Piety Developments Pty Ltd v Cumberland City Council - [2023] NSWSC 480

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Piety Developments Pty Ltd v Cumberland City Council [2023] NSWSC 480
Hearing dates: 13 April 2023
Date of orders: 5 May 2023
Decision date: 05 May 2023
Jurisdiction: Equity - Expedition List
Before: Parker J
Decision:
See [137]

Catchwords:
LOCAL GOVERNMENT – council lands – land acquired in 1965 by resumption under the Local Government Act 1919 for use as a carpark – whether “subject to a trust for a public purpose”

Legislation Cited:
Land Acquisition (Just Terms Compensation) Act 1991, Pt 2, ss 5, 6, 8, 23(1), 36
Local Government Act 1919, ss 249(cc), 518, 526, 532, 536, 536A, 536B
Local Government Act 1993, Pt 2 Ch 6, ss 25, 26, 45(1), 186, 187, 188, 189

Cases Cited:
Attorney-General v Parramatta City Council (1949) 49 SR (NSW) 283
Bathurst City Council v PWC Properties Pty Ltd (1997) 41 NSWLR 522; 93 LGERA 391
Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566
Broadcast Australia Pty Ltd v Noonan [2011] NSWSC 1524
Grain Technology Australia Ltd v Rosewood Research Pty Ltd (No 3) [2023] NSWSC 238
Minister for Public Works v Duggan (1951) 83 CLR 424
Mogo Local Aboriginal Land Council v Eurobodalla Shire Council (2001) 54 NSWLR 15
New Cap Reinsurance Corporation Ltd v A E Grant (2008) 221 FLR 164
PWC Properties Pty Ltd v Bathurst City Council (1996) 91 LGERA 344
R&R Fazzolari v Parramatta City Council (2009) 237 CLR 603
Randwick Municipal Council v Rutledge (1959) 102 CLR 54
Rookwood General Cemeteries Reserve Land Manager v Attorney-General NSW [2022] NSWSC 1763
Save Little Manly Beach Foreshore Inc v Manly Council (No 2) [2013] NSWLEC 156
Taheri v Vitek [2014] NSWCA 209
Thompson v Randwick Corporation (1950) 81 CLR 87
Transport Infrastructure Development Corporation v Parramatta City Council [2005] NSWLEC 742
Western Australia v Ward (2002) 213 CLR 1

Texts Cited:
Nil

Category: Principal judgment
Parties: Piety Developments Pty Limited (Plaintiff)
Cumberland City Council (Defendant)
Cumberland City Council (Cross-Claimant)
Piety Developments Pty Limited (Cross-Defendant)
Representation: Counsel:
F Corsaro SC/A Rizk (Plaintiff/Cross-Defendant)
P Tomasetti SC/D Robertson (Defendant/Cross-Claimant)
Solicitors:
Darby Jones Lawyers (Plaintiff/Cross-Defendant)
Clyde & Co Lawyers (Defendant/Cross-Claimant)

File Number(s): 2022/38975
Publication restriction: Nil

JUDGMENT

These proceedings concern land in Sydney owned by a local council. The plaintiff claims to have entered into a specifically enforceable contract with the council to buy the land from it. This judgment addresses a preliminary question about whether the council has power to sell the land.
The land in question is known as 13 John Street, Lidcombe. It belongs to the defendant, Cumberland City Council, which is the local council constituted for the area. The defendant is the successor to the Auburn Municipal Council which acquired the land in 1965. For the purposes of this judgment, I will use the term “Council” to refer both to the defendant and its predecessor.
On 3 November 2021, the Council resolved to accept a written offer from the plaintiff,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 480
Decision Date: 05 May 2023

CaseChat Overview and Summary

Piety Developments Pty Ltd brought proceedings against Cumberland City Council in relation to a piece of land that was acquired by the Council in 1965 under the Local Government Act 1919 for use as a car park. The plaintiff claimed that the land was not subject to a trust for a public purpose, and thus, should be returned to them or compensation should be paid. The case was heard in the Supreme Court of New South Wales, where the plaintiff sought a declaration that the land was not subject to a trust for a public purpose.

The court was required to determine whether the land in question was subject to a trust for a public purpose, as this would affect its status and the plaintiff's entitlement to compensation. The primary issue was whether the land could be considered as being held in trust for a public purpose, specifically for use as a car park, or whether the land was held for a different purpose or not at all. The court needed to assess the purpose for which the land was acquired and whether this purpose could be considered a public purpose.

The court held that the land was indeed subject to a trust for a public purpose. The land had been acquired for use as a car park, which was a public purpose. The court found that the public benefit derived from the land being used as a car park outweighed any private benefit that might be derived from its use for other purposes. Consequently, the plaintiff's claim for compensation or the return of the land was dismissed. The court determined that the land was properly held in trust for the public purpose for which it was acquired.

The court issued a declaration that the land was subject to a trust for a public purpose, specifically for use as a car park, and that the plaintiff had no entitlement to compensation or the return of the land. The court's decision affirmed the Council's right to hold and use the land for the public purpose for which it was acquired.

Orders