Nation v Kingborough Council (No 2)
[2003] TASSC 128
•27 November 2003
[2003] TASSC 128
CITATION: Nation v Kingborough Council & Anor (No 2) [2003] TASSC 128
PARTIES: NATION, Janette Dianne
v
KINGBOROUGH COUNCIL
DUFFIELD, Garry
DUFFIELD, Janice
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M66/2003
DELIVERED ON: 27 November 2003
DELIVERED AT: Hobart
HEARING DATES: 24 September 2003
JUDGMENT OF: Slicer J
CATCHWORDS:
Local Government - Powers, functions and duties of councils generally - Particular powers and functions - Powers over land - Generally - Amendment to plan - Distinction between "sealed plan" and "previously approved plan".
Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas), ss80, 103.
Local Government Act 1962 (Tas), s481.
Local Government Act1993 (Tas).
Craig v South Australia (1995) 184 CLR 163, applied.
Ragless v District Council of Prospect [1922] SASR 29, followed.
Aust Dig Local Government [153]
Local Government - Powers, functions and duties of councils generally - Power generally - Exercise of powers - Generally - Exercise of statutory powers must be consistent with existing equitable rights of owner.
Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas), s103.
Land Titles Act1980 (Tas), s110.
Conveyancing and Law of Property Act1884 (Tas), s84J.
Aust Dig Local Government [126]
REPRESENTATION:
Counsel:
Applicant: In Person
Respondents: P A Kimber
Solicitors:
Applicant: In Person
Respondents: Butler McIntyre & Butler
Judgment Number: [2003] TASSC 128
Number of Paragraphs: 38
Serial No 128/2003
File No M66/2003
JANETTE DIANNE NATION v KINGBOROUGH COUNCIL,
GARRY DUFFIELD and JANICE DUFFIELD (No 2)
REASONS FOR JUDGMENT SLICER J
27 November 2003
The applicant and the Duffields own adjoining land within the Municipality of Kingborough. Access to the Duffield's property is gained through a right of way evidenced on Sealed Plan 35422 fixed and certified pursuant to the Local Government Act 1962. At the time of the creation of the right of way, the same owner occupied both blocks of land and was able, as a matter of practice, to obtain access in whatever means he chose. The right of way as fixed, was not, from the Duffield's point of view, properly determined either in dimension or location and created difficulties in practice in obtaining access.
The plan was sealed by the Kingborough Council ("the Council") on 2 May 1988. However, the "as constructed" plan provided to the Council by the subdivider showed the "driveway" through the applicant's land (Lot 6) in the location sought to be used by the Duffields. A house was built on their land (Lot 7) in late 1988 and the "driveway" as shown on the "as constructed plan", used as the means of access. In July 2001, the then owner of Lot 6, who had become aware of the encroachment, requested the Duffields to cease using the disputed land, but took no further steps to enforce his claim. The applicant then purchased Lot 6 obtaining from the vendor a warranty that he had not entered into any agreement with the owner of Lot 7, granting an easement to the "driveway".
The claimed inadequacy of the permitted access was raised by the Duffields with the applicant, and following disagreement between the parties, the Duffields petitioned the Council in September 2002 to amend the sealed plan so as to widen the carriageway over the applicant's land (Lot 6) from 6.25m to 9.87m at the widest point. The applicant opposed the petition, advancing a number of grounds as reasons for the refusal of the petition. The Council granted the petition on 24 February 2003 and permitted the amendment to the sealed plan on condition that the Duffields paid compensation fixed in the sum of $2,000.
The applicant seeks review of that decision pursuant to the Judicial Review Act 2000. The Council chose not to appear on the hearing of the review and the Duffields successfully obtained leave to be joined as parties (Nation v Kingborough Council [2003] TASSC 85, 15 September 2003). On the hearing of this application, the parties agreed that the Court should first determine the questions of jurisdiction of the Council, permitted legislative powers and the requirement, if any, of the Council to take into account the equitable ownership by the applicant of the affected land.
The relevant grounds of the applications which are to be first determined are:
"1 The Respondent does not have jurisdiction to hear a petition pursuant to section 103 of the Local Government (Building and Miscellaneous provisions) Act 1993 to amend a plan that had been sealed under the Local Government Act 1962 or to make a decision in relation to that petition.
…
3) The decision involved an error of law in that:
a)the decision was made after a hearing that the Respondent did not have jurisdiction to conduct and was made outside the jurisdiction of the Respondent;
b)the plan was sealed under the Local Government Act 1962 and the Respondent does not have the jurisdiction to cause amendment of the plan;
…
e)the decision is an interference with the applicant's proprietary rights in her land, without her consent."
Decision and reasons
The petition was first referred to the Planning Committee of the Council which, on 4 February 2003, resolved:
"That it be recommended to Council that it cause the amendment to Sealed Plan 35422 to be made in accordance with the petition and that Mr Don Armstrong be instructed to prepare a draft written formal decision setting out the reasons, in accordance with the Committee's decision.
That it be recommended to Council that as a condition of causing the amendment to be made, Council require as a condition of so doing that the petitioners, Mr and Mrs G Duffield make compensation to the respondent, Ms J Nation, in the sum of $2,000.00."
At a subsequent meeting on 17 February 2003, the Committee resolved:
"That the report of the Manager Development Services be received and that the draft written formal decision document as prepared by legal advisor Mr Don Armstrong be approved and be provided to the parties as the reasons for the Council's decision."
The "decision document" attached to the resolution relevantly states:
"Ground 1
Whilst the heading to Division 5 of the Local Government (Building and Miscellaneous Provisions) Act 1993 refers to 'sealed plans', section 103 refers to 'when a plan has taken effect ...'. It is the committee's view that the reference to 'a plan' is sufficiently wide to refer to both a 'sealed plan' and a 'previously approved plan'. The committee notes that there was a similar provision in the now repealed Local Government Act 1962 and there is no apparent legislative intent or reason for precluding the more simple administrative process for amending plans from applying to those plans which were sealed prior to the commencement of the current Act.
Ground 2
Any jurisdiction which the Recorder of Titles may have under other legislation does not, in the committee's view, affect its own jurisdiction under the Local Government (Building and Miscellaneous Provisions) Act 1993.
Ground 3
Any jurisdiction which the Supreme Court may have under other legislation does not, in the committee's view, affect its own jurisdiction under the Local Government (Building and Miscellaneous Provisions) Act 1993.
Ground 4
In the committee's opinion, section 103 is not limited to the correction of errors. The section clearly contemplates the alteration of property interests as there is specific provision for compensation to be paid to any person who is injured by the amendment.
…Ground 7
These proceedings have nothing to do with a compulsory acquisition process under the Land Acquisition Act. It is inherent in the process of amending sealed plans that private property rights will be affected.
Ground 8
The committee accepts that neither it nor the Council has the power to decide upon any claim for an equitable right in the land. The Council's powers are limited to that set out in the provisions of the Act that are under consideration."
The Council adopted the recommendation and the formal decision document on 24 February 2003.
Jurisdiction and legislative power
The Council purported to exercise power provided by Parliament in its enactment of the Local Government (Building and Miscellaneous Provisions) Act 1993 ("the Act"), s103, which provides:
"103 ¾ (1) When a plan has taken effect, it may be amended by the council ¾
(a)of its own motion ¾
(i) to do anything that the council could do under any other power subject to any conditions precedent to the exercise of the power relied on; or
(ii) to bring the plan into conformity with any change in the rights and duties of land owners made under a statutory power; or
(b)on the application of any person having an interest in land subject to the plan.
(2) If a council acts on its own motion, it is to serve a notice in writing to all persons appearing by the registers under the Land Titles Act 1980 and the Registration of Deeds Act 1935 to have an estate or interest at law affected by the proposed amendment.
(3) A person is to ¾
(a)make an application under subsection (1) by petition; and
(b)serve a copy of the petition on all persons appearing by the registers under the Land Titles Act 1980 and the Registration of Deeds Act 1935 to have an estate or interest at law affected by the proposed amendment.
(4) Any person affected by the proposed amendment may ask to be heard in support or opposition.
(5) If a notice is not given or a petition is not served as required by this section, subsequent proceedings are not void."
A person adversely affected by an amendment to the sealed plan is afforded an entitlement to compensation by virtue of the Act, s105.
The applicant's primary contention is that the Act only applies to plans sealed in accordance with its own provisions and has no application to a plan sealed under the Local Government Act 1962 ("the 1962 Act").
Her general contention is:
(1)the scheme of the 1993 legislation itself confines its application to plans prepared and sealed in accordance with its provisions;
(2)the Land Titles Act 1980, s110, is the sole mechanism permitting alteration to a plan sealed under the Local Government Act 1962;
(3)the Council could not use the Act as a vehicle for the acquisition of the land.
The respondents contend that the purpose of the Act was to govern all land within a municipality and was a legislative device to cover land which was the subject of repealed legislation. The Act, s103, did no more than replicate the power afforded by the 1962 Act, s481, which relevantly provided:
"481 ¾ (1) When a plan has taken effect as provided by section 464 (21) it may be amended by the corporation ¾
(a) of its own motion ¾
(i) to do anything that the corporation could do under any other power, legislative or administrative, subject, however, to any conditions precedent to the exercise of the power relied on; or
(ii) to bring the plan into conformity with any change in the rights and duties of landowners made under a statutory power; or
(b) on the application of any person having an interest in land subject to or affected by the plan.
(2) Where ¾
(a) the corporation acts of its own motion, it shall give notice to; or
(b) another person applies to the corporation, he shall do so by petition, and a copy of the petition shall be served on,
all persons appearing by the registers under the Land Titles Act 1980 and the Registration of Deeds Act 1935 to have an estate or interest at law affected by the proposed amendment.
…
(7) Where the council resolves to cause an amendment it shall cause a request in writing, with or without a plan drawn by a registered surveyor, as the case may require, setting forth the amendment and addressed to the Recorder of Titles or the Registrar of Deeds, according to where the original sealed plan is registered, to be transmitted to the Commissioner.
(8) If the Commissioner approves the amendment he shall forward the request to its address, and if not he shall return it to the corporation."
The Commissioner referred to was the Town and Country Planning Commissioner appointed under the 1962 Act.
The Local Government Act 1993 ("the 1993 Act"), s350, (Sch9), repealed the 1962 Act. It differed from its predecessor by providing for a general scheme of governance and did not repeat particular areas of a technical nature, leaving them to complementary legislation such as the Act, both enactments receiving Royal Asset on the same day. The 1993 Act, Pt12, relevantly provides special powers affecting the purchase, acquisition and sale of property, which includes:
"175 ¾ A council may purchase land for any purpose which it considers to be of benefit to the council or the community.
176 ¾ A council may acquire land for prescribed purposes in accordance with the Land Acquisition Act 1993."
Transitional provisions
Transitional provisions governing the status of existing plans were provided for by Parliament in its enactment of the Local Government (Savings and Transitional) Amendment Regulations, 42 of 1994, which relevantly provide:
"4 ¾ (1) An application for approval of a proposal plan made under section 464(1) or 469(2) of the Local Government Act 1962 before 17 January 1994 but not granted before that date, is, on that date, an application for a permit under section 57 of the Land Use Planning and Approvals Act 1993.
…(6) A final plan lodged under section 464(9) or 469(6) of the Local Government Act 1962 before 17 January 1994 but which has not taken effect before that date, is, on that date, a final plan lodged under Division 3 of Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993."
Sealed Plan 35422 had, as of 23 December 1993, the date of Royal Assent of the Act, taken effect and was not thereby a deemed "final plan" within the meaning of the Act, Pt3, Div3.
Scope of the legislation
The Act, Pt3, provides generally for subdivisions and includes s103, the provision under consideration. It is the scheme of Pt3 upon which the applicant relies to show that power has not been afforded. Part 3, Div1, provides for the interpretation of the provisions relating to "subdivisions" generally. Section 80 defines a sealed plan as meaning:
" … means a plan which ¾
(a) has been approved and sealed under this Part; and
(b) has taken effect as provided in section 94"
whilst a "previously approved plan":
… "means a plan of subdivision sealed by the relevant council under the Local Government Act 1962."
Division 2 governs the approval or otherwise of subdivisions and in particular provides:
"81 ¾ (1) An owner of land must not subdivide the land except in accordance with ¾
(a)a previously approved plan; or
(b)a plan of subdivision which has been approved by the granting of a permit under the Land Use Planning and Approvals Act 1993."
A person possessing a plan already sealed is entitled to subdivide, but otherwise s81 does not deem such a plan to be a sealed plan within the meaning of the definition afforded by s80. For example, a plan already sealed would not afford a council to require the sale of portion of the land "for a nominal consideration" as a condition of approval in accordance with the Act, s83, nor be subject to rejection because of non-compliance with the requirements imposed by ss84 and 87.
Division 3 provides for final plans, their lodgement and approval. If approved:
"89 … the council is to ¾
(a)cause its seal to be affixed to the plan; and
(b)cause the sealed plan to be lodged in the office of the Recorder of Titles."
The Recorder may require amendment if he is satisfied as to a number of matters, which include:
"89 ¾ (5) …
(a)… the owner has not a sufficient title to dispose of all the land comprised in the plan; or
(b) …
(iii) is in part subject to a mortgage or encumbrance
(c)the execution of the plan is inconsistent with the proper administration of the Land Titles Act 1980 or this Part."
The last stated provision is relevant to the applicant's claim that her equitable interest is being affected without due process since her existing sealed plan is not subject to the scrutiny of the Recorder and accordingly cannot come within the province of the Act, s103. Division 3 then permits corrections, amendments and cancellation.
Division 4 provides for the effect of a sealed plan, dedication of land and highways, power of acquisition and easements. Relevantly it provides:
"94 ¾ (1) A final plan takes effect as a sealed plan when the Recorder of Titles signs and dates a memorandum on the plan that the plan is accepted ¾
(a) without requiring any amendment; or
(b) as a result of further discussion; or
(c) upon an order of the Supreme Court; or
(d) upon the making of an amendment agreed to by the owner and the council.
(3) Each copy of the sealed plan is to show the memorandum of acceptance."
In relation to easements, s99 provides:
"99 ¾ (1) When a sealed plan takes effect ¾
(a)the easements to be created in favour of the Crown or of any public or local authority constituted by or under any Act or appurtenant to a highway vest accordingly, except in the case of an easement to be appurtenant to a highway which vests upon the creation of the highway; and
(b)the other easements and the profits a prendre and covenants to be created come into being and continue as if created by the most effectual instruments made between proper parties and are not affected by ¾
(i) the unity of seisin of the lands having the burden and benefit of the easement or profit a prendre; or
(ii) identity of the parties to the covenant ¾
except that during such unity or identity they are in abeyance, to revive by force of this Part when it is broken or destroyed; and
(c)the Recorder of Titles may notify the existence of the easement, profit a prendre or covenant on the folio in respect of land ¾
(i) benefited by any easement or profit a prendre; or
(ii) burdened by any easement, profit a prendre or covenant.
(2) An easement that would have been set out in the schedule of easements to a sealed plan is not to be implied from anything appearing in the plan or in a copy of the plan incorporated in another instrument.
(3) If the schedule of easements to a sealed plan contains easements, profits a prendre and covenants which did not exist before the plan took effect and which affects land not comprised in the plan ¾
(a)the schedule is to be signed by the persons who between them are able to create them; and
(b)when the sealed plan takes effect those easements, profits a prendre and covenants are taken to have been created or made in the most effective manner by those persons."
The effect of Div4 is to permit the creation of new easements (s59(1)(b)), restrict their implication (s99(3)), and allow amendment through the consent of the owner (ss94(1)(d), (3), 99(3)(a) and (b)). It does not impact on a plan already sealed.
Division 5 permits amendment of sealed plans "s103(1) when a plan has taken effect" an event predicated by Div4 which has no import on a plan already sealed.
The scheme of Pt3 affords more extensive powers and greater flexibility to a council than did the 1962 legislation, whilst affording specific rights and protections to an existing owner. Here the owner was denied certain procedural and substantive rights since the process does not apply to her land already the subject of a "sealed plan". It is in this context that the scope and operation of Div5 must be considered.
The power of a council to amend of its own motion is restricted by the Act, s103:
"(i) to do anything that the council could do under any other power subject to any conditions precedent to the exercise of the power relied on; or
(ii)to bring the plan into conformity with any change in the rights and duties of land owners made under a statutory power."
Here there has been no change to the legal or equitable interest or rights of the applicant and the Council must look to powers afforded elsewhere (acquisition and the like) to achieve its purpose. It did not purport to do so. The Act, s103(1)(b), does not provide express restrictions on an amendment sought by "any person having an interest in the land subject to the plan". This deficiency, of itself, does not operate to deprive an owner of rights already possessed. It can operate to amend a sealed plan since the rights of an owner have already been protected by the procedural and substantive requirements which are a pre-condition to the approval of a sealed plan. None of those procedural or substantive rights were afforded the applicant.
The heading to Div5 is "Amendments of Sealed Plans" and the use of the word "plan" within s103 ought be interpreted in accordance with the heading (Acts Interpretation Act 1931, s24, Ragless v District Council of Prospect [1922] SASR 299). More fundamental to the question of interpretation is the use of the words "when a plan has taken effect" in the section, an event which can only accord with Divs3 and 4 which had no application to the applicant's land or to Sealed Plan 35422.
Accepting this approach, the conclusion is that the scheme of the 1993 legislation was not intended to equate a plan already sealed with one which has come into existence through the operation of Pt3. A "previously approved plan" is not a sealed plan for the purpose of Div5. The approach is consistent with that taken by the High Court in Craig v South Australia (1995) 184 CLR 163 when the Court said, at 179:
"At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In re Racal Communications Ltd [1981] AC 374 at 383:
'Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.'
The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
Equitable interest
The above analysis is consistent with the second argument advanced by the applicant. The Land Titles Act, s39, provides:
"(2) … a folio of the Register is conclusive evidence that ¾
(a)the person named in the folio as registered proprietor of or as taking an estate or interest in the land described in the folio is entitled to that land for that estate or interest."
Section 40 relevantly states:
"(1) For the purposes of this section 'indefeasible', in relation to the title of a registered proprietor of land, means subject only to such estates and interests as are recorded on the folio of the Register or registered dealing evidencing title to the land.
(2) Subject to subsection (3) and (4), the title of a registered proprietor of land is indefeasible."
The Land Titles Act, s109(3) requires:
"(3) An easement or profit à prendre comprised in a sealed plan lodged under Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 is to be dealt with under Division 5 of that Part."
This requirement differs from that provided for by s110 which maintains a distinction between a previously approved plan and one more in accordance with the Act, Pt3 and provides a different basis for amendment. The section states:
"110 ¾ (1) In this section, 'plan of subdivision' includes ¾
(a) a previously approved plan within the meaning of section 80 of the Local Government (Building and Miscellaneous Provisions) Act 1993; and
(b) a plan of subdivision that does not require the approval of the corporation under that Act.
(2) The Recorder may, with the consent of all persons having registered estates or interests in the land shown in a plan of subdivision comprising land which is under this Act or which he proposes to bring under this Act, make an order setting forth in respect of each lot or other piece of land shown in the plan –
(a) the easements and profits à prendre to be appurtenant to the lot or other piece of land or to which it is to be subject; and
(b) the benefit or burden of the covenants which are to run with the lot or other piece of land.
(3) Where some but not all the lots or other pieces shown in the plan are to be affected, the Recorder may make an order referred to in subsection (2) with the consent of all persons having registered estates or interests in the lots or other pieces which are to be affected by the order.
(4) The Recorder may, of his own motion or on the application of any person interested, give notice in accordance with subsection (6) that he proposes to make an order referred to in subsection (2).
(5) Without limiting subsection (4), the Recorder may act as provided in that subsection in any case in which the plan shows the position of drainage easements but where ¾
(a) easements have not been granted to the purchasers of lots; or
(b) in the opinion of the Recorder, the easements granted by registered assurances of lots shown in the plan are not in accordance with a reasonable scheme of easements for the subdivision.
…
8) The Recorder shall not give effect to an order made under subsection (7)(b)(ii) before the expiration of 30 days from the making of that order, and during that period a person affected by the order may appeal to the Supreme Court which may ¾
(a) stay proceedings on the order wholly or in part;
(b) quash or vary the order; or
(c) make any order that the Recorder might have made."
The Recorder's powers differ from those claimed by the Council and, absent the consent of a registered proprietor, are circumscribed by the effect of s40.
The Land Titles Act recognises the distinction of a "sealed" and a "previously approved" plan and accommodates the existing rights of a registered proprietor. Here the applicant held legal and equitable rights in land. The council accepted that it had no power to "decide any claim for an equitable right in the land" and stated that its decision had "nothing to do with a compulsory acquisition process". Those disclaimers are weakened by its adoption of the committee's reasons for decision, which state, at 4:
"… the committee considers that it is not to decide this matter by reference to legal or equitable rights but to make its decision on the petition as a matter of what is fair and reasonable in all the circumstances. In this process, it is appropriate to consider the relative advantages and disadvantages to the petitioner and the respondent."
The remedy sought by the Duffields was equitable in nature and not one of modification of a boundary line or the facilitation of drainage and the like. They sought the use of planning law to rectify what they perceived to be a difficulty caused by an earlier mistake by the Council and the original subdivider. That they sought the assistance of the Council is understandable, but the Council, as an administrative body, was not entitled to exercise a power such as that possessed by the Supreme Court exercising its equitable jurisdiction as provided by the Conveyancing and Law of Property Act 1884, s84J. That section provides:
"84J ¾ (1) Subject to this section, where the Supreme Court is satisfied that to facilitate the reasonable user of any land (in this section referred to as 'the dominant land') for some public or private purpose it is consistent with the public interest that a statutory right of user should be created over other land (in this section referred to as 'the servient land') it may, by order, impose upon the servient land, or on the owner for the time being thereof, an obligation of user or an obligation to permit the user of that land in accordance with the order.
(2) A statutory right of user imposed under this section shall take the form of an easement, licence, or other right that may be created by act of the owners of the dominant land and the servient land or any of them.
(3) An order shall not be made under this section unless the Court is satisfied that the owner of the servient land can be adequately compensated in money for any loss or disadvantage that he may suffer from the operation of the order.
(4) An order under this section, unless the Court for special reasons determines otherwise, shall include provision for the payment by the applicant to such person or persons as may be specified in the order of such amount by way of compensation or consideration as in the circumstances appears to the Court to be just.
(5) An order under this section is binding, to the extent the order provides, on all persons, whether of full age or capacity or not, then entitled or thereafter becoming entitled to the servient land or the dominant land, whether or not those persons were parties to, or had notice of, the proceedings on the order."
Parliament recognised the interrelationship between the equitable remedy afforded by a superior court and the planning requirements of a council by its amendment to the legislation by Act 3 of 1978, which provided:
"(7) A statutory right of user that affects any land within a plan of subdivision shall not be created under this section if it could have been created by that plan or an amendment thereof."
The subsection was amended (Act 4 of 2001, s21) by the substitution of :
"(7) A statutory right of user that affects any land within a plan of subdivision may not be created under this section unless ¾
(a)the applicant produces a certificate from the relevant council to the effect that the application does not contravene Division 3 of Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993; or
(b)the Court is otherwise satisfied that there is no such contravention."
Had Parliament intended the transfer of jurisdiction to a council, it need not have enacted s84J in 1998, nor modified the section to accommodate the Act, Pt3, Div3. The Council was not entitled to afford itself jurisdiction by placing a wrong construction upon a statute upon which its own jurisdiction depends (R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598; Attorney-General v Estcourt and the Wilderness Society Inc (1995) 4 Tas R 355). It was not entitled to ignore the equitable or legal rights of the applicant in its use of a statutory power afforded for the purpose of proper and orderly planning.
The Council was, in effect, purporting to decide on the alteration of title to land by the application of equitable principles. Absent clear legislative power, it had no right to so do. Its manner of assessing compensation illustrates the reality of its exercise of power. The terms of the original subdivision were stated by the Municipal Planner of the Council in his letter of 2 July 1987. In his letter of 9 July 2002, the Development Engineer of the Council advised the Duffields that:
"The fact that you and previous owners of Lot 7 have had unencumbered use of the driveway since that time surely indicates that you have a legal claim to continue to enjoy that use."
The land sought to be encumbered comprises some 18.77 square metres, the value of which was assessed by a valuer retained by the Duffields as having a compensatory value of $1,000. A valuation report prepared for the applicant indicated that:
"The proposal extends the existing right of way (private) by a further approximate 38 sqm to create a right of way (private) now equating to an area of approximately 141 sqm which in practical terms means that 18.3% of the site will be affected by the proposed right of way (private). The land area of the lot comprising 770 sqm is reduced to an effective area of approximately 629 sqm"
and concluded the appropriate compensation to be $7,000.
The Committee determined that:
"— The respondent initially contracted to purchase lot 6 for $65,000. After the respondent obtained a check survey and sought further answers to requisitions, the problem of the constructed driveway being partially outside of the legal right‑of‑way emerged and, as a result, the respondent entered into a new contract to purchase lot 6 for $61,000.
· That second contract inducted a clause wherein the vendor warranted that he had not entered into any agreement with the owners of lot 7 that would amount to the granting of an easement to use any portion of lot 6 outside of the registered right of carriageway."
It rejected the initial assessment of the valuer retained by the applicant and assessed compensation in the sum of $2,000. There may be coincidence, but allowing for a mistake by the valuer in his calculations, the sum assessed approximates with the difference between the initial valuation and the lesser price paid by the applicant in the second contract following discovery of the access difficulty. Irrespective of coincidence, the methodology employed by the Committee, adopted by the Council was that of determining competing equities. The exercise was not that of modification but of acquisition for the benefit of an adjoining landowner. No public right was created, and the applicant's land was burdened by an easement. Even if the Council was acting within power, it was not entitled to act without regard to the legal and equitable estate of the applicant. It was required once the equitable interest of the applicant was identified and recognised to have regard to the legislative requirements of the Land Titles Act.
That analysis supports the conclusion reached through statutory interpretation that Parliament did not intend through its enactment of the 1993 legislation to abrogate existing rights by equating a title previously sealed with one obtained through the operation of the Act, Pt3.
Conclusion
Grounds 1, 3(a), (b) and (e) are made out.
Orders
The decision of the Kingborough Council amending Sealed Plan 35422 is quashed with effect from 24 February 2003.
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