Walker v Clarence City Council
[2025] TASSC 33
•13 June 2025
[2025] TASSC 33
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Walker v Clarence City Council [2025] TASSC 33 |
| PARTIES: | WALKER, Bradley James |
| WALKER, Ewa | |
| v | |
| CLARENCE CITY COUNCIL | |
| STAGE B DEVELOPMENTS PTY LTD (ACN 634 292 970) | |
| FILE NO: | 2635/2020 |
| DELIVERED ON: | 13 June 2025 |
| DELIVERED AT: | Hobart |
| HEARING DATES: | 29, 30 November 2021 – Geason J |
| (Written submissions – 11 June; 3, 16 July 2024) | |
| 12 August 2024 (Written submissions – 19, 30, August; 20 September; 4 October 2024) 10 October 2024 – Porter AJ | |
| JUDGMENT OF: | Porter AJ |
| CATCHWORDS: |
Administrative law – Judicial review – Reviewable decisions and conduct – Decisions to which legislation applies – Meaning of decision – Generally – "Spent" decisions with no legal effect not reviewable – Local council determination to amend sealed plan – No legal effect until Recorder of Titles effects changes to Register – Recorder with no role of approval or independent consideration – Council's decision not without legal effect.
Local Government (Building and Miscellaneous Provisions) Act 1993, s 104.
Banks v Transport Regulation Board (1968) 119 CLR 222; Wingfoot Australia Partners Pty Ltd v Kocak [2013]
HCA 43, 252 CLR 480; Burgess v Director of Housing [2014] VSC 648, considered.
Aust Dig Administrative Law [1005]
Administrative law – Judicial review – Grounds for review – Generally – When need to establish materiality of error arises – Implied materiality in relation to particular grounds of error of law and irrationality – Materiality may arise in the exercise of the discretion to grant relief – Local council hearing to amend sealed plan – Questions of non-disclosure of opponent's evidence and denial of opportunity to be heard – No material breaches of procedural fairness or errors of law established.
LPTD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98
ALJR 610, considered.
Darnell v Stonehealth Pty Ltd [2022] FCAFC 76, FCR 597, applied.
Aust Dig Administrative Law [1028]
Real property – Torrens title – Indefeasibility of title – Amendment or variation of title record – Extent of
Recorder's powers – Local council determination to amend sealed plan – Amendments effected by Recorder making changes to the Register – Amendment removed a restrictive covenant – Where registered proprietor of dominant land sought judicial review of council's decision – Title of registered proprietor of the servient tenement indefeasible on changes being made – Where no exceptions to indefeasibility – Where Recorder not a party to proceedings – Recorder unable to exercise any power of correction – Whether grant of relief futile.
Local Government (Building and Miscellaneous Provisions) Act 1993, s 104.
Land Titles Act 1980, ss 139, 141, 143C, 163.
Olympus Superannuation Fund (Tas) Pty Ltd v Recorder of Titles [2023] TASFC 6 followed.
Aust Dig Real Property [1236]
Local Government – Powers, functions and duties of councils generally – Particular powers and functions – Other matters – Power to amend sealed plans – Power to require as a condition that any person who benefits from the amendment is to make compensation of money or land to a person who is injured by it – Where council caused amendment to be made by removal of restrictive covenant – Condition of doing so that registered proprietor of servient tenement pay monetary compensation to registered proprietor of dominant tenement – No power to make that condition conditional on the happening of future events.
Local Government (Building and Miscellaneous Provisions) Act 1993, s 104(3).
Aust Dig Local Government [169]
REPRESENTATION:
Counsel:
Applicants: B McTaggart SC First Respondent: D Morris Second Respondent: A Spence SC
Solicitors:
Applicants: Butler McIntyre and Butler First Respondent: Simmons Wolfhagen Second Respondent: Page Seager Lawyers
| Judgment Number: | [2025] TASSC 33 |
| Number of paragraphs: | 220 |
Serial No 33/2025 File No2635/2020
BRADLEY JAMES WALKER and EWA WALKER v CLARENCE CITY COUNCIL
and STAGE B DEVELOPMENTS PTY LTD (ACN 634 292 970)
| REASONS FOR JUDGMENT | PORTER AJ 13 June 2025 |
| Introduction |
This is an application for judicial review. Unfortunately, it has a lengthy history. On 31 August
2021, after something of a protracted process, the first respondent, Clarence City Council, (the Council) approved a petition lodged by the second respondent (Stage B) for the amendment of a sealed plan pursuant to s 104 of the Local Government (Building and Miscellaneous Provisions) Act 1993 (the LGBMP Act). The effect of the amendment was to remove a restrictive covenant from the schedule of easements. The applicants live next to the affected land. They had the benefit of the covenant and objected to the amendment being made. When the Council made its decision, it also made a conditional order for the payment of $10,000 in compensation to the applicants.
2 On 7 September 2021 Stage B lodged the necessary documents relating to the amendment with the Recorder of Titles. On 10 September 2021, the Recorder advised Stage B's agents that the Plan had been "accepted amended pursuant to the … Request", and he sent a certified copy of the Plan "in the amended form in which it had taken effect."
3 On 3 November 2020 the applicants sought judicial review of both aspects of the Council's decision on a number of grounds involving jurisdictional error. The hearing of the application for review took place on 29 and 30 November 2021 (sic) before Geason J. The later interim fate of Geason J was set out by Blow CJ in Ding v De Wit [2024] TASSC 6, a judgment handed down on 1 March 2024. In short, on 2 November 2023 Geason J was served with a police family violence order and subsequently charged with summary offences. On 12 December 2023, the Attorney-General tabled in the House of Assembly an undertaking signed by Geason J by which he promised not to sit in respect of any matters except in the extent that the Chief Justice might request.
4 In Ding, Blow CJ noted that he considered it inappropriate to make any such requests while the charges against Geason J were pending. Geason J did not respond to a request disqualifying himself in various matters to enable them to proceed in his absence. At the time of Geason J's undertaking, he had not delivered judgment in this matter. Early in 2024, to reflect the words of Blow CJ, circumstances remained such that it was very clear Geason J would be unable to give judgment within a reasonable time hence.
5 Accordingly, on 2 May 2024 Stage B applied for a reconstitution of the Court and on 15 May, the parties agreed to such an order, with the substituted judge to make such directions as they saw fit. The matter was then allocated to me. I ascertained that the applicants and Stage B both wanted to make further written submissions, with the applicants then requesting a listing for the purposes of oral argument. That took place in August 2024, with further written submissions to be lodged in accordance with directions made at the hearing. In those submissions, the applicants raised two issues which, until then, had not been mentioned at all. That necessitated a further hearing. Geason J resigned on 18 November 2024.
Background
6 The sealed plan is SP 141337 (the Plan). The applicants are the registered proprietors of the property at 23 Raleigh Court, Howrah; lot 43 on the Plan. Stage B is the registered proprietor of the property at 21 Raleigh Court, Howrah; lot 42. The Plan relates to a 69-lot subdivision approval for which
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was granted in October 2003. The schedule of easements to the Plan contained covenants that bound the owners, including successive owners, of several lots. The covenants were expressed to be with the intent that the burden ran with and bound each lot. In respect of both lot 42 and lot 43 there was a covenant in terms that there was to be no construction of more than one residential dwelling on the lot.
7 This covenant was removed in respect of lot 42 – 21 Raleigh Court – by the Council's amendment and the subsequent action of the Recorder. The power to amend sealed plans is to be found in s 103 of the LGBMP Act. Section 103(1) provides that when a Plan has taken effect, it may be amended by the council of its own motion, or on the application of any person having an interest in land subject to the plan. In the first scenario the council must give notice to all persons appearing by the registers under the Land Titles Act 1980 (the LTA) to have an estate or interest at law affected by the proposed amendment, while in the second the applicant must serve a copy of the petition on such persons: see ss 103(2) and (3). By subs (4), any person affected by the proposed amendment may ask to be heard in support or opposition.
8 Section 104 of the LGBMP Act provides for hearings in relation to amendments of plans. The features of that section are as follows:
• At the end of 28 days after the last notice or petition is served as required, the council may, if no person has asked to be heard in opposition, "cause the amendment to be made"; or if a person has asked to be heard, is to appoint a day for hearing any petitioner and those who have been asked to be heard – s 104(1)(a) and (b). • A hearing is to be conducted by the council or a council committee who may hear persons or have been asked to be heard, and obtain the assistance of legal practitioners, architects engineers and surveyors – s 104(2). • On the conclusion of the hearing, the council may "cause the amendment to be made with or without modification" – s 104(3)(a) – and require as a condition of so doing "that any person who benefits the amendment (sic) is to make compensation in money or land to a person who is injured by it." – s 104(3)(b). 9 Of some relevance is that compensation is also separately dealt with in s 105 of the LGBMP Act. Subsection (1)(a) provides that subject to subs (2), a person adversely affected by an amendment is entitled to compensation by the council if having asked to be heard under s 103(4), the person gave the council notice of the claim at or before the hearing. By subs (2) if compensation is payable under subs (1) , the council may recover against the petitioner and any person heard or asking to be heard in support of the amendment to the extent to which they benefited by the amendment.
10 As noted, the applicants were objectors to Stage B's petition. This objection was notified to the Council by a legal practitioner, Mr Don Armstrong, acting on behalf of the applicants. Several other representations were also received by the Council in relation to the petition. The course of events leading up to the Council's decision is rather detailed and does not need to be set out for present purposes. Issues of procedural fairness raised by the applicants are bound up in this course of events and will be dealt with later.
11 The applicants' petition was heard on 30 June 2020 by a committee of the Council, as is provided for s 104(2) of the LGBMP Act. The committee comprised Aldermen Chong (as chair), Blomeley and Walker (apparently no relation) – the "Committee". The Committee reserved its decision. Correspondence subsequently took place between Council officers and the parties, and again there is no need to detail any of that at this stage. On 24 August 2020, the Committee provided its recommendations to Council. As they are simply reflected in the Council's determination, I will move on.
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12 On 31 August 2021, after considering the petition and the recommendations of the Committee, Council resolved that the Committee's recommendations be adopted. Pursuant to its power under s 104(3)(a) of the LGBMP Act, the Council determined to cause the amendment of the Plan so as to remove from the schedule of easements as it related to lot 42, the words "(b) Not to construct more than one residential dwelling on the lot." Council imposed a condition of causing the amendment to be made that Stage B "make compensation to Mr Walker" (sic) in the sum of $10,000. That condition itself was conditioned so that compensation might not ultimately be payable. That is the subject of a ground of review.
13 Council's resolution was notified to the parties on 2 September 2020. The notice included a statement that Council would "now prepare the application for submission to the Land Titles Office". As noted above, Stage B lodged the necessary documents with the Recorder of Titles on 7 September 2021. The covering document was a "Request to Amend Sealed Plan No 141333". On 10 September 2021, the Recorder advised Stage B's agent that he had "accepted this Plan, amended pursuant to the Request", and sent a certified copy of the Plan "in the form in which it has taken effect."
14 On 22 September 2020, the applicants sought reasons for the Council's determination. They were advised by the Council's in-house lawyer, by email of the next day, that it was thought the correspondence by which the determinations had been notified provided detail of the reasoning "by reference to the three potential triggers for the payment of compensation…, in addition to the removal of the covenant itself". The applicants were advised that the matter would need to be listed as an agenda item for Council.
15 After the filing of this application for judicial review, lawyers for the applicants pursued the Council for reasons – eventually through its solicitors – and not having succeeded, filed an interlocutory application on 9 February 2021 pursuant to s 35(2) of the Judicial Review Act 2000 (the JRA). After a contested hearing, Holt AsJ made an order that the Council provide the applicants with a statement of reasons. Those reasons were provided on 24 February 2021. The reasons occupy about five pages, and I will refer to relevant parts as necessary.
16 There are seven grounds in the amended application for judicial review. They can be grouped. Grounds 1 and 2 complain of procedural unfairness; ground 1 relates to the suggested receipt and consideration of material without it being disclosed to the applicants while ground 2, in essence, alleges unfairness in not affording the applicants proper opportunity to obtain valuation evidence in relation to the issue of compensation. Grounds 3 and 4 respectively allege a failure to take into account relevant considerations and taking into account irrelevant considerations. Ground 6 complains that there was no evidence or other material to justify the decision. Grounds 5 and 7 concern the making of the order for compensation itself.
17 Before dealing with the grounds, there are preliminary questions which should be considered. They are inter-related. It is Stage B's primary position that the Council's determination is "spent" and has been subsumed in what is described as the "determination of the Recorder of Titles to remove the covenant." It makes the obvious point that the Recorder is not a party to these proceedings, nor are there related separate proceedings in existence. The argument is that by virtue of the Recorder's actions, the Council's decision no longer has any legal consequences, and accordingly, relief under the JRA is unavailable.
18 It is suggested that in any case, relief under the JRA would be futile and should be refused in the exercise of the Court's discretion which resides in ss 27(1) and 38 of the JRA. The futility is said to arise because of the infeasibility provisions of the LTA and the Recorder's powers under that Act. The two questions are separate but related.
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19 As will emerge in my consideration of the grounds, I do not need to finally resolve these matters but in discharge of my obligations and in deference to these arguments and the great length of time spent on them, I will deal with them as matters of substance.
Preliminary questions
The unavailability of relief – a spent decision?
20 The starting point for Stage B's argument is the High Court case of Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, 252 CLR 480. The facts are that an injured worker commenced two proceedings under the Accident Compensation Act 1985 (Vic) in the County Court of Victoria, one seeking leave to bring proceedings for common law damages in respect of injury, and the other in respect of statutory compensation. The latter was transferred to the Magistrates Court.
21 The Act provided for the establishment and conduct of Medical Panels to provide an opinion on any medical question in respect of injuries. Section 68(4) provided that, for the purposes of determining any question or matter, the opinion of a Panel was to be adopted and applied by any court, body or person and that it must be accepted as final and conclusive.
22 A magistrate referred medical questions to a medical panel for determination. The panel's opinion was that the worker's condition neither resulted from nor had been materially contributed by the relevant workplace injury. In accordance with s 68(4), the magistrate adopted and applied the opinion of the panel and dismissed the claim. When the serious injury application came on for hearing in the County Court, the employer foreshadowed a contention that the Court was bound by the opinion of the panel, and that an issue estoppel arose. The worker sought relief from the Supreme Court in the nature of certiorari quashing the opinion of the medical panel. That application was dismissed, and the worker successfully appealed.
23 On the employer's appeal to the High Court, it was held that as the only legal effect of the opinion of the Panel was that given by s 68(4) and the effect was spent when the statutory compensation application was dismissed, the opinion sought to be quashed had no continuing legal consequences, and hence certiorari was not available.
24 The Court (French CJ, Crennan, Bell, Gageler and Keane JJ) said:
"25 The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an 'apparent legal effect: Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159; [1996] HCA 44. An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable."
25 Later, their Honours said:
"31 Because an order in the nature of certiorari to quash an opinion is limited to removing the legal consequences or purported legal consequences of an exercise or purported exercise of power, however, the Court of Appeal was also correct to ask a threshold question. That threshold question was whether the opinion of the Medical Panel, sought to be quashed by certiorari in the application made to the Supreme Court by the Worker, had any continuing legal consequences, given that the opinion was on medical questions arising in the statutory compensation application, which by then had been dismissed.
…
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40 The answer to the threshold question properly asked by the Court of Appeal is that the opinion of the Medical Panel sought to be quashed by an order in the nature of certiorari had no continuing legal consequences. The only legal effect of the opinion was that given to it by s 68(4) of the Act. That legal effect was spent when the question or matter, in respect of which the medical question was referred to the Medical Panel, was brought to a conclusion by the order dismissing the statutory compensation application. The Employer's foreshadowed reliance on the opinion having legal effect in the serious injury application would be of no avail.
41 The order in the nature of certiorari made by the Court of Appeal was not available to quash the opinion of the Medical Panel because that opinion had no continuing legal consequence which could be removed by that order. Despite the irony of this being relied on by the Worker as respondent and eschewed by the Employer as appellant, that is a sufficient reason to allow the appeal."
26 Stage B submits that the principles discussed in Wingfoot apply equally to proceedings for judicial review, that being the view apparently taken by Macaulay J in Burgess v Director of Housing [2014] VSC 648 and O'Bryan J in OPENetworks Pty Ltd v Myport Pty Ltd [2019] FCA 1659. Given that proceedings under judicial review legislation are generally taken to be akin to those for prerogative relief or relief in the nature of prerogative relief, I think that much can be accepted.
27 The case of Burgess became the focus of attention in this case, as did the case of Banks v Transport Regulation Board (1968) 119 CLR 222, an authority discussed by Macaulay J in Burgess. I will consider Banks first. The facts were that the Board was empowered by statute to grant, refuse, revoke or suspend a taxi licence. In relevant terms, no decision of the Board had any force or effect until it was reviewed by the Governor in Council. In such a review the Governor in Council could, within six months of the Board's decision, approve or disapprove the decision or make any determination which the Board might have made. The Board was required to give effect to every such order. The decision in question was a revocation.
28 By majority (Barwick CJ, Kitto, Taylor and Owen JJ) it was held that where a decision of the Board to revoke a licence was based upon erroneous grounds, a writ for certiorari would issue to the Board to quash it, notwithstanding it had been approved by an order of the Governor in Council; the order merely approved the Board's decision which then became effective.
29 At 242, Barwick CJ said that the terms of the provision indicated that:
" … the function of the approval of the Governor in Council is to allow the decision of the Board which is approved itself to have force or effect. Upon such approval there is authority derived from the Board's decision to revoke the licence to which it relates."
30 At 246, Taylor J (with whom Kitto J agreed) said that if the decision of the Board was simply approved by the Governor in Council it is that decision which comes into operation by force of the legislation; "in other words, the condition for the operation of the Board's decision is fulfilled." But otherwise, his Honour said, where there is a disapproval or other determination, it may be necessary for the Board to act in such a way as to give effect to the disapproval or other determination. See also Owen J at 255 where his Honour said that in the case of an approval by the Governor in Council, that does no more than approve the Board's decision which becomes effective, and which is then to be put into force and effect by the Board: "It is that decision which then operates to revoke the licence."
31 After noting that the majority in Banks held that on the proper construction of the statute, it was the Board's decision that took effect, his Honour noted that Banks can be reconciled with and "seen as entirely consistent with the reasoning in Wingfoot" in that Banks dealt with a different class of decision. His Honour continued:
"Banks concerned a situation where a second decision (or step) was required to give an anterior decision its legal effect. And in that case, even though the second step involved
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a fresh, considered decision, it was recognised on a construction of the relevant statute that it was the first decision that took legal effect, not the second, after the second decision was made."
32 The debate in Burgess related to two sets of two steps, all of which related to obtaining possession of rented premises; two taken by the Director of Housing and two by the Victorian Civil and Administrative Tribunal (VCAT). At [3], these steps were described by Macaulay J as follows:
"(a) First, on 22 March 2013, the Director issued to Ms Burgess a notice to vacate
the rented premises leased to her by the Director (the notice decision).(b) Secondly, VCAT made an order on 13 May 2013 granting possession of the premises to the Director after he applied for such an order based upon the notice to vacate (the possession order). (c) Thirdly, on 18 June 2013, the Director applied for a warrant of possession of the premises (the warrant application decision). (d) Fourthly, on the same date, VCAT issued the warrant (the issue of the warrant)."
33 A detailed analysis of the legislative framework undertaken by Macaulay J revealed, in short, the following. The Director could give to a tenant a notice to vacate rented premises after which application could be made to the Tribunal for a possession order. VCAT was required to make a possession order on the application of the Director if it was satisfied the Director was entitled to be issued a notice to vacate. Next, once a possession order had been obtained, application could be made to the principal registrar of the Tribunal in the event of a failure to comply with the possession order. When making a possession order VCAT was required to direct the registrar to issue a warrant of possession if one was requested.
34 At [124] Macaulay J explained:
"Each [step], relevantly, alters legal rights and each terminates in a distinct legal result. The first if the notice decision which (upon an application being made) leads to a decision of VCAT, exercising its statutory power conditioned upon the existence of the notice, to either make or not make a possession order. The second is the warrant application decision which, if supported by the payment of the requisite fee, must result in (and is 'paired with') the issue of a warrant of possession." [Original emphasis]
35 His Honour's conclusions were as follows.
•
The relevant effect of the issue of a notice to vacate was to confer a power on VCAT to decide whether the Director is entitled to possession.
•
If made, a possession order of itself created its own sets of rights and obligations. It is an original decision made by VCAT upon certain findings of fact, and critically creates a legal obligation on the part of the tenant to vacate the premises and a corresponding entitlement in the Director to possess the premises.
•
Requesting a warrant was a discrete supplementary process that may be deployed if the tenant did not vacate after the order was made, and which may never be required.
•
The legal effect of the Director's notice of decision was spent when the possession order was made, and accordingly the threshold point raised by the Director, in that, respect was a valid one.
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• This was not so in relation to the second set of steps relating to the issue of the warrant in that the case was a stronger and more obvious example of a case where the first step maintained its legal force. • That was because there was no process of approval or independent consideration by VCAT of the Director's decision to request the warrant, analogist to the Governor in Council's review in Banks. 36 In the present case, Stage B relies on the outcome in Burgess as it relates to the first set of steps, while the applicants rely on the outcome in relation to the second set. Obviously, what is required is an analysis of the legislative scheme applicable in this case, not only as it relates to amendments to sealed plans, but in my opinion, as it relates to the subdivision process and the creation of sealed plans in the first instance. That is relevant context. The role of the Recorder in registering dealings also needs to be considered.
37 Subdivisions are dealt with in Part 3 of the LGBMP Act. Div 2 of Part 3 makes provision for plans of subdivision to be submitted to a council for approval; see in particular ss 84-85A inclusive. Div 3 of Part 3 provides for the creation and settlement of final plans with schedules of easements. Section 88 provides for the lodgement with a council of final plans by the owner; that is, the plan, a schedule of easements and other specified documents and information.
38 Section 89 requires a council to determine whether a final plan complies with the Part and the process is governed by subss (1AA)-(1AD). Section 89(1) provides that if satisfied that a final plan complies with the Part, the council is to -:
"(a) Cause its seal to be affixed to the plan; and (b) cause the sealed plan to be lodged in the Office of the Recorder of Titles".
39 The next relevant step in the LGBMP Act is Division 4 entitled "Sealed plans". Section 94(1)
provides as follows:
"94 Taking effect of sealed plan
(1) A final plan takes effect as a sealed plan when the Recorder of Titles signs and
dates a memorandum on the plan that the plan is accepted –
(a) without requiring any amendment; or (b) as a result of further discussion; or (c) upon an order of the Supreme Court; or (d) upon the making of an amendment agreed to by the owner and the council."
40 I have already set out the features of s 103 of the LGBMP Act which, by its terms, provides that when a plan has taken effect (that is, a sealed plan is accepted by the Recorder in accordance with s 94), "it may be amended by the council". I have also set out the features of s 104. It may be noted that the latter refers to the council being able to "cause amendments to be made", but apart from s 104(5), which provides for the Recorder to call in and cancel or correct any Certificate of Title affected by amendments, the LGBMP Act is silent as to the process after the decision has been made to cause the amendment.
41 The evidence in this case shows that five days after the Council's decision, Stage B's agents lodged with the Recorder a number of documents, together with payment of fees. Two documents are
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of interest. There is a "Land Data Registration Branch – Lodgement Form", which contains a request to register "the undermentioned instruments in the order set out ….". The first "instrument" referred to is a "Request to Amend Sealed Plan 141333." The other listed "instruments" are fees and a copy of the Council's correspondence.
42 The Request to Amend Sealed Plan is set out on a Tasmanian Land Titles Office Blank Instrument Form and is described in those terms. The operative part states that "the Clarence City Council hereby requests that Sealed Plan 141333 be amended as follows: ….".[1] The document states that there is no change to the plan of survey and the following then appears:
"Schedule of Easements
Delete from the restrictive covenant shown on pages 3 and 4 of the schedule the following words:
'Not to construct more than one residential dwelling on the lot'
where they appear on sheet 4."
[1] Strictly speaking, the request should one to give effect to the amendment agreed to by a council. It is the council which has the power to amend.
The Common Seal of the Council is shown as being affixed on 31 August 2020 and it is signed by the
Acting Corporate Secretary.43 I have not been able to find any statutory basis for the instrument described as the Request. Its origin seems to be the Land Titles Office Practice Book, 3rd ed. In any event, it is common ground that the Request fits the definition of a "dealing" under s 3(1) of the LTA. Relevantly, that is defined as meaning any document in writing which is registerable or capable of being made registerable, "or in respect of which any recording in the Register is by this or any other Act required or permitted to be made ….".
44 That leads to s 33(11) which provides that the Recorder shall register a dealing by making such recording or alteration on the folio of the Register or registered dealing to be affected thereby as, in the Recorder's opinion, may be necessary to give effect to the dealing. Stage B argues that the Recorder's role in dealing with the request amounted to a separate decision, thus putting it in the same category as the second step in the first set of steps dealt with in Burgess.
45 Under the LTA, the duty of the Recorder is to keep a register. The way in which the Register is to be kept and managed are set out in s 33. The present focus is on the Recorder's role in having received a dealing for registration or in respect of which action is required. In Registrar of Titles v Paterson (1876) 2 App Cas 110 the Privy Council said that the Registrar was possessed of a discretion, since the duty was theirs to "prevent instruments from being registered which in law as well as fact ought not be placed on the register". See also Ex Parte Bond (1880) 6 VLR (L) 463; Templeton v Leviathan Pty Ltd (1921) 30 CLR 34 at 64. In Gibb v Registrar of Titles (Vic) (1940) 63 CLR 503 at 513, Starke J said the Registrar was not an automaton whose duty was to register all documents affecting title to land. On a similar note, Kitto J in Pirie v Registrar General (1962) 109 CLR 619 at 623 said that the Registrar- General was under a general duty to keep the register book clear of all notifications save those which are authorised by law.
46 But it is not Recorder's duty to require proof negativing any fraud or improper dealing, where there is nothing on the face of the documents submitted to suggest it or independent reasons for suspecting fraud or manifest breach of trust: Ex parte Wisewould (1890) 16 VLR 149; Ex parte Equity Trustees Company (1911) 17 ALR 154; R v Registrar of Titles (Vict) (1915) 20 CLR 379; R v Registrar of Titles, ex-parte Briggs [1913] VLR 549 at 551. In short, the Recorder's duty is to register what appears
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to be on its face a valid instrument, and not to make extensive enquiries into its validity: Canada Bay
Council v Bonaccorso Pty Ltd [2007] NSWCA 351, 71 NSWLR 424 at [45], [91].47 The function of accepting and acting on a dealing in the nature presently under consideration, needs to be put in the context of the entire process. In the absence of acceptance by the Recorder and the noting of the amendment on the sealed plan accepted under s 94 of the LGBMP Act, the only right created is the right in a council or the petitioner – depending on how the amendment came about – to make a request. Once the "dealing" is accepted and acted on, legal rights are created.
48 The Recorder explained the situation in a letter to the applicants' solicitors dated 2 December 2020, responding to suggestions that the removal of the covenant may have been in error because of the invalidity of the Request, and the fact that conditions imposed by the Council for the removal of the covenant had not been satisfied. He explained that the Request "was duly executed, contained the required particulars for registration and was in registerable form", and he acted in accordance with a dealing received to register it and to amend the sealed plan.
49 The Recorder further explained that it was not his role to look behind the Request, and he could not have been on notice as to the need to satisfy any apparent pre-conditions in the face of lodgement of a dealing in registerable form, and there being no other dealing in the register to prevent him from doing so.
50 In my view, the present situation falls more within the one which existed in Banks. It is akin to the Burgess "second set of decisions" category; that is, it was the Director's decision to request the warrant that was the operative decision. Putting the issue in the context of Div's 3 and 4 of Part 3 of the LGBMP Act, it is a council to whom Parliament entrusts the task of what is variously described as "amending" (s 103) or of "causing to be amended" (s 104) a sealed plan. That process involves a hearing and a determination. Plainly, Parliament is taken to be aware that the amendment can have no effect on the Register, and on titles issued pursuant to the lodgement and acceptance by the Recorder of a sealed plan, without the involvement of the Recorder. That involvement is to act on a request or notification of the amendment unless there is something patently wrong with the form or terms of the documents lodged, or the process as revealed by those documents.
51 To adopt Barwick CJ's wording in Banks, the function of the acceptance of the Recorder is to allow the decision of a council to have force or effect. Upon the acceptance, the authority to record the amendment to the sealed plan is derived from the council's decision. There is no process of approval or independent consideration of a council's decision. For those reasons, I would reject Stage B's submission that the Council's decision is spent and not amenable to judicial review. That, of course, is viewing the issue in isolation and without reference to the question of indefeasibility of title.
Futility of relief – indefeasibility of title?
52 As I foreshadowed, Stage B's submission is that even in the event that the effect of the Council's decision is not spent, futility arises in a different way. The argument is that nothing can be achieved by quashing Council's decision to amend the sealed plan because Stage B's title has been cleared of the restrictive covenant; because of s 40 of the LTA it has an indefeasible title and absent any exceptions to indefeasibility or relevant powers that might be exercised by the Recorder – noting that the Recorder is not a party to these proceedings – there is nothing that can now be done.
53 Section 40(2) provides that subject to subss (3) and (4) the title of a registered proprietor of land is indefeasible. By s 40(1), "indefeasible", in relation to the title of a registered proprietor of land, means subject only to such estates and interests as are recorded on the folio of the Register or registered dealing evidencing title to the land. The title certified is not historical or derivative; it is the title which registration has vested in the proprietor: Breskvar v Wall (1971) 126 CLR 376 at 385-386. The title cannot be assailed and is free from all other interests except previously registered ones, or where an
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exception exists. With the exception of fraud, which was raised very late in these proceedings, the
balance of s 40(3) is not relevant, and nor is subs (4).54 The indefeasibility argument needs to be put in the context of the relief sought by the applicants in the event I conclude the decision to cause the amendment to be made ought be quashed, as provided for in s 27(1)(a) of the JRA. The applicants' first submission is that in addition to such an order, the Court should direct the Council to dismiss the petition. Section 27(1)(d) enables the Court to make an order directing any of the parties to do anything that the Court considers necessary to do justice between the parties. That provision is to be construed liberally, given the remedial nature of the legislation: Minister for Immigration & Ethnic Affairs v Conyngham (1986) 11 FCR 528 at 537. In some very clear cases it might be appropriate to order the decision-maker to make a determination different to the one under review – see Comptroller-General of Customs v ACI PET Operations Pty Ltd (1994) 49 FCR 56 at 81 – but care needs to be exercised not to trespass into merits review. In the end, I did not understand the applicants to strongly press this proposal.
55 The applicants' alternative position is that the Court should quash the decision and remit the matter for rehearing by the Council. Additionally, as part of the first order, the Court should quash the decision with effect from the day on which it was made. In that scenario, the Council's request to the Recorder following its determination was unlawful in the sense that it was done without statutory authority. Of itself, that would not assist. For instance, titles issued in consequence of an unlawful subdivision remain valid: Sutherland Shire Council v Moir (1982) 49 LGRA 115. The applicants say that in the event the petition failed on the rehearing, they could then request the Recorder to amend the Register.[2] Because such a request does not follow a council decision to amend the sealed plan, that raises the extent of the Recorder's powers. Indefeasibility was perceived as an obstacle, but one which could be overcome.
[2] This course involves a fair degree of artificiality in the rehearing exercise, perhaps raising discretionary considerations.
56 The precise limits of the indefeasibility provisions were not explored. Indefeasibilty under the LTA needs to be looked at in light of Part 3 of the LGBMP Act, although it might be noted that rights and obligations created under that part are ineffective until the Recorder accepts the sealed plan or effects the amendments to the sealed plan. Stage B accepts that an express statutory power may affect indefeasibility, although counsel's submissions were confined to the LTA. Conceptually, a title derived from a sealed plan is defeasible because of the operation of s 104 of the LGBMP Act.
57 The applicants raised several answers to Stage B's submission which involve various provisions of the LTA. Ultimately an argument was put that the issue of indefeasibility does not arise at all. That argument hinges on the nature of restrictive covenants and arises from the proposition that a restrictive covenant is an interest in equity, not an estate in land at law: Chiu v Healey [2003] NSWSC 857 at [35]. Easements require registration for validity while recording or noting restrictive covenants does not establish or effect validity: Fitt v Luxury Developments Pty Ltd [2000] VSC 248 at [178].
58 The applicants argue that as the purpose of the recording of a restrictive covenant is to give notice of a claim of a benefit affecting the burden land – and not to establish the validity of the covenant, removal does not extinguish it. It remains in force and enforceable in equity. The argument then runs that Stage B purchased the land with a burden of the covenant, it was amended while it was the registered proprietor and as the land has not been transferred to a purchaser who was not on notice of the restrictive covenant, the principles of indefeasibility have not been infringed. (If that is correct, then arguably at least, the applicants have a caveatable interest: A Bradbrook & S MacCallum, Bradbrook and Neave's Easements and Restrictive Covenants, 3rd ed, at [17.29]-[17.34].)
59 Restrictive covenants and the question of entry on notation on the Register are dealt with in s 102 of the LTA. This and related sections seek to deal with the situation of restrictive covenants in the
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Torrens system. Section 102(7) provides that where registered land is to be made subject to a covenant enforceable in equity by and against the assigns of the respective proprietors, a dealing in an approved form could be used and lodged for registration. By subs (12), where a folio of the Register describes the land by reference to a sealed plan lodged with the Recorder under Part 3 of the LGBMP Act, any obligations set forth in the plan that could be recorded under this section shall have effect as if embodied in an appropriate dealing recorded on the folios of the Register comprising the titles of all lands appearing by the Register to be subject to the sealed plan.
60 Section 102(2)(b) provides that the burden of a covenant runs with freehold registered land if the covenant is set forth in a sealed plan which has taken effect under Part 3 of the LGBMP Act. By subs (3), any covenant which runs with freehold registered land may be enforced in equity notwithstanding any provision of the LTA but has no greater operation or effect under the section that it would have if the land which it intended to burden were not registered land and the registered proprietor were affected in equity by express notice of the covenant.
61 The argument that the restrictive covenant has not been extinguished is not sustainable. Such a covenant owes its existence to the plan of subdivision and to that incorporation in the final plan sealed by a council: see LGBMP Act, ss 87, 89. "[T]he notation [on the Register] is sufficient to incorporate the terms of the whole schedule of easements into the title of the registered proprietor.": Clarke v Burnie City Council [2008] TASSC 75 at [7]. It follows as matter of logic, that if the covenant is removed from the schedule of easements in the sealed plan by the council, the covenant ceases to exist. That cessation is reflected by what is to be found (or more particularly not found) in the Register. That outcome can be demonstrated by looking back to the history of restrictive covenants[3] and the simple situation of an agreement between a covenantor and a covenantee. If the parties agreed that rights and obligations under the covenant be discharged, it would be extinguished.
[3] Bradbrook and Neave's Easements and Restrictive Covenants, above, at Ch 12.
62 I would take the view that the plain language of ss 40(2) and (6)(b) of the LTA makes Stage B's title indefeasible within the meaning of that Act. With reference to the use of the word "interest" in s 40(1), 40(6)(b) defines the word as meaning "any covenant, the burden of which runs with freehold land and, as stated above, by virtue of s 102(2)(b) of the LGBMP Act the burden of a covenant runs with freehold registered land if it is set forth in a sealed plan which has taken effect under Part 3 of that Act. This is such a covenant.
63 In R v The Recorder of Titles; Ex parte Horlock [1991] TASSC 52, Cox J (as he then was) dealt with a situation which the Recorder had cancelled a restrictive covenant on the basis that the covenant did not run with the land. The result is not germane to this issue but in setting out the factual scenario, his Honour noted that as result of the cancellation of the covenant – (similar in terms to the one in this case) – the registered proprietor, with planning approval to subdivide, might build another dwelling on the lot. At [5] his Honour continued, "With the covenant now cancelled from his Certificate of Title, he has an indefeasible title unaffected by it (s 40)." Although in its context it is an observation, with respect it seems to me to be a correct statement of the law.
64 That leads to consideration of the Recorder's powers and to exceptions to indefeasibility. Section 139(1) gives the power to the Recorder, upon such evidence as it appears to be sufficient to "correct errors or supply omissions in the Register or any instrument or duplicate Register dealing, … ." There are equivalent provisions in other jurisdictions and much has been written about these powers: Part II: The substantive provision (2010) 18 APLJ 132.[4]
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[4] See also D Grinlinton & R Thomas, Land Registration and Titles Security in the Digital Age: New Horizons for Torrens, Informa Law 2020, Ch 9.
65 The provision was the subject of close consideration by Brett J (with whom Wood and Pearce JJ agreed) in Olympus Superannuation Fund (Tas) Pty Ltd v Recorder of Titles [2023] TASFC 6 at [51]- [59]. At [55] his Honour noted his judgment in Nightingale v Recorder of Titles [2018] TASSC 56 as authority for the proposition that s 139 provided the Recorder with a general power to correct errors in the Register or instrument irrespective of the source of the error, but with a power to do so to be construed broadly subject to some implied limitation including the principle of indefeasibility. In that case his Honour noted there was some support for the proposition that powers such as those contained in s 139 should be read down so that the provision applied only to the correction of administrative errors made within the office of the Recorder, but said more recent cases and the application of general principle meant the provision should not be read down in that way.
66 In Olympus at [56] his Honour applied the decision of the Court of Appeal in Sahab Holdings Pty Ltd v Registrar-General [2011] NSWCA 395. There, at [183]-[185], Campbell JA, with whom McColl JA and Tobias AJA agreed, said in relation to the equivalent of s 139 that taken in isolation, and literally, the language would confer extremely wide powers of correction, and would include any error in the Register if it was inaccurate in any regard, regardless of why, how long ago the source of error arose and who might be effected by the correction. Campbell JA stated it was not possible for that literal reading to co-exist with the provisions of the Act that provide for indefeasibility; the application of the phrase such as "departmental errors and omissions" was not a substitute for applying the wording of the statute, construed as a whole and purposively.
67 In Olympus at [58] Brett J noted the summary of Kunc J in Sahade v Owners Corporation SP 62022 [2013] NSWSC 1791. Included in that summary were statements to the following effect. "Errors and omissions" are not confined to those attributable to the Registrar-General, (the Recorder in this State). If there is an error or omission, that does not lose its character as being capable of correction under the s 139 equivalent depending upon the identity of the person responsible. Further, the scope of power correction is to be ascertained by reference to whether the correction of the error would impinge upon a right to which indefeasibility attached.
68 The end result is that s 139 allows for more than the correction of mere departmental errors and omissions but no so as to impact on indefeasibility. The area for operation between those limits is not defined but relevantly, the outer limit of indefeasibility is clear. It follows that the applicants cannot call in aid s 139 of the LTA[5].
[5] Section 163 of the LTA was raised in argument by Stage B but not embraced by the applicants as a remedy. It enabled the Recorder to require a person to produce a Certificate of Title for it to be (among other things) corrected where the Recorder is satisfied that a recording was made in error or fraudulently or wrongfully obtained. This provision is seen to be akin to s 139 and also with the power not to be exercised so as to impinge on indefeasibility: see Shab Holdings Pty Ltd v Registrar – General (above) at [183]-[185], [193] and generally.
69 The applicants also rely on s 141 of the LTA. That provides that on the recovery of any land, estate, or interest, by any legal proceeding, from the person registered as proprietor of the land, the Court may direct the Recorder to cancel any folio of the Register, certificate of title, grant or registered dealing, or any recording in the Register relating to that land, and to substitute a new folio, certificate or recording as the circumstances may require. The Recorder is to give effect to such an order.
70 The argument is put on the basis that the section enables the power to be exercised "in light of the Court's decision in legal proceedings to recover land, or an estate or an interest in land.". Unfortunately, as can readily be seen, that is not what the section says. The applicants cited Casella v Casella [1969] VR 49, which involved consideration of s 103(1) of the Transfer of Land Act 1958 (Vic), said to be similar to s 141 of the LTA. But the preliminary words to s 103 were, "In any proceedings in the Court relating to any land or instrument or dealing, … if the Court directs the Registrar to cancel, correct [or to do other things in relation to - among other things - a certificate of title] necessary to give
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effect to any judgment, decree or order …, the Registrar shall obey such direction". In that case McInerney J held that an order could be made under s 103 even though the Registrar was not a party to the proceedings.
71 Application of the principles of statutory interpretation does not allow for s 141 of the LTA to be read in the same way as s 103 of the Victorian Act. Quite clearly, the exercise of the power under s 141 is contingent upon "the recovery of any land (etc) by any legal proceeding". Section 103 of the Victorian Act is a much broader provision which allows the direction to be made in any relevant proceedings in order to give effect to the judgment decree or order. That is the end of the matter.
72 The applicants also refer to s 143C as providing an answer. Subsection (1) enables the Recorder of his or her own motion to correct an error on a plan or an accompanying document deposited or lodged. For my part, I think the provision needs to be read literally and is concerned with the powers the Recorder may exercise upon the deposit or lodgement of a plan or accompanying document. However, in Nightingale (above) at [56], Brett J accepted that some of the powers also expressly extend to plans already lodged. With respect, I would take a different view,[6] but in any event it is clear from the discussion relating to ss 139 and 163 that the same limit of indefeasibility would apply to the exercise of the power under this section. Nightingale did not decide the contrary.
[6] The context includes s 143A which necessitates compliance with the Recorder's requirements in relation to plans deposited or lodged. The Minister's second reading speech in October 1990 contains statements that the new Part XA, which includes s 143C, would provide the Recorder with the authority and power to requisition or reject plans which did not comply with the law. "It is anticipated this will help to eliminate work generated by the very high error rate made in plans and their accompanying documents." (sic)
73 Lastly, the applicants rely on both s 144 of the LTA and s 104(5) of the LGBMPA Act for the proposition that the Recorder can properly be requested to amend the Register in the event Stage B fails on any rehearing. The former enables a person aggrieved by a refusal direction or order of the Recorder, to summon the Recorder to show cause why the action should not be set aside. However, it is based on the Recorder refusing to do an act which the Recorder s required or empowered to do under the LTA or any other Act. In my view, in the absence of any power or requirement to amend derived from elsewhere, this section has no operation. Section 104(5) simply enables the Recorder to call in any certificate of title affected by an amendment for cancellation or correction. This presupposes a determination to amend, and cannot therefore assist
74 That brings me to the question of fraud. As I have noted, that was raised very late in the proceedings; written submissions dated 19 August 2024. That, among other things, necessitated further submissions and ultimately an additional hearing. By s 40(3)(a) the title of a registered proprietor is not indefeasible in the case of fraud in which case the person defrauded has, except in circumstances not here relevant, all the rights and remedies that the person would have had if the land were not registered land.
75 Fraud, as an exception to indefeasibility means "dishonesty of some sort"; "actual fraud, personal dishonesty or moral turpitude": Assets Co Ltd v Mere Roihi [1905] AC 176 at 210, Bahr v Nicolay (No 2) (1988) 165 CLR 604 at 614. A person who presents for registration of a document which is forged or has been fraudulently or improperly obtained is not guilty of fraud if he honestly believes it to be a genuine document which can be properly acted upon: Assets Co Ltd at 210. It is well established that fraud within the meaning of the provision can be fraud against the Registrar.
76 As to the facts, it will be recalled that the Council determined to cause the amendment to be made and to require as a condition that Stage B pay to the applicants the sum of $10,000, but that obligation in turn was made conditional. One of the preconditions to the payment of the compensation was Stage B attempted to sell the property. It is an agreed fact that following the removal of the
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covenant, Stage B decided to sell the property, and on 30 September 2020 entered into a contract for sale. (This contract seems to have lapsed or at least remains uncompleted, but that is of no moment.) Further facts are contained in affidavits of Stage B directors Andrew Birch and William Stanford, the particular parts of which were objected to at the hearing in November 2021 by counsel for the applicants. The basis of the objections was relevance, and the evidence was taken as good for the time being. The applicants have now made those parts relevant. Neither deponent was cross-examined.
77 Mr Stanford deposes to a face-to-face discussion he had with Mr Walker on 3 August 2019 when Mr Walker came to his home. Mr Walker was cross-examined and admitted the visit, but denied the details deposed to by Mr Stanford which I need not set out. Nearly a year later, Mr Stanford found three separate notes in his letterbox which, when put together, read "21 Raleigh Crt has to stop or bad things will happen". There is nothing to connect the applicants to these notes as there were other objectors to the petition, but these are relevant to Mr Stanford's state of mind.
78 Mr Birch's affidavit reveals that Stage B was proposing to sell the property following the amendment and they wished to ensure that the question of compensation be sorted out. He contacted the Council by email on 8 September 2020 and asked about how to make the payment for compensation, saying, "Given the hostile actions of the neighbour … we don’t really want any direct contact with him. Our preference would be either to deposit funds into a council account OR write a cheque for the amount so that council would be able to conclude the process by sending this payment". On behalf of the Council, its in-house lawyer Wes Young responded to Mr Birch on the same day suggesting he, Mr Young, think it over and get back to him. He added, "Option 3 might be to deal with Don Armstrong … make out a cheque to his trust account?" In his affidavit, Mr Stanford says that given the hostile interaction, when attempting to pay compensation they do not want to have any direct contact with Mr Walker. Accordingly, they contacted the Council. I note that for some unexplained reasons the amount of $10,000 was not paid until 30 November 2020, and then into the trust account of the firm of solicitors who had carriage of the contract for sale on behalf of Stage B.
79 The alleged fraud on the part of Stage B is that it, by its agents, Mr Birch and/or Mr Stanford did not inform the Recorder of the terms of the Council's decision to cause the amendment to be made, and that the condition on which the $10,000 was to be paid had been fulfilled, but the money had not been paid. As matters of fact, all of that seems to be correct but the question is whether the applicants have discharged the onus of establishing dishonesty. The rule in Browne v Dunn arises. As I have noted, neither Mr Birch nor Mr Stanford was cross-examined at the original hearing. No application was made to re-open for that to happen. Mr Stanford was not challenged on his version of the meeting and the fact that they acted dishonestly has not been put to either of them.
80 The law operates so that in these circumstances, it is usually unfair to reject evidence on which there has been no cross examination and no opportunity to deal with an allegation raised for the first time in closing argument. When determining whether to accept a serious allegation a court may take into account the lack of cross examination on the point and any explanation the witness might have been able to proffer if there had been cross examination. See J D Heydon, Cross on Evidence, 14th ed at [17460]. In the absence of any cross-examination of Mr Stanford, the court could accept his evidence about what happened. In any event, it is sufficient to note he said he found the discussion to be threatening. That is not inherently unlikely or irrational on its face and there is no reason to reject that much.
81 Put simply, the evidence establishes that Stage B through its directors accepted its liability to pay compensation but did not want to have to deal with Mr Walker in discharging that obligation. The suggestion of a solicitor's trust account came from the Council. I am not satisfied that fraud is established, and so s 40(3)(a) of the LTA has no application.
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The result of the indefeasible arguments is that Stage B's title is indefeasible and not subject to
the exception of fraud. On the bases as argued, were the Council's decision to be quashed, then in the event the applicant succeeded on the rehearing, the Council would have no statutory authority to make a request to the Recorder because it has not determined to amend the sealed plan, and the Recorder has no powers of correction under the LTA. But I do not think the matter ends there. Relief may be refused on a discretionary basis if there is a lack of utility in making the order, or where events have overtaken the proceedings so as to render the issue moot; that is, it has lost any practical significance – Bechara v Bates [2021] FCAFC 34, 286 FCR 166 at [164] – or, putting it in another way, when no useful result could ensue: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, 147 CLR 297 at [28] – [29].
83 I earlier mentioned that title derived from a sealed plan is defeasible because of s 104 of the LGBMP Act. (There is no doubt the operation of Torrens legislation can be affected by other statutes: see the discussion in Canada Bay Council (above) at [46]-[80].) To use this case as an obvious example, the applicants have been and are still able to petition for an amendment to the sealed plan to restore the covenant. If successful, and once the amendment is effected, Stage B's title becomes subject to that interest.
84 The applicants did not argue that based on an order quashing the decision from its making, an order could properly be made directing the Council to request the Recorder to, in effect, restore the notations on the sealed plan and the relevant folios of the Register to what they had been before the decision. Of course, I express no concluded view about the merits of this, but in that scenario, the initial request would have been made without lawful authority, and the authority of the Council to make the further request does not have to be found in section 104 but exists by virtue of the court order.[7] Putting that to one side, I am not entirely convinced that in the circumstances noted above, declaratory relief in appropriate terms would be of no benefit: R v Anti-Discrimination Commissioner; Ex parte McDermott [2000] TASSC 180, 9 Tas R 332 at [28]. Although not put in this way, there may well be utility in the applicants being armed with a declaration as to the integrity of the hearing and/or decision-making process. But because of the following, I do not need to further consider any of this.
[7] If the "Request" is in order, the Recorder would seem to have little option but to accept it and effect the amendments.
The grounds of review
Grounds 1 and 2 – procedural fairness
85 Involved in these grounds is the question of the duty of the Committee to afford procedural fairness. This was mostly an area of common ground. The parties accept that generally the Committee was under such a duty. Counsel made references to the well-known passages from the judgments of Mason J and Brennan J in Kioa v West (1985) 159 CLR 550 at 584 and 612 respectively. Although their Honours differed as to the source or identification of the duty to afford procedural fairness – the common law as opposed to statutory implication[8] – both agreed that the application and content of the duty largely depended on the construction of a statute. What was appropriate depends on the circumstances of the case, which include the nature of the inquiry, the subject matter and the rules under which the decision- maker is acting: Mason J at 584, Brennan J at 612-613.
[8] A debate described in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31, 246 CLR 636 at [97] as one proceeding on a false dichotomy and unproductive.
86 Although Stage B suggested that the contents of the duty of the Committee "were quite constrained" by the statutory context, neither respondent sought to argue that the duty was excluded as a matter of statutory construction. The need for the exclusion of the duty must be demonstrated by a "strong manifestation of … statutory intention": Kioa v West (above) per Mason J at 585. See also Brennan J at 612. In the present case, no mention was made of s 103(5) of the LGBMP Act which
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provides that if a council does not give notice of its intention to amend a sealed plan or an applicant does not serve on persons appearing to have an estate or interest at law affected by the proposed amendment as required by the section, "subsequent proceedings are not void." In the absence of any submissions as to the effect of s 103(5), I am reluctant to do much more than treat it as relevant context for the requirements of procedural fairness in relation to a hearing under s 104.
87 The two grounds raise different aspects of procedural fairness, both relating to the hearing rule. As noted, the first aspect is disclosure. The second relates to the conduct of the hearing itself, the complaint being that a reasonable opportunity was not afforded to the applicants to enable them to obtain and submit valuation evidence relevant to loss of amenity.
88 As to non-disclosure, Stage B submits that the material referred to in ground 1 was not relevant to the decision "and therefore does not afford a basis to assert jurisdictional error." Further, citing the well-known passage in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147,[9] counsel argues that even if there was a breach of the rules of natural justice, it would have made no difference to the result. Counsel described this as the concept of materiality, and referred to a number of High Court cases in a line of cases culminating in the most recent one of LPTD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610.
[9] Per Mason, Wilson, Brennan, Deane and Dawson JJ. What needed to be shown "was that the denial of natural justice deprived [the person] of the possibility of a successful outcome."
89 In that case, in a joint judgment of Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ at [1]-[16] their Honours, clearly made the point that materiality is a precondition for jurisdictional error, and in doing so, succinctly set out several authoritative statements. Although, of course, the JRA is not concerned with jurisdictional error (apart from an absence of jurisdiction[10]), it pays to set out some of the statements made that relate to establishment of error and materiality, bearing that in mind.
[10] JRA, ss 17(2)(c); 18(2)(c). 11 See JRA, ss 22(a) and (b).90 In the paragraphs noted, their Honours said the following (omitting references and retaining emphases).
•
It is now accepted that a statute which contains an expressed or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating a "threshold of materiality in the event of non-compliance" – [7].
•
Where it is alleged that a decision is affected by a jurisdictional error which incorporates a requirement of materiality, there are two questions: has an error occurred; and if so, was that error material. The inquiry posited by each question is wholly backward-looking with both questions to be answered by a reference to the decision that was made and, depending on the nature of the error, how that decision was made; those are facts in respect of which the applicant bears the onus of proof on the balance of probabilities – [9]-[10].
•
Where the jurisdictional error alleged is one concerned with the process of the decision-making such as a denial of procedural fairness, what must be proved will depend upon the precise error alleged having regard to relevant statutory provisions within the applicable legislative framework – [12].
•
The question is whether the decision that was in fact made could, not would, realistically "have been different had there been no error." Though the applicant must satisfy the court that the threshold of materiality is met to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous – [14].
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• Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind – [15]. • In such cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome; importantly, a court asked to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained – [15]. 91 At [16], their Honours summarised the position as follows:
"…[U]nless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion)."
92 Under the JRA an applicant must establish that a breach of the rules of natural justice happened in relation to the making of the decision: s 17(1)(a). In Re Minister for Immigration; Ex parte Lam [2003] HCA 6, 214 CLR 1 at [38], Gleeson CJ said that fairness was not an abstract concept, it was essentially practical, and in terms of procedural fairness, the concern of the law was to avoid practical injustice. Practical injustice in that context can be demonstrated by nothing more than for instance, a failure to afford a fair opportunity be heard: Minister for Immigration v WZARH [2015] HCA 40, 256 CLR 326 at [45]-[46], [60]. Before questions of materiality arise, a breach must be established in that sense: see Nathanson v Minister for Home Affairs [2022] HCA 26, 276 CLR 80 at [95] per Edelman J.
93 In relation to statutory judicial review, it is established that at least some of the grounds provided for in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) are subject to an implied test of materiality: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353, 384; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. Those grounds are the equivalents of s 17(1)(e) – insofar that it includes taking an irrelevant consideration into account – and failing to take a relevant consideration into account11), and 17(1)(f) – error of law. Materiality is an element in establishing those grounds. In terms of more recent cases, see for instance Mohammed t/as Billan Family Day Care v The Secretary, Department of Education, Schools & Employment (No 2) [2020] FCA 1749 at [38] and Li v Determining Authority [2022] FCA 1448 at [124].
94 To the extent that other grounds of statutory review have not been definitively said to be subject to that test, the issue of materiality in any event arises in relation to the exercise of a discretion to grant relief under both ss 27 and 38 of the JRA. That was the view taken by the Full Court of the Federal Court in relation to the ADJR Act equivalent of s 17(1)(b) in Darnell v Stonehealth Pty Ltd [2022] FCAFC 76 at 291, FCR 597 at [148]. There, the Court (Markovic, Thomas and Stewart JJ) said they did not need to resolve whether it was a necessary element of the statutory review ground in s 5(1)(b) of the ADJR Act that any failure to observe legally required procedures be shown to be material to the decision in the sense described (in relation to establishing jurisdictional error) in cases such as Hossain v Minister for Immigration and Border Protection [2018] HCA 34, 264 CLR 12 and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, 273 CLR 506.
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95 That was because, if materiality was not an element of establishing the review ground, "it is certainly a relevant matter when it comes to exercising the discretion to grant relief … ."[12] The cases their Honours referred to are within the line of authority leading to the definitive articulation in LPTD of the relevant principles. It follows, and I accept, that under the JRA the concept of materiality– however it arises – should be approached on the basis as stated in LPTD. In any event, it would seem that the "possibility of a successful outcome" test for the element of materiality as posited in Stead (above) – adopted in cases such as WACO v Minister for Immigration [2003] FCAFC, 131 FCR 511 at [58] – would produce the same result as the materiality test for jurisdictional error.
[12] The view that the preferable approach is one which is limited to determining whether a breach of procedural fairness96 As earlier noted, ground 1 complains of the receipt and consideration by the Committee of material without disclosing its receipt to the applicants and affording them the opportunity to address it. That material, summarised in order of the chronology of events rather than as it is set out in the ground, is comprised of:
• a letter from a director of Stage B (Mr Stanford) sent by email to Alderman Chong dated 8 June 2020 which was also forwarded to a number of other aldermen, two of whom were later part of the Committee - ground 1(iii); • an aerial photograph – described in the ground as a "map" – of the general area of Raleigh Court that seems to show the entirety of the subdivision and which, along with the agenda for the Committee hearing, was emailed by Council to the applicants and to Stage B on 24 June 2020 but not to Mr Armstrong - ground 1(i); • a supplemental report of Stage B's expert valuer, Russell Cripps, dated 20 July 2020 (after the Committee had reserved its decision and had asked for further submissions on compensation) which was sent by Mr Stanford to the Council by email on 23 July 2020 - ground 1(ii); • a letter dated 22 July 2020 from Stage B's planning consultant, Neil Shephard, to the Council with regard to the shared driveway access to 21 and 23 Raleigh Court, also sent by Mr Stanford on 23 July[13] - (ground 1(iv). [13] Mr Cripps' report was attached to Mr Shephard's letter of 22 July and he commented on it.97 Ground 2 is a complaint that the Council failed to allow the applicants a reasonable opportunity to obtain and provide "expert valuation evidence in relation to injury and compensation." There are additional complaints set out in the ground, but they are effectively particulars of the essential grievance; a refusal of sufficient time to provide valuation evidence.
98 Both grounds call for a chronology from when Stage B lodged its petition to the point of the Council's decision. Regrettably, it is of some length and complexity, even kept to its bare minimum. In relation to the first stage up to the point at which the Committee reserved its decision, the facts are as follows:
(a)
On 16 August 2019, Mr Armstrong notified the Council that he acted for Mr and Mrs Walker, that they objected to the proposal and wanted to be heard. He gave notice under s 105(1)(a) of the LGBMP Act of a claim for compensation to be paid by the Council in the event the amendment was made.
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(b) On 3 December 2019, Council provided Stage B (and Mr Shephard) a summary of the issues raised by representations received, and on 5 December 2019 Mr Shephard wrote to the Council addressing those issues. (c) On 6 February 2020, Council sent Mr Shephard's letter to the applicants and requested a response by 21 February, with a copy of Mr Shephard's letter being sent to Mr Armstrong on 17 February 2020. Mr Walker himself sent a two-page response to Council. (d) On 6 May 2020, Council wrote to Stage B noting the Council "as part of its deliberative processes has discretion to give consideration to the question of compensation that may arise" if the amendment is approved, and its expectation that the parties engage valuers "to establish the validity and value of injury, to assist Council in determining the amount of compensation that may reasonably be imposed." That letter was sent only to Stage B. Stage B engaged a valuer (Mr Cripps) who prepared a report dated 22 May 2020, which was provided to Council on 25 May 2020. That valuation was emailed to the applicants, but not until 24 June 2020. (e) In the meantime, on 8 June 2020, Mr Stanford sent to Alderman Chong the letter referred to in the ground. Accompanying material was comprised of the petition, Mr Shephard's letter of 5 December 2019, Council's letter to Stage B of 6 May and the Cripps valuation report. (The evidence shows that the Committee decided not to consider this letter and the additional material before the hearing.) (f) On 9 June, Council advised Stage B and Mr Armstrong of the date of the scheduled hearing, being 30 June 2020. The parties were requested to provide any additional information which they intended to rely on by no later than 22 June 2020. It was noted that all documentation provided would be circulated to all parties. (g) On 22 June, Mr Walker sent to Council a letter in which he responded to Mr Shephard's letter of 5 December 2019. (h) On 24 June, Council sent to the parties an "Agenda" for the hearing. This was sent to Mr Walker's personal email and to Stage B. Among the accompanying documents was the Cripps valuation, Shephard letter, and the aerial photograph. Mr Walker accepts having received the email but says he was not aware of it until after the hearing. The email of 24 June with the agenda was not sent to Mr Armstrong. (i) On 26 June, Council sent by email to Mr Stanford and to Mr Armstrong the Council's Hearing Guide. The Council's position is that Mr Stanford's letter of 8 June with attachments, referred to in (e) above, was sent at the same time, with the advice that the Committee would not consider it before the hearing. (There is a dispute about the details of these communications, to which I will return.)
99 At the hearing on 30 June 2020, Mr Shephard made submissions on behalf of Stage B, while Mr Armstrong represented the applicants, with Mr Walker present, and made submissions on their behalf, with written outlines being provided by both parties. The applicants did not tender any reports or call any witnesses, but Mr Armstrong asked that he be able to make further submissions on the question of compensation later, to which the Committee agreed. The Committee reserved its decision.
100 The principles relating to disclosure and the relevant authorities are conveniently set out in Aronson, Groves & Weeks, Judicial Review of Administrative Action and Government Liability, 7th ed at [9.140]-[9.160] and the authorities cited. Broadly, disclosure is a more specific requirement than that of notice of the hearing and obliges the decision-maker to alert the person entitled to be heard to the
189 The Council's reasons which were delivered after the order of this Court pursuant to s 35 of the JRA, and the Findings Report, (the Report) are for all intents and purposes identical. The heading of the final "Recommendations" of the Committee Report have been changed to "Decision". Otherwise, generally the word "Council" has been substituted for "Committee", or the word "Committee" has been omitted with no material consequence to the way the reasons read.
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190 On 31 August 2020, the Council passed a resolution in accordance with recommendations in
the following terms:
"A That Council endorses the Committee's findings and recommendations in respect of the Petition in their decision in respect of the order for the conditional grant of compensation.
B That the considerations and observations included in the Findings Report provide the basis of and reasons for Council's decision in respect of the petition application. C That in accordance with Regulation 34(3) of the Local Government (Meeting
Procedures) Regulations 2015, Council authorises for release:
• The Council's decision (only) in respect to this item to relevant parties; and • The Committee's Findings Report to the petitioner and on request to each of the parties to the Hearing process."
191 Of course, s 104(2) specifically enables a hearing in respect of an amendment to be conducted by a council committee. Council committees to assist in a council's functions can be established by virtue of s 23 of the Local Government Act 1993. The applicants' point is that the Council cannot be said to have made its own decision as required by s 104(3). When distilled to its essence, this point seems to merge with the residual procedural fairness argument carried over from ground 2, and with the inadequate reasons point. That is because, as ultimately put, the complaint is about there being insufficient material and considerations in the Report to such an extent that the Council could not properly have decided whether to accept the committee's recommendation. That is more an issue of procedural fairness: see the discussion in Judicial Review of Administrative Action and Government Liability (above) at [9.220].
192 In R v Davis; ex parte Calvary Hospital [1999] TASSC 49 at [31], Underwood J said:
"[W]hether the rules of natural justice are satisfied in a case where the exercise of [the hearing and determinative] powers are split between one or more persons will depend upon what information about the hearing is conveyed to the decision-maker in each case. The nature and complexity of the hearing and the accuracy and completeness of the information contained in the report will no doubt be significant factors in ascertaining whether the decision-making powers have been exercised in accordance with the rules of nature justice. Whether the separation of the hearing power from to the determinative power will result in procedural fairness will depend upon the circumstances of each case."
193 The applicants rely on part of an oft cited passage from White v Ryde Municipal Council [1977] 2 NSWLR 909 at 923. In the particular passage, Reynolds JA stated that as a general proposition, it is plain that he who decides must hear, but that "this must be understood in the sense that the decision- maker has before him the evidence and submissions of those entitled to be heard", noting that it was by no means a universal requirement that the decision-making body must see and hear witnesses, much less actually hear submissions or representations.
194 In the type of case as exists here, the critical issue is the extent and accuracy of the information provided to the ultimate decision-maker. It is true that in the Report the Committee purported to "decide" the issues, but it ultimately put its views in terms of a recommendation. It was the Report with the recommendation that was considered by the Council.
195 The applicants make particular complaints about the lack of reference to the "valuations" the committee had received – presumably a reference to the reports of Mr Cripps – how they were taken into account in relation to the suggested loss of amenity, about how the Council was to decide appropriate compensation for loss of market value or interruption to amenity in light of the Committee's
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reasons, and about the omission of any reference to Mr Armstrong's suggested figure of $100,000 to
$150,000 as appropriate compensation.196 In this instance, I accept the applicants' arguments but only to the extent that they relate to the question of compensation. In my view, the issues and arguments about the amendment are adequately set out in the Report. However, that is not the case in relation to the compensation issue. There is no reference in the Report to the exchange of correspondence and the communications between Mr Young and Mr Armstrong after the hearing, and in particular, no reference to Mr Armstrong's letter of 21 July 2020; see par [120] above. There are no findings of fact and no statement of relevant considerations that would form the basis of, or influence, the sum arrived at. The Committee simply provided no explanation for any of this to the Council and the Council merely endorsed the Committee's decision in this respect. To that extent, ground 5(c) is made out.
Ground 6 – A "no evidence" ground
197 Although the ground refers to the "Decision" as a whole including the amendment, the arguments were confined to the issue of compensation. On that basis, I will address the evidence on which the decision to condition the amendment on the payment of $10,000 was made. This ground is based exclusively on the arguments about the aerial photograph and the finding that there had been "a clear change in the nature, scope and development pattern of the adjoining properties and the surrounding area since the imposition of the covenant, it was apparent that there had been a clear and significant change in those characteristics in the intervening sixteen years.": see pars [113]-[117] above. The applicants submit there was no evidence to establish that as a fact.
198 Section 17(2)(h) of the JRA provides for a ground of view where "there was no evidence or other material to justify the making of the decision." The establishment of the ground is governed by s 21, which provides that the ground is not made out unless:
"(i) the person who made, or proposes to make, the decision based, or proposes to
base the decision, on the existence of a particular fact; and(ii) the fact did not or does not exist".
199 In Curragh Queensland Mining v Daniel (1992) 34 FCR 212, the equivalents in the ADJR Act of s 17(2)(h) and 21, were held to have a cumulative effect. When "no evidence" is made out it is always an error of law. The cumulative nature of the provisions means an applicant must establish both the error and, pertinent to this case, that the decision-maker based the decision on the existence of a particular fact that did or does not exist.
200 This issue was considered by the High Court in Minister for Immigration and Multicultural Affairs v Rajamannikam [2002] HCA 32, 210 CLR 22. That involved provisions in the Migration Act 1958 (Cth) which were identical to the ADJR Act. As to the cumulative interpretation, the outcome was that two justices endorsed the cumulative approach, (Gleeson CJ) two did not (Gaudron and McHugh JJ), while the judgment of the fifth justice, (Kirby J), was inconclusive on the point and his Honour dissented as to the outcome. Accordingly, it seems that Rajamannikam did not overturn Curragh, and most cases since then have taken it as endorsing the cumulative interpretation; see generally Judicial Review of Administrative Action and Government Liability (above) at [5.300] 240 and the cases noted at p 240 fn 223.
201 On a different point, the majority in Rajamannikam saw the second limb of s 21 as limited to findings that were not just a basis for the decision, but a critical basis. Using the cumulative approach, the reference to no evidence in s 17(2)(h) should be taken as a reference to the "particular fact" as mentioned in s 21(b). Lastly, Rajamannikam is authority for the proposition that an applicant has to
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show that were it not for the particular factual error, the result would clearly have been different:
Gleeson CJ at 39; Gaudron and McHugh JJ at [58].202 The reference to a particular "fact" has been held to extend to a state of affairs; Rajamannikam (above) at [35]; Aala v Minister for Immigration and Multicultural Affairs [2002] FCAFC 204 at [49].
203 From the Council's reasons, I take the view that the "significant change" aspect was a critical fact for the purposes of the decision. That arises from pars [27] and [28]. Paragraph [28] is set out above, but it is convenient if I set both paragraphs out here.
"27 In regard to Mr Shephard's primary argument the removal should be granted due to inconsistency with the Scheme, the Council is of the view that this also on its own was [referring to the impact on amenity] was an insufficient ground to justify the removal of the covenant and the resultant loss of a degree of the respondent's amenity. 28 However, when the inconsistency argument of [Stage B] was considered alongside the clear change in the nature and development pattern of the surrounding properties in the sixteen years since the lot was created via the approval of the subdivision and the removal of similar covenants at the western end of the general area (although not on the same sealed plan) the argument for the amendment of the sealed plan is persuasive."
204 The difficulty the applicants face is to prove that fact or state of affairs did not exist; that is, in short, that the "clear change" of what is described, did not exist. The applicants rely on the affidavit evidence of Ms Gray, part of which I referred to earlier in relation to ground 1(i). In addition, Ms Gray's report contains the following:
"Without the comparison of multiple images showing progressive development, it is my view that an understanding of the change that has allegedly occurred cannot be arrived at. An opinion that change has occurred must be based on comparison. The single image does not provide the opportunity for comparison."
205 There is a high level of authority that any evidence that establishes the non-existence of the fact or state affairs is admissible in judicial proceedings, but any evidence that contradicts either evidence or material which was before the decision-maker, or an inference which was available to be drawn from that evidence or material, is not permitted: see Szelagowicz v Stocker 1994 (35 ALD 16 at 22) Full Court of the Federal Court, Davies and Enfield JJ, (with whom French J agreed); Minister for Immigration and Multicultural Affairs v Tesic [2017] FCAFC 93, 251 FCR 23 per Reeves, Robertson and Rangiah JJ at [55].
206 I do not think that the passage from Ms Gray's report relied on establishes the non-existence of the "significant change" critical fact. Even looking at Ms Gray's report as a whole, her argument is about methodology, and she offers her view as to what can be derived from her own viewing of aerial photographs taken in the period 2003 to 2020. As such, it is either irrelevant or contradicts the evidence or material which was before the Committee.
207 I am not persuaded that there was "no evidence" upon which the "significant change" finding could have been made, and I am not satisfied that as a particular fact or state of affairs, it has been shown on admissible evidence, not to have existed. Accordingly, there is no merit in this ground.
Ground 7 – Conditions on the payment of compensation beyond power?
208 This ground asserts that the Council imposed conditions on the payment of compensation that were beyond the power bestowed by s 104(3) of the LGBMP Act. Reference is made to s 17(2)(c), (d) and (f) of the JRA, which respectively involve an absence of jurisdiction, an absence of authority of the enactment and an error of law. It is best if I set out s 104(3) in full:
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"104 Hearing in respect of amendment of plans …
(3) On the conclusion of the hearing, the council may –
(a) cause the amendment to be made with or without modification; and (b) require as a condition of so doing that any person who benefits the amendment is to make compensation in money or land to a person who is injured by it."
209 As earlier noted, having determined that the amendment should be made, and that it was a condition of causing that amendment to be made that Stage B make compensation "to Mr Walker (sic) in the sum of $10,000", the Council continued:
"(a) The Applicant secures planning approval for the construction of multiple
dwellings on Lot 42, or;(b) The Applicant secured an approval to sub-divide Lot 42; (c) The Applicant otherwise attempts to sell the property; (d) In the event of either (a) or (c) occurring the payment of compensation is not to occur until any and all appeal rights are either out of time or have been exhausted; (e) In the event of (c) the payment of compensation is to occur before the execution of the contract of sale in respect of Lot 42."
210 Although the word "or" only appears after (a), it is to be assumed that all paragraphs were disjunctive, and not that (b) to (e) were cumulative in their effect. The applicants argue that those conditions on the payment of compensation were not authorised by the legislation. In effect, they were conditions imposed on the condition which a council is empowered to make under s 104(3)(b).
211 Counsel for the respondents referred to cases in support of the proposition that, subject to the evident purpose or purposes of the legislation concerned, statutory authorities may impose conditions on the exercise of a power, as long as the conditions are not inconsistent with the purpose for which the power is granted. Those words come from Johns v Australian Securities Commission (1993) 178 CLR 408, per McHugh J at 469-470. This, and a number of other authorities were referred to by Blow J in Dorset Council v Resource Management Planning Appeal Tribunal [2011] TASSC 7 at [19]-[20]. In that case, his Honour held that the statutory scheme did not enable the Resource Management Planning Appeal Tribunal, on appeal from a council, to impose conditions when granting a certificate of approval for a strata plan: see [21]-[24].
212 In R v Resource Management and Planning Appeal Tribunal; ex parte North West Rendering Pty Ltd [2005] TASSC 8, 138 LGERA 412. The statutory scheme enabled the Tribunal to require a person to refrain from a course of action that constituted contravention or potential contravention of the legislation concerned, or to preclude for a specified period the person from carrying out any use or development in relation to the land in question, or to require the person to make good a contravention then a period specified by the Tribunal. Evans J held that the Tribunal had the power to do so conditionally. At [22], his Honour said that a necessary incident of those powers is the power to make a suspended or conditional order.
213 In my view, none of these authorities assist the respondents in their argument. The principles which are explained are uncontroversial but have no application in the present case. Under s 104(3)(b),
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a council has the express power to cause an amendment to be made to a sealed plan, and (expressly) on condition that the person who benefits is to make compensation. The real question is whether there is any power to impose conditions on whether that compensation is ultimately payable or not. That is, in broader terms, to make the condition conditional.
214 It seems to me that the answer, as indicated in the cases referred to, is in the provision itself. The short answer to the respondents' arguments is that the power given by s 104(3)(b) is to impose a condition on the making of the amendment. There is no power, express or arising by reasonable implication, to impose a condition on the condition "to make compensation." A different analysis gives the same result. The section enables a council to condition the amendment on the payment of compensation to a person "who is injured by it." That is, a state of affairs arises by the making of the amendment. That requires a determination to that effect; that is, a person is injured by the amendment. It is that determination that gives a council the power to make the condition.
215 In conceptual terms, if it is determined that the person is not injured until some future event which might occur and at an unspecified time in the future, then the power to impose the condition in the first instance does not arise. Such an approach is not permitted by the section. I do not see how the condition to pay compensation can be imposed on a conditional basis, at least of the type involved in this case. I uphold ground 7.
216 I do not feel able to end the discussion on this issue without reference to what the Council did in this case. The Council's own "Policy and Procedures for Applications to Amend Sealed Plans", forwarded to the parties before the hearing, contains a statement that an amendment to a sealed plan approved by Council on the condition that compensation is payable, will not be executed by Council until such time as confirmation is received of the applicant party's agreement to pay and/or confirmation of the receipt of compensation.
217 Irrespective of whether my conclusion on this ground is right, I think it would be unwise to execute and provide the documents, or to do doing anything to effect the amendment. until such time as compensation has actually been "made". Acting on an agreement is problematic. Payment or the making of compensation is a condition of making the amendment and it seems clear to me that is a condition precedent. If the amendment is made and compensation has not been made beforehand – it might never be paid – then retrospectively the condition has not been fulfilled and the amendment could not have been made. There is no provision enabling a person in whose favour an award is made to recover the amount. That is unlike s 105 which gives to a council, where it agrees to pay compensation, a right of recovery against the petitioner. Of note is that a s 105 award can be made after the amendment is effected.
Disposition
218 I have held that ground 5(c), as it relates to the condition of payment of compensation to the applicants, and ground 7 are made out.
219 The parties are agreed that the requirement to pay compensation as a condition of causing the amendment to be made, is severable from the decision as to the amendment itself. That appears to be a valid position to adopt. Essentially, the question is whether the decision would have been made without it. The flaw in the decision is not the condition requiring the payment of compensation, but the way in which the quantum of that compensation was arrived at, and the conditions imposed on the condition. Accordingly, that part is not an integral and essential element of the decision to cause the amendment to be made and to require as a condition of doing so, that Stage B pay the applicants compensation: see Coco v The Queen (1994) 179 CLR 427 at 443-444 and the North West Rendering Pty Ltd case (above) at [26].
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220 That said, in my view the appropriate order is to quash the decision of the Council to the extent of the amount of compensation assessed and the conditions imposed on the payment of that compensation. That aspect should be remitted to the Council for determination in accordance with these reasons. There may be further or consequential orders which are appropriate. One issue that comes to mind is the constitution of a committee if Council were again to seek such assistance with carrying out its functions, or indeed the Council itself depending on quorum requirements. The application is granted and I will hear from counsel before making any further orders.
has occurred and if so, whether relief should be refused as a matter of discretion, is of longstanding duration: Nguyen v
Minister for Immigration (No 2) (1996) 68 FCR 463 per Merkel J at 478.
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