Tricon Services Group Pty Ltd v Manly Council
[2011] NSWLEC 69
•20 April 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Tricon Services Group Pty Ltd v Manly Council [2011] NSWLEC 69 Hearing dates: 28 February, 1 April 2011 Decision date: 20 April 2011 Jurisdiction: Class 1 Before: Biscoe J Decision: (1) No notice under s 262(3) of the Local Government 1919 (now repealed) had been served on the owner of the land the subject of these proceedings at the date of repeal of that Act (2) No road widening order within the meaning of s 25 of the Roads Act 1993 applies to the land the subject of these proceedings.
Catchwords: DEVELOPMENT APPLICATION:- notice served on owner of land under s 262 of Local Government Act 1919 is taken to be a road widening order within meaning of Roads Act 1993 - whether such a notice had been served. Legislation Cited: Local Government Act 1919 ss 262, 618, 628, 629
Local Government Act 1993 s 710
Public Roads Act 1902
Real Property Act 1900 s 42
Roads Act 1993 ss 25, 26, Sch 2 cll 16, 47Cases Cited: Ex parte McDonald; Re Lake Macquarie Shire Council (1961) 61 SR (NSW) 719
Kevin Snell v Manly Council [2005] NSWLEC 193
Kevin Snell Pty Ltd v Manly Council [2004] NSWLEC 567
Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4, 62 NSWLR 361
R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12, 237 CLR 603Category: Principal judgment Parties: Tricon Services Group Pty Ltd (Applicant)
Manly Council (Respondent)Representation: Mr J Gleeson SC with Mr J Doyle (Applicant)
Mr J A Ayling SC with Mr M Staunton (Respondent)
Hunter Lawyers (Applicant)
HWL Ebsworth Lawyers(Respondent)
File Number(s): 10584 of 2010
JUDGMENT
Introduction
This is the determination of two preliminary questions in a Class 1 planning appeal. The questions are set out at [23] below. The appeal is against Manly Council's refusal of a development application ( DA ) for a new mixed residential commercial development which the applicant, Tricon Services Group Pty Ltd, has proposed over three properties fronting a public road known as North Steyne on the beachfront at Manly. The three properties are numbers 46, 47 and 48.
On 28 April 1961 notification of the realignment of North Steyne under the Public Roads Act 1902 in order to widen it was published in the NSW Government Gazette.
In 1993 the Public Roads Act 1902 was repealed and replaced by the Roads Act 1993.
The Council contends that a "road widening order" referred to in s 26(1) of the Roads Act 1993 applies to each of the properties comprising the DA site over the area of the road realignment. Section 26(1) prohibits a person from constructing, replacing or repairing a building or work on land to which a road widening order applies. Consequently, Council submit that the road widening order is justification to refuse the DA.
If road widening orders do apply to the properties as the Council contends, it will be significant to the assessment of the DA, which proposes building work within the area of the road widening. It would also impact upon any future DA.
Section 25 of the Roads Act 1993 prescribes the mechanics of issuing a road widening order. A road widening order complying with these requirements has not been issued by the Council.
However, Council contends that a road widening order is deemed to apply to the properties by virtue of notices it claims to have served on past owners of the properties 50 years ago by letter dated 24 August 1961 ( 1961 Letter ) under a system of land acquisition for the purpose of road widening which once applied under s 262 of the Local Government Act 1919.
That Act was also repealed in 1993. At the date of repeal the owners of the properties were different to the owners in 1961, the point in time when Council claims to have served the notices.
A notice under s 262 is taken to be a road widening order because of cl 47(1) of Schedule 2 to the Roads Act 1993. Clause 47(1) is in the following terms:
Clause 47 Section 262 Notices
(1) A notice served on the owner of land under s 262 of the repealed Act [i.e the Local Government Act 1919] is taken to be a road widening order within the meaning of this Act.
Clause 47 sits in context with cl 16(1) which provides:
Clause 16 General Savings
(1) if anything done under a repealed Act still has effect immediately before the repeal of that Act and that thing could have been done under a provision of this Act if it had been in force at the time when the thing was done, the thing continues to have effect after that repeal as if it had been done under that provision.
Section 262 relevantly provided:
262 (1) The council may cause any public road to be realigned under the Public Roads Act, 1902, in order to widen the road.
(2) Any realignment under this section may be carried into effect by the acquisition under this Act of the necessary land, or under the succeeding provisions of this section relating to the realignment method of acquiring land, or by a combination of these methods.
(3) Where the council proposes to apply the realignment method of acquisition to any lands affected by a realignment it shall serve notice accordingly upon the owners of lands affected; and until such notice is served the interests of such owners shall not be affected by the realignment.
(4) Under the realignment method compensation for any injurious effects suffered by reason of such realignment may be claimed but shall be limited to payment of the value of the land taken from any owner by reason of the realignment.
Such value shall be ascertained and such compensation shall be payable-
(a) in the case of land clear of buildings and obstructions, as at the date when the notice referred to in subsection (3) is served upon the owner of such land, and
(b) in all other cases, as at the date when such land is cleared of buildings and obstructions by the owner or lessee whether for the purpose of building to the new alignment or not.
Subject to the provisions of this section, from the date upon which such compensation shall be payable the land shall vest in the council for a public road.
...
(5) Where any public road is realigned, and where the realignment method is applied, the owner of any land or building or work affected by such realignment shall not construct, build, place, reconstruct, rebuild, replace, or repair any building or work or portion of a building or work standing upon the land between the old alignment and the new:
Provided that the council may approve the execution of minor and not substantial repairs and improvements in order to permit of the reasonable preservation and temporary use of any existing building or work, but not so as to violate the intention of this section.
(6) Whether or not the council has elected to apply the realignment method it may, at any time, and notwithstanding any such election, decide to purchase or resume any or all of the lands affected by the realignment under the provisions of this Act relating to the purchase or resumption of land.
(7) Notwithstanding the provisions of the Public Roads Act, 1902, the land between the old alignment and the new shall not form part of the road until the council has acquired title to such land, or a dedication thereof as a public road has been effected.
Section 629 provided:
Any notice required to be served upon any ratable person or upon any owner or occupier shall, if due service has been once made upon the ratable person or upon the owner or occupier, be binding upon any person claiming through or under or in trust for or in succession to the ratable person or being a subsequent owner or occupier, as if the notice had been served on such person.
Section 262 was a provision for compulsory acquisition of private property. The common law protects private property rights by interpretive approaches where statutes are said to affect them. Where such a statute is capable of more than one construction, the construction will be chosen which interferes least with private property rights: R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12, 237 CLR 603 at [40] - [43].
I construe s 262 as follows. First, it drew a distinction between realignment (step 1), which under the Public Roads Act 1902 was by gazettal, and carrying into effect realignment (step 2).
Secondly, a council had to decide between three methods of carrying realignment into effect:
(a) acquisition, which would result in the Council having to pay compensation for the land acquired including the improvements; or
(b) "the realignment method", whereby the Council would not have to pay compensation for improvements but would not get title until any buildings and obstructions were cleared; or
(c) a combination of (a) and (b).
In the present case the Council says that realignment was carried into effect by the realignment method.
Thirdly, if a council proposed to apply the realignment method as distinct from the alternatives, then it was obliged to serve notice "accordingly" upon the owners of land affected. Until it did so, the interests of the owners were not affected by the realignment: s 262(3).
Fourthly, the requirement that the Council must serve the notice "accordingly" meant that the notice must (a) identify that the Council had made the election to propose to apply the realignment method as opposed to the alternatives: Kevin Snell Pty Ltd v Manly Council [2004] NSWLEC 567 at [17], [19]; (b) identify the land affected by the realignment; and (c) identify which part of that land was the subject of the realignment method.
Fifthly, in terms of the quality of the notice, it must be clear and distinct because it brought about the loss of valuable property rights. Land clear of buildings and obstructions vested in the Council and compensation was payable when the notice was served: s 262(4). Uncleared land vested in the Council and compensation was payable when the land was cleared and in the meantime the Land was subject to the prohibition on construction etc in s 262(5). In either case, therefore, a valid notice served the purpose of compulsorily devesting the owner of title.
Previous cases
In two cases relating to properties in South Steyne this Court has held that alleged Council notices under s 262(3) of the Local Government Act 1919 were invalid.
In Kevin Snell Pty Ltd v Manly Council [2004] NSWLEC 567 Pain J held that a 1961 Letter from the Council to owners of properties in South Steyne was not a valid notice under s 262(3) because it did not indicate that the Council had elected to adopt the realignment method of acquisition and because it was served before gazettal of the realignment.
Subsequently, the Council appears to have tried to overcome that obstacle by purporting to serve a notice in 2004. In a second case between the parties, Kevin Snell Pty Ltd v Manly Council [2005] NSWLEC 193 at [41] - [42], McClellan CJ held that that notice was invalid because it was served after the1993 repeal of the Local Government Act 1919.
The preliminary questions
The existence of a valid road widening order is critical to any potential development of the DA site. Consequently, the Court fixed two preliminary questions for determination. They are in the following terms:
(a) In the circumstances and events that have happened, had a notice under s 262(3) of the Local Government Act 1919 (now repealed) been served on the owner of the land the subject of these proceedings as at the date of the repeal of that Act?
(b) In the circumstances and events that have happened, does a road widening order within the meaning of s 25 of the Roads Act 1993 apply to the land the subject of these proceedings?
The issues
The Council's case is that s 262(3) applied because it proposed to apply the realignment method of acquisition and, by its 1961 Letter, it served notice accordingly on the owners of the subject properties. Therefore, the Council contends that its 1961 Letter is a deemed road widening order under cl 47(1) of Schedule 2 to the Roads Act 1903.
At all material times there have been buildings and obstructions on the road realignment strip on the subject properties and they have not been cleared. Therefore, if the realignment method applied by reason of the 1961 Letter, the properties will not vest in the Council and compensation will not be payable until they are cleared: s 262(4).
It is common ground that the realignment occurred upon publication of the Government Gazette of 28 April 1961. However, it is the notice of the realignment method of acquisition, not the realignment, which is the focus of cl 47.
The issues are:
(a) whether the Council has proved that the 1961 Letter was served on the owners of the subject properties at that time.
(b) whether the 1961 Letter was a valid notice under s 262(3) of the Local Government Act 1919. The sub-issues are:
(i) whether the Council has proved that it elected to propose to apply the realignment method; and
(ii) whether the 1961 Letter identified the part of the properties affected by the realignment method.
If the applicant is unsuccessful on the basis of the above issues, it raises an alternative indefeasibility issue. It contends that s 262(3) - (5) of the Local Government Act 1919 creates an estate or interest in land that would be the subject of a caveat or registrable interest under the Real Property Act 1900. It then contends that s 42(1) of the Real Property Act 1900 prevails over s 629 of the Local Government Act 1919. The result is said to be that the applicant, as the registered proprietor, holds its estate in the subject properties absolutely free from the Council's estate or interest.
Background to 1961 Letter
Between 1955 and 1958 the Council was considering re-alignment of North Steyne so as to provide a total roadway width of 100 feet.
In 1955 the Town Clerk wrote letters to the owners of properties in North Steyne giving preliminary notice of its intention to have North Steyne realigned. There is limited evidence in the form of a returned posted letter that it sent the letters by pre-paid post.
In May 1958 the Department of Lands wrote to the Town Clerk of the Council stating that it proposed to gazette the alignment concurrently with the proposal for realignment; and requesting the addresses of all parties so they could be notified prior to the realignment.
On 30 May 1958 the Town Clerk wrote a letter to the Department of Lands which said that it enclosed a list of properties affected by the proposal and the names and addresses of the respective owners. That list is not attached to the copy letter in evidence. There is a list of owners on the Council file located proximate to a copy of that letter.
On 14 August 1958 the Town Clerk wrote to owners of the properties on North Steyne notifying the owners that the Council had decided to amend that proposal to 56 feet. Endorsed on a copy retained by the Council is a note that letters were sent to named persons who appear to have been the owners of properties on North Steyne. The letter stated that the Council had already resolved that in the event that the Minister approved its application for the realignment, the Council would acquire the affected property by means of s 262(3) of the Local Government Act 1919. This letter is relevant to the issue under s 262(3) of whether the Council decided to propose to apply the realignment method.
On 8 September 1959 the Council received a letter from the Department of Lands which indicated that it enclosed plans of survey relating to the alignment and realignment of North Steyne. A copy of the letter is in evidence but the plan of a survey is not attached to it and is not in evidence.
In 1959 the Council received a copy of an apparently pro-forma letter from the Department of Lands which gave notice that Manly Council had applied for alignment and widening by realignment of North Steyne in accordance with a plan of survey, a copy of which was said to be attached for information. The letter said that on completion of the alignment, preliminary notification of the realignment proposal would be advertised and published in the Gazette. Then "a notice setting out the proposal will be forwarded to you". The letter stated that a copy of s 262 of the Local Government Act 1919 was attached. The attached plan of survey, the addressees and the attached copy of s 262 are not in evidence and seem not to have been received by the Council.
On 28 April 1961 the realignment of North Steyne was gazetted. The Gazette of folio 1253 indicated that North Steyne from the Corso to Collingwood Street had been realigned under the Public Roads Act 1902 in order to widen it in accordance with plans M32, 33, 34.2, 193 deposited in the Department of Lands. Plan M32 marked a strip along the beach frontage of the three subject properties approximately 4.5 metres wide.
The realignment effected by the Gazettal was noted on the title to each of the three properties making up the consolidated DA as follows: "Land affected by realignment see Gaz 28.4.1961 Fol 1253".
On 22 June 1961 the Council received a copy of a pro-forma letter from the Department of Lands. The letter did not note the addressee or addressees. It is identical to the copy Department of Lands letter received by the Council in 1959 referred to above, including the same Department reference number. I infer that it was merely another copy of the 1959 letter.
The 1961 Letter
The Council contends that it gave notice under s 262(3) of the Local Government Act 1919 on 24 August 1961. It relies on an unsigned letter on its file from its Town Clerk, on which the addressees are not noted, bearing the handwritten date "24/8/61" and the handwritten words "Nth and Sth Steyne realignment file". This is the 1961 Letter referred to at [7] above. The 1961 Letter, which the Council characterises as pro-forma, stated:
I refer to previous correspondence that has been sent to you both by this Council and the Department of Lands concerning the realignment of North Steyne. All necessary steps to establish the new alignment have now been taken and the formal notification was published in the government gazette on the 28 th April, 1961. As a result the new alignment of North Steyne is now as shown on the plan of survey sent to you with the letter from the Lands Department.
A physical inspection of that portion of your land that lies within the new alignment discloses that it is not free of obstructions. The obstructions on the subject land are detailed the Schedule on page (2) of this letter.
Until these obstructions are removed from the subject land the area does not vest in Council. In other words the land remains in your ownership. In explanation of this I would point out that Section 262 of the Local Government Act 1919, under which the realignment has been effected provides that the realignment is effective immediately on gazettal thereof where the affected land is completely free of obstructions. However, where the land is not so free the new alignment becomes effective on the removal of such obstructions.
The matter of the payment of compensation for your land now taken into the widened road reserve will stand deferred until such time as the affected part is completely free of the obstructions as above referred to.
It is particularly important to note the provisions of Sub-Section 5 of Section 262 of the Local Government Act, 1919, concerning the repairing and rebuilding of structures within the realignment area.
This sub-section reads as follows:
Where any public road is realigned and where the realignment method is applied the owner of any land or building or work affected by such realignment shall not construct, build, place, reconstruct, rebuild, replace, or repair any building or work or portion of a building or work standing upon the land between the old and the new alignment: Provided that the Council may approve the erection of minor and not substantial repairs and improvements in order to permit of the reasonable preservation and temporary use of any existing building or work but not so as to violate the intention of this Section.
Pursuant to the provisions of this Sub-Section Council has directed that all owners of property concerned should be informed that the only maintenance that may take place on affected buildings and other structures within the realignment area is painting. All other repairs must be the subject of prior application to and approval by Council and must be carried out in the same basic materials as at present existing.
Legal proceedings will be instituted against any person violating the provisions of the realignment proclamation.
Should you feel disposed to take immediate action to set back to the new alignment Council will be happy to discuss with you the matter of compensation for the portion of your land that will be incorporated into the widened road reserve.
The author of the 1961 Letter seems to have mistakenly thought that realignment by gazettal (step 1) also constituted giving effect to the realignment (step 2). In my view he did not focus sufficiently on the need for the Council to propose to apply the realignment method as distinct from the other prescribed methods to particular lands and to give notice accordingly.
Service
Has the Council proved that the 1961 Letter was served on the owners of the subject properties?
The Council did not follow the provisions of the Local Government Act 1919 which facilitated proof of service of notices and proof of entries in minute books even where the events may come to court many years later. First, s 618(1)(c) provided:
618. (1) The production of-
...
(c) a copy purporting to be a true copy of any ...notice made by the council and purporting to be certified as such under the hand of the mayor or president or town or shire clerk,
shall be prima facie evidence of the due making existence confirmation approval and giving of such ...notice, and of all preliminary steps necessary to give full force and effect to the same, and of the contents thereof.
(2) A copy of any ...notice certified as aforesaid shall be delivered to any person who demands the same on payment to the council of a sum not exceeding ten cents.
The Council did not retain such a copy.
The effect of those provisions was explained in Ex parte McDonald; Re Lake Macquarie Shire Council (1961) 61 SR (NSW) 719 at 722:
In my opinion, the purpose of s 618(1) and (2) is to enable prima facie evidence to be given of certain council records by producing a copy certified to be a true copy by the responsible officer of the council in whose lawful custody such record is kept. Similar provisions are found in many other statutes. The legislature appears to consider it unnecessary to require a responsible officer of a public body to give oral evidence upon such a matter. He can be relied upon to certify truthfully and without oath that a copy produced by him is a true copy of the original which is in his custody ( Wigmore on Evidence, 3 rd ed (1930), at Vol 5 Ch LVI).
Secondly, s 619 allowed a servant who caused a notice to be served to endorse upon a true copy a statutory declaration declaring the time, place and manner of service. Again that became prima facie evidence.
Thirdly, relevantly to the question whether the Council decided to apply the realigned method, proof of entries in the minute book was facilitated by the provisions of s 625.
Finally, s 628 set out four modes of service of notices and two supplementary modes, as follows:
628. (1) Any notice required by or under this Act to be served upon any rateable person or upon any owner or occupier of any land building or premises may be served as provided in this section.
(2) The service may be -
(a) personal; or
(b) by delivering the notice at or on the premises at which the person to be served lives or carries on business, and leaving the same with any person apparently above the age of fourteen years resident or employed thereat; or
(c) by posting the notice by prepaid letter addressed to the last known place of abode or business of the person to be served; or
(d) by affixing the notice on any conspicuous part of the land building or premises.
(3) In addition to the modes of service prescribed by subsection (2)-
(a) in any case where the person to be served is or after inquiry appears to be absent from New South Wales, the service may be upon the agent of such person by any of the modes prescribed in clauses (a) (b) and (c) of subsection (2);
(b) in any case where the land building or premises are unoccupied and the owner thereof or his address or place of residence is not known to the council, the service may be by advertisement as prescribed by ordinance...
(4) the notice may be addressed by the description of "rateable person" or "owner" or "occupier" of the land building or premises (naming or otherwise sufficiently indicating the same) in respect of which the notice is served, and without further name or description.
(5) The notice may be wholly or partly in printing or in writing or in both.
(6) Where the notice has been served by any of the modes prescribed by this section , all inquiries requisite under this section shall be deemed to have been made, and the service shall be conclusive evidence thereof .
(7) Proof by affidavit or orally that the notice has been posted in accordance with this section shall be conclusive evidence of service .
(8) For the purpose of this section a justice of the peace is hereby authorised to take and receive an affidavit, whether any matter to which the affidavit relates is or is not pending in any court
(Emphasis added)
With the exception of personal service, none of these statutory modes of service required the person to be served actually to receive the notice before service may be taken to be effected. Section 628 of the 1919 Act may be compared with its successor, s 710 of the Local Government Act 1993, which provides for more modes of service, of which it was said in Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4, 62 NSWLR 361 at [30]:
Section 710(2) sets out seven modes of service. Section 710(4)(b) and (c) add a further two modes. It is important to appreciate, and was properly acknowledged by the respondent, that with the exception of personal service, none of the other eight modes requires the person to be served actually to receive the notice before service may be taken to be effected. By "effected" I mean no more than that service is taken to have occurred in the manner prescribed. Nor, in my opinion, does it necessarily follow that because s 710(2) and (4)(b) and (c) provide for differing modes of service, it is necessary to look outside the section to ascertain when service has been effected in the sense referred to.
The evidence suggests that the Council was aware that the statutory procedures under the 1919 Act were available, but did not use them in this case.
Currently located next to the 1961 Letter on the Council file is a list of the owners of properties at South Steyne and North Steyne ( the List ), which appears to be an update of a 1958 Council list of owners of these properties. The List included the owners of the subject properties at that time. Two of them had changed since the 1958 list.
The Council submits that the inference should be drawn that the 1961 Letter was served on the owners on the List, including the owners of the subject properties, by sending it to them by pre-paid post, in accordance with s 628(2)(c) of the Local Government Act 1919. The Council invites the inference from the following letters on the Council file. First, three letters to the Council dated within a week or two of the date of the 1961 Letter responding to it by or on behalf of persons on the List (not the owners of the subject properties). Secondly, a returned pre-paid posted letter in 1955: see [30] above. Thirdly, a copy letter dated 3 July 1962 from the Council which appears to bear the endorsement (partly obscured on the copy in evidence) that it was "sent to all owners in North Steyne". It states, inter alia, that all owners of land affected by the realignment were advised by Council on 24 August 1961 of the effect of the proclamation of the realignment on their land.
The applicant submits that there is insufficient evidence to establish that the 1961 Letter was served in that way on the owners of the subject properties.
The following matters weigh against drawing the inference that the 1961 Letter was served by pre-paid post upon the owners of the subject properties:
(a) two circumstances discourage generous inferences in favour of a council which, in this case, has kept incomplete records of such a notice and its service. The first circumstance is that service of such a notice was an essential step in the compulsory acquisition of land. Secondly, the Council did not follow statutory provisions facilitating proof of notice and service: see [42] - [48] above;
(b) there is no evidence by affidavit or orally of posting of the 1961 Letter by pre-paid post, which would have provided conclusive evidence of service: s 628(7) Local Government Act 1919;
(c) the Council has not provided direct proof of the system by which posting is said to have occurred;
(d) there are no addressees noted on the 1961 Letter, in contrast to earlier letters on the Council file;
(e) the Council has not provided proof of the method by which the pro forma 1961 Letter passed into a completed letter to each owner;
(f) the Council did not keep a completed copy of the actual letter said to have been sent to each owner, which would have enabled it to discharge its statutory obligation to provide a copy to any person who demanded it for no more than ten cents: s 618(2) Local Government Act 1919;
(g) there is a shadow of doubt over whether the List now located next to the 1961 Letter on the Council file was located there at the date of that Letter or whether it may have come into existence at some other time and been accidentally relocated;
(h) there is a shadow of doubt over whether the copy of the 1961 Letter on the Council file was the final version because it focussed on obstructions on the recipient's land in the area of the realignment. The evidence suggests that some of the properties in North Steyne were free of obstructions in the area of the re-alignment;
(i) the evidence upon which the Council relies for the inference is fragmentary. The fact that three persons whose names appear on the List apparently received the 1961 Letter does not necessarily establish that it was posted by prepaid mail to the owners of the subject properties.
On balance, I am not satisfied that the Council has discharged its burden of proving that the 1961 Letter was served on the owners of the subject properties.
Identification
The applicant submits that in any event the 1961 Letter was not a valid notice under s 262(3) because it did not clearly identify the land the subject of the realignment method.
Clear identification of the land the subject of the realignment method was, in my opinion, an essential element of a valid s 262(3) notice because the notice affected valuable property rights. A valid notice vested unobstructed land in a council, and was an essential precondition to the vesting of obstructed land in a council when the obstructions were cleared. In the meantime the land was subject to the prohibition on construction etc in s 262(5).
There is no description in the 1961 Letter of the part of the land that was the subject of the realignment method. The Schedule referred to in the second paragraph of the 1961 Letter is blank and in any case was only said to describe obstructions. Two of the three letters from owners received by the Council in response to its 1961 Letter sought identification of the exact portion of their properties within the realignment. The third letter indicated that the owner had had an interview with Council staff (which invites the question whether his land affected by the realignment method may have been identified at the interview). Of the two owners' letters which sought identification of their affected land, one stated that the owner did not have a copy of "the plan of survey" referred to in the first paragraph of the 1961 Letter. That paragraph stated that the new alignment was shown on "the plan of survey sent to you with the letter from the Lands Department". The date the plan of survey was supposedly sent was not identified. Possibly this was intended to be a reference to the apparently pro-forma unaddressed letter from the Department of Lands received by the Council in 1959: see [35] above.
However, there is no evidence that that1959 letter and plan of survey were in fact sent to all owners. Indeed, one of the letters of reply from owners to the 1961 Letter expressly said that that owner did not have the plan of survey. Moreover, the plan of survey is not in evidence.
I am not satisfied that any of the owners of land in North Steyne received the plan of survey. Ownership of two of the subject properties had changed between 1959 and the 1961 Letter. Consequently even if the new owners had received the 1961 Letter, they certainly did not receive a plan of survey in 1959.
On the evidence the 1961 Letter failed to clearly identify the parts of the subject properties that were covered by the realignment method. Consequently, in my opinion, notice was not given as required by s 262(3).
Did Council elect to propose to apply the realignment method of acquisition?
The applicant submits that there is no evidence that the Council in fact elected to propose to apply the realignment method, and therefore s 262(3) is also not satisfied in that respect. The Council submits that it is unnecessary for the Council to decide to make such a proposal. I disagree. The decision to make that proposal is a condition precedent to the service of the notice for which s 262(3) provides: Kevin Snell Pty Ltd v Manly Council [2004] NSWLEC 567 at [16] - [19].
The Council then submits that in any event the decision to make that proposal was made by 14 August 1958 as evidenced by a letter its Town Clerk wrote on that date ( the 1958 Letter ): see [33] above. The addressees are noted on the copy in evidence and appear to be owners of properties in North Steyne.
As stated earlier, from March 1955 to August 1958 the Council was contemplating re-alignment of North Steyne so as to provide a total roadway width of 100 feet.
By the 1958 Letter the Council notified that it had decided to amend that proposal to 56 feet. The 1958 Letter stated that the Council had already resolved that in the event of the Minister approving its application for the realignment, the Council will acquire the affected property by means of s 262(3) of the Local Government Act 1919.
This letter is the high point of the Council's contention that it made a decision to propose to apply the realignment method of acquisition.
The first difficulty is that if there was an earlier resolution, it was referable to a realignment which would provide a total roadway width of 100 feet. But that idea died, as the 1958 Letter recorded. In my view, it was then necessary for the Council to propose to apply the realignment method to realigned land which would provide a total roadway width of 56 feet.
Whether or not I am correct on that point, there is a further difficulty. There is insufficient evidence that the Council ever passed such a resolution. The applicant gave notice to the Council to produce the resolution. At the hearing the only resolution produced in response to the notice did not support the statement in the letter. It was merely a Council resolution amending its previous decision to realign by 100 feet to 56 feet.
After the hearing concluded, the Council obtained leave to reopen to tender the following minutes:
(a) minutes of a Council planning committee meeting on 28 April 1953. They record the following committee recommendation:
" 4. North Steyne Alignment and Re-alignment (P.O.R No 53/152 - 28/4/53). That a letter as per draft submitted, be forwarded to the Department of Lands. That immediately the road has been aligned, the necessary Notices be issued to property owners and a formal application for re-alignment to provide a roadway 100 feet in width, measured from the eastern kerb, be forwarded to the Department of Lands."
(b) minutes of a Council meeting on 5 May 1953 recording a resolution that the planning committee's recommendations of 28 April 1953 be adopted.
These resolutions on their face do not evidence a decision by the Council to apply the realignment method.
In this state of the evidence, one possible explanation is that the author of the 1958 Letter misunderstood (if he ever turned his mind to it) the effect of the Council's resolution. I am not satisfied on the evidence that there in fact was a Council resolution to the effect of that stated in the letter.
I conclude that the Council has not discharged its onus of proving that it elected to propose to apply the realignment method. Accordingly, for that reason also the 1961 Letter was not a valid notice under s 262(3).
Indefeasibility
As the applicant has been successful on the issues of validity and service of the 1961 Letter, it is unnecessary to consider the alternative indefeasibility issue referred to at [28] above.
Orders
For these reasons, I answer each of the preliminary questions as follows:
(1) No notice under s 262(3) of the Local Government Act 1919 (now repealed) had been served on the owner of the land the subject of these proceedings as at the date of the repeal of that Act.
(2) No road widening order within the meaning of s 25 of the Roads Act 1993 applies to the land the subject of these proceedings.
The matter will be re-listed before the Registrar for directions on 27 April 2011. The exhibits may be returned.
Decision last updated: 27 April 2011
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