Kogarah Municipal Council v Golden Paradise Corporation

[2005] NSWCA 230

CITATION:	Kogarah Municipal Council v Golden Paradise Corporation & Anor [2005] NSWCA 230
HEARING DATE(S):	3 June 2005
JUDGMENT DATE:	12 July 2005
JUDGMENT OF:	Tobias JA at 1; McColl JA at 79; Basten JA at 81
DECISION:	(1) Appeal allowed; (2) Order that the declarations and orders made by Cowdroy J on 29 August 2003 as amended by orders made on 27 November 2003 be set aside; (3) Order that the Amended Application dated 30 August 2002 in proceedings No. 40536/02 in the Land and Environment Court be dismissed; (4) Order that the first respondent pay the costs of the appellant and the second respondent at first instance and of the appeal, but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified

CATCHWORDS:	LAND AND ENVIRONMENT - Land and Environment Court's power to remedy breach of Local Government Act - Land transferred to Council pursuant to condition of development consent - Land subsequently reconveyed by Council to private owner - Reconveyance in breach of provisions of Local Government Act - Private owner became registered proprietor of land - Whether Court could, pursuant to power to remedy breach of Act, order private owner to retransfer land to Council where private owner not itself in breach of Act - PROPERTY - Conveyancing - Indefeasibility of title - Whether private owner acquired indefeasible title upon registration despite fact that transfer made in breach of Local Government Act - Real Property Act 1900 s 42 - Local Government Act 1993 s 45(1)
LEGISLATION CITED:	Local Government Act 1993 Real Property Act 1900 Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Crown Lands Consolidation Act 1913 Supreme Court Act 1970 Supreme Court Rules 1970
CASES CITED:	Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2002) 55 NSWLR 446 Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 79 ALJR 282 Breskvar v Wall (1971) 126 CLR 376 Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 Palais Parking Station Pty Limited v Shea (No 3) (1980) 24 SASR 425 Story v Advance Bank Australia Limited (1993) 31 NSWLR 722 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 Quach v Marrickville Municipal Council (1990) 22 NSWLR 55 South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia (1939) 62 CLR 603 Pratten v Warringah Shire Council [1969] 2 NSWR 161, (1969) 90 WN (Part 1) (NSW) 134 Lansen v Olney (1999) 100 FCR 7 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 Roach v Bickle (1915) 20 CLR 663 The Queen v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327
PARTIES:	Kogarah Municipal Council Golden Paradise Corporation Blakehurst Properties Pty Limited Blakehurst Properties Pty Limited
FILE NUMBER(S):	CA 40812/03
COUNSEL:	A: J A Ayling SC / J Jagot 1R: M Neil QC / G E Underwood 2R: M Orlov
SOLICITORS:	A: Abbott Tout, Sydney 1R: Forshaws Neil, Sutherland 2R: Gray & Perkins, Sydney

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	L&E 40536/02
LOWER COURT JUDICIAL OFFICER:	Cowdroy J

CA 40812/03
L&E 40536/02

TOBIAS JA
McCOLL JA
BASTEN JA

Tuesday 12 July 2005

KOGARAH MUNICIPAL COUNCIL v GOLDEN PARADISE CORPORATION & ANOR

The respondent was the registered proprietor of the property at No 645 Prices Highway, Blakehurst (No 645). Adjacent to No 645 was the property at Nos 637-643 Prices Highway, Blakehurst (Nos 637-643). In 1985, the appellant (the Council) granted consent to the then owner of Nos 637-643 to erect a building on that property subject to conditions which included the dedication to the Council of a six meter strip of land within the boundaries of Nos 637-643 for the purpose of a public laneway (the land). The land was duly transferred to the Council and registered in 1987.

On 15 February 2002, the Council reconveyed the land to Blakehurst Properties Pty Limited (Blakehurst), which was then the registered proprietor of Nos 637-643 (the transfer). Upon the transfer, Blakehurst became the registered proprietor of the land. The respondent sought a declaration that the transfer was in breach of the provisions of the Local Government Act 1993 (the LG Act) and an order that the land be retransferred from Blakehurst to the Council.

Cowdroy J of the Land and Environment Court upheld the respondent's submission that the transfer was in breach of s 45(1) of the LG Act, which provided that a council had no power to sell, exchange or otherwise dispose of community land. It was held by the primary judge, and it was not challenged on appeal, that at the time of the transfer the land was community land pursuant to clause 6 of Schedule 7 of the LG Act. The primary judge also, relevantly, ordered Blakehurst to do all such things necessary to secure a retransfer of the land to the Council.

The argument on the appeal proceeded upon the assumption that the transfer amounted to a breach of s 45(1) of the LG Act. Thus, the critical issue became whether the Land and Environment Court could, pursuant to its power under s 676(1) of the LG Act to remedy a breach of that Act, order Blakehurst to retransfer the land to the Council when the former was not itself in breach of the Act.

A further issue was whether s 42 of the Real Property Act 1900 (the RP Act) had the effect that, upon registration of the transfer, Blakehurst acquired indefeasible title to the land despite the fact that the transfer was made in breach of s 45(1) of the LG Act.

HELD by Tobias JA, McColl and Basten JA agreeing, allowing the appeal:

(1) The Land and Environment Court had no power to make any order against Blakehurst requiring it to remedy a breach of the LG Act for which it was not legally responsible ([58] per Tobias JA; [84] per Basten JA)

Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 79 ALJR 282 applied

(2) Once the land was transferred from the Council to Blakehurst, and thus ceased to be vested in or under the control of the Council, it ceased to be community land. Therefore, it could not be argued that the land was invalidly used by Blakehurst for its private purposes ([64]-[65] per Tobias JA; [86] per Basten)

(3) On the basis of the foregoing, the primary judge's order that Blakehurst retransfer the land to the Council should be set aside.

Tobias JA: It was arguable that once the transfer was registered, Blakehurst could not be divested of its title even if the transfer was void or voidable as a consequence of the breach of s 45(1) of the LG Act ([44], [60]).

Breskvar v Wall (1971) 126 CLR 376

Basten JA: Section 45(1) of the LG Act unequivocally rendered a council powerless to sell, exchange or otherwise dispose of community land. If, by providing a transfer in registrable form to a third party, the Council was able to effect a disposal of community land, there would be a wholesale abrogation of the statutory provision. It was arguable that the LG Act had, by necessary implication, amended s 42 of the RP Act to the extent that that provision would not give effect to a transfer of such land upon registration ([80]).

Travinto Nominees Pty Ltd v Vlattas

(1973) 129 CLR 1

Hillpalm Pty Ltd v Heaven's Door Pty Ltd

(2004) 79 ALJR 282 (per Kirby J and Callinan J)

Roach v Bickle

(1915) 20 CLR 663

CA 40812/03
L&E 40536/02

TOBIAS JA
McCOLL JA
BASTEN JA

Tuesday 12 July 2005

KOGARAH MUNICIPAL COUNCIL v GOLDEN PARADISE CORPORATION & ANOR

Judgment

1 TOBIAS JA: Golden Paradise Corporation (the Corporation) was at all material times the registered proprietor of the property known as No. 645 Princes Highway, Blakehurst (No. 645). Adjoining its south-western boundary and having an identical depth is the property Nos. 637-643 Princes Highway, Blakehurst (Nos. 637-643). This property is located on the corner of Princes Highway and James Street, Blakehurst.

2 Nos. 637-643 was formerly Lot B in DP 152332. By a subdivision plan registered as DP740823 on 4 May 1987, Lot B was subdivided into two lots. Lot 2 bisected Lot 1 into two parcels. Lot 2 comprised an area of 217.6m² and was a strip of land six metres wide located seven metres from, and parallel to, the rear boundary of Lot 1. It ran from James Street to the common boundary with No. 645. Erected on that part of Lot 1 fronting Princes Highway was a commercial building used for the purposes of a fruit market.

3 Prior to 16 May 2002, Kogarah Municipal Council (the Council) was the registered proprietor of Lot 2 in circumstances to which I shall later refer. On that date the Council transferred Lot 2 to Blakehurst Properties Pty Limited (Blakehurst), which was then the registered proprietor of Lot 1 being Nos. 637-643.

4 The Corporation instituted Class 4 proceedings in the Land and Environment Court to which the Council and Blakehurst were joined as respondents. It sought, inter alia, a declaration that the transfer by the Council to Blakehurst of Lot 2 was in breach of the provisions of the Local Government Act 1993 (the LG Act) and an order that each of the Council and Blakehurst do all such things necessary to secure a retransfer of Lot 2 from Blakehurst to the Council.

5 The proceedings were heard by Cowdroy J who on 29 August 2003 granted the declarations and orders sought. The Council has appealed to this Court against those declarations and orders, joining the Corporation and Blakehurst as respondents to the appeal. Although Blakehurst clearly had an interest in joining with the Council as an appellant, it did not do so but filed a submitting appearance except as to costs. That interest arose out of the Council's grounds of appeal, which asserted that his Honour ought to have found that, upon registration of the transfer of Lot 2 from the Council to Blakehurst, the latter obtained an indefeasible title by operation of s 42 of the Real Property Act 1900 (the RP Act). It followed, so the grounds of appeal alleged, that his Honour therefore erred by ordering the reconveyance of Lot 2 from Blakehurst to the Council.

The Corporation seeks leave to file a Notice of Objection to Competence and a Notice of Contention

6 At the outset of the hearing of the appeal, the Corporation sought the leave of the Court to file a Notice of Objection to Competence and a Notice of Contention. The former contained an objection to the competency of the Council's appeal insofar as it sought to set aside the order made by the primary judge requiring Blakehurst to do all such things necessary to secure the transfer of Lot 2 from itself to the Council. In other words, as Blakehurst was not an appellant but only a submitting respondent, it was sought to contend that it was not open to the Council to seek to appeal against, and have set aside, an order which did not affect the Council as the sole appellant.

7 The Notice of Contention sought to uphold the orders made by the primary judge and, in particular, that made against Blakehurst upon two bases of which the second was that Blakehurst held Lot 2 upon resulting trust for the Council and was, therefore, obliged to retransfer that land to the Council as the beneficiary of that trust.

8 Both the Council and Blakehurst opposed the grant of leave. With respect to the latter, at the commencement of the hearing of the appeal counsel for Blakehurst appeared and sought the Court's leave, notwithstanding his client's submitting appearance, to appear to oppose the matters raised by the Corporation in its competency objection and Notice of Contention. In this respect, the Court was informed that it was only that morning that Blakehurst's solicitors had received a copy of the Corporation's written submissions in the appeal.

9 Those submissions contained two contentions that were not the subject of findings by the primary judge. The first was that not only the Council but also Blakehurst was in breach of the LG Act and, in particular, s 45(1) thereof. The second was that Blakehurst held Lot 2 on resulting trust for the Council and that the order of the primary judge requiring Blakehurst to do all such things necessary to secure a retransfer of Lot 2 from itself to the Council was merely a means of "setting right" the interests of the Council with respect to those of Blakehurst. Counsel for Blakehurst also informed the Court that he was not in a position to argue the substantive merits of these contentions.

10 At the conclusion of oral argument as to whether leave should be granted, the Court determined that leave should be refused and that the Corporation should not be permitted to object to the competency of the appeal or to justify the orders made by the primary judge against Blakehurst upon the basis that it held Lot 2 on resulting trust for the Council.

11 So far as the objection to competency was concerned, it was noted that the Corporation had failed to comply with Pt 51 r 25(1) of the Supreme Court Rules 1970 (the Rules). It was also observed that Pt 51 r 22(1)(b) provides that this Court may exercise its powers under the Supreme Court Act 1970 and the Rules notwithstanding that any party to the proceedings in the court below had not appealed. Furthermore, Pt 51 r 22(3) empowers the Court to make any order to ensure the determination on the merits of the real question in controversy. Accordingly, it seemed to the Court that the Council's appeal was in any event competent insofar as it sought to have set aside the order made by the primary judge against Blakehurst. However, the fact was that the Corporation had failed to comply with the rules concerning objections to competency and had raised the issue at a time and in a manner that was clearly prejudicial to the ability of Blakehurst to respond thereto.

12 So far as the Notice of Contention was concerned, it was common ground that no question had been raised before the primary judge suggesting that Blakehurst held Lot 2 on resulting trust for the Council. Again, Blakehurst was caught by surprise and was not in a position to deal with this issue had leave been granted to raise it. It was therefore clearly prejudiced by the failure of the Corporation to bring to its attention the fact that it was proposing to raise an issue on the appeal that had not been raised at first instance. The same comments are applicable to the Corporation's submission that both the Council and Blakehurst were in breach of the LG Act.

13 The only relevant allegation made in the Amended Points of Claim was that Lot 2 was unlawfully transferred "by Council" to Blakehurst. It was further alleged that the Council had power to require Lot 2 to be transferred back to it under a deed dated 15 February 2002 between it and Blakehurst and by virtue of a positive covenant imposed pursuant to s 88E of the Conveyancing Act 1919. I shall return to the deed later in these reasons but what is clear from the Amended Points of Claim is that no breach of the LG Act on Blakehurst's part was alleged therein. Furthermore, senior counsel for the Corporation accepted that it had not contended before the primary judge that Blakehurst had contravened the LG Act by accepting the transfer of Lot 2 from the Council. Obviously it was for that reason that no finding of breach on the part of the Blakehurst was made by his Honour.

14 In the foregoing circumstances, the Court refused the Corporation leave to object to the competency of the appeal or to support the orders made by the primary judge upon the basis that Blakehurst held Lot 2 on resulting trust for the Council.

The relevant facts

15 As I have observed, Nos. 637-643 are situated on the corner of Princes Highway and James Street and No. 645 adjoins that property immediately to the south-east. In 1984 in response to concerns about traffic safety and increased clearway restrictions on the Highway, the Council determined to provide alternate vehicular access for commercial properties with frontages to main roads. Relevantly, it was proposed to create a lane six metres wide across the rear of the properties fronting the Princes Highway thereby enabling rear access to these properties via James Street to the north and via Water Street to the south, these being the two cross streets to the Highway.

16 On 23 January 1985 the Council granted development consent to an application made by GHA Development Pty Limited (GHA) to erect a building on Nos. 637-643 subject to conditions which included the dedication to the Council of a six metre wide strip of land located seven metres from the rear boundary of the property for the purpose of a public laneway. This condition was given effect by the transfer of Lot 2 from GHA to the Council on 3 March 1987, which was registered on 27 July 1987. The consideration stated in the transfer was $1.

17 At a meeting of the Council held on 13 February 1989 it was resolved to prepare a draft local environmental plan and draft development control plan in respect of the land bounded by Princes Highway, James Street, Vaughan Street and Water Street, Blakehurst. These draft instruments included provision for the dedication of land to the Council for the purpose of creating a rear laneway behind the properties within that block fronting the Princes Highway. The explanatory notes to those draft instruments noted that the owners of Nos. 637-643 and No. 647 Princes Highway had already dedicated or were in the process of dedicating land to the Council for laneway purposes and that, in addition, the owners of Nos. 659-667 Princes Highway had indicated that they had no objection to doing likewise.

18 The LG Act commenced on 1 July 1993. It is convenient at this point of the narrative to refer to some of the relevant statutory provisions that have a bearing upon this appeal and which explain the further history of the matter.

19 Section 25 of the LG Act provides that all public land must be classified in accordance with Part 2 of Chapter 6, which comprises ss 25 to 54A. Section 26 provides for two classifications of public land – "community" and "operational".

20 "Public land" is defined in the Dictionary to the Act as meaning, with certain irrelevant exceptions,

"any land (including a public reserve) vested in or under the control of the council."

As a consequence of the Council becoming the registered proprietor of Lot 2 (see [16] above), that land became " public land " as so defined.

21 Part 2 of Schedule 7 contains transitional provisions arising out of Chapter 6 of the Act. Clause 6 applied to all public land within a council's area as at the commencement of Part 2 of Chapter 6 on 1 July 1993. Relevantly, clause 6(2) provided that on that date

"the following land that is vested in or under control of a council is taken to have been classified as community land:
(a) …;
(b) land subject to a trust for a public purpose;
(c) land dedicated as a condition of a development consent under section 94 of the Environmental Planning and Assessment Act 1979 .
(d) …
(e) …"

22 It was common ground that Lot 2 had been dedicated to the Council as a condition of development consent within the meaning of clause 6(2)(c). Accordingly, as and from 1 July 1993, it was taken to have been classified as community land.

23 Clause 6(3) was in the following terms:

"Within 1 year after [1 July 1993], a council may, by resolution, classify, as community land or operational land, any public land that is vested in it or under its control and that is not classified by subclause (2) " (emphasis added).

24 On 20 June 1994 the Council purported to resolve pursuant to clause 6(3) of Schedule 7 that 94 parcels of land listed in the Kogarah Council Management Plan dated 12 May 1994 be classified as "operational land". Lot 2 was included in that list. Later, an internal Council memorandum dated 12 March 2001 recommended that Lot 2 be transferred to Blakehurst who in the meantime had acquired Nos. 637-643. The memorandum referred to the fact that Lot 2 was being used as a "de facto driveway" for Nos. 637-643 and also for visitor parking by neighbouring properties such as No. 645. The memorandum recorded that Blakehurst had requested the Council to transfer the land to it to enable improved parking arrangements on its premises.

25 On 15 February 2002 a deed was entered into between the Council and Blakehurst (the deed) which recited that the Council as the owner of Lot 1 (sic, should be Lot 2) had acquired that land for the purpose of providing rear lane access to commercial properties fronting Princes Highway between James Street and Water Street and which bisected Lot 2 (sic, should be Lot 1). The deed further recited that the Council had agreed to transfer Lot 2 to Blakehurst on the proviso that should it be required in the future for road purposes, it would be transferred back to the Council at no cost. The operative part of the deed gave effect to the foregoing. It provided in clause 2 for a positive covenant to be registered on the title to Lot 2 requiring Blakehurst or its successors in title to retransfer Lot 2 to the Council when requested by the Council in writing, which according to clause 3, could only occur when a proposal to extend the laneway beyond Nos. 637-643 had been resolved by the Council.

26 Pursuant to the terms of the deed, Lot 2 was duly transferred from the Council to Blakehurst by transfer dated 16 May 2002 which was registered on 24 May 2002.

27 On 2 December 2002 the Council's Urban Planning and Design Working Party prepared a report purporting to justify the Council's transfer of Lot 2 to Blakehurst. According to the report, the proposed creation of the rear access laneway between James Street and Water Street was "highly unpopular with adjoining residents". For this and other reasons, the Council resolved on 9 December 2002 not to proceed with the draft local environmental plan and draft development control plan (referred to in [17] above) "and in doing so abandoned the idea of creating a laneway within the subject precinct".

The reclassification of Lot 2 as operational land is invalid

28 The Corporation contended before the primary judge that Council's resolution of 20 June 1994 purporting pursuant to clause 6(3) of Schedule 7 to the LG Act to reclassify Lot 2 as operational land was ineffective to achieve that result because, firstly, that provision did not apply to public land which was taken to be classified as community land pursuant to clause 6(2) and, secondly, Lot 2 had been so classified as it was land which had been dedicated as a condition of a development consent under s 94 of the Environmental Planning and Assessment Act 1979 (EP&A Act).

29 His Honour acceded to this submission and held (at [35]) that Council's 1994 resolution to reclassify Lot 2 from "community land" to "operational land" was invalid with the consequence that, as at May 2002 when Council purported transferred Lot 2 to Blakehurst, it remained "community land". It is unnecessary to canvass the primary judge's reasoning to this conclusion, as there is no challenge by the Council thereto.

The effect of Lot 2 being " community land " upon its transfer to Blakehurst

30 It was common ground that the transfer by the Council on 16 May 2002 of Lot 2 to Blakehurst was in contravention of s 45(1) of the LG Act which provided as follows:

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

31 Having held that Lot 2 was at the time of the transfer "community land", his Honour (at [35]) concluded that it followed that the transfer of Lot 2 was made in breach of s 45(1).

The relief granted by the primary judge

32 Having granted declarations to give effect to his findings that, firstly, the Council's resolution of 20 June 1994 was invalid insofar as it purported to classify Lot 2 as "operational land" and, secondly, that the transfer of Lot 2 by the Council to Blakehurst was in breach of the provisions of the LG Act and "unlawful", his Honour relevantly made the following orders:

"5. An order that the first respondent do all such things necessary to secure a transfer of lot 2 in deposited plan 740823 being the whole of the land in folio identifier 2/740823 from the second respondent to the first respondent pursuant to the Deed between the first respondent and second respondent dated 15 February 2002 and s 88 of the Conveyancing Act 1919;
6. An order that the second respondent do all such things necessary to secure a transfer of lot 2 in deposited plan 740823 being the whole of the land in folio identifier 2/740823 from the second respondent to the first respondent."

33 The primary judge's reasoning which led to the making of those orders was as follows:

"36. The Court will order the council to take all necessary steps to obtain a reconveyance of lot 2 as provided by the Deed. It is unnecessary to make findings concerning the question of indefeasibility of the title of Blakehurst Properties to lot 2 because its status as " community " land was never validly altered and the Deed makes provision for a re-conveyance to the council. However the Court finds that it would have been prepared to hold that the principle in Heavens Door which was upheld by the Court of Appeal in Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2002) 55 NSWLR 446 would apply. Such principle established that the fulfilment of a condition of a development consent granted pursuant to the EP&A Act cannot be frustrated by the doctrine of indefeasibility recognised by the provisions of the RP Act. Meagher JA observed in Hillpalm Pty Ltd at p 449:
In my view the Environmental Planning and Assessment Act 1979 must take precedence over the system of registration of titles regulated by the Real Property 1900 . This is not only because it is a later enactment, but also because it partakes more of a public law enactment compared to the Real Property Act 's private law complexion; and also because the almost aggressive working of s 122 and s 123 display an intention that they are to be of universal force.
37. Although Hillpalm Pty Ltd related to the EP&A Act, these proceedings were brought pursuant to the provisions of s 674 of the LG Act alleging a breach of s 45 of such Act. Section 674 of the LG Act is similar to s 123 of the EP&A Act. Additionally s 122(a) of the EP&A Act is identical to s 672(a) of the LG Act. Accordingly, the reasoning of the Court in Heaven's Door would apply with equal force to the present facts."

34 The question of the indefeasibility of Blakehurst's title to Lot 2 referred to in [36] of his Honour's judgment related to a submission made by the Council and Blakehurst that the latter's title was neither defeasible nor liable to be impugned by a third party such as the Corporation once Blakehurst became registered as proprietor of Lot 2 under the RP Act. It was therefore submitted that as none of the exceptions referred to in s 42(1) of that Act applied, and as no question of fraud was involved, by operation of that provision Blakehurst upon registration obtained an indefeasible title to Lot 2 which could not be divested by an order of the Land and Environment Court purportedly made pursuant to the provisions of the LG Act.

35 It is therefore apparent that the primary judge considered that he was empowered to make Orders 5 and 6 upon the basis that the deed

"makes provision for a re-conveyance to the Council".

36 However, this was not so in the terms in which his Honour expressed it. Clause 2 of the deed provided for the retransfer of Lot 2 to the Council when requested by it in writing, but clause 3 provided that the Council could only request that retransfer

"when a proposal to extend the laneway beyond 637-643 Princes Highway, Blakehurst has been resolved."

37 In the present case, no request in writing had been made by the Council to Blakehurst to retransfer Lot 2: in fact, the Council did not seek a retransfer and opposed the orders made by the Court. Furthermore, the Council's resolution of 9 December 2002 (the validity of which was not in issue) resolved in effect not to proceed with the proposed laneway and expressly abandoned it. Accordingly, clauses 2 and 3 of the deed could not operate and, therefore, could not form the basis of his Honour's orders. It is fair to observe that the Corporation did not seek to defend those orders upon that basis.

38 The alternative basis for Orders 5 and 6 adumbrated by his Honour was the decision of this Court in Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2002) 55 NSWLR 446 and, in particular, the conclusion of Meagher JA, with whom Handley and Hodgson JJA agreed, at 449 [14] that the EP&A Act and, in particular, ss 122 and 123 thereof, took precedence over any question of indefeasibility of title under the RP Act. As the primary judge correctly observed (at [37]), there was no relevant difference between ss 122 and 123 of the EP&A Act and ss 672 and 674 of the LG Act. In fact, and again this was common ground, the relevant provisions of the EP&A Act and LG Act empowering the Land and Environment Court to make orders remedying a breach of those Acts were ss 124(1) and 676(1) respectively. The latter provides as follows:

"(1) If the Land and Environment Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach."

39 The primary judge's decision was given on 29 August 2003. As at that date an application to the High Court for special leave to appeal in Hillpalm had been filed but not determined. Special leave was in fact granted shortly after on 16 September 2003. The High Court heard the appeal on 11 March 2004 and it was decided on 1 December 2004. By majority the appeal was allowed and the decision of this Court upon which the primary judge relied, was reversed: (2004) 79 ALJR 282.

40 The majority, McHugh ACJ, Hayne and Heydon JJ, in a joint judgment acknowledged (at 292 [51]) the operation of s 42(1) of the RP Act and the potential inconsistency between the operation of that provision on the one hand and a development consent granted under the EP&A Act which created rights in rem on the other. Having quoted the well known passage from the judgment of Barwick CJ in Breskvar v Wall (1971) 126 CLR 376 at 385-6 that

"(t)he Torrens system of registered title … is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor " (emphasis added by the High Court)

their Honours stated that it followed that when the appellant in that case became registered as proprietor of an estate in fee simple in the relevant land (being a lot in a registered subdivision), it obtained the title described in the certificate of title to that lot free from any encumbrance or interest of the kind which the respondent contended it was entitled to have created. That interest was an easement of right of way over the appellant's land the creation of which was required by a condition of the development consent to the subdivision in question.

41 The majority considered that the consent to the subdivision did not create a right in rem that would be a right or interest in the appellant's land not shown on its certificate of title. However, their Honours recognised (at 292 [53]) that had such a right in rem been created, then there

"would then be a real and lively question about how the two statutory schemes (the scheme under the [EP&A Act] and the Torrens system for which the Real Property Act provides) were to be reconciled, and questions of implied repeal or amendment might arise."

In the circumstances, their Honours did not have to consider that question.

42 Accordingly, the High Court did not have to consider the relationship between the jurisdiction of the Land and Environment Court pursuant to s 124 of the EP&A Act to remedy a breach of that Act and the effect on that jurisdiction of s 42 of the RP Act and, in particular, whether the latter was required to yield to the former as Meagher JA had held in this Court.

The submissions on the appeal

43 Although the Council did not concede that its transfer of Lot 2 to Blakehurst amounted to a breach of s 45(1) of the LG Act, the argument on appeal proceeded upon the assumption that that transfer did constitute such a breach. Given that none of the exceptions specified in s 42(1) nor the further exception "in the case of fraud" applied to the present case, the Council submitted that there could be no doubt that the effect of the registration of the transfer was to vest in Blakehurst the title to Lot 2 unimpeded by any relevant encumbrance. That proposition, so it was submitted, was amply supported by authority: for example, Breskvar, ibid; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 542-3; Palais Parking Station Pty Limited v Shea (No 3) (1980) 24 SASR 425 at 428.

44 The Council further submitted that once the transfer to Blakehurst was registered the latter could not be divested of its title to Lot 2 in the manner contemplated by Orders 5 and 6 of the primary judge and that that was so even if the transfer was void or voidable as a consequence of the breach of s 45(1) of the LG Act. There can be no doubt that this is so. In the passage in Breskvar immediately following that which I have recorded in [40] above, Barwick CJ said:

"Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void."

45 In the same case, Menzies J said (at 397):

"It must now be recognised that, in the absence of fraud on the part of the transferee, or some other statutory ground of exception, an indefeasible title can be acquired by virtue of a void transfer."

46 In that case, the transfer had been executed by the existing registered proprietors, the appellants, in breach of s 53(5) of the Stamp Acts 1894 (Qld) but that notwithstanding, as Menzies J further observed (at 397-8)

"[t]he registration was of an instrument executed by the appellants as registered proprietors, albeit in breach of law, and, upon its registration, they ceased to be registered proprietors."

See also per Walsh J at 406; Story v Advance Bank Australia Limited (1993) 31 NSWLR 722 per Gleeson CJ, with whom Cripps JA agreed, at 736 B-C; per Mahoney JA at 739 A-B.

47 Accordingly, the Council submitted that upon registration Blakehurst obtained an indefeasible title to Lot 2 that could not be impugned or displaced by orders of the Land and Environment Court made pursuant to s 676(1) of the LG Act.

48 The Corporation's submission was one of confession and avoidance. It submitted that the orders of the primary judge did not purport to set aside or impugn the title to Lot 2 obtained by Blakehurst upon registration of the transfer. Those orders merely required each of the Council and Blakehurst to do all such things necessary to secure a transfer from Blakehurst to the Council of Lot 2. The orders thus recognised that title to Lot 2 had indefeasibly vested in Blakehurst which was why the orders required the latter to take all necessary steps to secure a transfer of Lot 2 back to the Council. It was therefore unnecessary for the primary judge to determine whether the Land and Environment Court's power to make the subject orders pursuant to s 676(1) of the LG Act was "trumped" by s 42(1) of the RP Act.

49 That issue, so it was submitted, simply did not arise in the present case as it did in this Court in Hillpalm. No question of the impeachment of Blakehurst's indefeasible title was involved. On the other hand, in Hillpalm in this Court it was sought to impeach the appellant's title to the relevant lot in the subdivision by asserting that it was subject to the interest created by the condition of the development consent that that lot be subject to an easement of right of way (not notified on the certificate of title) and requiring that that interest be recognised by the appellant by ordering its formal creation.

The resolution of the issues on the appeal

50 In my opinion it is Order 6 rather than Order 5 to which the Council's submissions on the question of indefeasibility of title should be directed. It is that order that purports to mandate that Blakehurst secure a transfer of Lot 2 to the Council. Order 5 only requires the Council to do all such things necessary to secure that transfer

"pursuant to the Deed between [the Council] and [Blakehurst] dated 15 February 2002 and s 88 of the Conveyancing Act 1919."

51 In other words, Order 5 (at least on one view of it) requires the Council to request Blakehurst to retransfer Lot 2 pursuant to clause 2 of the deed. However, I do not understand that order to require the Council to act otherwise than in accordance with the terms of the deed in which event, given its resolution of 9 December 2002, the making of any such request would constitute a breach of clause 3 of the deed. Accordingly, for the reasons referred to in [37] above, Order 5 is ineffective and was so at the time it was made. In other words, it was based upon a false premise or, at the very least, a misunderstanding of the provisions of clauses 2 and 3 of the deed. Accordingly, it cannot stand in the terms in which it is currently expressed.

52 It is Order 6 that in my opinion is the relevantly operative order. The title to Lot 2 being vested in Blakehurst, it is only Blakehurst that can execute a transfer of that land to the Council. Possibly the only value of Order 5 is that it may mandate that the Council accept any such transfer and lodge it for registration so that it becomes the registered proprietor of Lot 2.

53 Nevertheless, there is a real issue which the primary judge has not addressed as to whether he had jurisdiction to make Order 6 against Blakehurst given that it was neither pleaded, argued nor decided that Blakehurst was in breach of s 45(1) of the LG Act. Accordingly it was submitted by the Council in its written submissions in reply that the effect of the majority decision of the High Court in Hillpalm was that there was no power in the Land and Environment Court pursuant to s 676(1) of the LG Act to make any order against Blakehurst where it was not in breach of s 45(1).

54 In this Court in Hillpalm, Hodgson JA, although agreeing with the leading judgment of Meagher JA, added additional reasons of his own in which he said (at 449 [19]):

"If the development in question is a use of land, then any person who makes that use of the land pursuant to the consent without complying with the condition will be in breach of [the EP&A Act] and can plainly be ordered to rectify that breach, irrespective of what appears on the title to the land. If the development in question is a subdivision, then a later owner of the subdivided land or of the subdivided part of it may not be guilty of any breach of the act, but nevertheless, so long as the land remains subdivided in accordance with the development consent without a condition of that consent being fulfilled, there is objectively speaking a continuing contravention of the condition ; and s 123 of the Act then gives power to the Land and Environment Court to order the rectification of that contravention by such person as is able to do so, again irrespective of what appears on the title of the land." (emphasis added)

55 As I have already mentioned, it is s 124 of the EP&A Act that empowers the Land and Environment Court to make orders to remedy or restrain a breach of that Act, not s 123 which is the standing provision authorising any person to institute proceedings for any such order.

56 In Hillpalm in the High Court, after citing the above passage from the judgment of Hodgson JA, the majority said this (at 291 [46]):

"The reference to there being ' objectively speaking ' a continuing contravention of the condition obscures an important question about the proper construction of s 123. In particular, it assumes that s 123 empowers the making of orders to remedy or restrain a breach of [the EP&A Act] even if the person to whom the order is directed has not committed any breach of the Act and would not commit a breach of the Act."

57 After noting that s 123, as a provision conferring powers on a court, should be read giving the words of the provision full amplitude (cf Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at 529-530 [32]-[33] and fn 30), the majority judgment continued (at 291):

"47. Nonetheless, s 123 of the [EP&A Act] is not to be read as conferring power on the Land and Environment Court to make orders to remedy or restrain breaches of the Act against persons who are not themselves in breach of the Act or who, unless restrained, would be in breach of the Act.
48. So much follows from the description of the kind of order which may be made under s 123, namely, 'an order to remedy or restrain a breach of this Act'. An order directed to a person who is not actually in breach of the Act, and not threatening to act in breach, would neither remedy nor restrain any breach."

58 Although the observations of the joint judgment in Hillpalm related to s 123 of the EP&A Act (and must equally apply to s 124), it was not really suggested that their Honours' observations were not equally applicable to s 676(1) of the LG Act. Accordingly, it would follow that, there being no suggestion before the primary judge that Blakehurst was in breach of s 45(1) of the LG Act, the Land and Environment Court had no power to make any order against Blakehurst requiring it to remedy a breach of the LG Act for which it was not legally responsible.

59 The Corporation sought to meet this difficulty by asserting before this Court for the first time that Blakehurst had contravened s 45(1) of the LG Act in that, contrary to that provision, it was the purchaser of Lot 2 which the Council had no power to sell. Furthermore, it was submitted that as Lot 2 was at the time of transfer, and continued to be, community land, it was being used by Blakehurst for private purposes rather than community purposes in breach of s 45(1). Finally, the Corporation submitted that the precise point the subject of the present case was not considered in Hillpalm and, although only formally, that the decision of the majority of the High Court in that case was wrong and should not be followed.

60 In further elaboration of these submissions which, with respect to senior counsel for the Corporation, were made somewhat "on the run", the Corporation with the Court's leave, filed supplementary written submissions in which it contended that there was a distinction between a void instrument which, in accordance with Breskvar, was nevertheless effective once registered and the present case which involved the registration of a transfer by a transferor who had no power to sell the relevant land. The fact that the Council had no power to sell Lot 2 by virtue of s 45(1) of the LG Act resulted in the transfer which it executed being ineffective in law. It could no doubt be regarded as either a nullity or void, assuming there is any difference between the two, which in my view there is not. It is arguable that once registered, it was that registration and not the antecedent transfer that vested title to Lot 2 in Blakehurst. It could be said that that is the very point of the decision in Breskvar.

61 However, since writing this judgment I have had the benefit of reading in draft the judgment of Basten JA, particularly with respect to the Corporation's submission to which I have referred in the preceding paragraph. I agree with his Honour that that submission was not fully developed in the course of the appeal and that it would be inappropriate to come to a final conclusion with respect to it. This notwithstanding, I acknowledge the force of the observations of Basten JA with respect to the apparent conflict between s 42 of the RP Act and s 45(1) of the LG Act and the issue of statutory construction to which that conflict gives rise.

62 The Corporation's supplementary written submissions then contended that Blakehurst was using Lot 2 in breach of ss 35 and 47D of the LG Act. The former provided that community land was required to be used and managed in accordance with, inter alia, the plan of management applying to it. Succeeding provisions required a council to prepare a plan of management for community land. No such plan had been prepared in the present case. Accordingly, it was submitted that Lot 2 was being used otherwise than in accordance with a plan of management applying to it.

63 Section 47D prohibits the exclusive occupation or exclusive use of community land by any person otherwise than in accordance with certain exceptions not presently applicable. It was therefore contended that Blakehurst was exclusively occupying and/or using Lot 2 otherwise than in accordance with that provision. As that use was prohibited, its continuation was in breach of the section and should be restrained. Of course, any restraint of the exclusive use or occupation of that land by Blakehurst would not require, let alone mandate, that Lot 2 be transferred by Blakehurst to the Council.

64 The answer to these submissions, as contended by the Council, was that ss 35 and 47D of the LG Act only applied so long as the land to which they referred was "community land". As "community land" was "public land" (for it was only "public land" that needed to be classified as either "community land" or "operational land"), and as "public land" was defined in the Dictionary to the LG Act to mean "any land … vested in or under the control of the Council", it followed that for land to be "community land" it needed to be so vested in or under the Council's control. Once the transfer of Lot 2 from the Council to Blakehurst had been registered, that land was incapable of meeting that description: in other words, as and from the date of registration, Lot 2 was neither vested in nor under the Council's control.

65 Although the Corporation was granted leave to provide supplementary written submissions in response to the Council's argument, the submissions which it filed and to which I have referred above did not seek or purport to respond to the Council's contentions. In my opinion, those contentions are correct. Once Lot 2 ceased to be vested in or under the control of the Council, it ceased to be "public land" and, therefore, ceased to be "community land". It follows that ss 35 and 47D of the LG Act had no application thereto once registration of the transfer was effected. Accordingly, in my opinion, the Land and Environment Court had no power to grant Order 6 requiring Blakehurst to do all such things necessary to secure the transfer of Lot 2 from itself to the Council.

Should the matter be remitted to the Land and Environment Court?

66 However, the foregoing conclusion still leaves two matters for consideration. The first concerns the undoubted fact that the transfer of Lot 2 by the Council to Blakehurst was in breach of s 45(1) of the LG Act. What, if anything, should be done to remedy that breach by the Council?

67 The Corporation submitted that the proceedings should be remitted to the Land and Environment Court for the purpose of determining what, if any, order should now be made against the Council. The latter responded that whether or not any such order was to be made would involve the exercise by the Land and Environment Court of a discretion as to whether or not to grant any particular remedy. It submitted that that discretion could only be exercised one way, namely, against the making of any order for to do otherwise would be futile.

68 In my opinion the Council's submissions should be accepted. Although senior counsel for the Corporation suggested that, if the proceedings were remitted, the Corporation might wish to file evidence going to the exercise of the Land and Environment Court's discretion, when pressed as to the nature of that evidence, understandably he was unable to provide any persuasive answer.

69 The position is simply that, firstly, no order can be made against Blakehurst requiring it to retransfer Lot 2 to the Council; secondly, the Council has no intention of proceeding with or creating the subject laneway and, in December 2002, expressly abandoned the proposal; thirdly, it would be open to the Council in the future, if it changed its mind and resolved to proceed with the laneway, to request the registered proprietor for the time being of Lot 2 to retransfer it pursuant to clauses 2 and 3 of the deed and the s 88 instrument which gave effect thereto; fourthly, until such time as Lot 2 is revested in or comes under the control of the Council, it is not "community land" and, therefore, is not and should not be available for public use; fifthly, although the Corporation obtained consent in December 1995 to a redevelopment of No. 645 subject to a condition which required the dedication to the Council of a six metre strip of land located seven metres from the rear boundary of that property for the purpose of a public laneway (and which would have constituted an extension of Lot 2), that condition was never complied with by the Corporation although his Honour found that it remained "ready, willing and able to do so" and, in any event, that consent was held by his Honour to have lapsed.

70 Although it was suggested in argument that the Corporation may wish to reapply for consent to develop its land in the same manner as that the subject of the lapsed consent, whether it does so or not and, if it does, the question of access to the Princes Highway will, no doubt, need to be dealt with upon the basis that rear laneway access is no longer available.

71 For the foregoing reasons, in my opinion it would be futile to remit the proceedings to the Land and Environment Court as, clearly, the circumstances to which I have referred dictate that that Court's discretion whether or not to grant an order to remedy the breach by the Council of s 45(1) of the LG Act should not be exercised in favour of the granting of any such order of the nature of that contemplated by Order 5. Furthermore, any such order would be difficult to enforce as it would require the Council either to resume Lot 2 (although it is highly doubtful that it would have power to do so given its abandonment of the laneway proposed in December 2002) or TO purchase it from Blakehurst which would require Blakehurst's co-operation both in terms of its willingness to sell and then at a reasonable price.

What orders should now be made?

72 It is clear from the foregoing that Orders 5 and 6 must be set aside. The same applies to Order 7 (as amended by his Honour on 27 November 2003) as the wall to which it refers has already been demolished. As I am of the opinion that no orders remedying the relevant breach should be made, I see no point in declarations 1-4 remaining on the record as they no longer serve any useful purpose. They should also be set aside.

73 That brings me to the second matter, which is the question of costs. So far as Blakehurst's costs of its counsel attending on the hearing of the appeal are concerned, in my opinion those costs should be paid by the Corporation. It was only as a consequence of arguments raised by the Corporation in its leave application that Blakehurst's attendance was required. Otherwise the Corporation should pay the Council's costs of the appeal as the latter has been wholly successful.

74 I now come to the question of the costs of the proceedings at first instance. His Honour ordered that the Council and Blakehurst pay the Corporation's costs. The Corporation submits that that order should not be disturbed. The Council submits that that order should be reversed upon the basis that the primary judge should not have made the orders he did. On the other hand, the Corporation submits that it was entitled to the declarations made by the primary judge, as the Council did not concede that its resolution of 20 June 1994 purporting to reclassify Lot 2 as "operational land" was invalid or that it was in breach of s 45(1).

75 It is to be observed that in its Amended Points of Defence the Council denied that either its resolution of 20 June 1994 purporting to classify Lot 2 as operational land or its transfer of Lot 2 on 16 May 2002 to Blakehurst was unlawful. These allegations by the Corporation not being conceded, it was necessary for the primary judge to resolve them. He did so and the Council has not challenged that decision. On the other hand, at least so far as one can tell from his Honour's judgment, it may well be, and we were so informed, that the Council did not actively pursue its denial of those allegations at the trial. However, it would appear that the Council did continue to deny that it was in breach of the LG Act as its lack of power to sell Lot 2 was, according to the subdivision referred to by the primary judge (at [22]),

"a mere failure to do something which is not a mandatory requirement under the LG Act"

and, therefore, did not constitute a breach thereof within the meaning of s 672. Certainly, the Council contested whether the Land and Environment Court had power to make Orders 5 and 6.

76 In my opinion the major issue which was contested before the primary judge, and which was the raison d'etrè for the Corporation instituting the proceedings, was to obtain an order that Lot 2 be retransferred to the Council so that rear laneway access could be obtained to No. 645 from James Street. This is confirmed by the failure of the Corporation on 29 August 2002 to obtain injunctive relief from Palmer J restraining Blakehurst from blocking off access to its land from Lot 2 upon the basis that it was entitled to a right of way over Lot 2 arising by prescription or pursuant to s 88K of the Conveyancing Act 1919. Palmer J dismissed the Corporation's application upon the ground that there was no serious question to be tried as well as on the balance of convenience.

77 As I am of the view that an order regarding the transfer of Lot 2 from Blakehurst to the Council should not have been made, it follows that the order for costs made by the primary judge in favour of the Corporation should also be set aside.

Conclusion

78 For the foregoing reasons I would propose the following orders:

(1) Appeal allowed.

(2) Order that the declarations and orders made by Cowdroy J on 29 August 2003 as amended by orders made on 27 November 2003 be set aside.

(3) Order that the Amended Application dated 30 August 2002 in proceedings No. 40536/02 in the Land and Environment Court be dismissed.

(4) Order that the first respondent pay the costs of the appellant and the second respondent at first instance and of the appeal, but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified.

79 McCOLL JA: I agree with Tobias JA's reasons and the orders his Honour proposes.

80 I acknowledge the importance of the issues canvassed by Basten JA concerning the relationship between s 42 of the RP Act and s 45 of the LG Act. I prefer to express no view about these matters until they are fully agitated in litigation before the Court.

81 BASTEN JA: The nature of the proceedings in the Land and Environment Court has been set out in the judgment of Tobias JA. Nevertheless, it is convenient to set out in short form the orders made by the primary judge in the Land and Environment Court. For ease of understanding, I have referred to the present appellant, Kogarah Municipal Council, as "the Council"; and the second respondent, Blakehurst Properties Pty Ltd, as "Blakehurst Properties". The parcel of land, properly identified by his Honour, is simply referred to below as "the Land". The orders were as follows:

"1. A declaration that, as at 16 May 2002, [the Land] was, within the meaning of cl 6 of Sch 7 of the Local Government Act 1993, land subject to a trust for a public purpose;

2. A declaration that, as at 1 July 1993 and 20 June 1994, [the land] was “community” land within the meaning of the Local Government Act 1993;

3. A declaration that the resolution of [the Council] of 20 June 1994 is invalid in so far as that resolution purported to classify [the land] as "operational" land within the meaning of the Local Government Act 1993;

4. A declaration that the transfer [of the Land] by [the Council] to [Blakehurst Properties] was made in breach of the provisions of the Local Government Act 1993 and was unlawful;

5. An order that [the Council] do all such things necessary to secure a transfer of [the Land] from [Blakehurst Properties] to [the Council] pursuant to the deed between [the Council] and [Blakehurst Properties] dated 15 February 2002 and s 88 of the Conveyancing Act 1919;

6. An order that [Blakehurst Properties] do all such things necessary to secure a transfer of [the Land] from [Blakehurst Properties] to [the Council]."

Other orders made by his Honour were either consequential or not of present relevance.

82 There is no challenge to the declarations that form Orders 1-4, in their own terms. Rather, the Council’s challenge is based on the proposition that those declarations serve no purpose if no operative order can be made in consequence of them.

83 There are in substance, two operative orders which remain of significance: order 5 requires the Council to do all things necessary to secure a retransfer of the Land from Blakehurst Properties to it; Order 6 requires Blakehurst Properties to take such steps as are necessary in order to secure the retransfer to the Council.

84 The substance of the complaint made concerning the transfer of the Land by the Council to Blakehurst Properties was that it was not permitted (to use neutral terminology to which it will be necessary to return) by s 45 of the LG Act. As noted by Tobias JA, the only breach of the LG Act was that done by the Council. Consistently with the decision of the High Court in Hillpalm, no remedy can be provided under ss 674 and 676 of the LG Act which would have the effect of requiring Blakehurst Properties to transfer the Land to the Council. If order 6 falls, order 5 falls with it to the extent that it was intended to require the Council to accept a retransfer. If it could be read as requiring the Council to reacquire or resume the Land, it must fail for the reasons given by Tobias JA at [51].

85 It is an irony that the party subject to Order 5, namely Blakehurst Properties, is not an appellant in these proceedings and does not seek such relief. The irony is sharpened by the fact that the Council, which acted in contravention of s 45 of the LG Act, is the party which challenges that order.

86 In order to overcome the difficulty now created by Hillpalm, the first respondent ("Golden Paradise") argued that the Land, which was concededly "community land" at the date of the transfer, remained community land and was therefore invalidly "used" by Blakehurst Properties, for its private purposes. With respect, that argument is untenable for the reasons given by Tobias J at [64] and [65]. Although s 45 prohibits the disposal by the Council of community land vested in it, it does not say that a purchaser commits an unlawful act by taking a transfer of the land, let alone a continuing unlawful act. If the effect of the transfer were to vest an indefeasible title to the Land in Blakehurst Properties, it is not possible to find by implication either unlawful conduct in accepting the transfer or in continuing to hold the Land: see [59] above. The only breach of the LG Act was that by the Council in purportedly disposing of the Land in the face of the statutory prohibition.

87 There is no doubt that, as explained by Tobias JA, the result in these proceedings is largely dictated by the limitation identified by the High Court in relation to the remedies available under ss 123 and 124 the EP&A Act in Hillpalm. As Tobias JA notes at [38], the same approach must be applied to ss 672 and 674 of the LG Act.

88 However, there is an assumption underlying the case presented and determined in the Land and Environment Court and the arguments put on this appeal. The assumption is that the transfer purportedly given by the Council was effective to create a freehold estate in Blakehurst Properties upon registration of that dealing. That assumption was challenged, but the challenge was in truth not fully developed in the course of the appeal. At [60] above, Tobias JA observes that although the transfer, purportedly executed by the Council, was a nullity, it was arguable that registration vested title to the land in Blakehurst Properties. That, his Honour suggests, is "the very point of the decision" in Breskvar. For the reasons set out below, I doubt the correctness of that observation. However, the basis of those doubts was not the subject of argument in this Court. Furthermore, because the argument set out below would lead to the conclusion that title had not been effectively transferred from the Council to Blakehurst Properties, it would follow that Orders 5 and 6 would need to be set aside in any event, being based on the contrary assumption. Nor, in my view, should Golden Paradise now be permitted to run an entirely different case from that on which it succeeded below.

89 The starting point of the alternative approach is that it would be surprising if the Parliament had withheld from the Council any power to dispose of "community land" vested in it but, at the same time, enabled a disposal to be effected by means of registration under the RP Act. The possibility that this result was not intended invites attention to questions of statutory construction of two laws of the one Parliament.

90 Although the central importance of the indefeasibility provisions to the administration of land title should not be understated, as noted by Young J in Quach v Marrickville Municipal Council (1990) 22 NSWLR 55 at 61:

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

The authorities to which his Honour referred included South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia (1939) 62 CLR 603 and Pratten v Warringah Shire Council [1969] 2 NSWR 161, (1969) 90 WN (Part 1) (NSW) 134; and see now Lansen v Olney (1999) 100 FCR 7 at [90].

91 South-Eastern Drainage Board and Pratten both involved interests in land created by statute. However, in Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 the registration of a lease with an option to renew was held not to confer indefeasibility on the transferee, in circumstances where the contractual option conferred by the lease was rendered void by s 88B of the Industrial Arbitration Act 1940 (NSW). As noted by Barwick CJ at 15-16:

"I feel confident that the Parliament, in enacting this provision, was intending to provide against the avoidance by the device of leasing premises to a hairdresser of the payment of award wages by a person who, if he directly employed the hairdresser, would be bound to pay them."

His Honour concluded that the provision applied in its terms, even though " the lessor was in no sense avoiding or attempting to avoid the payment of award wages ". His Honour continued at 16-17:

"The other matter with which I need deal is the effect of the registration of the lease under the Real Property Act upon the validity or enforceability of the option to renew. I think it proper at the outset to point out that what the Real Property Act sets out to do is to make the registered title conclusive or in the jargon which has grown up, 'indefeasible', by the series of sections to which attention was called in Fraser v Walker [1967] 1 AC 569."

His Honour held that, in relation to the option to renew, because the terms of s 88B rendered it incapable of being the subject of an order for specific performance, it did not constitute an interest in land that could be given indefeasibility by the RP Act.

92 Menzies J dealt with the matter on a slightly different basis at 29-30:

"As to the question concerning s 88B … I agree with what has been said by the Chief Justice. The respondents, however, submitted that the registration under the provisions of the Real Property Act … of the memorandum of lease containing the option to renew gave to the tenant ‘an indefeasible right to the renewal’. Here, because of the effect of s 88B … the tenant was not entitled to register the memorandum of lease as there was no lease. If a person becomes registered in such circumstances, the Registrar General can cancel the registration: s 136, Real Property Act . The registration did not, in my opinion, validate an option in a lease given contrary to a statute."

93 The reasoning of Gibbs J is of more direct significance in the present circumstances. His Honour considered the operation of the RP Act at 33-35:

"In the alternative the appellant submitted that, assuming the lease to be illegal and void, its registration under the Real Property Act … conferred on the lessee an indefeasible title to the interest in respect of which he was registered and that the covenant to renew was an integral part of the lease itself and shared in its indefeasibility. This argument took as its starting point Fraser v Walker … which is applicable to the similar Real Property legislation of the Australian States: see Breskvar v Wall . The decision establishes that the registration of a void instrument is 'effective to vest and to divest title and to protect the registered proprietor against adverse claims'. There can be no doubt that ss 3 (‘proprietor’), 40, 41, 42, 53 and 124 of the Real Property Act have the effect that upon the registration of a lease the lessee obtains a title to the estate or interest specified in the lease notwithstanding that apart from registration the lease would be void and ineffective and that subject to the exceptions mentioned in the statute, none of which is here applicable, that title is immune from attack. However, the Industrial Arbitration Act , 1940 was passed subsequent to the Real Property Act . According to ordinary principles of construction effect must be given to its provisions notwithstanding any contrary provision in the Real Property Act . … I have already said that the provisions of s 88B of the Industrial Arbitration Act apply to leases. There is nothing in s 88B to indicate that it was intended to apply only to leases of land not subject to the provisions of the Real Property Act and there would be no rational ground for excepting land under the Real Property Act from the application of the section. The provisions of s 88B on their proper interpretation operate to avoid a lease, to which they apply, whether or not the lease is registered under the Real Property Act . …
There is a clear distinction between the present case and Breskvar v Wall , in which this Court considered the position of a person who obtained registration by means of a transfer which, by reason of the provisions of s 53(5) of the Stamp Act 1894 (Q), a statute passed later than the Real Property Acts (Q) was absolutely void and inoperative. In that case the fact of registration vested the title in the transferee and it did not matter that the title was derived from a void instrument. The question whether s 53(5) of the Stamp Act should be regarded as effecting an implied repeal pro tanto or an implied amendment of any provisions of the Real Property Act was mentioned by Walsh J, who answered that question in the negative. The two statutes could stand together; the Stamp Act avoided the transfer but the Real Property Acts had the result that registration of the void transfer was effective to vest the title in the registered proprietor. In the present case the Industrial Arbitration Act renders void the lease itself and not merely some document or transaction from which the title of the lessee was derived. If the Real Property Act were held to have the effect of validating the lease, its provisions would be irreconcilable with those of s 88B which declares the lease to be void.
The facts of the present case are distinguishable from those of South-Eastern Drainage Board … . However, the decision was reached in that case by a process of statutory interpretation which in my opinion should also be applied in the present case. Although the Real Property Act is of the greatest importance in relation to land titles it is not a fundamental or organic law to which other statutes are subordinate."

94 In Hillpalm, the majority (McHugh ACJ and Hayne and Heydon JJ) did not reach this question because their Honours held that no order could be made by the Land and Environment Court to correct a breach of the EP&A Act, against a person "who is not actually in breach of the Act, and not threatening to act in breach": at [48]. Their Honours also dismissed the suggestion that a condition imposed on the Council’s consent to subdivision would constitute an unregistered right with respect to the land. Their Honours held that the title of the appellant was "free from any incumbrance or interest of the kind which the respondent contends it is now entitled to have created": at [52]. Their Honours continued at [53]:

"If the consent to the subdivision did create a right in rem , that would be a right or interest in the land not shown on the Computer Folio Certificate. There would then be a real and lively question about how the two statutory schemes (the scheme under the EPAA and the Torrens System for which the Real Property Act provides) were to be reconciled, and questions of implied repeal or amendment might arise. But those questions are not raised by this matter."

95 These questions were, however, raised for Kirby J and Callinan J, who took a different view of the primary issue: at [70] (Kirby J) and at [110] (Callinan J). Thus, Kirby J stated at [59]:

"For the appellant, however, the issue at stake concerns a fundamental aspect of the system of land title by registration, regulated in this case by the Real Property Act 1900 (NSW) (‘the RPA’). … For the appellant, then, the appeal concerned the suggested precedents which the RPA took, both as a matter of legal principle, and in the factual circumstances of the case."

His Honour returned to this question at [93]-[101]. After referring to the judgment of Dixon J in South-Eastern Drainage Board (1939) 62 CLR 603 at 627-628, at [98], his Honour continued at [100]:

"It is elementary under our system of law, that if a written law is valid, clear and applicable, it must be given effect according to its terms. Where there is conflict between the commands of written laws enacted by the same Legislature, courts endeavour to reconcile the texts. If they cannot do so in other ways in terms of their language, they have resort to established canons of construction. Here, these canons include obedience to the law made later in time; priority to the law on the subject classified as more specific over one regarded as more general; and precedents to public over purely private rights."

His Honour upheld the power of the Land and Environment Court to enforce an obligation against the holder of a registered title which was otherwise 'clear', where that course was necessary and appropriate to give effect to the obligation to create a right of way in favour of the respondent.

96 Callinan J reached a similar conclusion at [129]:

"As a matter of construction therefore of the instruments, and the regulation to which I have referred, s 42 of the RPA although at first sight, an apparently formidable barrier to a grant of relief to the respondent, simply has nothing conclusive to say about the remedying of a breach of the kind that has occurred here under the EPAA. The fact that an order made under it might cause an owner of land under the RPA to assume a burden or restriction on his or her land that could have been, but was not clearly shown on the folio in the Register as an encumbrance of any kind, although a matter relevant to a decision whether to grant or withhold relief, does not mean that s 42 of the RPA provides a watertight defence to a claim of the kind made by the respondent here."

97 Before returning to the circumstances of the present case, it is convenient to note the approach adopted in Roach v Bickle (1915) 20 CLR 663. The case involved a common law action for damages for trespass to land, and other counts. The question was whether a sublease granted by the plaintiff to the defendant was effective. The critical provision of the Crown Lands Consolidation Act 1913 (NSW) was set out in the judgment of Isaacs J and Gavan-Duffy J in the following terms (at 669):

"Now, the first section of importance is sec 226, which by par (b) of subsec 1 declares that 'No lease or licence – other than a special lease – shall confer any right … to sublet such land for other than grazing purposes.' Mrs Bickle’s lease is not a 'special lease'."

Their Honours also noted the terms of s 274(2) at 670:

"The sub-section says: - 'Such transfer or other dealing shall not be effected, or if effected shall not be valid, unless the consent thereto … of the Commissioner has been obtained.' "

Their Honours noted that the sublease in question, although purporting to be for grazing purposes, granted further rights. They commented on the significance of s 226 in the following terms at 669-670:

"The importance of that provision upon the construction of the document consists in this, that the appellant’s assumption has been that we could start with a prima facie power of alienation and look upon sec 274 as a mere restriction upon that power. But, in truth, we have to start with the opposite assumption, namely, that except for grazing purposes there is no power to sublet."

98 The power to grant a sublease for grazing purposes was contained in s 274, but was subject to an application to the Commissioner for consent. Their Honours said of subs 274(2) that a "clearer case of legislative annulment of a transaction could hardly be imagined". They continued:

"There is therefore no room for estoppel or personal conduct to alter their legal rights. In any case, where an Act of Parliament lays down a rule of public policy it is impossible for private individuals to abrogate it at will, and more particularly if the rule relates to the regulation of public property. … Where that rule of public policy takes the form of express declaration of invalidity no Court can permit personal relations to effect a virtual repeal of the enactment."

99 In the present case, s 45 of the LG Act speaks in unequivocal terms. It renders a council powerless to sell, exchange or otherwise dispose of "community land". If, by providing a transfer in registrable form to a third party, the Council was able to effect a disposal of community land, which the Parliament has stated in the clearest terms it has no power to do, there would be a wholesale abrogation of the statutory provision. It is, at the very least arguable, that in such circumstances the LG Act has, by necessary implication, amended s 42 (or possibly other provisions) of the RP Act, to the extent that that provision would not give effect to a transfer of such land upon registration.

100 As noted by Gibbs J in Travinto Nominees, it may be necessary to give consideration to other provisions of the RP Act, in considering this argument, including s 41. Thus, what is registered pursuant to s 41 of the RP Act is a "dealing". That term is defined in s 3(1) to include "any instrument … which is registrable or capable of being registrable". The term "instrument" is further defined to include any document "relating to the disposition, devolution or acquisition of land or evidencing title thereto". The proper reconciliation of s 45 of the LG Act with the provisions of the RP Act may require consideration of whether a document given by a statutory authority with no power to dispose of land is an "instrument" within the terms of the definition in the RP Act.

101 Further, the RP Act may need to be understood against the general assumption of the law that property is capable of alienation. As noted by Mason J in The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 342-343:

"Assignability is not in all circumstances an essential characteristic of a right of property. By statute some forms of property are expressed to be inalienable. Nonetheless, it is generally correct to say, as Lord Wilberforce said [in National Provincial Bank Limited v Ainsworth [1965] AC 1175 at 1247-1248] that a proprietary right must be ‘capable in its nature of assumption by third parties' … ."

Community land, under the LG Act, is in effect inalienable. There is therefore a question as to whether it should be understood to constitute "land" for the purposes of the definition in s 3(1) of the RP Act.

102 These are large questions, about which nothing further can or should be said in the present context. They were not addressed in the present case and, by seeking orders that the transferee retransfer the land to the Council, Golden Paradise at all stages acted on the contrary assumption, namely that Blakehurst Properties had a valid interest in the Land. The argument set out above would have required an application for declaratory relief in relation to the ownership of the Land and, possibly, an application for an order that the Registrar-General correct the Register. Whether or not such an application would have succeeded cannot be determined in these proceedings, not only because it was not argued but also because the Registrar-General was not joined.

103 Because, for the reasons set out by Tobias JA, the arguments presented on behalf of the first respondent must fail, the Appellant is entitled to succeed and the orders proposed by his Honour are appropriate.

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