Transport Infrastructure Development Corp. v Parramatta City Council

[2005] NSWLEC 742

Land and Environment Court

of New South Wales

CITATION:

Transport Infrastructure Development Corp. v Parramatta City Council [2005] NSWLEC 742

PARTIES:

APPLICANT:
Transport Infrastructure Development Corp.

RESPONDENT:
Parramatta City Council

FILE NUMBER(S):

40835 of 2005

CORAM:

Bignold J

KEY ISSUES:

Injunctions and Declarations :- whether land vested in the Council and used as public car park was relevantly “land subject to a trust for a public purpose” and hence deemed to be classified as “community land”.

LEGISLATION CITED:

Local Government Act 1993, cl 6 of Schedule 7

CASES CITED:

Attorney General (NSW v Parramatta City Council (1949) 49SR (NSW) 283;;
Bathurst City Council v PWC Properties Pty Ltd (1997) 93 LGERA 391;
Bathurst City Council v PWC Properties Pty Ltd (1998) 100 LGERA 383;
Brisbane City Council v Attorney General (Qld) (1978) 40 LGERA 314;
Jones v Sutherland Shire Council (1979) 40 LGRA 323

DATES OF HEARING:

02/12/2005

 
DATE OF JUDGMENT: 

12/23/2005

LEGAL REPRESENTATIVES:

APPLICANT:
Mr R Lancaster, Barrister
SOLICITORS
Clayton Utz

RESPONDENT:
Dr J Griffiths, Barrister with Mr P Clay, Barrister
SOLICITORS
Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

23 December 2005

40835 of 2005 TRANSPORT INFRASTRUCTURE DEVELOPMENT CORPORATION V PARRAMATTA CITY COUNCIL

JUDGMENT

HIS HONOUR:

A. INTRODUCTION

1 By class 4 application, the Applicant seeks a number of declarations in respect of the status under the Local Government Act 1993 (the LG Act) on 21 May 2004 of a parcel of land currently known as lot 2 in Deposited Plan 857877, and comprising an area of 967 square metres and being situate at the corner of Argyle Street and Valentine Avenue, Parramatta (the subject land).

2 It was on that day that the Applicant acquired the subject land by a Notice of Compulsory Acquisition pursuant to the Land Acquisition (Just Terms Compensation) Act 1991. At the time of compulsory acquisition, the subject land was owned by the Council, having been acquired by it by transfer dated 6 April 1956 for valuable consideration (14,500 pounds).

3 Following its rejection of the amount of compensation offered in the Compensation Notice, the Council commenced in this Court class 3 proceedings (No 31283 of 2004) pursuant to s 66(1) of the Land Acquisition (Just Terms Compensation) Act 1991. Those proceedings are pending awaiting the allocation of hearing dates which the parties will seek following judgment in the present case.

4 In the course of the parties’ preparation for the hearing in the class 3 proceedings, a question has arisen on the pleadings concerning the status under the LG Act of the subject land immediately prior to its compulsory acquisition.

5 In those pleadings the Council has asserted that the subject land, at the date of compulsory acquisition, was relevantly “operational land” in terms of the LG Act but the Applicant has asserted that the status of subject land as at that date was as “community land” in terms of the LG Act. On the basis of these competing assertions as to the status of the subject land at the date of compulsory acquisition, the parties in their pleadings in the class 3 proceedings have asserted very disparate values for that land. It is the parties’ mutual understanding that the outcome of the present proceedings will determine the status of the subject land under the LG Act and that that status will be crucial to the determination of the market value of the subject land and hence the compensation payable under the Just Terms Compensation Act in respect of its compulsory acquisition. In the course of argument, I questioned whether the parties’ mutual understanding was legally sound but since both parties have sought the Court’s determination, there is no need for me to elaborate on my doubt (derived from the principles for assessing compensation enunciated in the Just Terms Act) concerning the parties’ mutual understanding.

6 However, at the outset it is worth noting that these proceedings are not concerned with any suggestion of any breach of a public trust. Rather, the Applicant asserts the existence of a public trust, not for the purpose of protecting or defending that trust, but for the purpose of establishing the status of the subject land at the date of its compulsory acquisition by the Applicant which public acquisition by virtue of the Just Terms Act, s 20(1) had the legal effect of vesting the subject land in the Applicant “freed and discharged from all estates, interests, trusts….etc in…..the land”.

7 It is against that background that the present class 4 proceedings were commenced on 2 August 2005 in which the Applicant claims the following related declarations—

(i) as at 1 July 1993 (being the commencement date of the LG Act ) the subject land was deemed to be classified as “ community land ” by virtue of the operation of cl 6(2) of Schedule 7 to the LG Act;
(ii) the resolution passed by the Council on 14 June 1994 purporting to classify the subject land as “ operational land ” pursuant to the LG Act , cl 6(3) of Schedule 7 was beyond the power of the Council and was accordingly invalid and of no effect; and
(iii) as at 21 May 2004 (being the date that the subject land was compulsorily acquired), the subject land was classified as “ community land ” in terms of the LG Act .

8 According to the pleadings (the Points of Claim and the Points of Defence) two disputed issues are presented for adjudication, one being the substantive issue (i) whether the subject land at the relevant date (1 July 1993) was “land (vested in or under the control of the Council) subject to a trust for a public purpose” within the meaning of the LG Act, cl 6(2)(b) of Schedule 7; and the other being the discretionary issue; (ii) if it was such land, whether in the exercise of its discretion the Court should withhold the declaratory relief claimed.

9 There is the possibility of a further substantive issue arising in the present case, “namely whether the subject land, if relevantly community land” by virtue of the operation of cl 6(2)(b) of Schedule 7 continued to be community land as at the two other relevant dates raised by the Applicant’s claims in these proceedings—namely (i) 14 June 1994 (when the Council resolved to classify it “operational land”; and (ii) 21 May 2004 when the Applicant compulsorily acquired the subject land.

10 However, this further substantive issue may be resolved on the basis of the pleadings, at least insofar as the Council has admitted (par 15 of its Points of Defence) that it has taken no further steps to classify the subject land under the LG Act other than the action it took on 14 June 1994 (by resolution classifying the subject land, together with many other designated lands, as “operational lands” under the LG Act). Accordingly, if the Applicant is successful in establishing that as at 1 July 1993 the subject land is taken to be classified as “community land” that fact when combined with the pleadings would establish that that status of the subject land continued as at the two later relevant dates. For these reasons, the present proceedings raise only the single substantive issue.

B. THE RELEVANT FACTS ON THE SUBSTANTIVE ISSUE

11 The only evidence tendered in respect of the substantive issue were documentary materials collected from the Council’s relevant file records (Exhibit 1 and Exhibit A).

12 In respect of the substantive issue (which is a mixed question of law and fact), the pleadings raise a number of contested factual issues. Thus, the Points of Claim allege that the subject land, since 1963 has been used as a public carpark and that use has continued up to the date of compulsory acquisition (pars 4, 6 and 15).

13 In response to these allied allegations, the Points of Defence deny all of these allegations (pars 3, 5 and 7) and assert that the Council acquired the subject land on 6 April 1956 for valuable consideration and that at all material times, the Council has treated the subject land as not being subject to any trust for public purposes (par 8).

14 The forensic significance arising from this state of the pleadings and this state of the evidence lies in the fact that it is for the Applicant (as the party seeking the declaration) to prove all of the facts that are necessary to enable the declaration to be obtained: see Jones v Sutherland Shire Council (1979) 40 LGRA 323 at 327 per Hutley JA.

15 The documentary evidence establishes that the Council has had a long association since 1950 with the subject land, which until it was subdivided in 1996 (creating lots 1 and 2 in DP 857877 for the purpose of the sale by the Council of lot 1 to the State Rail Authority of NSW) formed part of a larger lot comprising 1 rood 11 1/2 parcels (1,303 square metres) being Lot B in the Plan lodged with Transfer F877326. My reference hereafter to the “subject land”, is intended wherever appropriate, to also include the larger lot until its subdivision in 1996 when lot 1 was sold to the State Rail Authority.

16 Part of the relevant history of the Council’s association with the land is recorded in the Council memorandum dated 1 May 1984 from the Chief Town Planner to the Town Clerk in the context of the Council’s consideration of the then current proposal by a developer, Girvan Bros, for an exchange of the subject land for an equivalent area situate to the immediate south of a proposed 14 storey office building to be erected on land adjoining the subject land. After considering the implications for the Council in the suggested land exchange and recording the Chief Town Planner’s recommendation against the proposed land exchange, the Council memorandum continues:

Notwithstanding the above matter, due to the strategic location of Council’s existing carpark, it is considered that any land swap involving this site will require careful consideration by Council.
The following history of the site is considered relevant:-
7th December, 1950:
Council occupies the subject land for carparking purposes subject to satisfactory lease arrangement between Council and the then owners of the land, McCorquodale Bros. Reference 1603/BN/34(3)).
2nd September 1952:
McCorquodale Bros. Accept Council’s offer of ₤2/-/- per week rental for the use of the subject land for public carparking – rental to commence as from 1st January, 1951, reference 4034/P/34(3).
5th December, 1955:
Council agrees to purchase the subject land from McCorquodale Bros., payment being effected over a four year period, reference 3334/x/34(3).
21st December, 1961
Mortgage discharged and Certificate of Title volume 7280 Folio 236 received by Council, reference 2958/L/34(3).
6th June, 1967:
Plans showing a layout and typical structure for the development of land and air space in the vicinity of and over Parramatta Railway Station and incorporating the use of Council’s carpark received by Council from the Department of Railways, reference 2376/c/95(1). The relevant Plan known as Plan No. P.R.669C envisaged the use of Council’s land for the purpose of a bus/train transfer terminal at first floor level and ramps down to street level.
28th October, 1968:
Council resolved -
That the Railways Department be informed that the Council desires to approve in principle of a suitable development and that endeavours be made to arrange a conference of the Railways Department, State Planning Authority and this Council, in February, 1969
18th September 1970:
Minister for Transport, Mr M Morris advises Council that the State Planning Authority is of the view that any decision of the development of air space at the Station should be preceded by a detailed examination of the future needs of the area. Indeed the Authority considers it would be most unwise to develop the air space over the Station until a redevelopment plan for the Parramatta City Centre has been prepared in accordance with the Sydney Region Outline Plan, Reference 6366/M/95(1).
9th April, 1978:
Public Transport Commission advised Council that it has appointed GHD – Parsons Brinckenhoff Pty Ltd to undertake the investigation and conceptual design phase of the Parramatta Station Upgrading reference: 1945/N/95(1).
26th November, 1981:
State Rail Authority advises Council that it will make available its land on the northern side of the station for the development of a bus-rail interchange, reference: 321/R/95/7.
16th September, 1982
State Rail Authority advises Council that it is preparing documents calling for the registration of interest by developers for the redevelopment of the station, reference 3463/x/95/1.
19th December, 1983:
Council resolves to refer the question of bus terminal arrangements to the Working Party of the Church Street Mall proposal for urgent consideration, reference” 2984/J/95/1 (See City Engineers Report No 927/83 attached as Appendix B ).

17 By letter dated 22 May 1984, the Council rejected the land exchange proposal of Girvan Bros.

18 The next event in the history revealed by the documentary evidence is the Council’s consideration and rejection in February 1987 of an offer by Girvan Bros to purchase the subject land from the Council to convert it into a pedestrian Plaza.

19 In the Town Clerk’s Report No 637/86 (dated 12 December 1986) the views of the City Engineer are recorded and include the following:

With regard to the Valentine Avenue car parking area, Council will be aware that the area provides time limited parking of two (2) hour duration for a total of 45 vehicles.
The car park provides parking for people wishing to attend to their business needs in the adjacent office building and shops and is subject to heavy demand with all spaces being full during most of the normal business hours.
It should also be noted the area is in heavy demand during the evening hours due to its proximity to the Stallions Hotel.
…………
…………
The deletion of car parking spaces at this location would result in further pressures on other car parking areas in Parramatta and force the people using this facility to seek parking further form their point of business or shopping.
Whilst the Valentine Street car park is not considered large enough for construction of a multi-storey car park, it serves a useful purpose for the people in this area of the central business district and it is felt that it should not be sold.

20 The next event in the history according to the documentary evidence was the Council’s agreement in principle to a proposal made by the owner of a nearby office development situate in Valentine Street to upgrade the subject land by creating a pedestrian plaza and park and a reduced carpark (providing for 17 public car spaces instead of the existing 43 car spaces) with the Council being compensated for the loss of 26 car spaces by a payment of $200,000 to enable it to create additional car spaces elsewhere.

21 That agreement in principle was communicated in the Town Clerk’s letter dated 20 July 1988 requesting that the amount of compensation for the loss of carspaces be increased from $200,000 (as offered) to $300,000 (as sought by the Council). The agreement also contemplated the Council agreeing not to undertake any development in the area for 10 years.

22 It appears that nothing came of this proposal.

23 The next event in the history according to the documentary evidence was a suggestion form a citizen of Quakers Hill that the use of the subject land as a carpark was no longer necessary in view of the nearby existence of a multi-storey carpark which suggestion was responded to by the letter dated 3 June 1991 from the Acting Town Clerk which included the following statement:

This matter has been examined and it is considered that the carpark should remain as it fills an essential part of the system of carparks in the Parramatta Central Business District.

24 In 1989 the subject land was included in Zone No 3(f) “Business—City Centre” under the Parramatta Local Environmental Plan 1989.

25 The foregoing is a summary of the relevant documentary evidence concerning the use of the subject land up to the 1 July 1993 being the relevant date upon which the LG Act commenced.

26 That evidence establishes the following facts:—

(i) the Council acquired the subject land for valuable consideration by purchase in 1956;
(ii) thereafter, it continuously used the subject land for the purpose of public carparking (providing up to 45 spaces);
(iii) whilst so using the subject land, the Council considered a number of proposals promoted various by developers for the exchange and/or purchase of the subject land or for its conversion to a pedestrian plaza or such a plaza combined with a reduced carparking facility but none of these proposals was implemented; and
(iv) from 1989, the subject land has been included in Zone No 3(f) “ Business—City Centre ” in terms of the Parramatta Local Environmental Plan 1989.

27 On 14 June 1994, the Council resolved, inter alia, as follows:

Public land listed in Attachment 1 to the Director-Corporate Development Report No 66/94, being known as unclassified land after the commencement of the Local Government Act 1993 , owned and controlled by Parramatta City Council, be classified as operational in accordance with the provisions of the Local Government Act 1993.

28 Attachment 1 comprises a Table providing details of approximately 200 different properties described by reference to separate suburbs and streets within the Parramatta Local Government Area, lot and plan reference, zonings and existing uses. The subject land is included in the suburb Parramatta by reference to its lot and plan number (lot B Deposited Plan 384108) its Zoning (zone No 3(f) “Business City Centre”) and its existing use (“CarPark”).

29 Approximately 50 properties (including the subject land) detailed in the Attachment have their existing use described as “CarPark”.

30 The reference in the Attachment to the zoning of the subject land is a reference to the fact that under the Parramatta Local Environmental Plan 1989 the subject land is included within Zone No 3(f) City Centre, the express aims of which zone are stated as follows:

(a) to encourage office and commercial development appropriate to the Centre’s status and regional functions;

(b) to ensure the development is arranged and carried out in a way that maximises convenience and comfort for pedestrians;

(c) to ensure that development is arranged and carried out in a way that preserves views to and from the Centre, and appropriately relates to items of the environmental heritage within the Centre;
(d) to ensure that developers contribute to the supply of parking in the Centre whether on site or otherwise, having regard to the capacity of the street system immediately adjoining the site;

(e) to accommodate other development which complements or supports the primary office functions of the zone; and

(f) to ensure that the major use of any land within the zone is for commercial or office development rather than for retail development.

C. THE STATUTORY PROVISIONS RELEVANT TO THE ADJUDICATION ON THE SUBSTANTIVE ISSUE

31 The principal statutory provision is cl 6 of Schedule 7 to the LG Act 1993. (Schedule 7 contains savings and transitional provisions consequent upon the repeal of the Local Government Act 1919 and its replacement by the LG Act 1993 which commenced on 1 July 1993 which is the date of the “relevant commencement” for the purposes of cl 6 of Schedule 7 to that Act).

32 Clause 6 is in the following terms:

Classification of existing public land
(1) This clause applies to all public land within a council’s area as at the commencement of Part 2 of Chapter 6 (the relevant commencement ).
(2) On the relevant commencement, the following land that is vested in or under the control of a council is taken to have been classified as community land:

(a) land comprising a public reserve,
(b) land subject to a trust for a public purpose,
(c) land dedicated as a condition of a development consent under section 94 of the Environmental Planning and Assessment Act 1979 ,
(d) land reserved, zoned or otherwise designated for use under an environmental planning instrument as open space,
(e) land controlled by a council that is vested in the corporation constituted by section 8 (1) of the Environmental Planning and Assessment Act 1979 .
(3) Within 1 year after the relevant commencement, a council may, by resolution, classify, as community land or operational land, any public land that is vested in it or under its control and that is not classified by subclause (2).
(4) A resolution under subclause (3) to classify public land that is not owned by the council must not be made without the consent of the owner.
(5) On the making of a resolution under subclause (3) that classifies public land as operational land, the land is discharged from any trusts, estates, interests, dedications, conditions, restrictions and covenants affecting the land or any part of the land, subject to the terms of the resolution, but is not discharged from:
(a) any reservations that except land out of a Crown grant relating to the land, and
(b) reservations of minerals (within the meaning of the Crown Lands Act 1989 ).
(6) The classification of public land by resolution under subclause (3) may be changed only by a local environmental plan or, in the case of land that has been classified as operational land, by a resolution under section 33.
(7) Any public land that may be classified by resolution under subclause (3) and that is not classified within 1 year after the relevant commencement is taken to have been classified as community land.
(8) The provisions of this clause are in addition to, and do not limit the operation of, the other provisions of this Act with respect to the classification of land.

33 The present case concerns cl 6(2)(b) as did the case decided by the High Court of Australia in Bathurst City Council v PWC Properties Pty Ltd (1998) 100 LGERA 383, which is the principal authority relied upon in the competing submissions made in the present case.

34 In applying cl 6(2)(b), it is also necessary, conformably to the High Court’s judgment, to consider a number of relevant provisions of the 1919 Act.

35 These include in particular ss 518 and 526 that were extensively considered in the High Court’s judgment which relevantly provided (both at the date in 1956 when the Council acquired the subject land and at the commencement date of the 1993 Act) as follows:

518 (1) Subject to the provisions of this Act the council may sell or exchange any land or building or other real or personal property vested in or belonging to the council or under its care, control, and management.
(2) Unless otherwise expressly provided, nothing in this Division shall be deemed—

(a) [repealed]
(b) to authorise the sale or exchange or any public reserve, public place, or cemetery, or any land subject to a trust.

526 The council may—
(a) accept and hold any real or personal property conveyed, assigned, devised, or bequeathed to it for any charitable or public purpose;
(b) act in the administration of such property for the purposes and according to the trusts for which the same may have been conveyed, devised, assigned, or bequeathed.

36 In addition to Sections 518 and 526 I would also refer to two other provisions of the 1919 Act, namely s 532 as in force when the Council acquired the subject land in 1956 and s 270Q which was inserted into the 1919 Act by the Local Government (Amendment) Act 1965 (Act No 27) as a provision of a new Division 13B to Part IX which Division was headed “Free parking areas”.

37 Section 532 relevantly provided as follows:

(1) The council may acquire land within or outside the area for any purpose of this Act by lease, purchase, appropriation, or resumption in accordance with this Part.
(2) In addition to the powers conferred by subsection (1) the council may so acquire—
(a) any lands of which those proposed to be acquired for any purpose of this Act form part;
(b) any lands adjoining or in the vicinity of any land proposed to be acquired for any purpose of this Act;
(c) any lands which the council considers in the public interest should be made available for the purpose for which such land is reserved or zoned by any environmental planning instrument which are otherwise required to give effect to any provision included in any such instrument.

38 Section 270Q provided as follows:

The council may on any land acquired by or vested in or under the care, control and management of the council, other than a public road or a public reserve or land held by the council on trust for any purpose, provide areas for the accommodation of vehicles without payment of a fee or charge.

D. THE ADJUDICATION ON THE SUBSTANTIVE ISSUE

39 As earlier noted, the competing arguments have chiefly relied upon the judgment of the High Court in PWC Properties for its exposition of the meaning of the expression appearing in cl 6(2)(b) of Schedule 7 to the LG Act “land subject to a trust for a public purpose”.

40 The Council’s argument has emphasised the very different factual circumstances between that case and the present case.

41 In particular, the Council has emphasised that its acquisition of the subject land in 1956 was by way of purchase for full valuable consideration in stark contrast to the relevant acquisition in PWC Properties which was conveyed for a specified public purpose and for a nominal consideration. The judgment of the High Court had described the acquisition in the following terms in two separate passages appearing at 397:

…….where the property in question is land conveyed to a (public) authority for other than commercial value and consequent upon the exercise of powers to implement planning policy
…………
Here, the nominated lots, as part of the car parking site, were conveyed to and held by the council "for" a public purpose, namely the achievement, or at least the advancement, of the town planning purpose which led to the imposition by the council of the conditions upon the granting of the development consent on 21 December 1979. That town planning purpose was the acquisition of land for a public car park to accommodate the increased demand for parking which would be created by the surrounding commercial development, including what became the Payless Plaza Shopping Centre.

42 In my judgment, the facts of the two cases are crucially different and in such circumstances, it would not at all be surprising if the application of the meaning of the relevant statutory phrase that was established of the High Court’s judgment were to produce entirely different results in the two cases.

43 But to return to the High Court’s judicial exposition of the statutory phrase, “land subject to a trust for a public purpose” it is important to note the following passages from the judgment which encapsulate the interpretation that was adopted by the Court.

44 Firstly, there is the following passage at 396:

The determinative consideration is that the term "trust" in the expression "land subject to a trust for a public purpose" in cl 6(2)(b) of Sch 7 of the Act is not to be understood wholly in its technical sense.

45 Next, there is the following passage at 397:

Clause 6(2)(b) is concerned with land which, on the commencement of the Act, is to be taken to be classified as community land because it then was vested in or under the control of a council and was "subject to a trust for a public purpose". The phrase "for a public purpose" as it appears in such a statute is "a wide phrase" and should not be "read narrowly". In relation to the obligations imposed upon local government authorities with respect to land vested in them, the phrase has had a lengthy history. This involves the use of "trust" in a sense broader than a trust of a public nature which qualified as a charitable trust within the spirit and intendment of the Elizabethan statute.

46 Having so concluded as to the meaning of the statutory phrase in cl 6(2)(b) of Schedule 7, to the LG Act, the High Court’s judgment proceeds to give a detailed consideration of ss 518 and 526 of the LG Act (including a survey of relevant legislative antecedents) before the judgment culminates in the following conclusion expressed at 401:

The term trust in cl 6(2)(b) of Sch 7 is apt to include those governmental responsibilities which, whilst not imposing a trust obligation as understood in private law, may fairly be described as a statutory trust which bound the land and controlled what otherwise would have been the freedom of disposition enjoyed by the registered proprietor of an estate in fee simple. The trust was "not a trust for persons but for statutory purposes". It would be no answer to the existence of such a constraint that there was lacking a beneficial owner of the nominated lots with standing in a court of equity to enforce observance by the council of the dedication of the nominated lots to the provision of parking spaces. It had been within the competence of the Attorney-General to seek to restrain action incompatible with the due exercise of the powers of the council or the due discharge of its duties .

47 In my respectful opinion, the key to the right understanding and application to the present case of this passage lies in the existence of the relevant “trust” obligation “which bound the land and controlled what otherwise would have been the freedom of disposition enjoyed by the registered proprietor of an estate in fee simple”.

48 In PWC Properties, the creation (and hence the existence) of the relevant “trust” obligation was effected by the manner in which the land had been conveyed to the Council namely for nominal consideration and for the town planning purpose that had been recognised by the imposition of the relevant conditions on the grant of development consent.

49 That manner of acquisition of the land by the Council was entirely conformable to the operation of 1919 Act, s 526 as expounded by Roper CJ in Equity in Attorney-General v Parramatta Council (1949) 49 SR (NSW) 283 at 290/291, in respect of which exposition the High Court’s judgment refers with apparent approval in two separate passages at 398 and 402 respectively.

50 In my judgment, it is the absence of any foundation for the creation and existence of any relevant “trust” obligation binding upon the subject land that vitally distinguishes the present case from the PWC Properties case.

51 In the present case, the only foundation for the creation and existence of such a “trust” obligation binding upon the subject land that is established by the Applicant’s case is the long and deliberate use of the subject land for public carparking purposes, and the Council’s recognition of the utility (from a town planning perspective) of that use.

52 But in my judgment, these facts do not provide the requisite foundation for the creation and existence of a relevant trust obligation binding the subject land.

53 Having regard to the circumstances in which the Council acquired the subject land (by purchase for full valuable consideration) no relevant trust obligation was created upon acquisition, even if (as appears to be the case) the Council purchased the subject land with an intention to use it for public carparking purposes (as it had previously been used when the Council was lessee of the land). It follows that if, following acquisition, the subject land were to become impressed with a relevant trust obligation, that could only occur by a declaration of trust by the Council, as the beneficial owner of the subject land. Neither the pleadings nor the documentary evidence in the present case establish any relevant intention on the part of the Council to create a trust in respect of its beneficial ownership of the subject land.

54 Although the creation of an express trust does not require formal words (save for the requirements of writing and signature under s 23C(1)(b) of the Conveyancing Act 1919) once the relevant intention (to create a trust) is clear (Brisbane City Council v Attorney General (Qld) (1978) 40 LGERA 314 at 317) there is no evidence in the present case that the Council formed or declared the relevant intention to create a relevant “trust”. The fact that the Council for many years used the subject land as a public carpark falls very far short of the existence of an intention on its part to create a statutory trust. Likewise, the fact that in so using the subject land, the Council recognised the importance of that use in town planning terms, falls very far short of the existence of an intention on the Council’s part to create a statutory trust. Accordingly, there is no evidence of any intention on the part of the Council to create an express trust. Nor is there any foundation for the creation of a trust by operation of law.

55 Indeed, once it is appreciated that the Applicant’s case for the existence of a trust wholly depends upon the public carparking use made of the subject land over a long period of time, the reliance upon that fact may be depreciated or disqualified by the operation of s 270Q of the 1919 Act authorising a council to provide free parking areas on Council’s lands “other than a public road or a public reserve or land held by a council on trust for any purpose” (my emphasis).

56 However, for the reasons that I have given, the Applicant’s case based upon the long and deliberate use for public carparking of the subject land does not establish the requisite foundation for the creation or existence of a relevant “trust” obligation binding the subject land.

57 Although the Applicant’s argument has been formulated by reference to various statements contained in the reasons for the High Court’s judgment in PWC Properties, upon closer analysis it is found to be lacking in the essential attribute for the creation of a “trust” obligation that is foundational to the High Court’s exposition of the statutory phrase.

58 Whereas that exposition certainly establishes the notion that the statutory phrase “a trust for a public purpose” is a more flexible and less technical concept than is a charitable trust, it does not abrogate the requirement that there must be created a “trust” obligation binding upon the land. The Applicant’s case has failed to establish any requisite foundation for the creation and existence of such an obligation binding upon the subject land. It follows that the Applicant has not established that the subject land was, at the commencement of the LG Act 1993 relevantly “land subject to a trust for a public purpose” within the meaning of cl 6(2)(b) of Schedule 7 of the LG Act..

59 In view of these conclusions, it is not necessary for me to consider the Council’s additional argument based upon the decision of the Court of Appeal in PWC Properties (see Bathurst City Council v PWC Properties Pty Ltd (1997) 93 LGERA 391) holding other relevant lands (besides the two lots which are the subject of the decision of the High Court) not to be land held on trust for a public purpose—see the judgment of Sheller JA at 397 and following under the heading “The other 20 lots”—other than to note that my decision is consistent with the reasoning supporting the Court of Appeal’s decision in respect of those other lands. (That aspect of the judgment of the Court of Appeal was not the subject of the appeal to the High Court).

60 It follows from my conclusion that the Applicant has not established that the subject land was relevantly “land subject to a trust for a public purpose” that its legal attack upon the validity of the Council’s resolution passed on 14 June 1994 classifying the subject land as “operational land” is without any foundation and must be held to fail. It follows that the Applicant has not established any entitlement to any of the three declarations it has claimed in the proceedings (noting that its claims to the second and third declarations were entirely dependent upon it obtaining the first declaration).

61 My conclusion on the substantive issue means that it is not necessary for me to consider the Council’s discretionary defence based upon the facts that not only has the Council’s 1994 resolution stood unchallenged for these past 11 years but also the Council has subsequently dealt with the subject land conformably to its status as “operational land” under the LG Act (including the sale of part of it to State Rail in 1996 and the lease of part of the remainder of the subject land to the Roads and Traffic Authority for a term from 2002 to 2005 which was cut short by the compulsory acquisition of the subject land in May 2004). Without finding it necessary to adjudicate upon the discretionary defence case raised by the Council, I would merely wish to observe that the “defence” is self-evidently strong, particularly given the nature and scope of the present proceedings.

E. CONCLUSIONS AND ORDERS

62 For all of the foregoing reasons, the Applicant has failed to substantiate any of its claims to declaratory relief and accordingly I order that the class 4 application be dismissed with costs. The exhibits may be returned.