Mac's Pty Ltd v Minister Administering Local Government Act 1993 and Parramatta City Council - [2007] NSWLEC 623

No judgment structure available for this case.

Reported Decision: 155 LGERA 362
162 LGERA 1 (CA)
[2008] NSWCA 132;
[2008] HCA 12

Land and Environment Court

of New South Wales

CITATION: Mac's Pty Ltd v Minister Administering Local Government Act 1993 and Parramatta City Council [2007] NSWLEC 623

PARTIES:
40810 of 2007
APPLICANT:
Mac's Pty Ltd
FIRST RESPONDENT:
The Minister Administering the Local Government Act 1993
SECOND RESPONDENT:
Parramatta City Council
40818 of 2007
APPLICANT:
R & R Fazzolari Pty Limited
ACN 000 769 458
RESPONDENT:
Parramatta City Council

FILE NUMBER(S): 40810; 40818 of 2007

CORAM: Biscoe J

KEY ISSUES: Judicial Review :- whether council proposing to acquire land for the purpose of exercising any of its functions – whether council proposing to compulsorily acquire land which adjoins or lies in the vicinity of other land proposed to be compulsorily acquired – whether council proposing to acquire land for purpose of resale – whether land proposed to be acquired adjoins or lies in the vicinity of other land to be acquired at the same time for a purpose other than a purpose of re-sale – meaning of re-sale.

LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991 ss 1, 7B, 11, 12, 13, 17, 19, 20, 56(1)(a), 64
Land and Environment Court Act 1979 s 64(1)
Local Government Act 1993 ss 7, 8, 21, 22, 23, 24, 186, 187, 188, 189, 355, 400B(1)(a), 400C, 400E, 400F,400I, 676(1)
Local Government (General) Regulation 2005 cl 408(1)(e)
Local Government Act 1919 (Repealed) ss 321, 532, 535
Roads Act 1993 ss 7(4), 34, 37

CASES CITED: AFA v Garendon Investments Pty Ltd (1995) 37 NSWLR 221;
Aldridge v Johnson (1857) 119 ER 1476;
Cabell v Markham 148 F 2d 737 (1945) ;
C.C. Auto Port Pty Ltd v Minister for Works (1965) 113 CLR 365 ;
Chan v Dainford Ltd (1985) 155 CLR 533 ;
Collins v Willoughby Municipal Council (1967) 14 LGRA 256 ;
Da Rous v Burwood Municipal Council (Pearlman J, NSWLEC, 5 March 1996 unreported) ;
Gaffney v Camden Council (1997) 96 LGERA 157 ;
J & P Coates Ltd v Commissioners of Inland Revenue [1897] 1 QB 778 ;
J R & E G Richards (NSW) Pty Ltd v Scone Shire Council and Brambles Australia Ltd (trading as Cleanaway) (Stein J, NSWLEC, 24 November 1995, unreported) ;
Minister for Public Works & Local Government v Duggan (1951) 83 CLR 424;
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273;
News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 ;
Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467;
Sun World Inc v Registrar, Plant Variety Rights (1997) 75 FCR 528 ;
Telstra Corporation Ltd v Hurstville City Council (2002) 118 FCR 198;
Thompson v Randwick Municipal Council (1950) 81 CLR 87;
Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710

DATES OF HEARING: 13, 14 and 20 September 2007

DATE OF JUDGMENT:
27 September 2007

LEGAL REPRESENTATIVES:
40810 of 2007
APPLICANT:
Mr R G McHugh SC and Mr M Seymour, barrister
SOLICITORS:
Hunt and Hunt
40818 of 2007
APPLICANT:
Mr N Williams SC and Mr I J Hemmings, barrister
SOLICITORS:
Clayton Utz
40810 of 2007
FIRST RESPONDENT:
MR H R Sorensen, barrister
SOLICITORS:
Crown Solicitors Office
SECOND RESPONDENT:
Mr N C Hutley SC and Mr R J Carruthers and Mr C R Ireland, barristers
SOLICITORS:
Blake Dawson Waldron
40818 of 2007
RESPONDENT:
Mr N C Hutley SC and Mr R J Carruthers and Mr C R Ireland, barristers
SOLICITORS:
Blake Dawson Waldron

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

27 September 2007

40810 of 2007

MAC'S PTY LIMITED - v - THE MINISTER ADMINISTERING THE LOCAL GOVERNMENT ACT 1993; PARRAMATTA CITY COUNCIL

40818 of 2007

R & R FAZZOLARI PTY LTD - v - PARRAMATTA CITY COUNCIL

JUDGMENT
[This version of the judgment has been redacted to protect confidential financial, commercial and site location information. In paragraphs 8, 154, 199 and 212, references to specific numbers have been deleted and replaced with non-specific references which indicate the relative value of the numbers. These references have been placed in square brackets. In other cases, where redactions have occurred, this is indicated by the following words in square brackets: [redacted figure] or [redacted site] or [owner of redacted site]. The un-redacted version of the judgment dated 27 September 2007 has been provided only to the parties and the Grocon companies referred to in the judgment and is the subject of a confidentiality order made by the Court on 28 September 2007].

Introduction

1 HIS HONOUR: This case tests the limits of a local council’s power of compulsory acquisition and functions under the Local Government Act 1993 (NSW) (LG Act).

2 The applicant Mac’s Pty Limited owns land known as 160 Church Street, Parramatta, on the corner of Darcy Street. The applicant R & R Fazzolari Pty Ltd owns land known as 20 – 22, 24 and 26 Darcy Street, Parramatta. The respondent Parramatta City Council has resolved to compulsorily acquire land, including the applicants’ land, in a block bounded by Smith, Darcy, Church and Macquarie Streets in the Parramatta City Centre to be known, after redevelopment, as Civic Place.

3 The Civic Place site has an area of approximately 32,000m2 of which the council owns a little over 50 percent. It is located next to the Parramatta Railway Station and Transport Interchange. It contains the council’s administrative offices, council chambers, the historic town hall, library and community meeting rooms.

4 The Civic Place development proposed by council involves the conversion of this block of council-owned and private properties (including the applicants’ properties) into a sophisticated $1.4 billion revitalization of the Parramatta City Centre. The council cannot itself fund the development

5 On 14 May 2003 council, pursuant to the Sydney Regional Environmental Plan No 28- Parramatta, adopted the Civic Place Master Plan which applied to the Civic Place site (Master Plan). In June 2003 the Master Plan was released in final form to the public. Its stated purpose is “to provide the development framework for the civic centre of Parramatta that will guide the development and redevelopment of private and public land including the public domain areas, public facilities and services”. Its stated “vision” is that “The redevelopment of Civic Place will reposition Parramatta as the capital of western Sydney and a centre of business, tourism, entertainment, culture and heritage”. It says nothing about compulsory acquisition of land.

6 The development is proposed to be achieved through the Civic Place Development Agreement dated 21 July 2006 between council and Grocon (Civic Place) Pty Ltd and Grocon Constructors Pty Limited (Development Agreement). The Development Agreement also refers to Grocon Pty Ltd. It is generally sufficient for present purposes to describe each of the various Grocon entities simply as “Grocon”.

7 The Development Agreement envisages providing new and additional council and community facilities; public open space; several large mixed use commercial, retail and residential buildings that will be owned by Grocon; and pedestrian links between Civic Place and the Parramatta Railway Station and Transport Interchange. It is a condition precedent to the development proceeding that land, including the applicants’ land, be acquired by the council: cl 2.1(a). The Development Agreement does not mandate compulsory acquisition. The applicants’ properties will end up in the ownership of Grocon. The Mac’s land would be incorporated within a proposed 31 storey residential building called “Park Apartments” and the Fazzolari land would be incorporated within a proposed 40 storey commercial office building called “The Atria”.

8 Grocon is to provide consideration which is a mixture of works, monetary payments including an initial payment of [tens of millions of dollars] and an additional amount equal to [several million dollars], a contribution in relation to revenue calculated at a rate of [redacted figure] percent of project revenue and a further revenue share. Council must in turn pay $[redacted figure], a contribution to construction costs equal to $[redacted figure] and a contribution to contamination remediation costs capped at $[redacted figure]. [These figures total tens of millions of dollars but are less than the initial payment.]. By completion of the project council will have vested in it buildings, structures, improvements and public open spaces.

9 Upon acquisition by the council of land including the applicants’ land, those lands become “Trust Land” which is defined, essentially, to include the whole of the land to be developed for the purposes of the Civic Place development. Upon execution of the Trust, the beneficial ownership of the Trust Land, including the applicants’ land, is intended to be divested to the Beneficiary under the Trust Deed being Grocon. Grocon is then required to carry out the development. Upon completion of discrete parts of the Civic Place development, the legal interest in some of the completed parts of the development will also pass to or at the direction of Grocon. As the beneficiary of the trust, subject to any contrary provision of the Development Agreement, Grocon can direct the trustee to transfer Trust Land.

10 The development described in the Development Agreement is not the final detailed design. There are a number of matters outstanding that will influence the final detailed design in minor respects, including the process for obtaining planning approval and negotiations with Sydney Water in respect of the design and delivery of buildings on land owned by it on the corner of Smith and Darcy Streets within Civic Place.

11 As presently envisaged, the outcome that the Civic Place development will deliver includes:

12 The council also proposes to acquire part of Darcy Street and Church Street as part of the Civic Place development site. The presently proposed fate of the applicants’ properties, being part of what is described in the Development Agreement as the “Darcy Street Private Properties”, and those streets is as follows:

“The Atria

Park Apartments

13 The council sought, and on 15 December 2006 obtained, the approval of the Minister Administering the Local Government Act 1993 to give a proposed acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) for land within Civic Place including the applicants’ land. That approval was required under s 187(2) of the LG Act.

14 On or about 22 December 2006, the council wrote to the applicants to notify them that the council had sought and received approval from the Department of Local Government for the compulsory acquisition of their land.

15 Included with that letter was one from the Department of Local Government, dated 15 December 2006, indicating that the Governor had approved the publication of two separate acquisition notices under s 19 of the Just Terms Act for land including the applicants’ land and another for Lot 1 DP 1086906 (the Darcy Street road reserve).

16 On 1 June 2007 the council issued a Proposed Acquisition Notice to Mac’s in relation to Mac’s land and to Fazzolari in relation to Fazzolari’s land indicating an intention to acquire the whole of the interest in their land.

17 By providing the Proposed Acquisition Notice, the council has fulfilled the first step required to be undertaken before acquisition can occur under the Just Terms Act: s 11. Acquisition would ordinarily follow on the expiry of 90 days from the receipt of the Proposed Acquisition Notice: s 13.

18 A council may acquire land by compulsory acquisition under the Just Terms Act by exercise of the power contained in s 187(1) of the LG Act. Any notice of intention by a council to acquire land under s 11 of the Just Terms Act needs approval of the Minister: s 187(2) LG Act. An acquisition under s 187(1) of the LG Act must be for the purpose of the exercise of a council “function”: s 186(1) LG Act. The acquisition occurs by notice published in the Government Gazette: s 19 Just Terms Act.

19 It is the use of compulsory powers of acquisition that give rise to the applicants’ complaint. The two alternative bases of the complaint and the council’s general response are as follows:

(a) the compulsory acquisition of the applicants’ land will be in breach of s 188(1) of the LG Act in that the acquisition will involve the re-sale of the land to a property developer without the approval of the owners. The council submits that there is no breach of s 188 because there is no re-sale or it falls within the exception in s 188(2)(a);

(b) the proposed acquisition of the applicants’ lands is not an acquisition within s 186(1) of the LG Act because it is not for the purpose of exercising a “function” of the council, but rather for the purpose of providing a benefit to a third party, Grocon. In other words, it is not a function of a council to acquire private land in order to give it to a property developer. The council submits that the proposed acquisitions are within s 186(1) because the true purpose of the acquisition is the optimal development of Civic Place by giving effect to the Development Agreement and thereby achieving the objects of the Master Plan; or that they fall within s 186(2).

20 Although not relevant to the legal issues, the financial consequences of the proposed resumption are potentially substantial in terms of the amount payable to the applicants for their land if implementation of the Master Plan through the Development Agreement is the public purpose of the proposed resumption of the applicants’ land. The compensation payable under the Just Terms Act is potentially substantially less than market value in a contractual sale because the public purpose has to be disregarded when assessing compensation for compulsory acquisition under the Pointe Gourde principle incorporated in s 56(1)(a) of the Just Terms Act.

21 The Mac’s Application against the Minister and the council was filed on 21 August 2007 and seeks the following relief:

the Land

Local Government Act 1993

2. A declaration that the approval of the Minister Administering the Local Government Act 1993 to authorise the acquisition of the land is contrary to law, and is null and void and of no effect.

3. A declaration that the proposed acquisition of the Land as set out in the Proposed Acquisition Notice – Form 1, dated 1 June 2007, is for an invalid purpose under the provisions of the Local Government Act 1993 and the Land Acquisition (Just Terms Compensation) Act 1991.

4. An order restraining the First and/or the Second Respondent from taking any further steps to acquire the Land pursuant to the proposed acquisition as set out in the Proposed Acquisition Notice dated 1 June 2007.

5. Pending the hearing of this matter, the First and Second Respondents be restrained from acting pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 to acquire the Land until further order of this Court.

22 In the Mac’s proceeding, the Minister submits to any Court order as to the declaration sought in prayer 1 and opposes any declaration in respect of the Minister as sought in prayer 4.

23 The Fazzolari Application against the council only was filed on 22 August 2007 and seeks the following relief:

Local Government Act 1993

LGA

the Properties

Notices

3. An order, pursuant to section 676(1) of the LGA, restraining the Respondent from seeking to register an interest in the Properties acquired pursuant to the Land Acquisition (Just Terms Compensation) Act 1991.

4. Costs.

5. Any other order the Court may see fit to make.

1. An order, pursuant to section 676(1) of the LGA, restraining the Respondent from publishing the Notices in the Government Gazette.

2. An order, pursuant to section 676(1) of the LGA , restraining the Respondent from seeking to register an interest in the Properties acquired pursuant to the Land Acquisition (Just Terms Compensation) Act 1991.

3. Costs.

4. Any other order the Court may see fit to make.

24 The Minister, although not a respondent appears in the Fazzolari proceedings pursuant to s 64(1) of the Land and Environment Court Act 1979 (NSW).

25 In late August 2007 in each proceeding, the parties gave interlocutory cross-undertakings to the Court, which have been extended to 28 September 2007, whereby:

26 The proceedings were expedited. The hearing concluded on 20 September 2007. At the hearing the Court was requested, if possible, to write reasons for judgment within seven days of the conclusion of the hearing because there were urgent circumstances whereby the parties and Grocon might be otherwise prejudiced financially. This I have done. Consequently, these reasons for judgment are longer than they would have been had there been more time.

27 The issues are as follows:

LG Act

(b) Under s 188(1) of the LG Act, is the council proposing to acquire the applicants’ land for the purpose of re-sale? If the answer is no, the council succeeds. If the answer is yes, then:

(c) Under s 188(2)(a) of the LG Act, do the applicants’ land form part of, or adjoin or lie in the vicinity of, other land acquired at the same time for a purpose other than the purpose of re-sale? If the answer is yes, the council succeeds. If the answer is no, the applicants succeed.

Local Government Act 1993

28 The LG Act distinguishes between a council’s service functions (Chapter 6), regulatory functions (Chapter 7) and ancillary functions (Chapter 8). Chapter 6 provides that a council has the functions conferred or imposed on it by or under the LG Act or any other Act or law: LG Act ss 21 and 22. The Master Plan was conceived in council’s regulatory function of facilitating development. However, the council seeks to implement the Master Plan by the Development Agreement and compulsory acquisition.

29 Part 1 (ss 186 to 190) of Chapter 8 of the LG Act is entitled “Acquisition of Land” and relevantly provides:

186 For what purposes may a council acquire land?

(1) A council may acquire land (including an interest in land) for the purpose of exercising any of its functions.

(2) Without limiting subsection (1), a council may acquire:

(b) land which forms part of, or adjoins or lies in the vicinity of, other land proposed to be acquired under this Part.

(3) However, if the land acquired is, before its acquisition, community land vested in a council, the acquisition does not discharge the land from any trusts, estates, interests, dedications, conditions, restrictions or covenants that affected the land or any part of the land immediately before that acquisition.

187 How does a council acquire land?

(1) Land that a council is authorised to acquire under this Part may be acquired by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.

(2) A council may not give a proposed acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991 without the approval of the Minister.
188 Restriction on compulsory acquisition of land for re-sale

(1) A council may not acquire land under this Part by compulsory process without the approval of the owner of the land if it is being acquired for the purpose of re-sale.

(2) However, the owner’s approval is not required if:

(b) the owner of the land cannot be identified after diligent inquiry has been made and at least 6 months has elapsed since that inquiry was made.

(3) For the purposes of subsection (2) (b), diligent inquiry has the meaning given by the regulations, and includes the giving of notice of the proposed acquisition to the New South Wales Aboriginal Land council and to the relevant Local Aboriginal Land council.

189 No restriction as to area

Land may be acquired by a council under this Part even if it lies wholly or partly outside the council’s area.

30 The Dictionary to the LG Act defines “function” to include “a power, authority and duty”.

31 The purposes of the LG Act are specified in s 7 as follows.

7 What are the purposes of this Act?

The purposes of this Act are as follows:

(a) to provide the legal framework for an effective, efficient, environmentally responsible and open system of local government in New South Wales,
(b) to regulate the relationships between the people and bodies comprising the system of local government in New South Wales,
(c) to encourage and assist the effective participation of local communities in the affairs of local government,
(d) to give councils:

· the ability to provide goods, services and facilities, and to carry out activities, appropriate to the current and future needs of local communities and of the wider public

· the responsibility for administering some regulatory systems under this Act

· a role in the management, improvement and development of the resources of their areas,

(e) to require councils, councillors and council employees to have regard to the principles of ecologically sustainable development in carrying out their responsibilities.

32 Each council has a charter under s 8, which is a set of principles to guide the council in carrying out its functions. The charter includes the following principles:

· to properly manage, develop, protect, restore, enhance and conserve the environment of the area for which it is responsible, in a manner that is consistent with and promotes the principles of ecologically sustainable development

· ...

· to bear in mind that it is the custodian and trustee of public assets and to effectively account for and manage the assets for which it is responsible

· ...

· to raise funds for local purposes by the fair imposition of rates, charges and fees, by income earned from investments ...

33 Sections 21 to 24 provide for council functions as follows:

21 Functions under this Act

A council has the functions conferred or imposed on it by or under this Act.
Note. This Act classifies certain of a council’s functions as service, that is, non-regulatory (Chapter 6), regulatory (Chapter 7) or ancillary (Chapter 8). Ancillary functions are those functions that assist the carrying out of a council’s service and regulatory functions.
A council also has revenue functions (Chapter 15), administrative functions (Chapters 11, 12 and 13) and functions relating to the enforcement of this Act (Chapters 16 and 17).
22 Other functions

A council has the functions conferred or imposed on it by or under any other Act or law.
Note. While the main functions of councils are provided for under this Act, councils also have functions under other Acts. An important general provision is contained in section 50 of the Interpretation Act 1987 which provides, in part:

(1) A statutory corporation:

(4) This section applies to a statutory corporation in addition to, and without limiting the effect of, any provision of the Act by or under which the corporation is constituted.

23 Supplementary, incidental and consequential functions

A council may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions.
24 Provision of goods, services and facilities and carrying out of activities

A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law

34 It can be seen that s 24 is very wide and in similar terms to one of the Act’s purposes specified in s 7(d).

35 A council is prohibited from entering into a public – private partnership (PPP) or carrying out any project under a public – private partnership except in accordance with Part 6 (ss 400B – 400N) of Chapter12 of the LG Act and is required to comply with “PPP guidelines” issued by the Director General while carrying out a project under a public – private partnership: ss 400C, 400E. A public – private partnership is defined as an arrangement between a council and a private person for providing “public infrastructure or facilities”: s 400B(1)(a). The PPP guidelines specify procedures and processes to be followed by councils in relation to entering into, and carrying out projects under, PPPs. The Development Agreement may be viewed in part, as a PPP. The Civic Place project was reviewed by the Project Review Committee constituted under Part 6 of Chapter 12 which advised the council that the committee was satisfied that the requirements of the PPP guidelines had been complied with in relation to the project.

36 A council must not enter into a PPP unless the council has provided the Director-General with an assessment of the project to be carried out under the partnership and, in providing such an assessment, the general manager of the council is required to certify that it has been prepared in accordance with the PPP guidelines: s 400F(1). If the project is a significant project or the Director-General is of the opinion, having regard to the criteria specified in the PPP guidelines that the project has a high risk, the Director-General is to advise the council that the project is required to be referred to the Project Review Committee for review: s 400F(2) and(3).

37 If a project is required or directed to be referred to the Project Review Committee for review, the council must not enter into a PPP to carry out the project, or proceed with carrying out of the project under a PPP, unless the council has provided the Project Review Committee with an assessment of the project in accordance with the PPP guidelines, and the Project Review Committee has reviewed the project and is satisfied that the requirements of the PPP guidelines has been complied with in relation to the project: s 400I(1). If the Project Review Committee advises the council that the Committee is satisfied that the requirements of the PPP guidelines have been complied with in relation to the project, the council is entitled to enter into the PPP (if it has not already entered into it) or, subject to that Division, to proceed with carrying out of the project: s 400I(3). The committee’s decision as to whether or not the relevant council has complied with the requirements of the PPP guidelines in relation to the project is final and cannot be reviewed by any court or tribunal: s 400I(4).

38 The following provisions of the Just Terms Act are relevant:

(1) In this Act:

acquisition of land means an acquisition of land or of any interest in land.

acquisition notice means a notice under section 19 which declares that land has been acquired by compulsory process.

authority of the State means:

…
(c) a council or a county council within the meaning of the Local Government Act 1993…

interest in land

(a) a legal or equitable estate or interest in the land, or
(b) an easement, right, charge, power or privilege over, or in connection with, the land.
7B Authority empowered to acquire its own land

An authority of the State that is authorised by law to acquire land by compulsory process in accordance with this Act may so acquire the land even if the land is vested in the authority itself.
12 Owners to be given notice

(1) A proposed acquisition notice need only be given to all the owners of the land who:

…

17 Registrar-General to be notified of proposed acquisition notice and withdrawal or amendment of such notice

(1) An authority of the State must, as soon as practicable after giving a proposed acquisition notice (or after such a notice is withdrawn or amended), lodge with the Registrar-General notification of the proposed acquisition notice (or its withdrawal or amendment).
(2) Any such notification must be in such form as the Registrar-General approves.
(3) On receipt of the notification, the Registrar-General must make such recordings as the Registrar-General considers appropriate:

19 Compulsory acquisition by notice in Gazette

(1) An authority of the State that is authorised to acquire land by compulsory process may, with the approval of the Governor, declare, by notice published in the Gazette, that any land described in the notice is acquired by compulsory process.
(2) A copy of the acquisition notice is, if practicable, to be published in at least one newspaper circulating in the district in which the land concerned is situated.
(3) An acquisition notice may relate to part only of the land described in the relevant proposed acquisition notice.
20 Effect of acquisition notice

(1) On the date of publication in the Gazette of an acquisition notice, the land described in the notice is, by force of this Act:

…

64 Compensation in form of land or works

Compensation to which a person is entitled under this Part may, if the person and the authority of the State concerned agree, be provided wholly or partly in the form of land or of the carrying out of works.

39 The following provisions of the Roads Act 1993 (NSW) are relevant to the council’s compulsory acquisition of Darcy and Church Streets which the council owns:

34 Applications for closing of public road

(1) An application for the closing of a public road (other than a freeway) may be made:

…
37 Decision on proposal

(b) in the case of a road owned by a council—unless the council consents to the closure of the road…

Background to proposed development of Civic Place site

40 The applicants' properties lie within the Civic Place site.

41 On 7 December 1998 Parramatta City council resolved as follows:

42 The minute of the Lord Mayor received by the council on 7 December 1998 states:

43 On 20 August 1999 Sydney Regional Environmental Plan 28 (SREP 28) was made by publication in the Gazette. SREP 28 included provisions requiring the preparation of a master plan for "master plan sites" defined in Part 1 of Schedule 2 of SREP 28. The Civic Place site was a master plan site identified in Part 1 of Schedule 2, and describes the Civic Place site as comprising "all land bounded by Macquarie Street, Smith Street, Darcy Street and the Church Street Mall, Parramatta."

44 Clause 10(4) of SREP 28 required that master plans be prepared for master plan sites identified in Part 1 of Schedule 2 of SREP 28 by "the owner or lessee of the land concerned, the council concerned or the Director".. Parramatta City Council is the council responsible for the Civic Place site.

45 Clause 10(8)(a) of SREP 28 required that a draft master plan be advertised and publicly exhibited for not less than 21 days for public comment.

46 On 26 November 2001 council resolved:

(b) The appointment of the Government Architect be subject to council first consulting with the Independent Commission Against Corruption in respect of the appointment.

47 The Report to council from the General Manager dated 22 November 2001, received at the council meeting of 26 November 2001, stated various reasons for the appointment of the Government Architect. That Report stated:

…

5. In May 2001, the NSW Government announced that the Parramatta to Chatswood Rail Link would be constructed in two sections, with the first section from Chatswood to Epping receiving funding approval. The Government also announced the upgrading of the Parramatta Railway Station to allow incorporation of the Transitway and indicated that the Interchange would proceed. At a meeting with the council in August, the Minister for Transport, the Hon Carl Scully, indicated that planning approval for the complete Parramatta to Chatswood Rail Link would be sought and that, as Minister, he was committed to completion of the Epping to Parramatta Rail Link section.

6. The Minister also announced the formation of a Transport Planning Coordination Group to be chaired by the Government Architect, Mr Chris Johnson, and the group to comprise the General Managers of Parramatta Rail Link, the Transitways, Parramatta City council and senior officers from the Department of Transport and Department of Public Works and Services. The Transport Planning Coordination Group is to receive advice as appropriate from other Government departments and agencies such as the Department of Urban Affairs and Planning (DUAP) and the Heritage Office (HO).

…

10. Due to the range and number of government projects that are centred in and around the Civic Place area, and the particular timelines in respect of each, there is now an urgency for council to proceed in preparation of a Masterplan for Civic Place.

11. Since the NSW Government made more clear its intentions in relation to these projects, and following the council's Strategic Planning Session in late August in relation to development of the City Centre, action has been taken to secure the appointment of a project manager to be employed on staff. The role of this position will be to facilitate and coordinate the various processes, stakeholders and other project management duties to oversee the development of a masterplan for Civic Place and, following adoption, to project manage the implementation of various works within Civic Place. An appointment in relation to this position is expected to be finalised in the near future.

12. A Civic Place Masterplan Group has been formed comprising the various Government representatives, including DUAP and the Heritage Office with a stakeholder group to include land owners, Property council and Chamber of Commerce. This committee is to consider the development of the Masterplan for report to council's Civic Place Committee, which comprises all councillors, with the exception of the three councillors who have been appointed to the Central Parramatta Planning Committee.

13. It is necessary that council makes an appointment of a firm or agency to undertake the detailed planning work in the development of a Masterplan for Civic Place.

14. In this regard, an offer has been received from DPWS that the Government Architect, Mr Chris Johnson, be appointed by council to undertake the masterplanning process.

15. council's options for undertaking of the Masterplan appear to be as follows:

(b) Invite a range of suitably qualified firms to lodge expressions of interest for appointment.

(c) Appoint the NSW Government Architect, Mr Chris Johnson.

The Report also addressed the master planning process and advice to council at paragraph 24. The Report identified that it would be necessary to establish economically viable development parcels and be affordable and beneficial to council.

48 On 27 May 2002, council resolved to form a subcommittee for Civic Place. In the report of the General Manager received by council on 27 May 2002, the General Manager recommends the establishment of a Civic Place subcommittee and states at par 3:

joint venture

49 In a report to council on 12 June 2002, the Civic Place Project Manager states:

50 Under the provisions of Part 2 of Chapter 13 of the LG Act, councils are required to adopt management plans. The council Management Plan for the period 2002/03 – 2005/06 made on 26 June 2002, identified the development of Civic Place as the largest individual development in Parramatta with an investment of more than $500 million expected to create some 7,000 jobs and involving the redevelopment of Civic Place as the gateway to Parramatta CBD. The management plan identified the redevelopment of Civic Place as one of the "big seven" major capital items for the period of the management plan .

51 On 16 September 2002, council resolved, amongst other matters:

(a) That the Draft Master Plan be approved for exhibition for a period of 28 days commencing in mid October.

52 The Executive Summary to the report of the Senior Project Officer – Civic Place Project Manager received by council on 16 September 2002, states:

53 On 10 December 2002, council resolved to present the Master Plan to the Central Parramatta Planning Committee (CPPC) recommending its adoption.

54 On 11 December 2002, the CPPC resolved to approve the Master Plan in principle subject to gazettal of certain amendments to SREP 28 with an amendment to the Master Plan, P67 Design Principles, Activating Streets and Public Spaces by the removal of the words "using appropriate legal mechanisms including caveats to residential titles." A report of the Project Manager – Civic Place states:

55 On 14 March 2003, amendment number 6 was made to SREP 28 by publication in the Gazette. That amendment inserted into SREP 28, relevantly, clause 28(2)(i) which provided a number of matters to which a consent authority must have regard in considering a development application for Civic Place.

56 On 30 April 2003 council resolved to acquire certain land within Civic Place known as Connection Arcade. The council Report dated 30 April 2003 looked at the proposal to acquire Connection Arcade as representing a positive investment and it would increase council's frontage to Church Street Mall and surrounding streets. The report considered the funding principles proposed to be used for the acquisition of the remainder of the Darcy Street properties. At par 15 and onwards in the Report, council made the following statements:

buying out

57 On 14 May 2003 the CPPC resolved to adopt the Master Plan to come into effect on 1 June 2003 subject to certain minor amendments. The CPPC further resolved that:

(b) …the Committee seek a joint meeting between Parramatta City council, the Central Parramatta Planning Committee and Parramatta Rail Link to collaborate on design co-ordination issues.

58 In a council report of 26 May 2003, council referred to the approval it sought on 30 April 2003 for Special Loan Funds for the acquisition of properties in Darcy Street. Council noted that negotiation with the owners of the Hungry Jacks Building (Mac's Pty Ltd) and of 20-26 Darcy Street (R & R Fazzolari) had indicated that they were unwilling to sell. This was also described in the council report of 10 June 2003.

59 In June 2003 the Master Plan was released in final form to the public.

60 The Master Plan states at page 4:

14. Ownership and Use

The Civic Place site has an area of approximately 31,950 m2. The Parramatta City council owns 17,598 m2, which is just over 50% of this land, and is the largest landholder...

The redevelopment of Civic Place will reposition Parramatta as the capital of the western Sydney and a centre of business, tourism, entertainment, culture and heritage. It will build on the $100M investment that the NSW Government is making in the development of Public Transport Interchange by creating a gateway to the city. The Master Plan is pivotal in achieving the ambitious REP targets for employment and for public transport use both through its direct contribution and through the flow on effect for the rest of the city centre.

17. Land

The Master Plan encourages land amalgamation and it is critical that the open space, the pedestrian circulation, parking and access and the retail planning are integrated across the whole site.

The master plan utilises the historic axis between St Johns Church and Lancer Barracks as a major circulation route and to define the site layout. To the south of that line, backing onto Darcy Street and the rail station are the taller building, trapping the sun and creating a high quality northern face to the sequence of public places. To the north the buildings are reduced in height establishing an appropriate setting for the heritage buildings and ensuring sun access to the public spaces.

61 On page 9 the Master Plan states:

…

The Sydney Regional Environmental Plan No. 28, 1999 (SREP 28 or REP) positions Parramatta by 2021 as Sydney's second CBD catering for a workforce of 90,000 within the Parramatta primary centre, and a city centre workforce growing to 60,000 workers with new residential communities of up to 12,000 residents.

Improved access and public transport to and from Parramatta City Centre will be needed to support employment growth. As a consequence, Parramatta is the focus of significant State Government investment into public transport with the new Parramatta Transport Interchange planned to open by the end of 2006. This project will involve upgrading the existing Parramatta Railway Station as part of the Parramatta and Chatswood Rail Link project and consolidating all bus operations into an integrated public transport interchange.

The State Government has also recently commenced construction of the NSW Police Headquarters as part of the strategy to create jobs in the area.

The new Public Transport Interchange will link City Rail services with the Western Sydney Rapid Bus Transitway network, local bus and other transport services. Together they will create a new transport gateway to Western Sydney that will support the future sustainable economic growth of Parramatta City Centre.

62 On page 11 the Master Plan states:

The REP makes statutory provisions for the master planning of a special area named Civic Place. Following the adoption of that plan the REP partners agreed to expand the area covered by the Master Plan to include the new location of the Parramatta Transport Interchange and the site of the NSW Police Headquarters.

This Master Plan therefore applies to the land bounded by Church Street Mall, Macquarie Street, Charles Street, Hassall Street, Station Street, Parkes Street, Valentine Street and Fitzwilliam Street as shown in Figure 1.3

However this Master Plan includes greater detail and has direct statutory effect, over the area bounded by Macquarie, Church, Darcy and Smith Streets. (Civic Place)

The Civic Place site and the Master Plan area are located at the core of the Parramatta Central Business District, next to the Parramatta Railway Station and Transport Interchange. The site has a mixture of retail and commercial uses and is traversed by major pedestrian routes linking the railway station to the Centre's commercial and retail precincts to the north and south and to the local schools to the east.
The site is a centre of community activities and facilities and the nucleus of Local Government for the Parramatta area. It contains the Parramatta City council administrative offices, council Chambers, the historic Town Hall, Library and community meeting rooms.

63 On page 12 the Master Plan states:

· Implementing established regional and local planning objectives for the City Centre

· Creation of a gateway identity befitting Parramatta's role as a regional centre

· Providing convenient public transport, vehicle and pedestrian access

· Facilitating an economically-feasible mix of land uses which responds to the site's location at the centre of Parramatta

· Accommodating and strengthening the civic focus of the site

· Conservation and celebration of environmental, social and cultural heritage

· Implementing new development, that is sustainable

The Master Plan balances social, economic and environmental considerations to achieve a sustainable development proposal that will contribute to the city's overall economic robustness, fulfil a ceremonial and civic role, provide community facilities and services and establish best practice urban design, environmental management and government leadership.

64 On page 15 the Master Plan states:

The most recent metropolitan strategy, Shaping Our Cities (DUAP 1998), identifies Parramatta as one of four primary centres in the Greater Metropolitan Region, alongside Sydney, Newcastle and Wollongong.

An underlying tenet of the strategy is the creation of a more compact city, creating opportunities for reduced reliance on motor vehicle travel, and employment creation in targeted locations. One of the key planning principles documented in Shaping Our Cities is to identify and create opportunities for employment and business growth in locations that support access by public transport and minimise conflict with other uses.

…

A regional strategy, Shaping Western Sydney, has also been prepared to provide further guidance on growth and development in the region. This strategy acknowledges the status of the western Sydney region as one of the fastest growing in the country, in terms of both population and economic (and consequent employment) development.

City at the Centre

· Develop the important Civic Centre site

· Implement rapid transit corridors

· Market Parramatta regionally, nationally and internationally

· Improve management of the City's heritage as a cultural tourism magnet

· Developing a targeted growth program based on existing opportunities

65 On page 17 the Master Plan states:

…

This Plan satisfies the Parramatta REP requirement that a Master Plan be prepared for the area bounded by Smith, Macquarie, Church and Darcy Streets prior to development consent being granted for development within the area.

· Outline detailed provisions relating to development of land to which the Master Plan applies, and

· Explains how the planning aims, and the precinct, zone and special area objectives in the REP are applied.

· Phasing of development

· Urban design considerations, including principles drawn from site analysis of the site and its context, density, height controls, building envelopes, identified views, privacy and security

· Distribution of major land uses, including public access and open space

· Environmental considerations, including noise attenuation, flood mitigation, water and soil management, remediation of contaminated land, solar access, energy efficiency, and management of significant flora and fauna habitat

· Access considerations, including public transport, pedestrian, cycle and road access and circulation networks, including local traffic and parking

· Patterns of subdivision or site amalgamation

· Infrastructure provision and funding

· Site landscaping

· Heritage considerations, including conservation and protection of heritage items, heritage conservation areas, identified historic views and archaeological relics (including the preparation of conservation plans)

· Provision of public facilities

· Any other matter required by the appropriate authority

66 On page 53 the Master Plan states:

· SUSTAINABLE CITY

· DISTINCTIVE CITY

· ATTRACTIVE CITY

· ACCESSIBLE CITY

· ENTERPRISING CITY

· NATURAL CITY

Parramatta will protect and enhance its environment. Think globally and act locally.

67 On page 54 the Master Plan states:

· Considers, interprets and celebrates its indigenous and non-indigenous heritage, and integrates such features into the design of new or redeveloped buildings and public spaces

· Provides for land uses and activities which recognise Parramatta's role as a primary centre serving the western Sydney and Sydney's wider regions

· Provides sufficient opportunity for the location of civic land uses and functions, befitting Parramatta's role as the metropolitan area's second CBD

· Provides for employment opportunities commensurate existing and proposed regional public transport services and which contribute to the jobs targets identified in strategic planning documents

· Incorporates Ecologically Sustainable Development principles

· Comprises high quality urban design, building forms and public spaces which enhance Parramatta's image and identify

· Has an urban structure and public domain that allows the safe and convenient movement of pedestrians between the transport interchange and other activities in the Parramatta City Centre

· Provides opportunities for residential uses and the development of a 24 hour centre

68 On page 55 the Master Plan states:

· Promote the significance of Civic Place in the context of Parramatta and Western Sydney and as the focus of the revitalisation of the Parramatta City Centre

· Provide guidance for the future redevelopment and management of the Civic Place site including the scale, form and types of development within a publicly accountable process

· Enable development to proceed efficiently by clarifying issues and identifying requirements for coordination and future consideration

· Set the implementation strategy and future management structure for the site

· Assist the consent authority in considering development applications by setting the planning framework

69 On page 63 the Master Plan states:

The Master Plan proposes to re-instate and celebrate the historic links between the St Johns Church and the Lancer Barracks. This east-west link sets the framework for the introduction of a new sequence of public spaces and the way in which the future development is organised on the site. See figure 6.1 Historic Axes.

· Urban structure and street grid pattern

· Architectural heritage

· Historic markets

· Indigenous and culture heritage

· Relationship with the river, farming and colonial settlement.

This Master Plan will also establish Civic Place, its plazas and squares, as the gateway for Parramatta with reinforced pedestrian links to the Parramatta Railway Station and the Transport Interchange. See Figure 6.3 Urban Structure

A series of three axes run north south through the site. They reinforce Parramatta's street grid and existing pedestrian connections and are extensions of walkways, streets and lanes between Parramatta Railway Station and Parramatta River and the southern sections of the Centre. The western most axis extends and enhances Horwood Place as a local connection into the Civic Place site with the potential for both two way pedestrian and vehicular traffic.

The middle axis reveals the Leigh Memorial Uniting Church, linking the site with Batman Walk; a mid-block pedestrian connection running through a mid block spine of the Parramatta City Centre between Church and Smith Streets.

70 On page 66 the Master Plan states:

· Civic and Community

· Cultural

· Commercial

· Retail

· Residential

· Community facilities

· Cultural facilities

· Retaining, restaurants, cafes, bars

· Entertainment venues such as a cinema complex

· council's meeting rooms and City Hall offices including a conference facility

· Residential and commercial communities to support new and established functions.

71 On page 70 the Master Plan states:

identity

72 Part 6.7 of the Master Plan then discusses design principles for public domain character including for streets, arcades, colonnades and squares.

73 On page 93 the Master Plan states:

The Civic Place Master Plan establishes a model inner city mixed-use precinct in the capital of Sydney's Western Region. Acting as a catalyst for future growth, it transforms under-utilised private and Government land into an integrated and vibrant recreation and living area.

This concept plan illustrates the ways in which the principles and objectives of the Civic Place Master Plan, SREP 28 and the Parramatta City Centre Plan may be applied to the site. The Master Plan concept develops the axis between St Johns Church and the Lancer Barracks. This east-west axis sets the framework for the introduction of a new sequence of public spaces. The public spaces provide a series of outdoor venues for recreation, markets and civic events.

74 This southern area includes the applicants’ land. Figures 7.12 to 7.15 designate the space occupied by their land as suitable for retail or (at higher levels) residential uses.

75 On page 99 the Master Plan states:

The major public spaces are aligned on an east-west axis that connects St John's church across the site to the Lancer Barracks. The church is celebrated through the definition of Church Place. This flows into Garden Place, which reinterprets the important role of gardens and farming in the founding of Parramatta. Market Place is located on the very site of Parramatta's original markets. Civic Place celebrates the location of Parramatta's City council headquarters and the site on the east while Water Place represents the importance of fresh water in the founding of the city.
The sequence of public spaces is drawn together by an ecology spine, an integral part of the water management for Civic Place. The ecology spine reaffirms the historic east-west axis of Parramatta, tracing a line of water through the sequence of public spaces beginning at the high point with a series of source pools and gradually filtering down to terminate in a water garden adjacent to the church.

The ecology spine, part garden and part ephemeral stream, collects and treats roof water and runoff from the square and adjacent road network. A series of separately defined spaces are clustered along the spine. The spine also provides an opportunity for heritage and archaeological interpretation. Strong directional paving draws pedestrians across the spine, through public spaces and gardens, into arcades, enriched streets and to the greater Parramatta beyond.

76 The report of the Civic Place Project Manager received by council on 25 August 2003 states:

5. The Project is currently undergoing a process of value creation through the property acquisition, property amalgamation, design development, and financial modelling. The value of the council component of the project will be dependent upon how far that process is advanced prior to taking the project to the market.
…

7. The council's financial position under the current analysis shows a requirement for additional funding in the order of $20M. It is too early to determine how such a requirement would be made up but council may consider, taking on some leasing commitments, debt servicing or other property disposal in support of this project. A final determination of this will depend to some extent on the market response to the financial structure of the project and funding alternatives.

77 At that time, it was also proposed that PRL would acquire part of Darcy Street.

78 On 22 September 2003 council considered among other things the financial structure of the Civic Place project. In the Executive Summary, council, stated “Current work on Civic Place is being funded by a special allocation supported by positive cash flow from the Connection Arcade and Hotel Parramatta. That funding remains positive, provided that a development partner can be appointed during 2004. Further legal advice is being sought in respect of property acquisitions.”

79 At paragraph 14 at page 3 of council's report, council foreshadowed that the next significant addition to the value will be through the financial structuring of the project and the nature and timing of the council's land ownership and transfer.

80 On 24 November 2003 council resolved as follows:

(ii) 12 Darcy Street

(iii) 14 Darcy Street

(iv) 18 Darcy Street

(v) 20-26 Darcy Street

(vi) 28 Darcy Street.

81 The report of the Manager, Property Services, received by council on 24 November 2003, states:

2. As council would be aware, the Connection Arcade (including the Hotel Parramatta) was acquired by council on 11 July 2003 in accordance with Resolution (c) of council meeting on 28th April 2003.

3. The remaining properties to be acquired in accordance with Resolution (d) of council meeting of 28th April 2003 are listed as follows:

(ii) 12 Darcy Street

(iii) 14 Darcy Street

(iv) 18 Darcy Street

(v) 20-26 Darcy Street

(vi) 28 Darcy Street

5. Council's Valuer F C Carrapetta & Associates together with council's consultant Valuer and Land and Economist Mike Collins & Associates were requested to undertake current market valuation of each property as well as values for the purpose of compulsory acquisition.

6. In addition, values of leasehold interests (lessee's interest) were also assessed by Mr F J Kelly who also acted on behalf of the PRL in acquisition of properties in Argyle Street for the purpose of 'buying out' any tenancies within a 5 year period. Several leases will naturally expire within this period, thus no buy out costs will apply.

7. Mike Collins and Associates were requested in June 2003 to formally submit offers on behalf of council to all owners to purchase their respective properties, subject to council's formal approval.

8. To date little response has been received. Various owners are not interested in selling their properties, some owners are refusing to acknowledge council's offer and some owners have requested to make no further contact with them.

9. A copy summarising the status of council's previous offers by Mike Collins and Associated is attached as Attachment 2.

Current Status

10. council proposes to redevelop Civic Place in accordance with the provisions of the Civic Place Master Plan and SREP 28.

11. The development will be for the following purposes:

· to assist the Parramatta City Centre to reach its target of employment growth of 60,000 jobs by 2021, through the creation of 4,770 jobs at Civic Place;

· to increase the utilisation of public transport;

· to provide open space,

· to provide revamped council facilities including an administration building, library, senior citizen's centre and toilets;

· to provide additional facilities to the public including a new child care centre; and

· to provide commercial, retail and residential development and facilities.

Residential 60,000m2

Entertainment and Leisure 3,000m2

Commercial facilities 5,000m2

Retail 35,000m2

Total Area 168,000m2

14. council was previously advised through reports submitted to council at its meeting of 28 April 2003 and a subsequent workshop held with councillors on 2 September 2003 that use of the compulsory acquisition powers of council may be required if acquisition through mutual negotiations with property owners cannot be achieved.

15. It is vital to the overall Civic Place development that all properties in Darcy Street be acquired to ensure control of all properties which provide vital frontage to Darcy Street and form part of the development site for both commercial, retail and residential development.

Proposal to Compulsory Acquire

16. If it is not supported by other property acquisitions council's property at 30 Darcy Street will not provide the appropriate land area and configuration of an acceptable footprint for a commercial office building. This is the only council property to carry the maximum development potential under the REP and the Master Plan and failure to redevelop it would also preclude the extension of the main rail concourse into Civic Place.

17. council will be unable to accommodate the 30,000m2 pre-commit for the Department of Commerce. Without the additional properties neither 30 Darcy Street, 16 Darcy Street nor the Connection Arcade/Hotel can take the required footprint of 12,000 – 15,000m2 for a commercially viable office. This would not only remove that area of development but the potential to construct an equal area of residential development (under the REP controls linking the two).

18. Further, it will deny the possibility of closing Darcy Street with the increase in site area and GFA and the Urban Design improvements that would flow from the inclusion of Darcy Street in the development.

19. It will erode the potential to link and integrate the retail component of the development from the rail concourse through to Church over three levels. This would very significantly reduce the financial and non-financial benefits of the development.

20. Taken together these implications put in question the financial viability of the Civic Place project.

21. council has been frustrated in all of its attempts over the last six months in particular to enter into full and meaningful discussions and negotiations with all the owners of the relevant properties in Darcy Street in order to acquire the relevant properties by mutual negotiations.

…

27. In order to proceed to acquire ownership of the relevant properties necessary to deliver the masterplan it is now considered paramount that council formally consider acquisition of the properties through the compulsory acquisition process as detailed in this report.

…

31. council's efforts to date in this regard are considered more than reasonable and any further delay in attempting to acquire the relevant properties will have a major impact of the delivery of the Civic Place project and as a consequence achievement of the objectives of SREP 28 and the Masterplan.

…

82 On 4 December 2003, council wrote to the Director-General of the Department of Commerce. That letter states, in part:

255 The second reason for striking down the proposed scheme was that in taking more land than was necessary to construct the road, the council was acting in bad faith. The joint reasons explained at 105 – 106:

Municipal Council of Sydney v. Campbell

256 In Duggan (above), the High Court found no reason to depart from this construction of the same legislation. There the council applied to the Minister for the resumption of some 118 acres of land “for the purpose of the improvement and embellishment of the area” of the land proposed to be resumed. Eighty four acres were to be used for a park, 17 acres for new roads, and the balance of 17 acres was to be acquired simply in order that it might be subdivided and sold for building lots and the proceeds applied towards the costs of the scheme. Dixon, Williams and Kitto JJ in a joint judgment held that the council was not empowered by the Act to acquire the last-mentioned land in excess of the actual requirements for a park and new roads in order that upon re-subdividing that land, the council might re-sell it and apply the proceeds towards the costs of the scheme. Their Honours held at 445 – 446:

Thompson v. Randwick Municipal Council

The question when the whole of a person's lands may be acquired although part only is required for some undertaking so that the residue may be resold at a profit has frequently arisen in England. English legislation often specifies the lands that may be resumed for the statutory purpose. Even so, if the land is resumed for the benefit of a body trading for private gain, such as a railway company, the body may usually be restrained from resuming more of the land so specified than is actually required for the particular work. Public bodies usually may resume the whole of such lands although parts only are required for the particular purpose with a view to re-selling the residue at a profit. But these are all cases where the public body is on the face of the statute authorized to acquire the whole of the land and then empowered to re-sell the surplus land.

257 In 1951 the provisions of the LG Act 1919 considered in Thompson were amended. The new legislation provided as follows:

532 . (1) The council may acquire land within or outside the area for any purpose of this Act by lease, purchase, appropriation, or resumption in accordance with this Part.

In addition to the powers conferred by subsection

one

(a) any lands of which those proposed to be acquired for any purpose of this Act form part;

(b) any lands adjoining or in the vicinity of any land proposed to be acquired for any purpose of this Act;

(c) any lands which the council considers in the public interest should be made available for the purpose for which such land is reserved or zoned by any prescribed scheme under Part XIIA of this Act or which are otherwise required to give effect to any provision included in any such prescribed scheme.

Without limiting the generality of paragraphs (a) and (b) of sub-section two

any purpose of this Act

may be so acquired for sale or re-sale and applying the proceeds thereof in defraying

258 The words that I have emphasised above amply severed s 532(2) from s 532(1) so as to make the former an independent source of power from the latter, and specifically negated the Thompson prohibition on sale or re-sale for the purpose of applying proceeds to defray expenses incurred in carrying out specified works.

259 In 1979, s 532 of the LG Act 1919 was amended to introduce a requirement for approval of the Minister in a new subsection (1A) and to omit references to “lease, purchase, appropriation or resumption” in subsections (1) and (2). The amendments appeared in Schedule 1 to the Land Acquisition (Just Terms Compensation Act 1991, which provided as follows:

Acquisition of land

(a) Omit section 532(1), insert instead:

(1) The council may acquire land within or outside its area for any purpose of this Act by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.

(1A) The council may not give a proposed acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991 without the approval of the Minister.

may acquire by lease, purchase, appropriation or resumption in accordance with this Part

may so acquire

260 In 1992, s 532(1) was further amended by inserting after “land” the words “(including an interest in land)”: Statute Law (Miscellaneous Provisions) Act 1992 Schedule 1. The Explanatory Note to the Bill stated: “The proposed amendment for s 532 is consequential on the Land Acquisition (Just Terms Compensation) Act 1991 and merely removed any doubt that the acquisition of land by a council in accordance with that Act includes the acquisition of an interest (eg a leasehold interest) in land”. That appears to be a reference to the definition in s 4 of the latter Act that “interest” in land means “(a) a legal or equitable estate or interest in the land; or (b) an easement, right, charge, power or privilege over or in connection with, the land”.

261 In 1993 the LG Act 1919 was repealed and replaced by the LG Act 1993. In J R & E G Richards (NSW) Pty Ltd v Scone Shire Council and Brambles Australia Ltd (trading as Cleanaway) (Stein J, NSWLEC, 24 November 1995, unreported), Stein J made the following comments in relation to the powers of councils under the LG Act 1993 in comparison with the 1919 Act, stating that the LG Act 1993 approaches council powers and functions in a broader fashion than under the 1919 Act:

262 In 2004, Part 6 (ss 400B - 400N) of Chapter 12 was inserted into the LG Act by the Local Government Amendment (Public-Private Partnerships) Act 2004, Schedule 1[5]. The Second Reading Speech (LA, 19 November 2004) explains:

The bill will amend the Local Government Act 1993 and provide a regulatory framework within which local government can benefit from public-private partnerships. The Local Government Act 1993 is the core Act for the regulation of local council and county council functions. Public-private partnerships [PPPs] are emerging as a potentially attractive and flexible means for local government to create infrastructure and deliver services. For the purposes of this bill, a PPP is defined as any contracted relationship between a council and the private sector in which a council has an equity interest, shareholding or ongoing obligation or liability. Normal transactions such as sale of community land classified as operational and councils acting as trustees for donations or bequests and tendering will not be affected by these new provisions. A number of councils already have experience in negotiating public private partnerships. Unfortunately, not all those experiences have been positive. As members will be aware, Liverpool City Council, between 1996 and 2003, entered into various commercial arrangements with the private sector to develop infrastructure on land owned by the council. The Liverpool City Council public inquiry found that the cost to council of the failed redevelopment proposals—ultimately to be borne by ratepayers—is at least $22 million. The commissioner of the public inquiry, Professor Maurice Daly, found that councils lacked the in-house expertise required to successfully negotiate PPP arrangements.

263 Clause 408(1)(e) of the Local Government (General) Regulation 2005, which commenced at the same time, excluded from the operation of Part 6 of Chapter 12 “the sale by a council to private person of any property (including operational land”). The 2004 Act brought into effect the recommendations of Professor Daly, referred to in the above extract from the Second Reading Speech. His report of June 2004 relevantly included the following (vol 2 p 21):

Private sector initiatives, however, are not the only source of PPP proposals. Councils often have a strong interest in providing new infrastructure in the form of civic centres, youth or old aged facilities, libraries, sporting venues and the like. In concert with the private sector such infrastructure may be put in place in the context of a broader commercial or residential development so that the council may receive both the infrastructure and some revenue, whilst the private sector parties profit from the construction and sale of new buildings, or the longer-term revenue from managing the rentals of the buildings. Councils also often have ambitions to develop land to accommodate population growth, or to cater for segments of the population (such as the aged), but lack either the capital or the know-how to perform the task. Partnerships with the private sector clearly represent a solution. Councils in recent years have ventured into new functions that they traditionally have not had to manage. The provision of local medical services and an extending role in law and order maintenance are examples. Again, there is potential for private sector involvement in such areas. In rural areas councils often run the water and sewerage systems, and councils have begun to play a bigger role in energy production through wind-farms and energy-sharing programmes. Council roles in recycling and, especially in rural areas, with broader waste management issues are further areas where collaboration with the private sector is possible. This summary represents just a sample of the ways in which councils and private sector may form linkages. As successful PPP in Local Government are achieved, the lessons learnt will trigger new initiatives, and new ways of linking Local Government with the private sector.

264 One of the examples of a PPP referred to in this passage bears some comparison with the proposed Civic Place Development. However, the passage is silent about compulsory acquisition.

265 As appears from s 400B(1), as substituted by the Local Government Amendment Act 2005 No.59, “public-private partnership” (“PPP”) is a reference to an arrangement between a council and a private person for the purposes of:

(b) delivering services in accordance with the arrangement,

or both, but does not include a reference to any such arrangement if it is of a class that has been excluded from the operation of this Part by the regulations.

266 There is no requirement that the infrastructure or facilities be in the council’s ownership.

267 As first enacted, s 400B(1)(a) read:

(a) providing public infrastructure or facilities (being infrastructure or facilities in respect of which the council retains a beneficial interest under the arrangement),

268 The Second Reading Speech (LC, 22 June 2005) explains the amendment:

To ensure that all public private partnerships involving councils are required to follow the appropriate process, this bill makes a minor amendment to the definition of public private partnerships. The new definition includes all arrangements between a council and private person to provide public infrastructure or facilities where the council retains an interest, liability or other responsibility, or to deliver services in accordance with the arrangement.

269 Part 6 of Chapter 12 is procedural. It is not concerned with the scope of the council’s functions, but with the procedures necessary to be followed before a council may enter into and carry out a particular kind of arrangement. Whether or not the arrangement involves a function of a council is an anterior question which Part 6 of Chapter 12 does not itself address. In the present case the Development Agreement involved some elements of public infrastructure and facilities as those terms are used in s 400B.

270 In light of this legislative history, the question is whether s 186(2) is an independent source of power to the same effect as the old s 532, or whether it is incidental to s 186(1). Two indicia support the latter construction. First, the prefatory words in s 532(2) “In addition to the powers conferred by subsection(1)” have been replaced in s 186(2) with the words “Without limiting subsection(1)” which, in my view, have a different meaning. The words “In addition” add to the subsection (1) power; the words “Without limiting” indicate that there is no dilution of the subsection (1) power. Second, the important s 532(3) of the old legislation has no corresponding provision in the current legislation. Subsections 532(2) and (3) of the old legislation constituted the most express liberation of s 532(2) from the constraints of s 532(1). The old s 532(3)(b), or something like it, may have permitted council to do what is proposed in the present case but no such provision appears in the current legislation.

271 In my opinion, these changes from the old s 532 are so significant as to lead to the conclusion that s 186(2) of the LG Act is not an independent source of power but is incidental to s 186(1). For example, suppose a council wishes to resume land for a road under s 186(1) but a small corner of that land is surplus to that requirement and of no use to anyone. Council does not need to acquire that corner for the purpose of s 186(1). Under s 186(2) it is reasonably incidental to effecting the s 186(1) purpose to acquire it. In the present case, the incidental power does not authorise the acquisition of the applicants' land.

272 If I am in error, then a similar result may be reached, in my view, by concluding that the general character of the LG Act 1993 requires that the statutory power in s 186(2) is to be used only for the purposes of the Act. Samrein (above) at 468. One of the purposes of the LG Act in s 7(d) is virtually to the same effect as the wide functions of a council referred to in s 24. This purpose did not appear in the LG Act 1919. Thus, there is a purposive limitation on s 186(2) which, in my view, is not significantly different than if it were incidental to s 186(1) and thus limited by the s 24 function.

273 If I am still in error, such that s 186(2) is a freestanding source of power, nevertheless, in my opinion, more is required to enliven the s 186(2)(b) power than mere physical proximity to the land acquired pursuant to s 186(1). Support for that view may be found in Gaffney v Camden Council (1997) 96 LGERA 157 (CA). There the appellant unsuccessfully challenged the compulsory acquisition of his land (Lot 32 and Lot 33) pursuant to the LG Act 1919 for the purposes of a road extension to service a residential subdivision. The court appeared to accept that Lot 33 was resumed for the purposes of exercising functions of the council, namely road widening. The real attack related to Lot 32 which was small and contiguous to Lot 33. The court found there was no evidence to support an intention by the council to acquire Lot 32 to locate equipment during the road construction such that it could be said that Lot 32 was needed for extending the road: at 159. The court held that the appellant’s submission that the council’s purpose was to aid the developer by taking from the appellant land which the council did not itself need and selling it to the developer could not be entertained because it had not been pleaded: at 160. Mason P (with whom Smart AJA agreed) noted that, following Thompson, s 532 of the LG Act 1919 was amended in 1951 so as to widen the acquisition powers of councils: at 160. His Honour continued at 160 – 161:

These provisions have been replicated (with minor changes) in the Local Government Act 1993 (NSW), ss 186 and 188 and the Roads Act 1993 (NSW), ss 177 and 179.

In my view, the combination of s 532(2)(b) and (3) provide legislative authority for the resumption of Lot 32, given its small size and its contiguity to Lot 33, which was acquired for purposes of the Act. See also CC Auto Port Pty Ltd v Minister for Works (1965) 113 CLR 365; 13 LGRA 39; Collins v Willoughby Municipal Council (1967) 14 LGRA 256; De Rous v Burwood Municipal Council (unreported, Land and Environment Court, NSW, Pearlman J, 5 March 1996). The appellant contends that Lot 32 was not needed for the road or roadworks. However, the fact that Lot 32 was itself excess to requirements for extending [the] public road is the very matter which engaged s 532(2) and (3) in a proper case.

274 It can be seen that Mason P based his decision, under the old s 532(2)(b) and (3), concerning Lot 32 on a link between Lot 32 and Lot 33 which went beyond the mere fact that they were contiguous. In particular, his Honour took into account that Lot 32 was of small size and isolated by the excision of Lot 33. His Honour reserved the question whether the only safeguard against abuse of the powers was the scrutiny of a government department. His Honour’s comment that there are only minor changes between s 532 of the LG Act 1919 and the current ss 186 and 188 of the LG Act 1993 was of a passing nature and obiter. In my respectful view, it is clear that s 188 is new (as was noted in the Explanatory Notes to the LG Bill 2003 referred to below) there is now nothing like the old s 532(3), and there are other substantial changes in s 186.

275 In the present case, I can see no elements, such as attracted Mason P in Gaffney, additional to the mere fact that the applicants’ land is in the vicinity of land to be acquired pursuant to a s 186(1) function.

276 The basis of the decision of Mason P in Gaffney is consistent with C.C. Auto Port Pty Ltd v Minister for Works (1965) 113 CLR 365 although that case was decided under different legislation. There the appellant was the owner of land forming part of a city block in Fremantle in Western Australia. The city council published a statutory notice of intention to resume the appellant’s land which stated the purpose as “Street Widening…and other purposes”. The resumption related to more land than was necessary for the proposed street widening because it was the intention of the council to resell so much of it as was not required for street widening or for its own use in order to meet, as far as possible, the cost of the work of street widening. The relevant legislation authorised the council in resuming land for road widening, to also resume adjoining land. The appellant’s challenge to the validity of the resumption failed. Kitto, Taylor and Menzies JJ in a joint judgment said at 377 – 378: “There can be no doubt that the effect of s. 2 is to extend the powers of acquisition of the council when resuming land for the purpose of street widening. It seems clear that apart from that section the authority of the council would be confined to the taking of such land as is actually required for that purpose. But legislation authorizing the compulsory taking of land for particular purposes has frequently authorized the taking of additional land not strictly required for any such purpose”. Significantly, their Honours indicated that the resumption of the extra land had to be for, or in association with, the purpose of widening the streets. In other words, it was insufficient merely that the land was adjoining land that was to be resumed for road widening. They said at 381:

…But once it had been decided to widen the streets in question and for, or in association with, that purpose to acquire the whole block it was essential to decide upon the most suitable method to be employed in disposing of the land surplus to the work of road widening. …We have given consideration both to the documents in the case and to the oral evidence and we are satisfied that the development of the residue of the land resumed as a modern retail shopping centre was not an end in itself; it was, perhaps it may be said, part of a means to an end. But that end was the widening of the three streets and this was, in our view, both the initiating and the abiding purpose of the resumption.

277 Accordingly, I answer the s 186(2)(b) question “no”.

278 Is the council seeking to compulsorily acquire the applicants’ land for the purpose of re-sale within the meaning of s 188(1)? Section 188 relevantly provides:

188 Restriction on compulsory acquisition of land for re-sale

(2) However, the owner’s approval is not required if:

(b) the owner of the land cannot be identified after diligent inquiry has been made and at least 6 months has elapsed since that inquiry was made.

279 Section 188 is a new and major variation from the LG Act 1919. This is confirmed in the Explanatory Notes incorporated in the Second Reading Speech for the LG Bill which led to the LG Act 1993 (LA, Hansard 10411) which compared what is now Chapter 8 of the LG Act 1993 with the former LG Act 1919 provisions:

A major variation occurs in the creation of a limitation on compulsory acquisition by council for the purposes of re-sale. A council may not acquire land by compulsory process without the approval of the owner if it is being acquired for the purpose of re-sale, as re-sale is not strictly a legitimate Local Government purpose.

280 The applicants submitted that, having regard to the scope, object and purpose of the Act, “re-sale” in s 188 requires no more than a transfer or disposition of land or an interest in land for valuable consideration,.

281 The council submitted that:

(a) as s 188(1) does not say “ being acquired for re-sale ” but rather “ being acquired for the purpose of re-sale ”, the mere fact of re-sale, if it occurs, will not necessarily trigger the provision unless that was the purpose of the acquisition. I have earlier held that that the purpose of the proposed acquisition in the present case is to transfer the applicants’ land to Grocon for consideration;
(b) the re-sale must be the sole or real purpose because s 188(1) does not speak of “ a ” purpose or even a substantial purpose, but rather of “ the ” purpose of re-sale. In my view, consistently with my earlier reasoning, “ the ” purpose of the acquisition of the applicants’ land is to transfer it to Grocon for the consideration;
(c) the trust of the applicants’ land in favour of Grocon is not a “re-sale” ;
(d) to be a “ re- sale”, the consideration for the ultimate transfer of the applicants’ land to Grocon must be money and only money, which is not the case.

282 Council proposes to acquire both the legal and beneficial interest in the applicants’ land with the intention of passing the beneficial interest immediately to Grocon and later passing the legal interest to Grocon, in both cases in return for money and other benefits.

283 The word “re-sale” assumes a prior sale. Under s 187, the prior acquisition may either be by agreement or by compulsory process in accordance with the Just Terms Act. Thus “re-sale” in s 188 assumes that a compulsory acquisition is a sale. That is not the ordinary notion of a sale. Therefore s 188 proceeds on the basis of an extended notion of “sale” in its use of the word “re-sale”. “Re-sale”, when read in light of s 186, includes resale of an interest in land.

284 Ordinarily, a transaction by which a beneficial interest in a trust is created and acquired is not a sale: AFA v Garendon Investments Pty Ltd (1995) 37 NSWLR 221 (CA) at 230.

285 The leading case on the meaning of “sale” is Chan v Dainford Ltd (1985) 155 CLR 533. It concerned instalment contracts for the sale of land. In a unanimous judgment the High Court said at 537: “The primary meaning of sale is an exchange of property, the subject of the sale, for money. A sale occurs at the time when the title to the subject of the sale is conveyed or transferred”. In J & P Coates Ltd v Commissioners of Inland Revenue Commissioners [1897] 1 QB 778 at 783 Wills J said: “Sale undoubtedly in our law generally imports the exchange of some commodity or some article of property for money… That is obviously the general meaning of the word”. In Sun World Inc v Registrar, Plant Variety Rights (1997) 75 FCR 528 at 540 – 542 it was held that: “There is considerable authority for the proposition that the ordinary meaning of the word ‘sale’ in a variety of statutory and common law settings is an exchange of commodities for money…that meaning may be extended by statute expressly or by necessary implication”.

286 The council argued that the consideration for the transfer of the applicants’ land is more complex than simply money: see [8] above.

287 In my view, the meaning of “re-sale” in s 188 should be determined in light of the legislative history, scope, purposes of the Act and the mischief which s 188 was intended to cure. In Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 at 280-281 [11] McHugh, Gummow and Hayne JJ said:

Newcastle City Council v GIO General Ltd [

[A] court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context.

CIC Insurance Ltd v Bankstown Football Club Ltd

Acts Interpretation Act 1901

Isherwood v Butler Pollnow Pty Ltd

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation

288 Chan, Coates and Sun World refer to the ordinary, primary or general meaning of a “sale”; do not address the situation where the consideration comprises both money and other benefits; and allow that the meaning may be extended by statute by necessary implication. There is authority that an agreement to acquire goods for money and other consideration is a sale agreement: Aldridge v Johnson (1857) 119 ER 1476; Cheshire and Fifoot’s Law of Contract (8th Aust ed) at [16.79]; Benjamin’s Sale of Goods (7th ed 2006) at [1 – 037].

289 In my view, the interpretation of re-sale in s 188 does not turn on nice distinctions between what is or is not technically or generally a sale. It is clear that the notion of “re-sale” in s 188 is wider than any technical meaning for it assumes that land acquired by resumption is a sale. The legislature intended the novel s 188 to meet the mischief of a council compulsorily acquiring land for the purpose of re-sale which the legislature considered to be generally outside the functions of a council. This strongly suggests that the legislature did not intend “re-sale” to be construed in a narrow or technical sense but with full amplitude and without niceties, in order to meet the mischief. In Cabell v Markham 148 F 2d 737 (1945) at 739 Justice Learned Hand said:

…As Holmes J said in a much-quoted passage from Johnson v United States 163 F. 30, 32, 18 L.R.A.N.S., 1194: it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before…Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

290 In my opinion, a re-sale within the meaning of s 188 includes a transfer of land for a consideration which includes money. That is sufficient to cover what the council intends to do with the applicants’ land in the present case.

291 It is no answer for the council to say, as it does, that once council becomes the trustee for Grocon there is a possibility that the properties will return to the full ownership of the council if the project ceases (cl 5.1 of the current Trust Document in cl 24.3(b)(iii) of the Development Agreement). Relevantly, s 188(1) is only concerned with whether the proposed acquisition of the applicants’ land is for “the purpose” of re-sale, not with a possibility that a re-sale contemplated by a contract might not occur in the event that the contract does not go ahead.

292 Accordingly I answer the s 188(1) question “yes”

293 Does the applicants’ land adjoin or lie in the vicinity of other land to be acquired at the same time under the LG Act for a purpose other than a purpose of re-sale, within the meaning of s 188(2)(a)? Section 188(2)(a) provides:

(a) the land forms part of, or adjoins or lies in the vicinity of, other land acquired at the same time under this Part for a purpose other than the purpose of re-sale, or

294 The council submitted that (a) the use of the definite article “the” before “purpose” means that the re-sale must be the sole or real purpose; (b) council need only show that “a” purpose in the acquisition of Church Street and Darcy Street is other than for re-sale; (c) that is the present case because a purpose in acquiring Church Street is that the surface will provide open space for giving effect to the development and a purpose in acquiring a part of Darcy Street is that it will form Station Square which will also be open space.

295 In my view, s 188(2)(a) is inapplicable for the following reasons, substantially as submitted by the applicant. First, the reference to “other land” should be construed as a reference to land not already owned by the council. Any other interpretation leads to the somewhat absurd result whereby an acquiring authority could circumvent the protection provided by s 188(1) simply by “acquiring” any interest in land that it already owns (that otherwise satisfies the physical nexus criterion in s 188(2)(a)). The council is already the owner of Church Street and Darcy Street. In my opinion, the contemporaneous “acquisition” of its existing interest in those streets cannot be relied upon by the council.

296 Second, if that be wrong, it is sufficient that the purpose for which Darcy Street and Church Street are each to be acquired includes re-sale as a substantial purpose. The council’s sole purpose submission makes too much of the definite article “the”. Its use is neutral. Any other usage would be unnatural. The provision would have said “solely for the purpose” if the intention was as the council would characterise it. It is settled by cases in a cognate area of law that a collateral purpose that is “substantial” is sufficient to invalidate a decision: Thompson (above) at 106 – 107; Duggan (above) at 446. Re-sale is a substantial purpose as demonstrated by the analysis above.

297 The applicants also submitted that, even if Darcy and Church Streets are relevant for the purposes of s 188(2)(a), the acquisition of the applicants’ land is not reasonably incidental to the carrying out of the public purpose for which the subsisting “public” areas of those streets are to be acquired. The reasoning was that those public areas do not require and are not assisted by the acquisition of the applicants’ properties: Thompson (above) at 103 – 104. It is unnecessary to rule on that submission.

298 Accordingly I answer the s 188(2)(a) question “no”.

299 It is unnecessary to consider the Improper Purpose Question.

Conclusion

300 The applicants have been successful and are entitled to relief as against the council.

301 I accept the Minister’s uncontested submission that the declaration with respect to the Minister as sought by par 4 of Mac’s Application should not be made. In a proposed Chapter 8 Part 1 acquisition the Minister’s function is the s 187(2) approval. Whether, subsequent to the issuing of the approval, the council actually proceeds with the acquisition is, as between the Minister and the council, solely a matter for the council. Having issued the s 187(2) approval in respect to the proposed acquisition notices, the Minister is functus vis a vis that proposed acquisition. It is therefore inappropriate for a declaration to be made directed to the Minister.

302 In the Mac’s proceedings (No 40810 of 2007), I propose the following relief:

1. Declaration that the proposed acquisition of the land known as 160 Church Street, Parramatta, being the whole of Lot 1 in Deposited Plan 514282, Parish of St John, County of Cumberland, by the second respondent in Proposed Acquisition Notice dated 1 June 2007 is unlawful.
2. Order restraining the second respondent from publishing the said Proposed Acquisition Notice in the Government Gazette and from taking any further steps to compulsorily acquire the said land as set out in the said Proposed Acquisition Notice.

303 In the Fazzolari proceedings (No 40818 of 2007), I propose the following relief:

by the respondent in Proposed Acquisition Notice dated 1 June 2007 is unlawful

304 I will hear the parties as to the form of relief, costs and any confidentiality issues. The exhibits may be returned.

Citations

Mac's Pty Ltd v Minister Administering Local Government Act 1993 and Parramatta City Council [2007] NSWLEC 623

Most Recent Citation

Cases Citing This Decision

2

Parramatta City Council v R&R Fazzolari Pty Ltd; Parramatta City Council v Mac's Pty Ltd [2008] NSWCA 132

Hopkins v Palerang Council [2010] NSWLEC 16

Cases Cited

18

Statutory Material Cited

6

CC Auto Port Pty Ltd v Minister for Works [1965] HCA 55

Chan v Dainford Ltd [1985] HCA 15

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CITATION:	Mac's Pty Ltd v Minister Administering Local Government Act 1993 and Parramatta City Council [2007] NSWLEC 623
PARTIES:	40810 of 2007 APPLICANT: Mac's Pty Ltd FIRST RESPONDENT: The Minister Administering the Local Government Act 1993 SECOND RESPONDENT: Parramatta City Council 40818 of 2007 APPLICANT: R & R Fazzolari Pty Limited ACN 000 769 458 RESPONDENT: Parramatta City Council
FILE NUMBER(S):	40810; 40818 of 2007
CORAM:	Biscoe J
KEY ISSUES:	Judicial Review :- whether council proposing to acquire land for the purpose of exercising any of its functions – whether council proposing to compulsorily acquire land which adjoins or lies in the vicinity of other land proposed to be compulsorily acquired – whether council proposing to acquire land for purpose of resale – whether land proposed to be acquired adjoins or lies in the vicinity of other land to be acquired at the same time for a purpose other than a purpose of re-sale – meaning of re-sale.
LEGISLATION CITED:	Land Acquisition (Just Terms Compensation) Act 1991 ss 1, 7B, 11, 12, 13, 17, 19, 20, 56(1)(a), 64 Land and Environment Court Act 1979 s 64(1) Local Government Act 1993 ss 7, 8, 21, 22, 23, 24, 186, 187, 188, 189, 355, 400B(1)(a), 400C, 400E, 400F,400I, 676(1) Local Government (General) Regulation 2005 cl 408(1)(e) Local Government Act 1919 (Repealed) ss 321, 532, 535 Roads Act 1993 ss 7(4), 34, 37
CASES CITED:	AFA v Garendon Investments Pty Ltd (1995) 37 NSWLR 221; Aldridge v Johnson (1857) 119 ER 1476; Cabell v Markham 148 F 2d 737 (1945) ; C.C. Auto Port Pty Ltd v Minister for Works (1965) 113 CLR 365 ; Chan v Dainford Ltd (1985) 155 CLR 533 ; Collins v Willoughby Municipal Council (1967) 14 LGRA 256 ; Da Rous v Burwood Municipal Council (Pearlman J, NSWLEC, 5 March 1996 unreported) ; Gaffney v Camden Council (1997) 96 LGERA 157 ; J & P Coates Ltd v Commissioners of Inland Revenue [1897] 1 QB 778 ; J R & E G Richards (NSW) Pty Ltd v Scone Shire Council and Brambles Australia Ltd (trading as Cleanaway) (Stein J, NSWLEC, 24 November 1995, unreported) ; Minister for Public Works & Local Government v Duggan (1951) 83 CLR 424; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273; News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 ; Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467; Sun World Inc v Registrar, Plant Variety Rights (1997) 75 FCR 528 ; Telstra Corporation Ltd v Hurstville City Council (2002) 118 FCR 198; Thompson v Randwick Municipal Council (1950) 81 CLR 87; Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710
DATES OF HEARING:	13, 14 and 20 September 2007
DATE OF JUDGMENT:	27 September 2007
LEGAL REPRESENTATIVES:	40810 of 2007 APPLICANT: Mr R G McHugh SC and Mr M Seymour, barrister SOLICITORS: Hunt and Hunt 40818 of 2007 APPLICANT: Mr N Williams SC and Mr I J Hemmings, barrister SOLICITORS: Clayton Utz 40810 of 2007 FIRST RESPONDENT: MR H R Sorensen, barrister SOLICITORS: Crown Solicitors Office SECOND RESPONDENT: Mr N C Hutley SC and Mr R J Carruthers and Mr C R Ireland, barristers SOLICITORS: Blake Dawson Waldron 40818 of 2007 RESPONDENT: Mr N C Hutley SC and Mr R J Carruthers and Mr C R Ireland, barristers SOLICITORS: Blake Dawson Waldron