Roads and Maritime Services v Rockdale City Council

[2015] NSWSC 1844

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Roads and Maritime Services v Rockdale City Council & Ors [2015] NSWSC 1844

Hearing dates:

12, 13 and 17 November 2015

Decision date:

04 December 2015

Jurisdiction:

Equity

Before:

Black J

Decision:

Stand over the proceedings for a short time to allow the parties an opportunity to make submissions as to the form of any declaratory orders that should now be made and to allow the Council an opportunity to give effect to the trusts or give appropriate undertakings.

Catchwords:

EQUITY – trusts and trustees – purpose trusts – where trustee was a local council – where council held land or parts of it on trust for a county road and other purposes – where condition of trusts was that council transfer land or parts of it required for a county road to named body when requested at no cost – where Plaintiff sought transfer of the parcels of land that it ‘required’ for the construction of a road – whether council required to transfer only that part of land that was previously ‘reserved’ or that part of land which was now ‘required’ to the Plaintiff under the terms of the trusts – whether use for a road encompassed ancillary requirements for the construction of the road.

 

LOCAL GOVERNMENT – regulation and administration – ordinances, regulations, by-laws and local laws – where council held parcels of land on trust for particular purposes – whether obligations arising under the trusts were affected by Local Government Act 1993 (NSW) – application of County of Cumberland Planning Scheme Ordinance

 

CHARITIES – charitable purposes – other purposes beneficial to public – where council held land on trust for road purposes and for the purposes of a public park, reserve or recreation area – whether trusts created for purposes of roads and road works are charitable trusts – whether trusts created for purposes of parks and public reserves are charitable trusts – whether trust purposes impractical or impossible – whether to order cy-pres scheme

  WORDS AND PHRASES – ‘required’ – ‘reserved’ – ‘road purposes’ – ‘purposes of a road’.

Legislation Cited:

- Charitable Trusts Act 1993 (NSW) ss 6, 9, 11
- Environmental Planning and Assessment Act 1979 (NSW) ss 9(1), 11(1), 11(4), 11(6)
- Environmental Protection and Biodiversity Conservation Act 1999 (Cth)
- Interpretation Act 1987 (NSW) ss 5(2), 21, 30, 30(1),
Lands Acquisition Act 1906 (Cth)
- Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
- Local Government Act 1993 (NSW) Ch 6 Pt 2 Div 2; ss 6, 8, 22, 23, 26, 29, 30, 31(3), 35, 36, 36(3A), 36(4), 36F, 36I, 37, 37(b), 37(d), 38, 40, 40A, 42, 43, 45, 45(1), 45(2), 46, 46(1), 46(2), 46(4), 47, 47A, 47D, 47F, 49, 186(3), 220, 674(1); sch 7 cll 2(1), 3, 3(2), 6, 6(2)
- Local Government Act 1919 (NSW) Pt XXIV Divs 3, 6; ss 518, 518(2), 519, 526, 529
- Local Government (Consequential Provisions) Act 1993 (NSW)
- Roads Act 1993 (NSW) s 178(1)
- Statute of Charitable Uses 1601
- Transport Administration Act 1988 (NSW) s 46
- Trustee Act 1925 (NSW) ss 6

  - Rockdale Local Environment Plan 2000
- Rockdale Local Environmental Plan 2011
- Sydney Regional Environment Plan No 33 – Cooks Cove
- Local Government (General) Regulations 2005 (NSW) Pt 4 Div 1; regs 101, 103

Cases Cited:

- ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 308 ALR 213
- Athletics Association (SA) Inc (Intervener) (1999) 76 LGRA 226
- Attorney General v Day [1900] 1 Ch 31
- Attorney-General (NSW) v Fulham [2002] NSWSC 629
- Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
- Bathurst City Council v PwC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566
- Berry v Wong [2000] NSWSC 1002
- Black Uhlans Inc v NSW Crime Commission [2002] NSWSC 1060; (2002) 12 BPR 22,421
- Brisbane City Council v Attorney-General (Qld) [1979] AC 411
- Bull v Attorney-General (NSW) (1913) 17 CLR 370
- Burnside City Council v Attorney-General (SA) [No 2]; Athletics Association (SA) Inc (Intervener) (1999) 76 LGRA 226
- Carantinos v Magafas [2008] NSWCA 304
- Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 11; (2013) 247 CLR 149
- City of Burnside v Attorney-General (1993) 61 SASR 107
- Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493
- Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1
- Council of the Shire of Sarina v Dalrymple Bay Coal Terminal P/L [2001] QCA 146
- Dobrijevic v Free Serbian Orthodox Church [2015] NSWSC 637
- Fitzgerald v Masters (1956) 95 CLR 420
- IW v The City of Perth (1997) 191 CLR 1
- Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150
- Ku-ring-gai Municipal Council v The Attorney-General (1954) 55 SR (NSW) 65
- Labracon Pty Ltd v Cuturich [2013] NSWSC 97
- Mareen Development Pty Ltd v Brisbane City Council [1972] Qd R 203
- Marshall v Director General Department of Transport [2001] HCA 37; (2001) 205 CLR 603
- Monds v Stackhouse (1948) 77 CLR 232
- NSW Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685
- Queensland Premier Mines Pty Ltd v French [2007] HCA 53; (2007) 235 CLR 81
- Re Hadden [1932] 1 Ch 133
- Re Morgan [1955] 2 All ER 632
- Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45
- Ryde Municipal Council v Macquarie University (1978) 139 CLR 633
- Save Little Manly Beach Foreshore Inc v Manly Council (No 2) [2013] NSWLEC 156
- Special Commissioners of Income Tax v Pemsel [1891] AC 531
- Telstra Corporation Ltd v Port Stephens Council [2015] NSWLEC 1053
- Tempe Recreation Reserve Trust v Sydney Water Corporation [2014] NSWCA 437; (2014) 88 NSWLR 449
- Valuer General v Fivex Pty Ltd [2015] NSWCA 53
- Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
- Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528
- Willoughby City Council v Roads and Maritime Services [2014] NSWLEC 6; (2014) 201 LGERA 177
- Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589

Texts Cited:

- J D Heydon & M J Leeming, Jacobs’ Law of Trusts in Australia, (7th ed, 2006, LexisNexis Butterworths)
- G E Dal Pont, The Law of Charity, (2010, LexisNexis Butterworths)
- DC Pearce and R S Geddes, Statutory Interpretation in Australia, (8th ed, 2014, LexisNexis Butterworths)
- Shorter Oxford English Dictionary 2007

Category:

Principal judgment

Parties:

Roads and Maritime Services (Plaintiff)
Rockdale City Council (First Defendant)
Attorney General for New South Wales (Second Defendant)
Minister administering the Environmental Planning and Assessment Act 1979 (Third Defendant)
Kogarah Golf Club Limited (Fourth Defendant)

Representation:

Counsel:
R Lancaster SC/P M Lane (Plaintiff)
I Hemmings SC/P Newton (First Defendant)
C Mantziaris/S Cominos (Second Defendant)
T To (Fourth Defendant)

  Solicitors:
Minter Ellison (Plaintiff)
HWL Ebsworth (First Defendant)
Crown Solicitors Office (Second Defendant)
Beatty Legal (Fourth Defendant)

File Number(s):

2015/240470

Judgment

The parties and the subject matter of the proceedings

1. These proceedings concern issues as to the acquisition of certain land for the purpose of the widening of Marsh Street, Arncliffe, and for construction facilities and other facilities in respect of the proposed extension of the M5 motorway (“New M5 Project”).

2. The Plaintiff, Roads and Maritime Services (“RMS”) is a statutory corporation constituted by s 46 of the Transport Administration Act 1988 (NSW), and is the successor to the Roads and Traffic Authority, which in turn succeeded the Commissioner for Main Roads. The First Defendant, Rockdale City Council (“Council”), is a body politic of the State with perpetual succession under s 220 of the Local Government Act 1993 (NSW) (“LGA 1993”) and is the successor to the Council of the Municipality of Rockdale. The Second Defendant, the Attorney General for New South Wales exercises functions under the Charitable Trusts Act 1993 (NSW) (“Charitable Trusts Act”) in the enforcement of trusts for a charitable purpose and is the protector of charities and is joined to the proceedings in that capacity. With some exceptions in respect of factual disputes, the Attorney General largely adopts the submissions of RMS, and directs her submissions specifically to matters concerning two trusts that are in issue in the proceedings. The Third Defendant, the Minister administering the Environmental Planning and Assessment Act 1979 (NSW) (“EPA Act”), is the successor to the assets, rights and liabilities of Cumberland County Council, which was in turn constituted under the Local Government Act 1919 (NSW) (“LGA 1919”) on 27 June 1951. The Minister did not take an active role in the proceedings. The Fourth Defendant, Kogarah Golf Club Ltd (“Club”) operates a golf course partly on the land that is in issue in the proceedings.

3. The first parcel of land in issue is Lot 14 in DP 213314 located at 19 Marsh Street, Arncliffe (“Lot 14”), which is situated to the south east of Marsh Street and to the north east of Marsh Street, and is partly traversed by the existing corridor of Marsh Street, and is over 8 acres in area. The Council is the registered proprietor of that land, which it acquired on the terms of a deed dated 30 October 1957 (“Deed”) between the Commonwealth of Australia, Cumberland County Council and the Commissioner for Main Roads, a predecessor to RMS. The Club has occupied Lot 14 since at least 1961 and it comprises part of the Kogarah golf course. The second parcel of land in issue in the proceedings is Lot 1 in DP 108492 located at 13 Marsh Street, Arncliffe (“Lot 1”), which comprises land to the south east of Marsh Street and to the north west of Marsh Street near Valda Avenue, and has an area in excess of 29 acres. A small part is traversed by the existing corridor of Marsh Street, although this is not identified as being part of the land the subject of RMS’s claim. The Council is also the registered proprietor of that land, subject to a declaration of trust made on 14 April 1958 (“Declaration of Trust”). Part of Lot 1 to the south east of Marsh Street is also occupied by the Club and also comprises part of the Kogarah golf course.

4. As I noted above, the proceedings relate, in broad terms, to whether the Council is required, by the terms of the Deed and the Declaration of Trust, to transfer parts of these two parcels of land to RMS for use as a temporary works compound, and a smaller area for permanent use, in respect of the New M5 Project and a proposal for the widening of Marsh Street, Arncliffe, to provide three continuous westbound lanes. The New M5 Project in turn involves the design and construction of approximately 33 km of multi-lane roads to expand and link the M4 Western Motorway and the M5 South West Motorway. It is common ground that these works include the construction of a new, tolled multi-lane road link between the M5 East Motorway east of King Georges Road and St Peters, including twin motorway tunnels of approximately 9km in length and accommodating up to three lanes of traffic each, an interchange at St Peters and connection to the existing road network. Before the New M5 Project can proceed, it must be assessed and approved under the EPA Act and the Environmental Protection and Biodiversity Conservation Act 1999 (Cth). When the proceedings were heard in mid-November 2015, an Environmental Impact Statement for the New M5 Project was being prepared, an application for the approval of the New M5 Project had not yet been made and a contract for the design and construction of the New M5 Project has not yet been awarded (Reynolds 30.10.15 [20]–[24]).

5. By its Further Amended Summons filed on 25 September 2015 and its Amended Statement of Claim filed on 25 September 2015, RMS seeks orders that the Council make available certain land at Arncliffe to RMS, at no cost, for (or, arguably, to facilitate) road works under the terms of a Deed and a Declaration of Trust, to which I will refer below. Specifically, in paragraphs 1 and 2 of the relief claimed in the Amended Statement of Claim, RMS claims, first, declarations that, on the proper construction of the Deed, the Council must make available to RMS, at no cost to RMS, the land in Lot 14 and, on the proper construction of the Declaration of Trust, the Council must make available to RMS, at no cost to RMS, the land in Lot 1. In paragraph 3 of the relief claimed, RMS seeks an order that the Council do all things necessary to give RMS possession of Lot 1 and Lot 14, or such part of the said lots as RMS has required or shall require, for the period of 4 years and 11 months from the date of the order or for such other period as the court determines.

6. In the alternative to the declarations and orders sought in paragraphs 1–3 of the relief claimed in the Amended Statement of Claim, RMS seeks orders, if and to the extent that Lot 14 and Lot 1 is held on a charitable trust for the purposes stated in the Deed and the Declaration of Trust respectively, for an administrative scheme or in the alternative a cy-pres scheme, by which the land in Lot 14 and Lot 1 is to be made available to RMS at no cost. RMS seeks that relief on the basis that the trusts in question are charitable trusts, and the Attorney General has approved the commencement of the proceedings pursuant to s 6 of the Charitable Trusts Act in that regard. RMS also seeks further relief specified in paragraphs 6-10 of the Amended Statement of Claim.

7. There is a degree of urgency in the proceedings, arising from their context in respect of a proposed acquisition of land that needs to be completed prior to the commencement of construction works on the New M5 Project, and where the determination of the proceedings may determine the manner in which that acquisition proceeds. As will emerge below, Counsel for all parties advanced a range of relatively complex arguments and alternative arguments, and also addressed issues that would only arise if their primary positions were not accepted. There was also a degree of movement in the positions adopted by the parties between their pleadings, their opening written submissions and their oral submissions. I have sought to address the several versions of such positions where necessary, although that will involve a degree of repetition in referring to the parties’ submissions below, since it is sometimes necessary to refer to several submissions which ultimately seem to be different ways of putting substantially the same point. I have largely sought to decide only those issues that need to be decided to determine the matter, so that this judgment could be delivered relatively promptly, rather than delaying it to address peripheral issues in a manner that might have deprived it of utility in determining the dispute between the parties within the time in which it needed to be determined in its practical context. The parties, helpfully, agreed certain background facts between them and I have drawn upon their statement of agreed facts in dealing with the issues in dispute below.

The legislative background

8. It will be necessary to refer to several aspects of the legislative regime governing roads and local government in dealing with the issues in dispute below and I should now identify the relevant instruments and their terms.

9. It appears that Lot 14 and Lot 1 were transferred to Council pursuant to s 526 of the LGA 1919 which provides that a council may accept and hold any real or personal property conveyed to it for any charitable or public purpose, and act in the administration of such property for the purposes and according to the trusts for which the same may have been conveyed. The Deed and Declaration of Trust in turn refer to the Cumberland County Council Planning Scheme Ordinance (“CCPSO”). The CCPSO came into force on 27 June 1951 and defined (in cl 3) the term “County road” to mean:

“any road indicated on the scheme map as land shown white between black lines or shown broken white between broken black lines irrespective of whether such road is a main road within the meaning of the Main Roads Acts, 1924-1950”.

The Council takes the point in these proceedings, as I will note below, that the relevant trusts are limited only to the roads as marked on the relevant scheme map. Mr Hemmings, who appears with Mr Newton for the Council, made clear, in oral submissions (T20) that Council does not take a further and separate point that the relevant road is not a “County road” within the meaning of the CCPSO, or as to the subsequent repeal of the CCPSO.

10. The CCPSO also provided, in cl 5, that the Cumberland County Council was the responsible authority and was charged with the functions of carrying into effect and enforcing the provisions of the CCPSO relating to reservation of and restrictions on use of certain land under Part II. The CCPSO provided, in cl 10, that land indicated on the scheme map shown broken white between broken black lines and all land shown white between black lines was reserved for the purposes of a new County road and widening of an existing County road. The parties agree that the scheme map associated with the CCPSO shows a corridor in white between broken black lines on parts of Lot 14 and Lot 1. The CCPSO also provided, in cl 10, that land indicated on the scheme map shown in dark green was reserved for the purpose of parks and recreation areas. The parties agree that the scheme map associated with the CCPSO shows parts of Lot 14 and Lot 1, not being those parts indicated as land reserved for a County road, in areas coloured dark green reserved for parks and recreation areas.

11. It is also necessary to have regard to the LGA 1993. It is common ground that, from the commencement of the LGA 1993 on 1 July 1993, Lot 1 and Lot 14 were each taken to have been classified as community land for the purposes of Part 2 of Chapter 6 of the LGA 1993, pursuant to cl 6 of Sch 7 of the LGA 1993, because they were each subject to a trust for a public purpose. The parties also agree that the Declaration of Trust relating to Lot 1 and the Deed relating to Lot 14 and the consequential trusts continue to have effect despite the commencement of the LGA 1993.

12. It is common ground that the Council has not adopted a plan of management for Lots 1 and 14 under the LGA 1993. However, on 21 October 2015, the Council passed a resolution to exhibit a draft plan of management (Ex P3, tabs 26–27) for all community land within the local government area, including Lot 1 and Lot 14 which would, if adopted, categorise each lot as a sports ground, excluding part of Lot 1 comprising part of Valda Avenue Reserve which would, if the draft plan of management were adopted, be categorised as a park (Ex P3, pp 736, 796 and 802). The future permitted purposes of Lot 1 and Lot 14 comprising the Kogarah Golf Course are noted in the draft plan of management as being "subject to review in conjunction with priority precinct planning" (Ex P3 p 774).

13. It is also common ground that, on 25 August 2000, the Rockdale Local Environment Plan 2000 (“RLEP”) was gazetted and took effect. Lot 1 and Lot 14 were zoned, in part, as Zone 7(c) – Transport Reservation under the RLEP. It is also common ground that, on 25 June 2004, the Sydney Regional Environmental Plan No 33 – Cooks Cove (“SREP 33”) was gazetted and took effect in respect of land at Cooks Cove, Arncliffe, as identified in the zoning map, and repealed RLEP to the extent that it applied to land to which SREP 33 applies. Lot 1 and Lot 14 are zoned, in part, Special Uses Zone under SREP 33 and parts of Lot 1 and Lot 14 are zoned Trade and Technology and Open Space under SREP 33. It is common ground that cl 11 of SREP 33 provides that the objectives of the Special Uses Zone are to accommodate existing special uses, including the M5 corridor and to provide for the development of a transport corridor by the then Roads and Traffic Authority or for other public transport infrastructure; the objectives of the Trade and Technology Zone are to encourage specified economic activity and to provide facilities for the workforce by allowing a limited range of ancillary, retail and recreational uses that are ancillary and provide support to the dominant functions within the zone; and the objectives of the Open Space Zone include providing for active sporting and recreational land uses and club facilities and other matters.

The affidavit evidence

14. RMS relies on the affidavits of Mr Simon Ball sworn 17 August 2015, 10 September 2015 and 30 October 2015; Mr Glenn McDiarmid sworn 9 September 2015, 3 November 2015 and 16 November 2015; and Mr Kenneth Reynolds sworn 30 October 2015. Mr Ball’s first affidavit dated 17 August 2015 referred to and annexed correspondence between RMS, Westconnex Delivery Authority (“WDA”) and the Council in relation to RMS’s requirement for part of Lot 1 and part of Lot 14. Mr Ball also refers to the urgency involved in the proceedings as to the validity of that requirement, where an alternative to the exercise of RMS’s claimed rights under the trusts is a compulsory acquisition of the land, and any compulsory acquisition notice would need to be published in the NSW Government Gazette by December 2015, if RMS is to acquire vacant possession of the land by the date it requires it, 31 March 2016 (Ball 17.8.15 [19]). There is also evidence that major works associated with the New M5 Project are scheduled to commence on the required land by mid-2016 and that the New M5 Project is projected to be open to traffic in late 2019 (Ex P2, tab 7). Mr Ball’s further affidavit dated 10 September 2015 refers to the steps which had been taken to source planning maps relating to the CCPSO and to further correspondence with the Council in respect of RMS’s requirement for the land. Mr Ball’s third affidavit dated 30 October 2015 refers to further correspondence with Council’s solicitors in respect of RMS’s requirement for the land.

15. The affidavits of Mr McDiarmid are directed to identifying the extent to which the required land, which has varied in the period prior to the proceedings, overlaps with Lots 1 and 14 and the reservations of land for County road purposes under the CCPSO.

16. The affidavit of Mr Reynolds, who is Project Director for the New M5 Project, related to the program of works for, inter alia, the New M5 Project and identified the extent to which RMS sought to require land for that project and for the road widening works at Marsh Street. That affidavit described the works involved in the New M5 Project, and also referred to the steps which were being taken for assessment and approval of the project under the EPA Act and the Environmental Protection and Biodiversity Conservation Act 1999 (Cth), if required. Mr Reynolds’ affidavit also set out the proposed use of the land required from Lot 14 and Lot 1 for the New M5 Project, and indicated that the boundaries of the footprint of the land required were now fixed, although the layout of road works and traffic control works within that footprint were subject to change depending on operational requirements and conditions of approval. That affidavit also set out the facilities which were proposed to be constructed on the land, to which I will refer below. Mr Reynolds also referred to the works to be done in widening Marsh Street, although Mr Hemmings pointed out that Mr Reynolds was not directly responsible for the Marsh Street work. An email from the Principal Manager Infrastructure Property of RMS to Mr Reynolds (Ex P2, tab 14) in turn indicates that RMS would require exclusive possession of part of the land on a temporary basis, under the terms of a lease which permitted its use for:

“The carrying out of road work, traffic control work (as those expressions are defined by the Roads Act 1993 (NSW)), including but not limited to all ancillary works such as excavation, stockpiling, laying down, testing, removing and fencing, and any other work necessary or desirable to be carried out in connection with the New M5 Project and Marsh Street widening works.”

Whether the whole or only part of Lot 14 is subject to the trusts for a County road created by the Deed

17. The first question in the proceedings is the content of the obligations upon the Council in respect of Lot 14, and also Lot 1 which I will address below. RMS pleads that the terms of the Deed provided for Lot 14 to be required for a County road (Amended Statement of Claim [13]); that it was a condition of the vesting of Lot 14 in the Council that the Council would make available Lot 14, when required for a County road, on request by RMS as the successor of the Commissioner of Main Roads (Amended Statement of Claim [14]); and also pleads that it is a term of the Deed that Lot 14 (in whole or in part) be made available without cost to RMS on request (Amended Statement of Claim [52]).

18. On 11 September 1947, the Commonwealth of Australia compulsorily acquired Lot 14 under the Lands Acquisition Act 1906 (Cth). On 30 October 1957, the Commonwealth of Australia, Cumberland County Council and the predecessor to RMS entered into the Deed in respect of Lot 14. I set out relevant provisions below, with omissions as indicated for simplicity:

“WHEREAS by notification of acquisition by the [Commonwealth] under the Lands Acquisition Act 1906-1936 … , lands comprising inter alia the land hereby conveyed were vested absolutely in the [Commonwealth] AND WHEREAS the [Commonwealth] has agreed to sell and the [Cumberland] County Council has agreed to purchase the said land and hereditaments for the sum of FOUR THOUSAND TWO HUNDRED AND NINETY POUNDS (£4,290.0.0) AND WHEREAS it has been agreed between the [Cumberland] County Council and the [Council] that the said land (which land is reserved under Division 2 of Part II in the Cumberland County Council Planning Scheme Ordinance for County Road purposes) shall be conveyed to the [Council] pursuant to the provisions of Clause 18(1) of the Cumberland County Council Planning Scheme Ordinance to be held by the said Council upon trust and subject to the conditions hereinafter expressed and declared concerning the said land NOW THIS DEED WITNESSETH that in consideration of the sum of Four thousand two hundred and ninety pounds (£4,290.0.0) paid by the [Cumberland] County Council to the [Commonwealth] (the receipt whereof is hereby acknowledged) the [Commonwealth] as beneficial owner doth hereby convey at the request and by the direction of the [Cumberland] County Council (as is testified by its execution hereof) to the [COUNCIL] in fee simple ALL THAT piece or parcel of land situate in the Municipality of Rockdale and containing [detailed description of Lot 14 omitted] and THE [COUNCIL] hereby ACKNOWLEDGES AND DECLARES that it will hold the said land UPON TRUST for the following purposes subject to the following conditions:-

1.   THAT THE [COUNCIL] will hold the said land which is required for a County Road under the Cumberland County Council Planning Scheme, for that purpose AND will make the same available without cost to the Commissioner for Main Roads or any other body that may be the constructing authority for the County Road when required so to do by the said Commissioner or other body as aforesaid AND pending its requirement for a County Road the Council shall not use the said land or permit same to be used for any purpose other than the purpose of a public park, public reserve or public recreation area.

2.   THAT THE COUNCIL will not erect or permit to be erected on the said land or any part thereof any building without first obtaining the approval of the County Council and will observe and comply with all conditions which the County Council may impose in connection with any such approval.”

19. It is common ground that Cumberland County Council paid the Commonwealth the specified consideration of £4,290 and Lot 14 was conveyed to the Council.

20. The Council subsequently made available Lot 14 (and also Lot 1) to the Club pursuant to a deed dated 2 May 1961. The recitals to that deed record that, so far as Lot 14 is concerned, the relevant land:

“is held by the Council upon trust for the purpose of a County Road and subject to conditions (inter alia) that pending its requirement for a County Road the Council shall not use or permit to be used such land for any purpose other than the purpose of a public park, public reserve or public recreation area and will not erect or permit to be erected on such land or any part thereof any building without first obtaining the approval of the Cumberland County Council.” (Ex K1, p 906)

The deed in turn provided for the lease of the relevant land to the Club for a 30 year period and provided, in cl 23 that:

“Immediately upon receipt of a written request by the Cumberland County Council, the Department of Main Roads or the Council, the Club shall vacate and peacefully yield up possession to the Council without the payment of any compensation or damages whatsoever so much of the land shown shaded blue in the said [p]lan as may be specified in the said written notice.”

(For completeness, I note that the parties did not make substantive submissions as to the extent of the land shaded blue in the plan attached to that deed).

21. Mr Lancaster, who appears with Ms Lane for RMS, refers (T14) to well accepted rules for the construction of instruments, which were also common ground between the parties, namely that the whole of the instrument has to be read and particular words are to be read in the context of the whole, and in accordance with the apparent purpose of the instrument as revealed from a consideration of the whole of its terms. In Fitzgerald v Masters (1956) 95 CLR 420 at 437, McTiernan, Webb and Taylor JJ observed that:

“It is trite law that an instrument must be construed as a whole. Indeed it is the only method by which inconsistencies of expression may be reconciled and it is in this natural and common sense approach to problems of construction that justification is to be found for the rejection of repugnant words, the transposition of words and the supplying of omitted words … Many illustrations may be given of the circumstances in which these processes have been followed but to do so would add nothing to the rule that the intention of the parties is to be ascertained from the instrument as a whole and that this intention when ascertained will govern its construction.”

22. Mr Lancaster also refers to Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109, where Gibbs CJ observed that:

“It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust.”

In Tempe Recreation Reserve Trust v Sydney Water Corporation [2014] NSWCA 437; (2014) 88 NSWLR 449 at [53]–[56], Leeming JA summarised the relevant principles and observed, inter alia, that it is axiomatic that legal documents are to be read as a whole; that that requires effect to be given to each provision of the document having regard to the others, and reflects a presumption that the various provisions were intended to operate together to achieve a specific purpose or purposes; that the effect of doing so may be to depart from the natural and ordinary meaning of the words of one provision, where it is necessary to do so to avoid absurdity or inconsistency with the rest of the instrument; and that “in determining the legal meaning of language in a legal instrument, the law requires regard to be had to the immediate context, being the whole of the instrument.”

23. RMS also submits that both the Deed and the Declaration of Trust may be read in conjunction with the enabling legislation under which they were made. In Bathurst City Council v PwC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566 at [44]–[65], the High Court reviewed the scope of the relevant sections of the LGA 1919, and specifically ss 518 and 526, and observed that s 526 of the LGA 1919 had the result that:

“… a council might accept real or personal property for a public purpose in the sense of that term, by then long understood in New South Wales, even though that purpose was not a charitable purpose and the property was not transferred to and accepted by the council on trust in the strict sense of that term. The council then would be restricted by s 518 in its dealings with that land, and subject to restraint at the suit of the Attorney-General.”

Mr Lancaster also refers to Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 at [119], where Gummow and Hayne JJ observed that the authorities suggested that the Crown may be subject to more than a moral or political obligation to observe the purpose of a vesting of land in it, but did not find it necessary to express a concluded view as to that question. RMS also submits, and I accept, that the LGA 1919 and the CCPSO at least provided the legislative framework for the transfer of Lot 14 and Lot 1 to the Council as an exercise of government functions for public purposes, and that the Council was obliged to perform the trusts in a way that advanced their objects in that statutory context: Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45 at [81].

24. Mr Lancaster also relied (T141–142) on Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528 at [37]–[39], where the High Court observed that, together with the information appearing on the relevant folio, the registration of dealings manifests the scheme of the Torrens System to provide third parties with the information necessary to comprehend the extent or state of the registered title to the land in question, and that the extent of extrinsic material that would be relevant to interpretation of documents that are registered on title is limited. That approach was confirmed in Queensland Premier Mines Pty Ltd v French [2007] HCA 53; (2007) 235 CLR 81 at [14] and Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 11; (2013) 247 CLR 149 at [20]. It seems to me that the obligations arising under the Deed and the Declaration of Trust are properly treated as matters registered on title, so far as in each case a caveat is recorded on the register which draws attention to the relevant instrument.

25. Broadly, RMS submits that, on the proper construction of the Deed, the Council must upon demand make available to RMS all or any part of Lot 14 that may from time to time be required by RMS for both a road and for ancillary road purposes at no cost to RMS. After closing submissions, I directed the parties to provide a summary of the key propositions in their submissions, which was intended to expose the logic of and key steps in their respective submissions. RMS’s summary of the propositions for which it contended summarised its position as being that the whole of the land in Lot 14 (and also Lot 1) is held for the purposes of a road as required by RMS and otherwise for the purposes of a public park, public reserve or public recreation area. RMS also identified several steps in that submission, namely that “the said land” referred to in the Deed is the whole of Lot 14; the reference to “which is reserved” in the Deed is a general descriptive phrase about a characteristic of Lot 14, not a limitation on the area to which the trust for road purposes applies; it relies on the content of the phrase “which is required”; and the reference to “pending” in the Deed shows that the requirement is a matter for the future, not an existing reserved area on the CCPSO map. RMS also noted that, subject to the issue about the extent of land “which is required” for the purposes of a road (to which I refer below), the parties were not in dispute that the required land is for the purposes of a “County road” as that term should now be understood (T19–T20).

26. The first step in RMS’s submission is that the words “the said land (which land is reserved … for County [r]oad purposes)” in the recitals to the Deed are not inconsistent with the Deed applying to the whole of the land in Lot 14. RMS submits that the quoted words do not have the effect of applying the obligation in the Deed only to that part of Lot 14 as was at the time of the Deed classified as a County road under the CCPSO, or that part of Lot 14 as might be at some other point in time classified as a County road under the CCPSO. RMS submits that the whole of the land in Lot 14 is subject to the Deed, and that the words in parentheses merely explain the basis on which the Deed was entered into. RMS submits that, as at the date of the Deed, there was no such road and the parties would have known that for it to be provided, more land than was ultimately to be the physically permanent road infrastructure would be required for its construction.

27. RMS also submits that, if the recitals to the Deed were to be understood as limiting the land within Lot 14 which would be, as between the parties, agreed to be made available, the recital should have read “part of which land is reserved …”, where only part of Lot 14 was in fact reserved for road purposes at the date of the Deed (McDiarmid 9.9.15 Annexure B page 22, 23). RMS also submits that the recitals bind the parties to the stated position, that the whole of Lot 14 would be considered to have been reserved for the purposes of a County road, even though only part of that land had in fact been so reserved: Berry v Wong [2000] NSWSC 1002 per Young J at [14]; Labracon Pty Ltd v Cuturich [2013] NSWSC 97 at [105]–[153], [159]. It is not necessary to determine that question, given the findings that I reach on other grounds below. RMS alternatively submits that, even if the recitals to the Deed do not prevent the Council from disputing that the whole of Lot 14 was to be treated as reserved for a County road, then the recitals set out the contextual understanding on which the parties entered into the Deed, which was that the whole of Lot 14 (which then contained a part of Marsh Street) was available for any future requirement for the purposes of a County road.

28. RMS submits that other matters support its construction of the Deed. First, RMS submits that the extent of any reservation from time to time is not precise. RMS relies on the reports of Mr McDiarmid which map the CCPSO scheme maps against the boundaries of the land and the land now required by RMS and estimates that the accuracy with which those maps could be plotted against the lot boundaries contains a significant margin for error and in some cases could not be plotted. RMS submits that the extent of the boundary of the reserved land cannot be identified with such a degree of precision as to support a construction that it was only the land subject to the reservation at the time that was intended to be subject to the trusts. RMS also submits that the provisions of the Deed were expressed in broad terms apt to accommodate the probability that town planning schemes would change or adapt in response to changing circumstances. RMS submits that the requirement to keep the whole of the land free from buildings was consistent with a construction that any part of the land was intended to be capable of being applied for the road purpose.

29. RMS also emphasises the relevance of the requirement to make the land available “at no cost” and submits that the Cumberland County Council gave valuable consideration for the land before it was ultimately transferred to the Council. RMS submits that the effect of accepting the construction of the Deed contended for by the Council is that the RMS would be required to pay for the land (or so much of the land that comprises the land now required) to be made available for the public purposes of a road for a second time. Mr Hemmings responded to that submission by reference to a range of documentation which, he contended, suggested that, even if the Cumberland County Council had initially paid for the relevant land, its costs of doing so had ultimately been funded by the Council, so far as the Cumberland County Council had raised loans to pay for the land, and the principal and interest of those loans was reflected in rates and levies issued by the Cumberland County Council to Council (T81). RMS in turn contested that that matter was established by the relevant documents. It does not seem to be necessary to reach a finding as to that question, where the issues of the construction of the relevant documents do not depend upon whether the Cumberland County Council had paid for the land, from its own resources, or whether it would be fair or unfair that the State be required to exercise its rights under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (“Just Terms Act”) to acquire that land, if it had originally paid for it.

24. By contrast, the Council submits that the declarations of trust contained in the Deed identify the parts of Lot 14 held by the Council for RMS by reference to the scheme map for the CCPSO; provide that only those parts of Lot 14 (shown white on the CCPSO scheme map) are held for RMS for new County roads and widening of existing County roads; and provide that the remainder of the land (shown green on the CCPSO scheme map) is dedicated as open space. The Council accepts that it is obliged under the Deed to make available to RMS that part of Lot 14 which is marked white between broken black lines on the CCPSO scheme map. It appears from oral submissions of Mr Hemmings that the Council also accepts that it is obliged to make available the land which was represented by the broken black lines themselves. However, the lack of textual guidance in the Deed as to that matter is a reason why the Council’s construction of the Deed should not be accepted. I will identify several other difficulties with that construction below.

25. In its opening outline of submissions, the Council submits that the Deed relating to Lot 14 is in two parts, and the first part contains the conveyance of all of Lot 14 to the Council, and the second part contains an acknowledgement and declaration that the Council either holds all of Lot 14 on trust or, alternatively, part of Lot 14 (comprising the land reserved for a County road) on trust for the purposes and subject to the two conditions which follow in the Deed. The Council submits that the purpose and conditions of the trust are narrowed or delineated by the reference to the CCPSO, and emphasises that cl 1 of the second part of the Deed (the acknowledgment and declaration) provides that the Council “will hold the said land which is required for a County [r]oad under the [CCPSO], for that purpose and will make the same available without cost to the Commissioner for Main Roads” and, pending a proper request by RMS to make the area reserved for a County road available to it for that purpose, the Council is not to use the land held on trust or permit it to be used for any purpose other than the purpose of a public park, public reserve or public recreation area. The Council points out that cl 2 of the second part of the Deed provides that it is a condition of the trust that the Council will not erect or permit to be erected any building on any part of Lot 14 without first obtaining the approval of the Cumberland County Council and will observe and comply with all conditions imposed in connection with any such approval.

26. The Council also made detailed submissions as to the means by which land was reserved for the purpose of a County road under the CCPSO and its relationship to the RLEP and SREP 33. The Council submits that the CCPSO was a prescribed scheme under the LGA 1919 and had statutory force. The Council also submits that, under the CCPSO, most land was zoned, but certain land was reserved for public purposes specified in the table in cl 10 of the CCPSO, to which I have referred above. The Council submits that the land reserved and the purpose for which it was reserved was defined by reference to markings on the scheme map associated with the CCPSO and that owner initiated acquisition rights were conferred by the CCPSO in some circumstances, and controls were imposed on the use of reserved land.

27. The Council submits that the reference to the CCPSO in the Deed was for the purpose of identifying the area of land reserved for RMS and the use for which it was reserved (i.e. new County roads and widening of existing County roads). The Council submits that, on a static or ambulatory approach to construction of the Deed, the parts of Lot 14 that the Council is required to make available to RMS at no cost are either the areas shown in white on the CCPSO scheme map (on a static construction), or the area identified as a Special Uses Zone to accommodate the M5 corridor and the development of a transport corridor by the Roads and Traffic Authority under SREP 33 (on an ambulatory construction). The Council submits that the determination of this issue will turn on whether the references to the CCPSO in the Deed and Declaration of Trust are given a static or ambulatory construction and, if the latter, whether SREP 33 is a successor instrument to the CCPSO. Given the view that I reach below as to the scope of the requirement under the Deed, namely that it is directed to the whole of Lot 14, it is not necessary to address the question of a static or ambulatory reading of the Deed.

28. I prefer RMS’s construction of the Deed to that advanced by the Council for several overlapping reasons. It seems to me that the first matter that strongly supports the construction which RMS gives to the Deed in respect of Lot 14 is that the recitals record an agreement to convey the “said land”, described (in parentheses) as land which is reserved under Division 2 of Part II of the CCPSO “for County [r]oad purposes”, to be held by Council upon trust and subject to the conditions set out in the Deed, and then proceed to record the conveyance of the whole of the land and the creation of the trust. The fact that the reference to the CCPSO in the first recital is in parentheses suggests that it is descriptive of the “said land”, not part of the identification of it, by contrast with an identification of the land as, for example, “that part of the land that is reserved under Division 2 of Part II of the CCPSO for County road purposes”. That matter must in turn inform the use of the similar phrase, albeit without the parentheses, in paragraph 1 of the operative provisions of the Deed which creates the trust.

29. Second, it seems to me that the reference to the recitals to the land which was to be transferred and held in trust, and the reference in the operative provisions to the land which was in fact transferred and held on trust, should be understood to refer to the same land, being the whole of the relevant land. If that interpretation were not given to the Deed, then the relevant recitals would refer only to an agreement to deal with part of the land, being that reserved for County road purposes under the CCPSO, but not to the balance of the land that was not the subject of that reservation. That would in turn have the result that the operative provisions of the Deed would extend well beyond the recital of what the parties had agreed to do.

30. Third, it seems to me that the language “the said land (which land is reserved under Division 2 of Part II in the [CCPSO] for County [r]oad purposes)” in the recitals and the similar phrase in cl 1 of the operative provisions can properly be understood to refer to the whole of the land, as a matter of ordinary usage. As a matter of ordinary usage, a parcel of land can properly be described as reserved for County road purposes where a significant part of the land is reserved in that manner.

31. Fourth, RMS’s reading of cl 1 of the Deed is supported by the fact that that clause uses the language “required” for a County road not the language “reserved” for a County road. The term “reserved” is defined, in the Shorter Oxford English Dictionary (2007) as “to [keep] for future use” whereas the term “require” is defined as, inter alia, “to need for a particular purpose”, a concept that is directed to the present rather than the future. At the time the Deed was executed, the parts marked on the scheme map under the CCPSO were reserved, not required, for a County road, and it would have been natural, had the intent been to refer to those parts, to refer to those parts of the land which were “reserved” for that purpose. It seems to me that the language “required for a County [r]oad” contemplates the possibility of a future requirement for use of the land or parts of it, which were then unidentified but which would be identified at the point of that future requirement, as distinct from the “reservation” of parts of the land which were identified at an earlier point in time. Conversely, it seems to me that the Deed cannot be construed in a way that treats the relevant trusts as fixed by reference to the point at which land was reserved for a County road in the CCPSO, because the land which was then reserved for a County road was not then required for a County road. The relevant requirement would necessarily arise at a subsequent point when, as has now occurred, RMS (or its predecessors) indicated the land which was in fact required for the purposes of the construction of the County road, rather than the land which had previously been “reserved” for that purpose.

32. Fifth, as RMS points out, a further reason to read cl 1 of the operative provisions of the Deed as referring, by the term “said land”, to the whole of the land is that, unless that term is read in that way, across the whole of the clause, then the restriction on use of the land binding the Council, pending the requirement of the land “for a County [r]oad” would bind only that part of the land which was then reserved for a County road under the CCPSO, and Council would be free to use other parts of the land for any purpose. That does not seem to me to be consistent with the likely objective intent of the parties to the clause.

33. Sixth, I am reinforced in the view which I take as to the construction of the Deed by the fact that, as Mr McDiarmid’s evidence indicates, a reference to the scheme map under the CCPSO would have been a particularly imprecise way of identifying what part of the land could be required by RMS, given the scale of that scheme map, where parties which had wished to designate a particular part of the land for use for a road could readily have precisely identified the boundaries of that part of the land.

34. For completeness, I note that the reading which I would give to the Deed is consistent with the recitals to the deed under which the Council granted a lease of Lot 14 to the Club, to which I referred in paragraph 20 above, and with cl 23 of that deed which provides that the Club must yield up possession of the land to the Council, without any compensation or damages, upon written request by the Cumberland County Council, the Department of Main Roads or the Council. That requirement is directed to the whole of Lot 14, reflecting the requirement in the Deed as I would understand it, and not only that part of the land which the Council contends could be required for County road purposes. There may be a question, which I do not further address where the parties did not direct submissions to it, whether that recital and that clause would fall within the exception that permits reference to post-contractual conduct of the parties, not as an aid to interpretation of a contract, but so far as that conduct may constitute “an admission of the state of the parties’ rights”: Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150 at [79], [84] per Beazley P, at [121], [122] per Basten JA.

35. For these reasons, it seems to me that cl 1 of the Deed requires the Council to make the relevant land, which I have held to be the whole of Lot 14, (or, in this case, that part of it that is now required) available without cost to RMS, as the successor to the Commissioner for Main Roads, or any other body that may be the constructing authority for the County road, when required to do so by that body, and subject to the further issues that I address below. The trigger for the obligation to do so is the requirement of RMS, although the second line of that clause indicates that that requirement is to be “for a County road” under the CCPSO and the sixth line indicates it is to be for a “County road” without the specific reference to the CCPSO.

The construction of the Declaration of Trust relating to Lot 1

42. I now turn to the position in respect of Lot 1. On 27 March 1957, Cumberland County Council purchased Lot 1 from Mr George Soren Bang for £24,000 and, on 5 May 1958, the Cumberland County Council transferred Lot 1 to the Council. The transfer appears to have been made under cl 18 of the CCPSO which provided that the Cumberland County Council may transfer which it acquired, under cl 17 of the CCPSO, to a council. Clause 17 of the CCPSO, to which cl 18 referred, in turn permitted an owner of land which was reserved under Div 2 to require, relevantly, the Cumberland County Council to acquire the land.

43. Before that transfer occurred, on 14 April 1958, the Council made the Declaration of Trust. I set out the relevant parts below:

THE [COUNCIL] … hereby ACKNOWLEDGES AND DECLARES that it holds and is seised of the land described in the Schedule hereto (which has been transferred to it pursuant to the provisions of Clause 18(1) of the [CCPSO]) UPON TRUST for the following purposes and subject to the following conditions, namely:-

1.   AS TO PART of the said land that is as to so much thereof as is required for a County road under the [CCPSO] the Council holds the same for that purpose AND will make the same available without cost to the Commissioner for Main Roads or any other body that may be the constructing authority for the County road when required so to do by the said Commissioner or other body as aforesaid AND pending its requirement for a County Road the Council shall not use or permit to be used such part of the said land for any purpose other than the purpose of a public park, public reserve or public recreation area.

2.   AS TO THE RESIDUE of the said land the Council holds the same for the purposes of a public park, public reserve or public recreation area and the Council will not use or permit to be used such residue of the land for any purpose other than the purpose of a public park, public reserve or public recreation area.

3.   THE COUNCIL will not erect or permit to be erected on the said land or any part thereof any building without first obtaining the approval of The Cumberland County Council and will observe and comply with all conditions which The Cumberland County Council may impose in connection with any such approval.

THE SCHEDULE

ALL THAT piece or parcel of land situated in the Municipality of Rockdale Parish of St. George Cumberland County Council being part of the land in Certificate of Title registered volume 6580 folio 173 containing an area of 29 acres 3 roods 20¾ perches as shown on plan annexed to Notice of Acquisition dealing number F539934 also being the whole of the land comprised in memorandum of transfer registered number G684473.

44. Mr Hemmings accepted that the Court would begin the exercise of construction of the Declaration of Trust with the terms of the relevant instrument, and would only turn to the other documents to the extent that there was ambiguity in the instrument. He also took me, in submissions, to several documents by way of the background to the acquisition of Lot 1. It does not seem to me that I should give significant weight to the pre-contractual documents, both because of the principles in Westfield Management to which I have referred above and because it seems to me that those documents record the history of the acquisition of the land, to which I have referred above, but do not provide any illumination in respect of any question of the parties’ objective intention that is relevant to the construction of the Declaration of Trust.

45. The Council subsequently made Lot 1 available to the Club pursuant to the deed dated 2 May 1961, to which I referred above in respect of Lot 14. The recitals to that deed record that Lot 1:

“is held by the Council upon trust for the purposes of a public park, public reserve and public recreation area and subject to conditions which are substantially to the same effect as those herein before recited with regard to [Lot 14].”

I have referred to the recitals to that deed in respect of Lot 14 above. As I noted above, the deed in turn provided for the lease of the relevant land to the Club for a 30 year period and provided, in cl 23 that:

“Immediately upon receipt of a written request by the Cumberland County Council, the Department of Main Roads or the Council, the Club shall vacate and peacefully yield up possession to the Council without the payment of any compensation or damages whatsoever so much of the land shaded blue in the said plan as may be specified in the said written notice.” (Ex K1, p 906)

As I also noted above, the parties did not make substantive submissions as to the extent of the land shaded blue in the plan attached to that deed.

46. The Declaration of Trust plainly applies to the whole of Lot 1, so the issue in respect of it relates to the purposes for which the land may be used under the Declaration of Trust. RMS pleads that Lot 1 was vested in the Council “on condition that the [Council] make [available] such part of Lot 1 as may be required by [RMS] for the purposes of a County road without cost to [RMS]” (Amended Statement of Claim [19]) and that it is a condition of the Declaration of Trust that such part of Lot 1 as RMS requires be made available without cost to the RMS on request (Amended Statement of Claim [53]). RMS makes substantially the same submissions in respect of the construction of cl 1 of the Declaration of Trust as it made in respect of cl 1 of the Deed. RMS’s summary of the propositions for which it contended in respect of Lot 1 indicated its position that the relevant land is the whole of Lot 1; the hierarchy of purposes specified in the Declaration of Trust gives primacy to road purposes; relies on the phrase “which is required”; and submits that the phrase “make available” is not prescriptive as to process but envisages all necessary access to and occupation of the land. RMS also submits that the description of the land subject to the trust declared in clause 1 of the Declaration of Trust being “so much thereof as is required for a County road” describes the land actually required by the Commissioner for Main Roads (or its successor) at the time the land is required, and does not refer only to that part of Lot 1 which was at the date of the Declaration of Trust described as “County road” in the CCPSO, or that part of Lot 1 which was subject to the CCPSO at the time the request was made. In oral submissions, Mr Lancaster similarly submits that the words “so much thereof as is required” in the Declaration of Trust refer to a future requirement by the Commissioner for Main Roads or its successor for the use of land for a public road or a main road (T23).

47. In response, Mr Hemmings submits, first, that RMS is not entitled to the whole of Lot 1, but only to the land marked in white on the scheme map, being the land reserved for the purposes of a County road (T67). The Council points out that Lot 1 is marked on the CCPSO scheme map to be reserved partly as a “County road” (in white) and partly for either the purpose of “parks and recreation areas” or “foreshore reservations and places of natural beauty or advantage” (in green). The Council accepts that it is obliged under the Declaration of Trust to make available to RMS that part of Lot 1 which is marked white between broken black lines on the CCPSO scheme map, and accepted in oral submissions that that extended to the land represented by the broken black lines. The lack of textual guidance in the Declaration of Trust as to that matter is, as it was with the Deed in respect of Lot 14, a reason why the Council’s construction of the Declaration of Trust should not be accepted.

48. In its opening submissions, the Council submits that the Declaration of Trust provides that the Council holds Lot 1 upon trust for the purposes and subject to the conditions stated in cll 1, 2 and 3 of the Declaration of Trust. The Council submits that the trust created for Lot 1 has two purposes and to meet those purposes, separates Lot 1 into two parts. The Council points out that cl 1 refers to part “of the said land that is as to so much thereof as is required for a County road under the [CCPSO]” and provides, pending a proper request by RMS to make the area reserved for a County road available to it for a County road, the Council is not to use the land held on trust or permit it to be used for any purpose other than the purpose of a public park, public reserve or public recreation area; cl 2 provides that the residue of Lot 1 is held by the Council for the purposes of a public park, public reserve or public recreation area; and cl 3 provides that it is a condition of the trust that the Council will not erect or permit to be erected on any part of Lot 1 any building without first obtaining the approval of the Cumberland County Council and will observe and comply with all conditions imposed in connection with any such approval.

46. In oral submissions, Mr Hemmings submitted (T91) that Council’s construction of the Declaration of Trust should be preferred because, on the construction adopted by RMS, any part of the land could at any time be required for the purposes of a County road, and the balance of the land would be held subject to the balance of cl 1, so that it would be used for a public park, public reserve or public recreation area where not required for a County road; and that cl 2 would in that event be superfluous. I do not accept that submission, because it seems to me that cl 1 specifies the nature of the requirement which may be made and the use of the land pending that requirement; and cl 2 is directed to the position as to the balance of the land after such a requirement has been made. The Council also adopted substantially the same line of reasoning as it adopted in respect of the Deed, to which I have referred above.

47. The Club also submits, consistently with the submission put by the Council, that the terms of the Declaration of Trust over Lot 1 created two purpose trusts, one being directed to that part of the land required for a County road, and the other being the residue of the land to be held for public recreation. The Club in turn contends that the construction adopted by RMS is unworkable because, until the relevant requirement was made, Council would not know whether it should hold a specific part of Lot 1 for County road purposes or for public recreation. I do not accept that submission because, on the proper construction of the Declaration of Trust, Council held the entirety of Lot 1 for the purposes of a public park, public reserve or public recreation area until the relevant requirement was made and then held the land required for a County road on trust for that purpose, and the residue on trust for a public park, public reserve or public recreation area.

48. It seems to me that RMS’s construction of the Declaration of Trust should be accepted, for reasons which overlap with those applicable to similar language in the Deed. It seems to me that RMS’s reading of cl 1 of the Declaration of Trust is supported by the fact that that deed uses the language “required for a County road under the [CCPSO]” not the language “reserved” for a County road under the CCPSO. At the time the Declaration of Trust was executed, the parts marked on the scheme map under the CCPSO were reserved, not required, for a County road, and it would have been natural, had the intent been to refer to those parts, to refer to the parts of the land that were “reserved” for that purpose. It also seems to me that the concept of land that is “required for a County [r]oad under the [CCPSO]” was necessarily future looking, and contemplated the possibility that the land that would in future be required would potentially be different from that which was then reserved under the CCPSO. The obligation to make “the same available without cost” to the Commissioner for Main Roads or any other constructing authority “when required to do so” also emphasises both that the clause is directed to a future requirement, and that what is required to be made available is the land that is in future required. The language of the last part of that clause, which limits Council’s use of the land to a public park, public reserve or public recreation area “pending its requirement for a County [r]oad” also contemplates that that requirement will be made in the future. It seems to me that, as was the case with the similar language in the Deed, the language “required for a County [r]oad” contemplated the possibility of a future requirement for use of then unidentified parts of the land, as distinct from the “reservation” of identified parts of the land which did then exist. I am reinforced in that view by the fact that, as I noted above in respect of the Deed, and as Mr McDiarmid’s evidence indicates, a reference to the scheme map under the CCPSO would have been an imprecise way of identifying what part of the land could be required by RMS, given the scale of that scheme map, where parties which had wished to designate a particular part of Lot 1 could readily have precisely identified the boundaries of that part of the land.

49. For these reasons, it seems to me that the Declaration of Trust also requires the Council to make that part of Lot 1 that is now required by RMS available without cost to RMS, subject to the further issues that I address below.

Whether the requisite land is required for the purposes permitted by the Deed and Declaration of Trust

53. RMS contended that its required use of parts of Lot 14 and Lot 1 was within the specified purposes set out in the Deed and the Declaration of Trust. The evidence is that RMS requires land on both a temporary and a permanent basis within Lot 14 and Lot 1 in connection with the New M5 Project (Reynolds 30.10.15 [25]–[26]). On part of Lot 14, RMS would place permanent facilities such as ventilation shafts, an electrical substation, site access, water treatment plant and sedimentation pond for tunnel operation and motorway infrastructure (Reynolds 30.10.15 [26(a)(i)]) and temporary facilities during construction such as a water treatment plant, sedimentation pond, electricity substation, spoil extraction shaft, spoil stockpile, acoustic shed, self-bunded fuel storage, offices and crib rooms, parking for light vehicles, ablutions blocks, laydown areas, noise wall and hoarding (Reynolds 30.10.15 [26(a)(ii)]). On part of Lot 1, RMS would place permanent facilities (Reynolds 30.10.15 [27]) and temporary facilities during construction such as a decline for tunneling machinery and equipment, temporary access roads and loops, spoil stockpile, acoustic shed, acoustic spoil shed, self-bunded fuel storage, sedimentation pond, parking for light vehicles, concrete testing station, noise wall and hoarding (Reynolds 30.10.15 [26(b)]). The land is therefore not to be used as the road in respect of the New M5 Project but for temporary facilities that will facilitate the construction of the road and permanent facilities that will facilitate the operation of the road.

54. RMS pleads that, on the proper construction of the Deed and the Declaration of Trust, the Council is obliged to make the required land available to RMS for the purposes of the construction, maintenance and use of the road works (Amended Statement of Claim [56]). In its summary of the propositions for which it contended, RMS submitted that the trusts for the purposes of holding and making available land required for the purposes of a road – in substance, trusts for road purposes – are not confined to making Lot 14 and Lot 1 available to the extent only of the vehicle carriageway, verges and any footpaths or the like comprising the finished roadway, but extend to making available other land required for or necessarily incidental to constructing, operating and maintaining the road.

55. RMS submits that the words “for that purpose” in cl 1 of the Deed relating to Lot 14 do not describe only the use of the lot for the physical area of a road, and the effect of the clause is to extend to land that encompasses necessary consequential uses for the purpose of constructing a road, such as plant, equipment, spoil, storage, and other such uses. It submits that the land is said to have been reserved for “County road purposes” and the obligation is to hold the land “which is required for a County [r]oad” and that neither the obligation nor the reservation contain any qualification or restriction to a specific purpose associated with the road, such as “constructing”, or “maintaining” or “widening”, and that suggests that all purposes associated with roads, and not only the immediate purpose of construction was intended on the words of the Deed and the Declaration of Trust.

56. RMS also submits that an analogous construction is applied to the identification of purpose in land acquisition cases, where acquisition for “road purposes” has been held to encompass all matters necessary for the carrying out of the activities involved in undertaking road construction or widening or maintenance, and relies on the High Court’s decision in Marshall v Director General Department of Transport [2001] HCA 37; (2001) 205 CLR 603 at [22]. In that case, the High Court considered the scope of a compensation power where land was resumed for “road purposes” under s 7 of the Acquisition of Land Act 1967 (Qld). The plurality observed that the use of land as a site for the deposition of residue from road works, for the support of a batter or for drainage associated with road works or for future road-widenings, or as a passive buffer, was a use of that land for “road purposes”. I accept that, as Mr Hemmings points out, that case was concerned with the construction of the relevant statute and that the authorities relating to the purpose for which land is used must also be understood on the basis that the concepts of use and purpose each depend on their particular context: Valuer General v Fivex Pty Ltd [2015] NSWCA 53 at [37]. Nonetheless, it does seem to me to support the view that use for a road, or for the purposes of a road, may extend beyond use as a road. Mr Lancaster also draws attention to Council of theCity of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 515, where Taylor J treated land as used for the purposes of a hospital where it was used as a passive area of land surrounding the hospital. The Privy Council took the same view in Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 3. It seems to me that those decisions are of less assistance, so far as they appear primarily directed to characterisation of the relevant purpose on their particular facts. In Ryde Municipal Council v Macquarie University (1978) 139 CLR 633 at 649, Stephen J similarly held that land was used for the purposes of a university where it was made available for providing commercial and shopping facilities for staff and students.

57. The Council initially denied that the concept of “County road” used in the Deed and the Declaration of Trust extended to the roads in issue in these proceedings. In paragraphs 34 and 35 of its Defence, the Council pleaded that the concept of “County road” was not continued into subsequent planning instruments after the CCPSO, including the Rockdale Planning Scheme Ordinance and, in paragraphs 42–49 of the Defence, the Council accepted that subsequent planning instruments zoned parts of Lots 1 and 14 for “transport” or “special uses” but did not admit that those instruments permitted the use of Lots 1 and 14 for the purposes of a road. Those propositions were not pressed at the hearing and I need not address them further.

58. The Council instead relied on a second proposition, summarised in its summary of the propositions for which it contended as follows:

“Council is only required to make the Land Reserved available to RMS for new county roads and widening of existing county roads and not for the permanent facilities and 'construction compound' shown in Figure 1 of Annexure 'B' to the Affidavit of Glen Ian McDiarmid dated 16 November 2015 and as also shown at sub-tab 10 of Exhibit KJR-1 to the affidavit of Kenneth James Reynolds dated 30 October 2015, (Exhibit P2, Court Book 2, page 605).”

In oral submissions, Mr Hemmings similarly submitted that RMS was only entitled to land for the purposes of a road, or for the purposes of widening a road, and not for use as a construction compound or for construction purposes or for tunnelling (T67). For completeness, the Attorney General took no position on the factual question as to the use to which the required land is put (whether road, road widening or ancillary road works), albeit expressing the premise that that land is legitimately needed for road works.

59. The Council submits that RMS is not entitled to any part of Lot 14 and Lot 1 associated with the New M5 Project as it is not to be used for a County road or widening of existing County road. The Council submits, and it is common ground that the New M5 Compound Plan (Ex P2, tab 10), indicates that none of the land required for the New M5 Project is to be used as a County road or as the widened part of an existing Country road. In oral submissions, Mr Hemmings also pointed out (T79–80) that the balance of the land that was required within Lot 14, other than that part required for Marsh Street, was required for a construction compound, and the whole of the land required within Lot 1 was required for a construction compound.

60. As I noted above, the Deed in respect of Lot 14 uses, in cl 1, the language “required for a County [r]oad” and requires the land to be made available “when required to do so” by, relevantly, RMS as the successor to the Commissioner for Main Roads, implicitly in respect of that requirement “for a County [r]oad”. I am conscious that the language used in the Deed does not expressly refer to “road purposes”, by contrast with that considered by the High Court in Marshall v Director General Department of Transport above. Nonetheless, it seems to me that the concept of “for a County [r]oad” is wider than the concept of “as a County [r]oad”, both as a matter of language, and reading the Deed as a whole and in its context. It seems to me that the use of part of Lot 14 as a temporary construction facility, where that use is proximate to and genuinely for the purpose of constructing a road, is properly described as use for that road, although it is not use as that road. It seems to me that use for permanent facilities required for a road is also properly described as use for that road, although not as use as that road, and that proposition extends to facilities such as ventilation shafts and electricity substations, which are necessary for the operation of a road, as it would also extend to drainage or a footpath or an emergency exit gate that was necessary to the operation of that road. That result is consistent with the reasoning in Marshall v Director General Department of Transport above, although I have reached it on the proper construction of the Deed.

61. Clause 1 of the Declaration of Trust in respect of Lot 1 similarly refers to the Council holding the land “required for a County road” and expressly states that the Council holds the land “for that purpose” and is required to make it available “for a County road”. It seems to me that the language for a County road is again wider than the concept as a County road, and the express reference to purpose in this clause reinforces that conclusion. A use of Lot 1 for temporary facilities required in the construction of a road, and for permanent facilities necessary for the operation of that road, seems to me to be a use for that road, and for the specified purpose of a road, although it is not use as a road.

62. For these reasons, I do not accept the Council’s second submission that the proposed uses of Lot 14 and Lot 1 do not fall within the scope of the Deed in respect of Lot 14, the Declaration of Trust in respect of Lot 1 or the trusts created by those documents.

63. The dispute as to whether the land is required by RMS for the requisite purpose was of narrower scope in respect of the widening of Marsh Street than in respect of the New M5 Project. It appears that Council had raised the possibility in July 2010 that part of Lot 14 should be dedicated as a public road in respect of Marsh Street. A letter dated 21 July 2010 from Roads and Traffic Authority, RMS’s predecessor, to the Council (Ball 17.8.15, Annexure “B”) responded that the area of Lot 14 that was currently in use as part of Marsh Street had not been formally dedicated as public road and observed that:

“As the subject property is partly within a County Road Reservation for the proposed Southern Freeway between Tempe and Loftus, the Roads and Traffic Authority (RTA) does not propose to undertake the necessary action for the dedication as public road and declaration as freeway of the appropriate areas of Lot 14 at this stage.”

That letter went on to refer to the Deed relating to Lot 14 and to express the position, which RMS now presses, that:

“[T]he whole of this Lot is required to be held by Council for public purposes until such a time as it is required by the constructing authority when it is to be transferred at no cost. Once final boundaries are established the RTA will arrange for the removal of the covenant from the area of Lot 14 that is not required for road or freeway.”

64. RMS now requires, permanently, 10,910 m2 of land within Lot 14 for the purpose of widening Marsh Street (Ex P1, tab 14). RMS pleads that, after the completion of the widening of Marsh Street, RMS intends to cause or procure Marsh Street (as widened) to be dedicated as a public road pursuant to the Roads Act 1993 (NSW) (Amended Statement of Claim [28]). RMS also requires, on a temporary basis, 4,010 m2 of land within Lot 14 for working facilities in connection with widening Marsh Street (Ex P1, tab 4 p 193).

65. In its opening submissions, the Council acknowledged that, subject to its obligations as trustee, it is willing to grant a leasehold interest for the term required by RMS in those parts of Lot 14 which comprise the land reserved for a County road (shown white on the CCPSO scheme map) to RMS for the widening of Marsh Street at no cost, upon request, and will take all necessary and lawful steps to seek to reclassify the land under the LGA 1993 for operational purposes to enable it lawfully to do so. Mr Hemmings drew attention in oral submissions to s 47F of the LGA 1993 which restricts the dedication of community land as public road for some purposes, but does not apply to a dedication of land for the purpose of widening an existing public road. Mr Hemmings submits, and I accept, that it would be open to Council first to dedicate Marsh Street as a public road, completing the process which it had raised but the predecessor to RMS had not pursued in 2010, then to dedicate the additional land required for the widening of that road under s 47F of the LGA 1993. Mr Hemmings noted that, although the widening of Marsh Street extended to land that was partly marked in green on the relevant CCPSO plan, that did not raise a difficulty so far as Marsh Street was already a road and there was no legal impediment to its transfer to RMS (T79). In any event, on the findings as to the construction of the Deed that I have reached above, the Council’s obligations to make the land available where required for County road purposes extend to the whole of Lot 14, not only that part of it that was marked in white on the CCPSO scheme plan as reserved for County road purposes.

66. There may be a remaining dispute in respect of part of the land sought to be required in respect of the Marsh Street widening proposal, which is not to be used for the road itself but for ancillary works (T110). To the extent that a dispute remains in respect of that area, RMS is entitled to have that land made available to it at no cost for the same reasons as I have reached that conclusion in respect of land required for ancillary works in respect of the New M5 Project, as set out above.

The impact of the LGA 1993 and other instruments

67. A further issue in the proceedings is whether the Council is prevented from making the required land available to RMS on the proper construction of the Deed and the Declaration of Trust by reason of the LGA 1993, including those provisions in that Act which relate to local councils’ ability to deal with land classified under that Act as “community land”.

68. Paragraph 49 of the Council’s Defence pleaded that none of the core objectives in ss 36E–36N of the LGA 1993 included road works or road construction purposes. That paragraph also pleaded that an estate in community land could be granted for the provision of a road, but only where that estate was consistent with one of the core objectives stated in ss 36E–36N of the LGA 1993, and paragraphs 49(b) and (c) of the Defence pleaded that, under ss 45(1)–(2) and 46(1)(b) of the LGA 1993, a lease, licence or other estate in respect of community land could not be granted unless it was expressly authorised under a plan of management. Paragraph 40 of the Council’s Defence pleaded that a draft plan of management existed in relation to Lots 1 and 14, and if it were adopted, it would categorise each of those lots as a sportsground and would not authorise the grant of an estate to create a road. Paragraphs 55–60 of the Council’s Defence relied on the restrictions imposed by the LGA 1993 to contend that those restrictions prevent the Council now making the required land available to RMS and pleaded that the Council was not able to implement a plan of management that would permit the use of Lots 1 and 14 for road works and that none of the land marked for use for parks and recreation areas in the scheme map for the CCPSO could be transferred to RMS for road works pursuant to the terms of the trusts, by reason of ss 45 and 46 of the LGA 1993.

Form of relief claimed by RMS

144. RMS identifies a further issue, arising if the Court finds that the Council is obliged to make the required land available to it, as to the appropriate orders by which the land should be made available to RMS. RMS pleads that the Council is obliged to make the land required by RMS available by giving exclusive occupation of part of Lot 14 or such part of Lot 1 as may be required by RMS; giving possession of part of Lot 14 or such part of Lot 1 as may be required by RMS; or entering into a lease in respect of part of Lot 14 or such part of Lot 1 as may be required by RMS (Amended Statement of Claim [57]). RMS submits that the obligation imposed by the Deed and the Declaration of Trust is to make the required land available, and that the manner in which that land may be made available can include the entry into a lease of such parts of the Land as are required, or otherwise to confer a right of exclusive occupation on RMS. RMS notes that it has requested that the Council make the Land available by granting a lease of 4 years and 11 months. RMS also submits that the nature of the obligation to make land available depends on the interpretation of the instrument under which it arises, and that the term “making available” is not prescriptive, and the content of the obligation will depend on the circumstances and the activities for which the land is required, and the statutory powers of the relevant authority: Council of the Shire of Sarina v Dalrymple Bay CoalTerminal P/L [2001] QCA 146 at [21].

145. In closing submissions, and at my request, RMS identified the hierarchy of the relief it claimed as follows:

1 Declarations as set out in paragraphs 1 and 2 of the Further Amended Summons; a declaration that the [Council] (as trustee) may fulfil its trust obligations in respect of the land permanently required for the Marsh Street Proposal by dedication of that land as a public road under section 10 of the Roads Act 1993; and liberty to apply.

2 Declarations as set out in paragraphs 1 and 2 of the Further Amended Summons; an order vesting Lot 1 and Lot 14 (the trust property) in the [Minister administering the EPA Act] subject to the trust obligations as found and declared by the Court; and liberty to apply.

3   Declarations as set out in paragraphs 1 and 2 of the Further Amended Summons; a declaration that the [Council] may fulfil its trust obligations by entering into an agreement with [RMS] under ss 30 and 63 of the [Just Terms Act] for the acquisition by [RMS] of a fee simple interest in land required permanently and a leasehold interest for a term of 4 years and 11 months over the remainder of the land required by [RMS], such acquisition to be completed as soon as practicable and in any event before 31 March 2016, for nominal consideration; and liberty to apply.

4 Declarations as set out in paragraphs 1 and 2 of the Further Amended Summons; a declaration that the [Council] may fulfil its trust obligations in respect of the land required for the Marsh Street Proposal by dedication of that land as a public road under section 10 of the Roads Act 1993; a declaration that the [Council] may fulfil its trust obligations in respect of the other land required by [RMS] by the preparation of a Plan of Management pursuant to which a lease of the land required by [RMS] is provided for and authorised, for road and/or road purposes, so as to provide access to and possession of the land as soon as practicable and in any event before 31 March 2016; and liberty to apply.

146. RMS indicates that its claims assume that the Council as trustee of the land in Lot 1 and Lot 14 will comply with its obligations as declared by the Court and as may be explained in the reasons for decision of the Court. The relief sought by RMS contemplates that RMS is granted vacant possession of the required land on and from 1 April 2016. RMS also noted that the claims for relief in paragraph 1 above reflect its submissions that the LGA 1993 does not impose impediments on the performance by the Council of its trust obligations in respect of the land. RMS noted that the claim for relief in paragraph 3 above assumes that the Court determines that all or part of the required land must be made available to it at no cost; and that RMS cannot make the required land available due to impediments under the LGA 1993, so that the interests in the land must be compulsorily acquired for nominal consideration and within such a time as to permit possession of that land on or before 1 April 2016 to overcome those impediments. RMS indicated that each of the claims for relief assumed that the steps to be taken by the Council (as trustee) are taken at no cost to RMS.

147. Mr Lancaster accepted, in the course of oral submissions, that RMS’s position would be sufficiently addressed by the Court allowing the Council an opportunity to transfer or lease the relevant land to RMS in accordance with its obligations as trustee, or confirm, by undertaking to RMS and to the Court, that it will do so and, if such an undertaking is not given or not performed, exercising its power to remove the Council as trustee of the trusts (T39–40). Mr Mantziaris, who (as I noted above) appeared for the Attorney General, similarly accepted in submissions that the Council could properly be allowed an opportunity to provide an undertaking that it would perform the obligations arising under the trusts in a manner consistent with the Court’s determination, rather than proceeding to a cy-pres scheme, particularly if there was no necessity for such a scheme in the absence of supervening impossibility or circumstances which made the performance of the trusts impracticable for the purposes of s 9 of the Charitable Trusts Act (T45). Mr Mantziaris also accepted that the Court should not be placed in a position where it was required to make mandatory orders directed to a trustee, as to the performance of its obligations under the trusts, although Mr Mantziaris appeared to reserve the position that the Court might direct the trustee to perform those obligations, rather than removing the trustee if it failed to do so (T45).

148. The Council in turn submits that “subject to its obligations as trustee”, it is willing lawfully to grant a leasehold interest for the term required by RMS in those parts of Lots 14 and 1 which comprise the land reserved for a County road to RMS for a new road and the widening of Marsh Street at no cost, upon request, and will take all necessary and lawful steps to seek to reclassify the land under the LGA 1993 for operational purposes to enable it lawfully to do so. I have dealt with its wider obligations as trustee in respect of the land required for the New M5 Project above.

149. It seems to me that, as I noted in the course of oral submissions, it is the trustee’s role and not the Court’s role to determine which of the available options it ought to take to comply with the trusts, although the Court may in a proper case give directions to a trustee that it would be justified in taking a particular course that it proposes. I have held above that the Council is obliged to comply with the trusts, in respect of the whole of the land required by RMS comprising parts of Lot 1 and Lot 14, and is not incapacitated from doing so by the LGA 1993. I do not consider that I should make any of the orders sought by RMS at this point, other than possibly declarations as to the Council’s obligations under the trusts, where that would amount to the Court making decisions, as between alternatives that would each potentially comply with the trusts, that ought properly be made by the trustee. It seems to me that the Council should be allowed a short time in which to comply with the trusts or give an appropriate undertaking to the parties and to the Court in that regard. If the Council does not comply with the trusts or give such an undertaking within that short time, it will be necessary to consider whether that matter, combined with the issues as to conflict of duty and interest and conflict of interest which have been raised in the course of these proceedings, may require its removal as trustee of the trusts. If that situation arises, a possible outcome would be that the Minister administering the EPA Act could, as RMS and the Attorney General submit, be appointed as trustee of the trusts and a mandatory order made directing the transfer of Lot 1 and Lot 14 from the Council to the Minister. However, I would allow the parties a short further opportunity to be heard before any such orders were made.

Kogarah Golf Club’s position

150. The Club took a relatively narrow role in the proceedings. It made limited submissions on the construction of the Deed and the Declaration of Trust (although I noted one such submission above), the effect of the LGA 1993 or the charitable trust matters, and recognised that its interests were generally protected by the position taken by Council in that respect. The Club’s primary position is that any orders made in favour of RMS should be subject to specific conditions protecting, or considering, the Club’s interests.

151. The Club relies on a letter dated 14 July 2015 from it to WDA, marked “without prejudice” but admitted without objection by any party, which set out the Club’s proposal for compensation as a result of interruption to its business. The Club also relies on a letter dated 20 July 2015 from the WDA to the Club, which attached a draft information sheet for the review of the Club, and also stated that:

“WDA remains committed to compensating the Club for losses arising from the new nine-hole arrangement including the reasonable costs of hole relocation and loss of income. …” (Ex K1, tab 49 p 975)

The draft information sheet in turn stated, under the heading “[h]ow will the Club’s viability be maintained during construction?”:

“[WDA] is working with Club management to agree a compensation mechanism for the construction period. The objective is to protect the Club from losses arising from the new nine-hole arrangement, including the reasonable costs of hole relocation and loss of income.” (Ex K1, tab 49 p 977)

152. The Club also relies on a draft memorandum of understanding (“MOU”) dated July 2015, to which, inter alia, WDA, RMS, the Club and Council would be parties which provided that:

“RMS (on behalf of WDA) will seek a lease or license for construction land from the relevant landholder ([Council]), and does not intend (sic) acquiring a freehold interest.

RMS will acquire a freehold interest from [the Council] and [the Club] for land permanently required for the widened Marsh Street and WestConnex operational facilities, consistent with previous discussions with [the Club’s] advisers.

All land acquisition transactions will be undertaken in accordance with the [Just Terms Act] and, where relevant, the terms of the original trust arrangements between the State and [Council].” (Ex K1, tab 49 p 978)

That draft MOU also provided that:

“WDA agrees to pay reasonable compensation for [the Club’s] losses as a result of construction activities, having regard to the principles set out in [the Club’s] “without prejudice” letter dated 14 July 2015 and the [Just Terms Act].” (Ex K1, tab 49 p 979)

The draft document therefore included reference to the terms of the trust arrangements that are in issue in these proceedings as well as to the Just Terms Act.

153. The Club also referred to an information sheet subsequently issued by WDA, which also contained a statement under the heading “[h]ow will the Club’s viability be maintained during construction?”, which indicated a further commitment to ensuring a nine-hole course was available during construction, and was otherwise in substantially the same terms as the draft information sheet to which I referred above. Finally, the Club relied on a letter dated 10 September 2015 from RMS’s solicitor to the Club’s solicitor, which referred to a letter from the Club’s solicitor seeking confirmation whether the Club’s costs in these proceedings were compensable under the Just Terms Act, and responded that:

“If RMS is successful in the Proceedings, it will not be necessary for RMS to compulsorily acquire interests in part of Lot 14 …. and part of Lot 1 … and, therefore, the Just Terms Act will not apply.”

It seems to me that that letter was plainly correct in that observation.

154. The Club submits that the Court would find that “promises” were made by WDA (which are taken to have been made by the RMS) to the Club, that the Club should be compensated for “losses associated with the new nine-hole arrangement including the reasonable costs of hole relocation and loss of income”, and compensation should be paid having regard to the principles of the Just Terms Act. In submissions, the Club accepted that the draft MOU did not create contractual relations between WDA and the Club, but submitted that the “promises” made to the Club, some of which were also made outside that draft MOU, should be taken into account in the exercise of the Court’s discretion if RMS is otherwise found to be entitled to relief. The Club submits that those promises have a direct connection with the equity sued for by RMS, being the delivery of land at no cost to the RMS; that there is impropriety in the RMS denying the Club the benefit of the promises; and that equity allows relief where none would be forthcoming at law.

155. In its opening submissions, the Club relied on equitable maxims, including principles of “unclean hands” and that “he who seeks equity must do equity”, and referred to Black Uhlans Inc v NSW Crime Commission [2002] NSWSC 1060; (2002) 12 BPR 22,421 at [157]–[184] and Carantinos v Magafas [2008] NSWCA 304 at [50]–[61]. The decision in Black Uhlans was directed to misrepresentations to a lender which had funded the acquisition of relevant property, and Campbell J there referred (at [181]) to the requirements for the application of the “unclean hands” principle as including depravity in a legal as well as in a moral sense, which had an immediate and necessary relation to the equity sued for, and noted that those were a necessary but not sufficient condition for the application of the maxim. The decision in Carantinos v Magafas above was in turn directed to the provision of money pursuant to a scheme designed to defraud tax authorities.

156. The Club submits that the equity sought by RMS was to secure Lot 14 and Lot 1 at no cost to RMS, and the “promises” to pay compensation made by the WDA, which may be attributed to RMS, had an obvious relationship to the equity sued for by RMS. The Club also submits that, by these proceedings, RMS adopts a course “designed to prevent” any rights of compensation under the Just Terms Act accruing to the Club. That will, no doubt, be a consequence of RMS acquiring the land, in accordance with its rights under the Deed and the Declaration of Trust, that an acquisition of the land under the Just Terms Act would not be necessary. It does not follow, of course, that the Club would not then have rights of compensation, to the extent that it contends and can establish that WDA and RMS have made the promises on which it relies to support the conditions which it claims should be imposed on the relief granted to RMS.

157. RMS responds that the Club does not advance any claim capable of proper determination in the proceedings and the Court cannot and would not impose any condition on the grant of relief to the effect of the condition(s) proposed by the Club. By its submissions in reply, RMS also submits that no Cross-Claim had been filed by the Club and no cause of action had been identified by it. RMS submits that the Club’s position is untenable on the facts and the law, where the Club entered into an exclusive license for the land under a promise to make the land available without cost if required to do so. RMS also submits that the Court would not impose a condition that RMS would provide compensation on the basis provided in the Just Terms Act if that Act does not in fact apply.

158. It seems to me that the Club’s application cannot succeed. In Black Uhlans above, Campbell J observed (at [159]) that the unclean hands maxim “requires the Court to look at the conduct of the litigant who seeks the assistance of equity”. That proposition highlights the difficulty in the Club’s claim, namely the absence of any evidence that RMS has acted wrongfully or unconscionably in dealing with the Club, either at all, or in a manner that has any appropriate connection to the subject matter of the suit, namely an application to enforce the relevant trusts. The Club contends that WDA has made various representations, for which RMS is liable, as to the terms on which WDA will deal with the Club. The Club leads no evidence in these proceedings that RMS has sought to resile from any such representations. Mr To, who appeared for the Club, invited me to infer that RMS must have done so because the Club has appeared in the proceedings. I cannot draw that inference, where an equally available inference is that the Club is simply seeking to improve its position beyond any rights that it may have by reason of the representations on which it relies.

159. So far as the evidence goes, WDA appears to have adopted a constructive approach in dealing with the Club’s wish to be compensated for loss which it may suffer and there is no evidence that RMS has resiled from that approach. I note, in that regard, that it does not seem to me that a previous indication to negotiate reasonable compensation arrangements with the Club requires RMS to submit to the application of the Just Terms Act, if that Act is in fact not applicable, because RMS is entitled to enforce the trust obligations, as distinct from seeking to progress a negotiated arrangement with the Club as the WDA had committed to do. In the absence of any evidence that RMS has sought to resile from any representations that WDA may have made to the Club, or of reliance by the Club on those representations, or of detriment that has to date been suffered by the Club, no basis for a claim for wrongful conduct or unconscionability on the part of RMS is established, and no basis is shown to impose a condition requiring that the State or RMS proceed in accordance with the Just Terms Act if that Act is not otherwise applicable.

160. As Mr To properly accepted in submissions, the condition which the Club now seeks to have imposed, in substance, corresponds to the representations which it contends have already been made to it. It does not seem to me that the Court should seek to impose conditions on orders made in these proceedings, to give effect to existing charitable trusts, so as to promote the interests of a third party which has available to it other equitable remedies in respect of any representations on which it has relied to its detriment. The preferable course is to leave the Club to rely on such rights and remedies as it may have in respect of the promises or representations on which it relies.

Orders and Costs

161. It seems to me that, in the first instance, I should stand over the proceedings for a short time to allow the parties an opportunity to make submissions as to the form of any declaratory orders that should now be made and to allow the Council an opportunity to give effect to the trusts or give appropriate undertakings. If it is necessary to do so, any question of the removal and replacement of the Council as trustee of the trusts can then be addressed, whether before the end of the Court term in mid-December 2015 or in January or early February 2016.

162. RMS submits that the Council and the Golf Club should be ordered to pay its costs of the proceedings. It seems to me that RMS has been substantially successful in its claims against the Council which should, in the ordinary course, be required to pay its costs. It will also be necessary to hear the parties as to the position of the Attorney General in this regard. Although the Club was not successful in seeking relief in these proceedings, it seems to me that its involvement added little to the overall costs of the proceedings, where its written submissions were directed to limited issues and Mr To’s oral submissions were appropriately brief. In those circumstances, it seems to me that there should be no order as to the Club’s costs of the proceedings.

161. However, I should hear the parties generally as to costs once any remaining issues as to whether the Council remains as trustee of the trusts have been determined and orders have been made to give effect to my judgment.

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Amendments

23 December 2015 - Para 6 - Attorney-General to Attorney General.

Para 97 - final sentence - "although does not" to "although it does not"

Para 103 - LGA 1993 to LGA 1919.

Para 117 - first sentence - "refusing make" to "refusing to make"

Decision last updated: 23 December 2015