not true. 

1. In the period of about 18 months after the transfer Mr Gook cleaned and gutted the shed and relined it with new wall panelling.  He replaced the roof and put about two inches of concrete on the floor.  All of the work was internal.  He did not seek or obtain any planning or building permit from the Council.  He has kept the shed in repair since that time.  In his evidence he did not put any figure on the cost of his renovations and repairs.

1. The shed has two rooms.  Mr Gook uses it for storage of goods and for recreational purposes.  He sometimes stays in it overnight as a “weekender”.  The Council has requested him to remove sinks and internal water supply.  He must now obtain water from the tap outside.  He has no boat.  There is no jetty attached to the boatshed.

1. Even apart from statute, having regard to Mr Gook’s evidence and all the other circumstances of this case I am not satisfied that Mr Gook is entitled to any equitable relief.  His outlays have been modest.  He has had the use of the shed for about 11 years at low rates and at a low fee.  He had no reasonable basis for his belief that there was a 99 year lease.  He has disobeyed the restriction on overnight stays of which he was told before he paid the balance of the price to Mr O’Keefe.  The very fact that the Council purported to impose that restriction should have been a clear signal to him that the Council, not the site holders, had legal control of the land.  As in the case of Mrs Gibbon and others, I suspect that Mr Gook’s principal concern about the new licences is not that they represent a departure from any assumption for which the Council can properly be held responsible, but rather that they would preclude further use of the boatsheds as residences.  It is clear that Mr Gook, at least, cannot be heard to complain about that. 

1. The Council is entitled to succeed against Mr Gook and his counterclaim must be dismissed.

Site 19:  Sharon Boxshall (David Boxshall)

1. The boatshed on site 19 is a particularly big one and it encroaches to a large extent onto the otherwise vacant area designated as site 20.  However the Council has only ever charged rates and licence fees on it as though it were confined to a single site, being site 19.

1. The site holder is recorded as Sharon Boxshall.  She did not give evidence, but her husband, David Boxshall, did.[135]  He mentioned that the boatshed had been put in his wife’s name, but otherwise spoke as though the boatshed was his.  He did not say anything about his wife’s own beliefs or expectations as to what her entitlements were.

   [135]Transcript pp 217-229.

1. Mr Boxshall is the managing director of a building and garden supplies company.  He has had other businesses as well over a considerable period and he says that his business activities “are very, very prominent in the Western suburbs”, although a business of his has gone into administration.[136]  From his business activities he is familiar with real estate transactions, leasing arrangements and other finance arrangements.  He has bought many other properties.  He normally has lawyers check out such arrangements before entering into them.  However he did not have any lawyers check out the acquisition of this boatshed.

   [136]Transcript pp 224-225.

1. Mr Boxshall said that the shed is a “great shed” and that they have “all the facilities there”.  He purchased it with his wife for $75,000 “between 8 and 10 years ago” from “three gentlemen” whose names he could not remember.  It already covered both sites at that time.  The purchase included all the chattels.  The shed was in good condition.  It had and still has plaster walls and ceilings, a small kitchen with a sink and a refrigerator, a lounge room, a dining room, a storage area for fishing gear and the like, water, electricity, air-conditioning, and a telephone connection.  About two years ago the toilet was disconnected at the Council’s insistence.  The Boxshalls have kept the shed clean and in good repair but they have not made any changes or improvements.  Mr and Mrs Boxshall and their three children go there on weekends for family outings and fishing.  They keep it locked when they are not there and they have the only keys.

1. Mr Boxshall himself did not talk to the Council at the time of the acquisition, but his wife “would have spoken to them” in order to transfer the name over to herself.

1. Under cross-examination, Mr Boxshall said he believed that he did not have to sign the proposed new licence agreement because he was under an understanding that he had a 99 year lease.  He said that this understanding came from “everyone” in the “community” of the Village.  He admits that they did not speak to the Council or seek its understanding of the matter before paying out the $75,000, but said that he had in-laws with a shed at the Village and that they had spoken to these in-laws and “everyone was under the same presumption of a 99 year lease”.  Asked whether he knew it was the Councils’ land, he said “We were paying rates to the Council so the presumption was made”.[137]

   [137]Transcript p 224.

1. The Boxshalls paid more (to third parties) for “their” shed than any of the other defendants, but in other ways their claim for an equitable interest in the land is even weaker than some of the other defendants’ claims.  Mr Boxshall was very experienced in business and property matters.  Yet he virtually went out of his way not to make the usual prudent inquiries before acquiring the boatshed.  Having regard to Mr Davison’s evidence, and to the fact that almost half of the site holders signed the proposed licence agreement before this proceeding began, I do not accept that “everyone” in the Village thought there was a 99 year lease.  The Boxshalls have had the benefit of a very large and comfortable boatshed on two sites for about 10 years at a non-commercial site fee, while paying (modest) rates on only one site.  The Boxshalls have made no improvements to the property.  The Council has offered them (and all the others) a licence on the new standard terms.  Notwithstanding that the Councils stood by while a market in boatsheds developed, in all the circumstances I see no real unfairness or injustice to the Boxshalls in permitting the plaintiff Council to exercise its full rights as the beneficial owner of the land as against them. 

1. Accordingly, even apart from statute, the Council’s claim against the Boxshalls should succeed and the corresponding counterclaim should be dismissed. 

Site 21:  John Duffin

1. Site 21 is held by Mr John Duffin.  He did not give evidence.  Kimberley McAdam said that he had been at the Village since about 1992; that he had bought his shed for roughly $4,500; and that it was new when he bought it.  I accept that evidence.

1. Ms McAdam said that Mr Duffin is “a bit of a hermit”.  She acknowledged that efforts had been made to bring him along to give evidence, but said:  “He’s got back problems … he doesn’t get around very well at all”.  On the other hand, Ms McAdam said that, unlike Mr Baker, Mr Duffin does mix with people. 

1. As in the case of Mr Andrew Gibbon, I think it proper to infer that Mr Duffin’s evidence would not have helped him.  In any event, it seems that he paid only $4,500 for the shed on site 21 and there is no evidence that he has made any improvements.  He has had the use of the shed for about 19 years at low Council rates and for a non-commercial licence fee.  Even apart from statute, he has no equitable claim.

1. The Council is entitled to relief against Mr Duffin and his counterclaim must be dismissed. 

Site 23:  William Iggleden

1. William Iggleden now holds site 23.  As mentioned above, the Council granted “permissive occupancy” of the then vacant site 23 to an applicant on 26 June 1967.  The applicant was one J Goodman.  It seems that he erected the abovementioned simple Myer gabled garage-type shed which has come down to Mr Iggleden largely unaltered.[138]

   [138]In the heritage study it is described as “Gabled Myer garage type crimped metal clad shed”:  CB document 101.

1. Mr Iggleden is a TPI war veteran.  He acquired the shed in about 1990 from the widow of a friend with whom he used to fish.  The families as a whole had been friends.  In the initial part of his evidence Mr Iggleden said that he paid the widow a couple of thousand dollars for the shed, although “there was a boat involved”.  Later he clarified this.  The widow had said that her late husband had only wanted the shed to go to Mr Iggleden.  Because of the family connections, the widow was content to take a total of $6,000 for the shed and a new boat which, on its own, was worth about $8,000.  So, in a sense, Mr Iggleden got the shed for nothing.

1. He uses it as a refuge.  He suffers from post-traumatic stress disorder.  He lies down on a bed in the shed and rests.

1. Mr Iggleden put up an awning “with Board of Works approval”.  Inside he did a small amount of lining with masonite.  He rebuilt the jetty and fenced it off.  Otherwise he has made no changes or improvements.  The shed has water and electricity.  There is boating equipment, a cupboard and a kitchen sink.  His boat is not kept inside.  It is moored in the river.  When he acquired the shed the Council did not tell Mr Iggleden what the conditions were.  He simply took it over on the same terms as before.  Asked what he had thought those terms were he said:

“… like a 99 year lease … like a long term lease but we had to pay a lease annually for [sic] was $10 and it went up one year to $100.  So there was – there was no – no document to my knowledge saying whether it was a one year lease or was like a 99 year lease, it was just everyone the same, that the sheds had been there for so long and they go – they go along.  …  I’d expect one of my sons to take it over when I die … .”[139]

[139]Transcript p 151.

1. Under cross-examination, Mr Iggleden conceded that he did not check with the Council whether there was a 99 year lease.  He said that he just assumed he would be able to stay there as long as he was alive. 

1. Even apart from statute, Mr Iggleden does not have a strong personal claim for an equity.  He did not make proper inquiries as to tenure.  There was in truth no 99 year lease.  He paid effectively nothing for the shed.  He has had the use of it for over 20 years at a non-commercial licence fee and modest Council rates.  He has not made any substantial improvements.

1. The Council’s claim against Mr Iggleden must succeed and his counterclaim must be dismissed. 

The statutory limitations on the Council’s powers to deal with land

1. At all relevant times the Local Government Act 1958 and its successor, the Local Government Act 1989, have contained provisions relevant to the capacity of Victorian municipalities to deal with land lawfully.  In my view those provisions tell further against the defendants having any equity in the land at all at this stage, and they completely preclude a determination that the defendants are entitled to an irrevocable licence or licences in respect of the land in question.  I do not accept the defendants’ arguments to the contrary. 

1. As discussed above, the defendants’ principal argument is based on the interactions between the Williamstown Council and the builders of boatsheds at the Fishing Village in about 1965-67.  Accordingly I will shortly refer to the relevant provisions of the Local Government Act 1958 as in force during those years.  However, it will also be necessary in due course to refer briefly to subsequent versions of the relevant or corresponding provisions, because the defendants make alternative claims based in part on subsequent events and circumstances.

1. During the years 1965-67 the Local Government Act 1958 covered the City of Williamstown: s4.  The inhabitants of the City were a body corporate, and thus a municipality, capable of doing all such things as bodies corporate may by law do, including purchasing, holding and alienating land: ss 3(2), 8.  Part VIII of the Act was entitled “PART VIII – LANDS AND PROPERTY OF MUNICIPALITIES OR OF WHICH COUNCILLORS ARE TRUSTEES”.  It consisted of sections 234 to 242 (inclusive).

1. Subsection 236(1) provided:

“236(1) Any municipality may with the consent of the Governor in Council sell and convey in fee simple or for any lesser estate any lands purchased for value and acquired by such municipality from Her Majesty or any other person which are not in the opinion of the Council required for the purposes of any undertaking for which the same was purchased or acquired and are not otherwise subject to any trust.”

1. Section 237 provided:

“237 Any municipality may let on lease for any term not exceeding seven years and subject to any exceptions reservations covenants and conditions any lands vested in such municipality.”

1. By s 238(1) it was provided, relevantly, that “any municipality may from time to time with the consent of the Governor in Council demise all or any part of the lands vested in such municipality…for any term not less than seven years and not exceeding twenty-one years…at the best yearly rents that can reasonably be obtained by auction or tender…; or upon building and improving leases for any term of years not exceeding thirty years (unless the Governor in Council gives a special authority to make a demise for a longer term not exceeding in all seventy-five years)…at the best rent which can be reasonably obtained by auction or tender…”.

1. Subsection 238(2) empowered any municipality to use, or license any person to use, its town hall or like building for the purpose of providing entertainment or holding meetings or functions therein.[140]  That subsection was to be read in aid of and not in derogation from any other power of a municipality with respect to land vested in it: s238(3).

   [140]The predecessor of this provision was enacted in 1941 to overcome Attorney-General v Shire of Dandenong [1942] VLR 33. See Morrison v Shire of Morwell [1948] VLR 73 at 76.

1. Under s 239(1) every municipality had unrestricted power to let on lease to Her Majesty or to the Board of Land and Works any land vested in the municipality.

1. By s 239(2) every municipality might “grant, convey or transfer in fee simple or for any less estate, and either with or without a money or other valuable consideration, unto Her Majesty or to the Board of Land and Works or to the Minister of Education, any land building or tenement …”.

1. Under s 239(3) the council of any municipality was empowered to arrange for the construction of, or to purchase, dwelling-houses for the use of its officers or other employees; and it was provided that “notwithstanding anything in this Part” the council might let any such dwelling-house to any of its officers or employees upon such terms as were agreed upon.

1. By virtue of s 240A, where land had been acquired by a council for a particular purpose, the council had power to use it for a different purpose, but only with the consent of the Governor in Council and only after prescribed public advertising.

1. The Act did not contain any provisions empowering municipalities to mortgage their lands.  Indeed, it was necessarily implied by Part XV of the Act, and especially by s 413A(2) thereof, that municipalities had no such power.[141]

   [141]Generally speaking, the law has remained the same ever since: see now s 148 of the Local Government Act 1989.

1. Mr Sowden submits that the interest claimed in equity by his clients is merely a licence, albeit an irrevocable one; that when a statute is silent in relation to a particular equitable interest in land, it will not prevent a party from asserting such an interest unless the statute comprises an exhaustive code for dealing in land; that the Local Government Act 1958 was silent on the question whether a municipality might license the use of council land; that there were no words or phrases in the Act that would indicate that the legislature intended the Act to constitute a code for dealing in land; that the provisions relied upon by the plaintiff were cast in discretionary rather than mandatory language (eg “Any municipality may from time to time…”); and that those provisions presuppose that common law rights such as the right to assign or mortgage remain on foot.[142]

   [142]Written submissions handed up on 31 March 2010, esp. paragraphs 1-9.  However Mr Sowden could not and did not submit that his clients could have acquired a perpetual interest in the land by contract without compliance with the requirements of the relevant statutory provisions.  By contrast, in Plimmer there were apparently no statutory provisions that might have inhibited a contractual acquisition: see para 33 above.

1. Mr Sowden cited various authorities in which, he said, it had been held that either the provisions in question in the particular case constituted a code or that they did not.[143]  However, on my reading of them, none of those cases stands for the proposition that the statute must constitute a code before it will prevent a party from asserting an equitable interest not mentioned in the statute.  The nearest may be Wood v Browne.[144]  However even in Wood v Browne  no such sweeping principle was laid down.  Macrossan J did refer to a need to identify a “comprehensive and exclusive code”, but “in the sense that there is disclosed an intention to displace the general body of common law and equitable principles”.  Indeed His Honour went on to acknowledge that an implication could be relied upon, at least where the equitable doctrines would “work, in some way, as an impediment to the statutory system…”.  Correspondingly, the Court of Appeal of this State has recently held that the question whether an estoppel lies in the face of a statute depends upon  “the nature of the statutory provision, its purposes and the social policy behind it”.[145]

   [143]State of Victoria v Rossignoli [1983] 2 VR 1; Chalmers v Pardoe [1963] 1 WLR 677; New South Wales v Scharer (2003) 131 LGERA 208; State of Victoria v Bradto Pty Ltd [2006] VCAT 2299; and by contrast American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677; Wood v Browne (1984) 2 Qd R 593.

   [144](1984) 2 Qd R 593.

   [145]Equuscorp Pty Ltd v Antonopoulos [2008] VSCA 179 at [28]. See also Caltex Oil (Aust) Pty Ltd v Best (1990) 170 CLR 516 at 522.

1. The nature, purpose and policy of the relevant provisions of Part VIII of the Local Government Act 1958 are plain.  The provisions were all designed to promote integrity and transparency in significant dealings in municipally-owned land.[146]  Thus a municipality could not “sell and convey in fee simple or for any lesser estate” any land it had previously purchased or acquired unless it formed the opinion (which ought to have been expressed in a resolution of the Council)[147] that the land was no longer required for its original purpose, and the municipality had obtained the consent of the Governor in Council.  Except where the lessee was to be a public authority, a municipality could generally not lease land for more than seven years without the approval of the Governor in Council, and then only after testing the rental market properly.  A special exception was made in relation to houses for a Council’s own staff.  Contrary to an assumption of Mr Sowden’s argument, and in contradistinction to American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd,[148] the provisions so far referred to did not presuppose that “common law rights such as the right to assign or mortgage” remained on foot. Indeed, merely to alter the use of land needed approval and advertising.

   [146]Compare State of Victoria v Bradto Pty Ltd [2006] VCAT 2299 at [130], [132].

   [147]Compare Richmond City Council v Attorney-General of Victoria (1992) 76 LGRA 220 at 224.

   [148](1981) 147 CLR 677.

1. It would make a mockery of those provisions if proprietary estoppel could be relied upon to create an assignable and transmissible right of permanent, exclusive occupancy of municipal land.  The defendants’ claim is for just such a right.[149]  It matters not that the claimed right can be called an irrevocable licence.[150]  It is tantamount to a perpetual lease, a familiar creature in Australian statutes, if not known to the common law.[151]  Only the siteholder would have a key to the boatshed and only the siteholder could determine who would be admitted within the boatshed.  Even representatives of the Council would be excluded.[152]  The salutary checks imposed by the Local Government Act 1958 cannot be bypassed so easily.  This case is closely comparable to State of Victoria v Rossignoli[153] where a similar view was taken by the Full Court of this Court in relation to comparable legislation.

   [149]In their further and better particulars dated 23 December 2008 the defendants claim that the rights they presently enjoy include:  “(a) Quiet enjoyment of the boatsheds/ability to exclude others; (b) possession/occupy; (c) Use and manage; (d) Ability to alienate their interest in the boatsheds; 

   (e) Ability to transmit”.  There are many references in the Council documents to “leases” and “rental” in relation to the boatsheds, as Mr Sowden himself pointed out: transcript pp 117-120.

   [150]Compare Tower Hamlets London Borough Council v Miah [1992] 1 QB 623 at 629, 630.

   [151]Alternatively, it could arguably amount to a determinable or defeasible fee simple.  See Peter Butt, Land Law 6^th Ed, 2010, 134.  See also Wilson v Anderson (2002) 213 CLR 401 at 443-452 [88]-[119].

   [152]See and compare Radaich v Smith (1959) 101 CLR 209; Lewis v Bell (1985) 1 NSWLR 731; Georgeski v Owners Corporation Sp 49833 [2004] NSWSC 1096 at [5], [38]-[49].

   [153][1983] 2 VR 1 esp at 6-7, 10-11, 13-14.

1. It is common ground that no consent of the Governor in Council was sought or obtained for the grant of any interest in the land to the siteholders of 1965-67, and that the steps prescribed for the obtaining of proper rents were not followed.  In Bycon v Moira Shire Council[154] it was held by Vincent J that the corresponding (public notice and expert valuation) provisions of s 189 of the Local Government Act 1989 were mandatory.  In the language of Project Blue Sky Inc v Australian Broadcasting Authority,[155] it was clearly a purpose of the legislation that acts done in breach of the provisions in question should be invalid.  The principles of equity cannot be deployed inconsistently with this statutory purpose.[156]

   [154][1998] VSC 25 at [50].

   [155](1998) 194 CLR 355 at 390. See also New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Kinchela claim) [2009] NSWLEC 46 at [68]-[78].

   [156]Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd (1925) 36 CLR 230 at 274, 278 (Isaacs J); State of Victoria v Rossignoli [1983] 2 VLR 1 at 13; Czipo-Barna v Council of the City of Orange [1999] NSWSC 323 at [6]-[9]; State of Victoria v Bradto Pty Ltd [2006] VCAT 2299 at [144]; St Alder v Waverley Local Council (2010) 172 LGERA 147 at 154 [43]-[44]; Northey v Bega Valley Shire Council [2010] NSWSC 527 at [32]-[42]; cf Campbell v Turner [2008] QCA 126 at [32]-[52].

1. On the final day of the hearing Mr Appudurai handed up a useful spreadsheet showing the amendments made over the years to most of the provisions to which I have referred, as well as the corresponding provisions in the Local Government Act 1989.  It is unnecessary for me to set out any of the amendments or any of the current provisions.  Suffice to say that from 1 March 1984 the requirement for Governor in Council consent to sales of land was replaced by detailed advertising requirements; that from 27 May 1990 the maximum rental term permissible without Governor in Council approval was raised from 7 years to 10 years; that a requirement to advertise proposed leases of longer than 3 years’ duration was introduced on 1 July 1981; that this was replaced from 1 March 1984 by a requirement for advertising when the rental value of the property was greater than $20,000 per year or the lease was for a period of 10 years or more (up to a 30 year maximum); and that the maximum lease permitted was 50 years from 15 June 1987. 

1. Under s 189 of the Local Government Act 1989 a Council may not sell or exchange any land without giving 4 weeks’ public notice of its intention to do so and obtaining an up-to-date expert valuation. Any person may make a submission under s 223 of the Act on the proposed sale or exchange. The restrictions on leasing imposed by s190 of the current Act are similar to those that existed immediately before the repeal of the old Act, save that four weeks’ public notice must now be given and the public may make submissions under s 223. Exceptions to the sale and leasing restrictions still apply with respect to disposals in favour of public bodies: s191. Under s 192, alterations to the use of land are now subject to the public’s right to make a submission under s 223.

1. None of the amended or new requirements has been observed by the Councils in relation to the land at the Fishing Village.  So the more recent events cannot serve to entitle the defendants to irrevocable licences.  The current provisions would also stand in the way of the grant of any lesser period of occupancy, or any grant of equitable compensation or damages,[157] at least in relation to those defendants who have now occupied their boatsheds for 10 or more years.

   [157]See Norton v Angus (1926) 38 CLR 523 at 534 (Isaacs J).

Conclusion and orders

1. For these reasons the plaintiff Council is entitled to relief, substantially in the form it seeks, against all of the defendants and the defendants’ counterclaims must be dismissed.  I will hear counsel as to the appropriate form of orders to give effect to these conclusions. 

Costs

1. In view of the fact that the plaintiff did not plead or rely upon the statutory answers to the defendants’ estoppel claims until after the Court raised the matter on the first day of the hearing, whereby delay and extra cost were encountered; and in view of the additional time, trouble and expense to which the parties and the Court have been put as a result of non-compliance with the pre-trial direction for an agreed statement of facts and as a result of the case not being properly prepared for hearing on either side, for all of which the plaintiff Council appears to be partly responsible, I am provisionally inclined to make considerable allowance in favour of the defendants in relation to costs.  I will hear counsel on that issue as well.