M J Davis Industrial Pty Limited v Fairfield City Council

M J Davis Industrial Pty Limited (the appellant) appealed to the New South Wales Court of Appeal against a decision of the Supreme Court concerning the registration of a subdivision plan. The dispute arose from the Registrar General's power to amend a deposited plan of subdivision, specifically in relation to a condition imposed on a development consent for a public reserve.

The primary legal issue before the Court of Appeal was whether the Registrar General had the power to amend the deposited plan of subdivision to reflect a condition requiring the dedication of land for a public reserve, when the subdivision plan itself was not "substantially in accordance" with the deposited plan as required by the relevant legislation. This involved considering the interplay between the *Real Property Act 1900* (NSW) and the *Environmental Planning and Assessment Act 1979* (NSW) in the context of subdivision approvals and the registration of plans.

The Court of Appeal, comprising Powell, Stein and Fitzgerald JJA, reasoned that the Registrar General's power to amend a deposited plan under section 28(2) of the *Real Property Act 1900* was limited to correcting errors or omissions and did not extend to altering the fundamental nature of the subdivision as approved. The Court found that the condition requiring the dedication of land for a public reserve was a substantive aspect of the development consent and that its omission from the deposited plan meant the plan was not "substantially in accordance" with the approval. Therefore, the Registrar General lacked the authority to amend the plan to incorporate this condition retrospectively.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.