Municipal Council of Sydney v Registrar-General (NSW)

The Municipal Council of Sydney (the Council) appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute concerned the Registrar-General's refusal to register a memorandum of transfer of part of a public road, McCarthy Place, from the Council to Australian Consolidated Industries Ltd. The Council sought to have the transfer registered free from a notification on the certificate of title relating to the land's dedication to the public and other statutory provisions.

The central legal issues before the High Court were whether the Council possessed the power to sell land that formed part of a public way, and if so, whether such a sale could be effected free from the restrictions imposed by section 76B(1)(c)(iv) of the Sydney Corporation Act 1932-1942 (NSW). Specifically, the Court had to determine if section 76(1) of the Act constituted an "express provision" that would override the limitations on alienation contained within section 76B(1)(c)(iv).

A majority of the High Court, comprising Rich, Starke, Dixon, and McTiernan JJ., held that section 76(1) did not constitute an express provision that authorised the Council to alienate the soil of a public way. They reasoned that the power to sell land under section 76(1)(c) was incidental to the purposes of opening, altering, widening, diverting, extending, or closing public ways, and not an independent power of alienation. Furthermore, section 76B(1)(c)(iv) expressly prohibited the Council from disposing of or alienating a public way unless otherwise expressly provided, and section 76 was not considered to be such an express provision. The Court applied the principles established in *Municipal Council of Sydney v. Young* (1898) AC 457, which had previously limited the Council's proprietary rights in public ways.

Consequently, the appeal was dismissed, affirming the decision of the Supreme Court. The Registrar-General's refusal to register the transfer free from the specified notification was upheld, as the Council had not demonstrated a clear power to alienate the land in the manner sought.