The Council of the City of Shoalhaven v National Parks and Wildlife Service

[2003] NSWLEC 88

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Reported Decision: 127 LGERA 280

Land and Environment Court

of New South Wales

CITATION:

The Council of the City of Shoalhaven v National Parks and Wildlife Service [2003] NSWLEC 88 revised - 4/12/2003

PARTIES:

APPLICANT/ FIRST CROSS RESPONDENT
The Council of the City of Shoalhaven

FIRST RESPONDENT
The Director General, National Parks and Wildlife Service

SECOND RESPONDENT/ CROSS APPLICANT
The Minister administering the National Parks and Wildlife Act 1974

THIRD RESPONDENT/ SECOND CROSS RESPONDENT
The Estate of the late H. L. Halloran

FOURTH RESPONDENT/ THIRD CROSS RESPONDENT
Irrayadda Pty Ltd

FIFTH RESPONDENT/ FOURTH CROSS RESPONDENT
Warren Halloran

SIXTH RESPONDENT
The Minister administering the Environmental Planning and Assessment Act 1979

FILE NUMBER(S):

40152 of 2001; 30048 of 2002

CORAM:

Cowdroy J

KEY ISSUES:

Compensation :- owner initiated acquisition - whether a council as owner of land can require acquisition of its lands reserved for national park - provision in local environmental plan requiring acquisition of land - whether appropriate acquiring authority nominated - delegation - alter ego principle - application to Minister constituted as corporation sole - whether an alternative claim lies against the Minister administering the Environmental Planning and Assessment Act 1979 for alleged failure to nominate appropriate authority - interest in fee simple of roads servicing the land

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 26, s 27, s 34
Interpretation Act 1987, s 31
Jervis Bay Regional Environmental Plan 1996, cl 18(2)
Land Acquisition (Just Terms Compensation) Act 1991, s 19, s 21
Land and Environment Court Act 1979, s 20, s 24, s 25,
Local Government Act 1906, s 99, s 100
Local Government Act 1919, s 232
National Parks and Wildlife Act 1974, s 7(1), s 21, s 31(1), s 33(4) s 145, s 146, s 150
Public Sector Employment and Management Act 2002, s 11, Sch 1
Roads Act 1993, s 9(1)

CASES CITED:

Carltona Ltd v Commissioners of Work and Others [1943] 2 All ER 560;
Dabbs v Seaman (1925) 36 CLR 538;
Guthega Development Pty Ltd v Minister administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353;
O'Reilly and Others v The Commissioners of the State Bank of Victoria and Others (1982-1983) 153 CLR 1;
Sanderson and Another v Wollongong City Council (1998) 102 LGERA 1;
Sterling, Re; Ex parte Esanda Ltd (1980) 30 ALR 77

DATES OF HEARING:

14/04/2003
15/04/2003
06/05/2003

DATE OF JUDGMENT:

07/18/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Webster SC

SOLICITORS
Morton & Harris

FIRST RESPONDENT
Mr J. Ayling SC
Ms J. Jagot (Barrister)

SOLICITORS
Crown Solicitors

SECOND RESPONDENT
Mr J. Ayling SC
Ms J. Jagot (Barrister)

SOLICITORS
Crown Solicitors

THIRD RESPONDENT
N/A

FOURTH RESPONDENT
N/A

FIFTH RESPONDENT
N/A

SIXTH RESPONDENT
Mr B. Preston SC
Mr A. Pickles (Barrister)

SOLICITORS
Department of Planning NSW

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40152 of 2001
30048 of 2002

Cowdroy J

18 July 2003

The Council of the City of Shoalhaven

Applicant/ First Cross Respondent
v

The Director General, National Parks and Wildlife Service

First Respondent

The Minister administering the National Parks and Wildlife Act 1974

Second Respondent/ Cross Applicant

The Estate of the late H. L. Halloran

Third Respondent/ Second Cross Respondent

Irrayadda Pty Ltd

Fourth Respondent/ Third Cross Respondent

Warren Halloran

Fifth Respondent/ Fourth Cross Respondent

The Minister administering the Environmental Planning & Assessment Act 1979
Sixth Respondent

Judgment

History of the proceedings and the application

1 The applicant is the owner of allotments of land in deposited plans 8515, 8516 and 8517 (“the deposited plans”) in Clyde Shire being parts of Portion 3 in the Parish of the Bherwerre, County of St Vincent. The land within the deposited plans were part of a subdivision effected in approximately 1915 and known as Pacific City Estate. The land was originally owned by a company known as Pacific City Pty Limited of which the late Mr Henry Halloran was the principal. Roads were constructed by Pacific City Pty Limited throughout the land within the deposited plans. The applicant also claims to be entitled to the fee simple in such roads (“the roads”). The land within the deposited plans together with the roads are the subject land of these proceedings (“the subject land”).

2 Between 1916 and 1919, 142 lots were sold and between 1920 and 1925 a further 368 lots were sold. Pacific City Estate was unsuccessful as a residential subdivision and in the ensuing years the subdivided land and roads reverted to natural bushland. The applicant, then known as Clyde Shire Council thereafter acquired most of the lots in the deposited plans as a result of the non-payment of rates by owners of the lots in the subdivision. Some of the roads and survey marks remain to enable identification of the exact location of the lots and roads in the deposited plans.

3 The subject land is affected by the provisions of cl 18(2) of the Jervis Bay Regional Environmental Plan 1996 (“the JBREP”) which provides:-

18(2) The land shown as Zone 8 (b) on the zoning map is Proposed National Park. If you own land in this area, then you may request the Director-General of National Parks and Wildlife to acquire the land. Any request for acquisition should be in writing and the Director-General of National Parks and Wildlife must acquire the land.

4 The JBREP was made on the 10 January 1997. Its purpose was to initiate a proposed national park at Jervis Bay. Since the subject land is within the area referred to in cl 18(2) of the JBREP the applicant seeks to exercise the right provided by such clause. By letter dated 27 March 1997 the applicant made a request to the first respondent (“the Director General”) to acquire the subject land. The applicant submits that the Director General failed to act upon the applicant’s request and has not taken steps to have the Minister administering the National Parks and Wildlife Act 1974 (“the second respondent”) acquire the subject land.

5 Accordingly the applicant seeks the following relief:-

(i) a declaration consequent upon the applicant’s letter of 27 March 1997 that the Director General is bound by cl 18(2) of the JBREP to acquire the lands within the deposited plans;

(ii) a declaration that the applicant has an interest in the fee simple in the roads;

(iii) a declaration that the Director General is required to acquire the applicant’s interests in the roads pursuant to cl 18(2) of the JBREP; and
(iv) an order that the Director General take all necessary steps to obtain the approval of the Governor in Council to acquire the land within the deposited plans and the roads.

6 In the alternative the applicant seeks an order that the Director General take all necessary steps to obtain the approval of the second respondent and the Governor in Council to acquire the subject land.

7 As a further alternative the applicant seeks a declaration to remedy the failure of the Minister administering the Environmental Planning and Assessment Act 1979 (“the sixth respondent”) to give effect to the requirements of s 27 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). Section 27 of the EP&A Act requires the nomination of the authority which is to acquire reserved land and provides:-

s 27 Reservation of land for public purposes
(1) Where an environmental planning instrument reserves land for use exclusively for a purpose referred to in section 26(1)(c), that environmental planning instrument shall make provision for or with respect to the acquisition of that land by a public authority and is held by that public authority for that purpose.
(2) Nothing in this section shall be construed as authorising or requiring an environmental planning instrument to contain a provision empowering or purporting to empower the compulsory acquisition of land

8 By letter dated 26 July 2002 the applicant requested the sixth respondent to designate the public authority which is to acquire the subject land. The sixth respondent has not responded. The applicant submits that if the Court finds that cl 18(2) of the JBREP omits to nominate the relevant authority required to acquire the subject land, such clause of the JBREP must have been created in breach of the EP&A Act. Accordingly the applicant seeks a declaration that it is entitled to an order by the sixth respondent made pursuant to s 21(4) of the Land Acquisition (Just Terms Compensation) Act 1991 (“the Just Terms Act”) to designate the appropriate public authority to acquire the subject land. In addition to such declaration the applicant seeks an order that the sixth respondent designate the second respondent as the public authority to acquire the subject land and an order that the sixth respondent make such an order in writing pursuant to s 21(5) of the Just Terms Act.

9 The legal representative of the Estate of the late H.L. Halloran (“the third respondent”), Irrayadda Pty Ltd (“the fourth respondent”) and the fifth respondent have filed a submitting appearance save as to costs.

Basis of applicant’s claim

10 The applicant’s claim for a declaration that the Director General or the second respondent take steps to acquire the subject land is predicated upon the Court’s power pursuant to s 20(2) of the Land and Environment Court Act 1979 (“the Court Act”) to make a declaration or order enforcing any right, obligation or duty conferred or imposed by a planning or environmental law. The EP&A Act is an “environmental law” by virtue of s 20(3) of the Court Act. The JBREP constitutes a statutory instrument made under the provisions of the EP&A Act and was published in the New South Wales Government Gazette No. 4 on 10 January 1997.

11 The applicant claims that the purpose of the JBREP is to identify the procedure by which acquisition is to be carried out to give effect to the statutory obligation imposed upon the Director General or the second respondent by s 27 of the EP&A Act.

12 The applicant submits that the gazettal of the JBREP in 1997 does not displace the provisions set out in the National Parks and Wildlife Act 1974 (“the NPW Act”) which outlines the processes the Director General initiates to acquire the land for reservation under such Act. Rather the JBREP identifies the land to be acquired in accordance with s 27 of the EP&A Act. Consequently cl 18(2) of the JBREP imposes a positive duty on the Director General to take steps that are available to him or her under the NPW Act to give effect to the acquisition of land. The applicant submits that the procedures the Director General should follow are set out in s 145 and s 146 of the NPW Act. Section 145 of the NPW Act provides:-

s 145 Acquisition of land for reservation or other purposes
The Minister may, for the purpose of obtaining land for reservation under Part 4 or Part 4A, of conserving threatened species, populations or ecological communities, or their habitats or of preserving, protecting and preventing damage to Aboriginal objects or Aboriginal places:
(a) on behalf of Her Majesty, enter into and give effect to an agreement for the vesting in, or surrender to, Her Majesty of any land, or
(b) acquire land by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.

Section 146 of the NPW Act relevantly provides:-

(1) For the purpose of:

(a) improving access to any land reserved or dedicated or acquired under this Act,
(b) the management, maintenance or improvement of any such land, or
(c) carrying out works for any of those purposes,
the Minister may:
(d) on behalf of Her Majesty, enter into, and give effect to, an agreement for the vesting in, surrender to, or leasing to, Her Majesty, or for the occupation under licence, of any land adjoining or in the vicinity of the land so reserved or dedicated, or
(e) acquire any land (including an interest in land) adjoining or in the vicinity of the land so reserved or dedicated by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 .
…
(2A) The Minister may, on behalf of the Crown, acquire land (including an interest in land) for the purpose of a future lease grant or dealing by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 .

(2B) An acquisition for a future lease grant or dealing is an acquisition:
(a) to enable the reservation or dedication of land under this Act and the exercise of powers, authorities, duties and functions conferred or imposed by or under this Act in relation to the land, or

(b) to enable the exercise of powers, authorities, duties and functions conferred or imposed by or under this Act in relation to land already reserved or dedicated under this Act.

(2C) The publication in the Gazette of an acquisition notice under section 19 of the Land Acquisition (Just Terms Compensation) Act 1991 for a purpose that is described as a future lease grant or dealing does not:

(a) to the extent to which the land referred to in the acquisition notice was Crown land immediately before the publication of the acquisition notice, affect the status of the land as Crown land, or

(b) operate to revoke any reservation as national park, historic site, state conservation area, regional park, nature reserve or karst conservation reserve of the land referred to in the acquisition notice.

(2D) Nothing in this section is taken to mean that the Minister cannot exercise functions in relation to land under this Act unless the Minister first compulsorily acquires the land concerned.

(2E) Subsection (2A) does not limit the purposes for which land may be acquired under section 145 or any other provision of this Act.

13 Pursuant to s 146 of the NPW Act, the applicant alleges that the Director General or the second respondent is required to publish a notice under s 19 of the Just Terms Act which would divest the applicant of its interest in the subject land (see s 20 of the Just Terms Act) and allow the determination of compensation to commence.

14 The applicant submits that the JBREP does not direct the Director General to acquire land in his or her personal capacity but requires the Director General to take all reasonable steps necessary to obtain the approval of the second respondent for the acquisition of the subject land pursuant to the NPW Act. Alternatively if the NPW Act does not empower the Director General to acquire the land such power is implied by s 26 and s 27 of the EP&A Act. The applicant submits that the EP&A Act is beneficial and facultative because it was enacted after the NPW Act and contains no provisions stating that it has precedence.

Submissions of the Director General and the second respondent

15 The Director General formally opposes the declarations and orders as sought against it. The Director General and the second respondent claim that the Director General has no power under the NPW Act to acquire the subject land as that power rests solely with the second respondent.

16 Senior counsel who appears for both the Director General and the second respondent makes no submissions against declarations being made against the Minister of the National Parks and Wildlife Service. Senior counsel submits that any references to “Minister” in these proceedings are to the second respondent constituted as the corporation sole created pursuant to s 150 of the NPW Act. Section 150(1) relevantly provides:-

s 150 Minister to be corporation sole for certain purposes

(1) For the purposes of the exercise and performance of the Minister’s authorities, duties and functions under Part 4A and this Part and under any other provisions of this or any other Act that are identified (by those provisions) for the purposes of this section, the Minister is hereby constituted a corporation sole under the name of “Minister administering the National Parks and Wildlife Act 1974 ”.

Findings

17 The Director General fulfils the specific functions referred to in the NPW Act. Such officer may investigate proposals for the addition of new areas to any land reserved under Pt 4 of the NPW Act: see s 7(1) of the NPW Act. The care, control and management of, inter alia, national parks is vested in the Director General’s care (see s 31(1) of the NPW Act) and are imposed on the Director General when land is acquired for the purpose of a national park: see s 33(4) of the NPW Act. However, no power exists in any statute which enables the Director General to acquire land.

18 Such a finding does not mean that the applicant’s action must fail. It is an established principle that an authorised official may act as a minister’s delegate or agent in recognition of the fact that a minister’s functions are “so multifarious that no minister could ever possibly attend to them”: see Carltona Ltd v Commissioners of Work and Others [1943] 2 All ER 560 at p 563. The Court notes that Carltona has been applied in proceedings concerned with the EP&A Act and the NPW Act: see Guthega Development Pty Ltd v Minister administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353 per Samuels JA at p 368. However the Court must consider the facts in these proceedings and determine whether “Director General” in cl 18(2) of the JBREP may be read as a reference to the second respondent.

19 Section 21 of the NPW Act allows the Minister to make an express delegation and delegate to the Director General “any power (other than the power of delegation conferred by this section), authority, duty or function conferred or imposed on the Minister or the Director-General”: see s 21(1)of the NPW Act. Such a delegation must be in writing (see s 21(1) of the NPW Act), which is not evident in these proceedings.

20 Alternatively the alter ego principle does not require there to be an express delegation but still recognises that powers vested in a minister may be lawfully exercised by officials of the relevant government department. Such principle was enunciated in Carltona and adopted in the High Court of Australia in O’Reilly and Others v The Commissioners of the State Bank of Victoria and Others (1982-1983) 153 CLR 1. Wilson J in O’Reilly said at p 30:-

It seems to me that a clear distinction is to be drawn between the delegation of a power and the exercise of that power through servants and agents: see the informative discussion by Brennan J. in Re Reference under Ombudsman Act, s. 11 (1979) 2 ALD 86 at pp. 93-95 . In Carltona Ltd v Commissioners of Works [1943] 2 ALL ER 560, at p.536 [sic] Lord Greene M.R. described, in words which have become well-known, the necessity in modern government for the shared performance of duties short of delegation. He said:
“It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon the ministers and the powers given to the ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible.”
Denning L.J. (as he then was) made the same point in Metropolitan Borough and Town Clerk of Lewisham v Roberts [1949] 2 K.B. 608. at p. 621 , when he said:
“Now I take it to be quite plain that when a minister is entrusted with administrative, as distinct from legislative, functions he is entitled to act by any authorised official of his department. The minister is not bound to give his mind to the matter personally. That is implicit in the modern machinery of government: see Carltona Ltd v Commissioner of Works, and an article by Professor Willis in 21, Canadian Bar Review, at p. 257.”

21 The Director General is a responsible official of the National Parks and Wildlife Service, being the principal officer and described as “Department Head” of such government department: see Public Sector Employment and Management Act 2002, s 11 and Sch 1. Accordingly the Director General is an appropriate authorised official to exercise the administrative powers of the Minister of the National Parks and Wildlife Service.

22 Mason J in O’Reilly qualified the alter ego principle at p 18 where His Honour said:-

Apart from any exercise of his power of delegation the Commissioner may appoint agents to act on his behalf and in his name. But, having regard to the statutory provisions here, I do not think that the Commissioner can appoint an agent to act on his behalf in exercising a statutory discretion or a statutory power which involves the formation of an opinion, except perhaps on the footing that the Commissioner retains to himself the substantial exercise of the discretion or the substantial formation of the opinion, or the exercise of substantial control over the exercise of the discretion or the formation of the opinion, leaving to the agent the ministerial act of communicating the decision or issuing a notice.

23 The power to acquire land conferred by cl 18(2) of the JBREP is administrative, that is no formation of an opinion is required. Accordingly the circumstances in these proceedings can be distinguished from the comments of Mason J in O’Reilly.

24 Furthermore s 34A of the EP&A Act requires consultation between the Minister of Urban Affairs and Planning, the Director General of Urban Affairs and Planning and other statutory authorities, including the Director General, prior to the preparation of a draft regional environmental plan. Where there has been a nomination of the Director General for such consultation the Court can infer that the there must have been an implied delegation from the Minister of the National Parks and Wildlife Service. In these circumstances it can be inferred that the nomination of Director General in cl 18(2) of the JBREP was not an oversight or mistake. Rather, such nomination was deliberate and was intended to authorise the Director General to act on behalf of the Minister of the National Parks and Wildlife Service.

25 Senior counsel for the Director General and the second respondent submits that Carltona and related principles cannot apply because these proceedings are concerned with the Minister constituted as a corporation sole rather than the Minister in his or her personal capacity. Accordingly senior counsel argues that a corporation can only perform its function through the hands of persons who comprise the corporation. That is, it is unnecessary to delegate such functions.

26 The Court rejects such submissions. Although most corporations are associations of more than one individual both English and Australia law recognise a type of corporation called the corporation sole. The corporation sole consists of one person only and its successors who are incorporated by law: see Blackstone, Sir W, Commentaries on the Laws of England, 21st ed, Oxford, 1977, Vol 1 at p 469. Accordingly the principles enunciated in Carltona, O’Reilly and other relevant authorities are applicable to the Minister constituted as a corporation sole who equally requires assistance from authorised officials of its department.

27 When construing statutory instruments, a court will endeavour to reach an interpretation that will be within power, rather than arrive at an interpretation which would render the instrument invalid: see s 31 of the Interpretation Act 1987. To give full effect to cl 18(2) of the JBREP the second respondent is the appropriate public authority to acquire land for the purpose of a national park. Accordingly the Court finds that the words “Director General” in cl 18(2) of the JBREP are a reference to the Director General acting as the agent or alter ego of the second respondent for the purposes of Pt 4 and Pt 4A of the NPW Act. So construed, cl 18(2) of the JBREP adequately identifies and nominates the acquiring authority, namely the second respondent by its agent the Director General.

28 The request made by the applicant on 27 March 1997 pursuant to cl 18(2) of the JBREP has elicited no response but establishes the applicant’s legal entitlement to relief in the nature of mandamus. Once a request is made to the Director General to acquire the land as provided by cl 18(2) of the JBREP, the Director General is empowered to implement the acquisition as the Director General is invested with the necessary power by virtue of such clause: see Sterling, Re; Ex parte Esanda Ltd (1980) 30 ALR 77 at p 83. Such relief will permit the statutory process provided by cl 18(2) of the JBREP to be carried into execution. The Court will therefore make a declaration and order that the Director General as agent of the second respondent take all reasonable steps to acquire the lands within the deposited plans pursuant to cl 18(2) of the JBREP.

Entitlement to fee simple in the roads

Applicant’s application and submissions

29 In proceedings 40152 of 2001 the applicant seeks the following declaration in relation to the roads:-

A declaration that the applicant has an interest in fee simple in the roads set out in the plans registered at the Land & Property Information Office as Deposited Plans 8515; 8516 and 8517 (herinafter called “the roads”).

30 In proceedings 30048 of 2002 the applicant claims the following relief:-

A determination pursuant to s.25 of the Land & Environment Court Act that the applicant has an interest in fee simple in the roads set out in the plans registered at the Land & Property Information Office as Deposited Plans 8515; 8516 and 8517 (hereafter called “the roads”).

Section 25 of the Court Act grants the Court “jurisdiction to determine the nature of the estate or interest of the claimant” when hearing a claim referred to in s 24 of the Court Act. Section 24 of the Court Act empowers the Court to hear and dispose of claims made for compensation resulting from compulsory acquisition of land in accordance with the Just Terms Act.

31 The applicant makes its initial claim to the fee simple in the roads in accordance with common law. If a landowner has manifested an intention to dedicate land as a road as a means of access the road thereby becomes a public road: see authorities referred to in Sanderson and Another v Wollongong City Council (1998) 102 LGERA 1 at pp 6. The applicant submits that such intention was evinced by the original developer, namely the late Mr H.F. Halloran.

32 Alternatively the applicant bases its claim upon the premise that the applicant acquired the fee simple in the roads which provided access to the lots in the subdivision in accordance with the principle referred to in Dabbs v Seaman (1925) 36 CLR 538.

33 The evidence establishes that the roads were constructed in accordance with the requirements stipulated in s 99 and s 100 of the Local Government Act 1906 to the satisfaction of Clyde Shire Council. The roads were constructed at the cost of Pacific City Pty Limited. No records exist to show that the fee simple in the roads were either transferred or dedicated to the applicant (or its predecessors), but some of the roads were used by the public, as evidenced by several witnesses who resided in the locality.

34 Section 232 of the Local Government Act 1919 (“the Local Government Act”) made provision for the vesting of the fee simple in roadways. Section 232(1) provided:-

s 232(1) Except where otherwise expressly provided, every public road, and the soil thereof, and all the materials of which the road is composed, shall by virtue of this Act vest in fee-simple in the council, and the council, if it so desire, shall by virtue of this Act be entitled to be registered as the proprietor of the road under the provisions of the Real Property Act, 1900.

35 Section 9(1) of the Roads Act 1993 now provides:-

s 9 Public road created by registration of plan

(1) A person may open a public road by causing a plan of subdivision or other plan that bears a statement of intention to dedicate specified land as a public road (including a temporary public road) to be registered in the office of the Registrar-General.

The applicant relies upon the statutory provisions contained in the Local Government Act and the evidence of the public use of the roads to justify its claim to the fee simple in the roads.

36 The Director General has provided evidence to the contrary. The Director General tendered in evidence transfer registered number C190822 dated 12 June 1933 between Mr H.F. Halloran as transferor and Pacific City Limited as transferee of parcels of land which contain the subject land. Such transfer specifically excludes the roads, streets, lanes shown in deposited plans 8515, 8516 and 8517. The evidence does not establish whether the whole of the subject lands are contained in the said transfer but it is clear that the transferor did not convey the roads.

37 Accordingly the last registered proprietor of the roads is the Estate of the late H.F. Halloran. Such finding is confirmed by a letter dated 28 May 2002 from the Land and Property Information New South Wales to the National Parks and Wildlife Service which states inter alia:-

There is no evidence available that these roads have been dedicated as public road.
There is no evidence available that Shoalhaven Council has acquired ownership of these roads so therefore the owner of these roads is the original subdivider “Henry Ferdinand Halloran”.

The second respondent’s cross application

38 The second respondent has filed a cross application in proceedings 40152 of 2001 on 14 June 2002 disputing the applicant’s entitlement to the fee simple in the roads. (For convenience the second respondent will continue to be so named rather than cross-applicant.) In its cross application the second respondent seeks a declaration that it is the only person who has an interest in the roads.

39 The cross application is made as a consequence of the compulsory acquisition of the roads. By notice published in the New South Wales Government Gazette No. 94 on 19 June 1998, the Minister for the Environment compulsorily acquired numerous parcels of land formerly comprising the Pacific City Estate subdivision (“the acquisition”) The acquisition included:-

Seventhly, Parish Bherwerre, County St Vincent, the interest of the registered proprietor of the residue of Certificates of Title Volume 2697, Folios 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236 and 237 in the roads comprised within D.P.’s 8515, 8516, 8517 and 8362 (exclusive of Naval College Road).

40 The fee simple in the roads in the deposited plans form part of the residue of lands within certificates of title volume 2697 folios 223 to 237. Such certificates of title record Mr H.F. Halloran as the registered proprietor of the roads. The acquisition extinguished the interest of Mr H.F. Halloran in the roads and converted such interest into a monetary claim for compensation. An order of this Court made on 7 December 1998 in proceedings 30282 of 1998 provided as follows:-

3. The Respondent pay to Warren Halloran the advance payment pursuant to s 68(2) of the Act the sum of three million, nine hundred and fifteen thousand dollars ($3,915,000.00) in consequence of the compensation notice served on or about 18 September 1998.

Findings

41 A payment of compensation for the roads has already been made in accordance with the order in proceedings 30282 of 1998. Accordingly no person other than the second respondent has an interest in the fee simple in the roads. The only question remaining is whether the applicant ever held any interest in the fee simple in the roads which was not raised when the acquisition took place on 19 June 1998 and which now could be recognised as a claim for compensation.

42 The Court has not been provided with the evidence and reasons which justified the orders made in proceedings 30282 of 1998. The Court can infer that there was sufficient evidence to warrant the making of an order for compensation.

43 The evidence concerning any interest of the applicant in the fee simple in the roads is inconclusive. Further as a result of the orders made in proceedings 30282 of 1998 the Court is not satisfied on the balance of probabilities that the applicant ever acquired any interest in the fee simple in the roads. Accordingly the Court does not grant the relief which the applicant seeks in proceedings 30048 of 2002. In respect of the cross application, the Court will make the declarations sought in paragraph one.

Findings against the sixth respondent

44 It is unnecessary to consider the claims made against the sixth respondent since the Court has determined that the designation of Director General in s 18(2) of the JBREP is adequate for the purpose of s 27 of the EP&A Act. Accordingly the applicant does not need to obtain the designation from the sixth respondent of the relevant public authority to acquire the subject land pursuant to s 21(4) and s 21(5) of the Just Terms Act.

Orders

45 The Court makes the following declarations and orders:-

1. A declaration that for purposes of clause 18(2) of the Jervis Bay Regional Environment Plan 1996 the first respondent is agent of the second respondent;

2. A declaration that the first respondent as agent of the second respondent constituted as the responsible authority pursuant to s 150 of the National Parks and Wildlife Act 1974 take all reasonable steps to acquire the lands being those allotments in plans registered at the Land Titles Office as Deposited Plans 8515, 8516 and 8517 of which the applicant is the registered proprietor pursuant to clause 18(2) of the Jervis Bay Regional Environment Plan 1996 and the Land Acquisition (Just Terms Compensation) Act 1991;

3. An order that the first respondent as agent of the second respondent constituted as the responsible authority pursuant to s 150 of the National Parks and Wildlife Act 1974 take all reasonable steps to acquire the lands being those allotments in plans registered at the Land Titles Office as Deposited Plans 8515, 8516 and 8517 of which the applicant is the registered proprietor pursuant to clause 18(2) of the Jervis Bay Regional Environment Plan 1996 and the Land Acquisition (Just Terms Compensation) Act 1991;

4. An order that the first respondent and second respondent pay the applicant’s costs of these proceedings unless an application is made to the Court within 28 days of this judgment;

5. An order that the applicant’s claim against the sixth respondent be dismissed;

6. An order that the applicant pay the costs of the sixth respondent of these proceedings;

7. A declaration that no other person has any interest in the land comprising the roads in Deposited Plans 8515, 8516 and 8517 other than the second respondent;

8. An order that each party pay its own costs of the cross application unless an application is made to the Court within 28 days of this judgment;

9. An order that the exhibits be returned.