Adams v Great Lakes Council & Anor

Adams v Great Lakes Council [2010] NSWLEC 14 Botany Bay Council v Remath Investments (No 6) Pty Ltd (2000) 50 NSWLR 312 CASES CITED: Kindimindi Investments Pty Ltd v Lane Cove Council (2007) 150 LGERA 333 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALR 598 Owners Strata Plan 50411 v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5

16 December 2009 DATES OF HEARING: 5 February 2010 10 March 2010

APPLICANT Mr D Shoebridge SOLICITOR Adams Rave Marsh & Co

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr I Hemmings SOLICITOR Mallik Rees SECOND RESPONDENT Submitting appearance SOLICITOR Sattler & Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40288 of 2009 Adams v Great Lakes Council & Anor (No 2)

JUDGMENT 1 Her Honour: The Applicant has commenced these proceedings challenging the grant of development consent by Great Lakes Council, the First Respondent (the Council) to the Second Respondent, his neighbour, on land in Kinka Road Seal Rocks. The Second Respondent has filed a submitting appearance. The Applicant seeks: 1. A declaration that the purported consent of the First Respondent of 24 March 2009 in respect of Development Application 37/2009 is void; 2. A declaration that the owner of the land to which development application of [sic] Development Application 37/2009 relates did not provide consent to make the development application … 2 The land in question is a triangular portion of land abutting the Applicant's land on the northern boundary (the land). This land also adjoins the Second Respondent's land (but is not owned by the Second Respondent) and is part of the land the subject of the development consent granted to the Second Respondent. Agreed facts 3 The parties tendered a statement of agreed facts as follows: 1. At all material times the First Respondent was the relevant Local Government Authority, constituted as a legal entity under the Local Government Act 1993. 2. On or about 18 July 2008 the Second Respondent, as owner of land being lot 5 of DP 114001 situated and known as 14 Kinka Road Seal Rocks lodged development application DA 37/2009 with the First Respondent. 3. DA 37/2009 sought consent for development in the form of excavation, a retaining wall and a driveway (the proposed development) on both: (a) 14 Kinka Road; and (b) land immediately to the north of 12 Kinka Road (previously part of allotment 4 in section 2) which land was said in DA 37/2009 to be Kinka Road Reserve (the land). 4. The First Respondent, by signature of its General Manager, purported to give written landowner's consent to DA 37/2009 as purported owner of the Kinka Road Reserve. 5. On or about 24 March 2009 the First Respondent purported to give consent to DA 37/2009 (the planning consent) pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act). 6. To the extent the proposed development was on the Kinka Road Reserve that land was in fact Crown land owned by the State of New South Wales. 7. To the extent the First Respondent purported to give written landowner's consent to the proposed development: (a) it had no authority to grant such consent as it was not the landowner of the Kinka Road Reserve; and (b) it was not otherwise entitled to give such consent in respect of that land. 8. At all material times s 78 of the EP&A Act and Regulation 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) provided that a development application may only be made in respect of the owner of that land. 9. The planning consent was granted in the absence of the landowner's written consent for the Kinka Road Reserve. Issues 4 As is clear from the statement of agreed facts (par 3(7) above), the Council accepts it granted development consent to the Second Respondent's DA when it was not the owner of land on 18 July 2008 so that the development consent granted is not valid. Its amended defence states at par 12-15: 12. In answer to the whole of the Applicants Amended Claim, the First Respondent says: a. By resolution dated 30 October 2007, Minute 180, the First Respondent resolved "to formally request the Department of Lands to dedicate as public roads the roads listed in the Schedule, (Annexure A), under s 151 Roads Act. b. In that Schedule A, relevantly, was Seal Rocks Kinka Road East of Thomas Road". c. By Government Gazette dated 5 June 2009, the Minister for Lands transferred part of Kinka Road, including the Land, to the First Respondent pursuant to s 151 of the Roads Act, 1993. 13. From 6 June 2009, the First Respondent is the "owner" of the Land for the purposes of s 78 of the Environmental Planning and Assessment Act and cl 49 of the Environmental Planning and Assessment Regulation.

14. In the exercise of the Court's general discretion pursuant to s 124 of the Environmental Planning and Assessment Act, the Court would not grant the relief sought, or at all.

15. In the alternative, in the exercise of the Court's discretion pursuant to Part 3 Division 3 of the Land and Environment Court Act, the Court would: a. Make Orders pursuant to s 25B(1)(a) suspending the operation of the whole of the Planning consent upon terms that the granting of the owner's consent by the owner of the Land will validate the consent (without the necessity for the consent to be regranted); and b. Upon obtaining the Land owner's consent: (i) Order that the terms referred to in (a) above have been substantially complied with; and (ii) Declare that the Planning Consent is valid; and (iii) Revoke the Order of the suspension of the Planning Consent referred to in (a) above. 5 At issue is whether, following the grant of development consent without owner's consent, the Council subsequently became the owner of the land. The Council argues this occurred as a result of the gazetted transfer of Kinka Road east of Thomas Road to the Council by the Minister for Lands on 5 June 2009 (par 12(c) of defence). As the Council is now the owner of the land (par 13 of defence) it seeks orders that the consent be confirmed or suspended under s 25B(1) of the Land and Environment Court Act 1979 (the Court Act) so that owner's consent can be provided (par 15 of defence). Alternatively the Court has broad discretion under s 124 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) not to grant any relief (so that the consent would stand) (par 14 of defence). Alternatively, even if the Council is not the owner the Court has broad discretion under s 124 EP&A Act not to grant any relief. The land is public land regardless of whether the Crown or the Council is the owner. 6 The Applicant argues the decision to grant development consent was void, not voidable. Consequently an order under s 25B of the Court Act ought not be made in the exercise of the Court's discretion. As the Council admits it was not the owner when development consent was granted, the declarations that the consent is void and that the owner of the land did not provide consent to the DA (par 1) should be made. Evidence 7 An agreed bundle of documents, and a further agreed bundle of documents, were tendered as exhibit A. The relevant documents are summarised as follows: (i) Search report by Peter Boyer of Ausearch Pty Limited dated 7 August 2009 for the purpose of identifying significant facts and events in the history of the land and adjoining parcels, and concluding with an opinion as to the current status of the land.

The report concludes (with original emphases): The subject land remains as Crown land, being part of Reserve No. 753168 for Future Public Requirements.

As basis for this opinion the following points are noted: 1. The subject land is designated Required for Road Widening on plan G6460-1497, as opposed to the specific statement Road Variable width as applied to the former part of Allot 3 of Sec 2 on plan G6456-1497 2. Whilst evidence is available to show that the former part of Allot 3 of Sec 2 has been utilised as road, providing practical access to adjoining Allot 4 of Sect 2, no evidence is available to show that the subject land has ever been constructed or formed in such a manner as to be utilised as road 3. In the absence of evidence that the subject land formed part of a reserve or any other holding within the period from 4.8.1978 to 31.3.2006, it is considered to have comprised Crown land included in Reserve No. 1011448 for Future Public Requirements (now revoked)

The parties referred to the particular annexures to Mr Boyer's report described below as (a) - (j), copies of which are also part of exhibit A in the current proceedings: (a) NSW Government Gazette No. 15 [29 January 1960] Folio 256 gazetting Crown land Reserve No. 82316 approximately 87 acres of land in Parish Forster, County Gloucester for village purposes (this large parcel of land includes the land in the current proceedings).

(b) Report No.67/48 by R I Hunter, Staff Surveyor Taree, dated 21 December 1967 referring to notation plan G6304-1497 stating that an amendment survey to allotment 4 had been completed, and that according to Road Engineering plans designed by Stroud Shire Council the land was to be used for road purposes. Mr Hunter's instructions dated 4 October 1967 from E F Higgs, District Surveyor Land Board Office East Maitland have a hand-written notation " Particularly in light of the area which has been excluded from allot 4 for road widening ." (c) Notation plan G6456-1497 approved 12 January 1968 referring to Lot 3 and identifying a small parcel of land adjacent to Lot 3 as " Road Variable Width ". (d) Notation plan G6460-1497 approved 28 March 1968 detailing the survey amendment undertaken by Staff Surveyor Hunter to Lot 4, and identifying the land adjacent to Lot 4 as " Required for Road Widening ". (e) Crown Grant Volume 14337 Folio 151 registered 18 January 1981 granting estate in fee simple to Arthur Richard Adams of Lot 3 Section 2 DP 114374. (f) Certificate of Title Volume 15344 Folio 141 issued 3 June 1985 certifying Thomas Augustine O'Neill as the registered proprietor of estate in fee simple of Lot 4 Section 2. The reproduced plan showing the location and dimensions relevant to the title does not include the land as part of the allotment. (g) NSW Government Gazette No. 91 [4 August 1978] Folio 3290 gazetting Crown land Reserve No. 82316 (originally notified 29 January 1960 for village purposes) as revoked. Any land remaining from the original reserve, which had not been released for sale under other instruments, reverts to unreserved Crown land. (h) NSW Government Gazette No. 40 [31 March 2006] Folio 1624 gazetting all Crown land in the Eastern and Central Divisions of the State to be identified as Crown land Reserve No. 1011448 for the public purpose of future public requirements. (i) NSW Government Gazette No. 83 [29 June 2007] Folio 4182 gazetting that Crown land Reserve No. 1011448 for the public purpose of future public requirements is revoked, and that the relevant Crown land covered by Reserve No. 1011448 becomes Crown land Reserve No. 753168 in the Parish of Forster County of Gloucester. (j) NSW Government Gazette No. 83 [5 June 2009] Folio 2558 gazetting that the Crown public road being Kinka Road from the eastern boundary of Thomas Road to Lot 3, DP 847752, is transferred to the roads authority Great Lakes Council and ceases to be Crown road.

(ii) Search report by Peter S Hopley Pty Limited regarding Lot 4 Section 2 DP 758900 (Seal Rocks) dated April 2009 stating that from records available for inspection, the boundaries of Allotment 4 Section 2 were redefined in notation plan G6460-1497 and that provision for road was made by virtue of that plan. The report states that no evidence could be found as to the formal dedication or resumption of this part of Kinka Road. The report also identifies that information maintained at the Titles Office in relation to Crown lands is not current or accurate.

(iii) Email report from Gary Dobinson, Senior Land Development Officer Department of Lands to David Adams dated 6 April 2009 regarding Lot 4 Kinka Road Seal Rocks and stating that the land was excised from the allotment under notation plan G6460-1497 on 28 March 1969. The report states that the land is Crown land with an intention that it was required for road widening.

(iv) Minutes of the Ordinary Meeting of the Great Lakes Council 24 March 2009 noting DA37/2009 proposed retaining wall for driveway 14 Kinka Road Seal Rocks with an annexure of the minutes at p 34 showing a site plan map produced by the Council.

(v) Letter from Dean Hartmann, Senior Engineering Development Officer Great Lakes Council to Department of Lands dated 29 May 2009 advising that Council proposed to seek orders in the Land and Environment Court of NSW pursuant to s 25B and s 25C of the Land and Environment Court Act 1979. Annexed to this letter is an extracted copy of the minutes of an Ordinary Meeting of the Great Lakes Council 26 May 2009 detailing the recommendation and resolution of Council as: a. Council accept dedication of Kinka Road, between Thomas Road and Lot 3 DP 847752, including the triangular parcel of land fronting Lot 4 Section 2 (the land) , as shown on Crown plan G6460-1497 as being "required for road widening"; and b. The Department of Lands be requested to transfer the subject road to Council under Section 151 of the Roads Act 1993.

(vi) Letter from Gary Dobinson of Department of Lands to Great Lakes Council dated 10 June 2009 stating that: As the triangular parcel of land fronting Lot 4 Section 2 (the land) comprises Crown land in terms of the Crown Lands Act 1989 and not public road, the Department of Lands is not able to transfer responsibility of the land to Council as road under the Roads Act 1993. This letter also identifies that Local Councils may acquire Crown land by compulsory acquisition pursuant to the Local Government Act 1993 s 186 or the Roads Act 1993 s 177.

(vii) Emails between Dean Hartmann of the Council and Gary Dobinson of Department of Lands dated 11 June 2009 and 12 June 2009, with Mr Dobinson asserting that the triangular section of Crown land fronting Lot 4 Section 2 (the land) is not part of Kinka Road. Mr Dobinson also confirms that Council would be liable for market value compensation if Council sought to acquire the Crown land by compulsory acquisition.

(viii) Letter dated 15 June 2009 from Mallik Rees Lawyers (acting for Council) to Department of Lands seeking advice as to whether the Minister's consent would be given to Development Application No 37/2009.

(ix) Email dated 15 June 2009 from Gregory Harrison (one of the owners of Lot 5 DP 114001 and Second Respondent in these proceedings) to Gary Dobinson at Department of Lands confirming the land fronting Lot 4 of DP 114001 is Crown land and not Crown Road Reserve, and seeking a lease of that land as well as the land fronting Lot 3 of DP 114374.

(x) Letter dated 17 June 2009 from Gary Dobinson of Department of Lands to Mallik Rees Lawyers (acting for Council) stating that the Minister's consent to DA No 37/2009 is not available as the land fronting Lot 4 as shown on notation plan G6460-1497 holds status as part of Reserve No 753168 "Future Public Requirements".

(xi) Email dated 3 July 2009 from Bruce Waddington Departmental Liaison Officer, Office of Minister for Lands, to Karen Hembrow and Cam Cocchini regarding an enquiry to the Minister's office by Mr Tony Sattler (acting for Mr Harrison) who is seeking the Minister's consent for a driveway located on part of Kinka Road Seal Rocks. The email states that: Mr Sattler is concerned that he has been advised that [the Department of] Lands has only just found out that this is a Crown road and that owners consent will not be provided until it has been decided what to do with the Crown road.

(xii) Email dated 7 July 2009 from Gary Dobinson of Department of Lands to Peter Adams (Applicant) commenting on document titled Points of Defence and stating that: Kinka Road was transferred to Great Lakes Council pursuant to section 151 of the Roads Act, 1993 by gazette 5 th June 2009, but as has been previously advised to all parties the triangular parcel of land fronting Lot 4 Section 2 is Crown land and has never been a Council or Crown public road

(xiii) Letter from Karen Hembrow of Department of Lands to Tony Sattler (via email) dated 13 July 2009 stating that the Department of Lands identifies the land as Crown land and is not part of Council public road (Kinka Road). The letter advises Mr Sattler that owner's consent to the lodgement of DA 37/2009 was not sought, and that consideration of owner's consent to any development application on Crown land is subject to a number of factors including the determination of future land allocation options and public interest. 8 The terms of the gazettal notice of 5 June 2009 which the Council argued transferred ownership of Kinka Road including the land are as follows:

SCHEDULE 1 ROADS ACT 1993 Parish - Forster; County - Gloucester; ORDER Village - Seal Rocks Transfer of Crown Road to a Council Local Government Area - Great Lakes Council Land District - Gloucester Crown public roads being Kinka Road from the eastern boundary of Thomas Road to Lot 3, DP 847752.

IN pursuant of the provisions of section 151, Roads Act 1993, the Crown roads specified in Schedule 1 are transferred to the roads authority specified in Schedule 2 hereunder, as from the date of publication of this notice and as from that date the roads specified in Schedule 1 cease to be Crown roads. Horgan Place between Thomas Road and eastern boundary Lot 2, DP 115357.

Unnamed road 10.06m, 16m wide and variable width from Kinka Road to Lots 3 and 4, DP 247596 and being Crown public road separating Lots 7 and 43, DP 244714 and Lot 467, DP 47335 from Lot 32, DP 758900 and Lot 467, DP 47335

9 The Parish map for Parish Forster, County Gloucester (exhibit 2) shows the triangular area to the north of the Applicant's land as part of Kinka Road as it is the same colour as Kinka Road and within the boundary line of Kinka Road. 10 An affidavit of the Applicant dated 10 August 2009 was read in part which attests to the current state of the land as being a vegetated area of bush and trees with no development on it. Certificate as to Status of Land under the Crown Lands Act 11 By a Notice of Motion filed after the hearing the Applicant applied to reopen its case and tender a document titled "Certificate as to Status of Land" (the Certificate) pursuant to s 177 of the Crown Lands Act 1989. Sections 177(1) and (2) provide: (1) A certificate signed by the Minister certifying that, at a stated time or during a stated period: (a) specified land was, or was not, Crown land, … is, in any legal proceedings, admissible as evidence of the matters certified. ( 2) If the court before which any legal proceedings are brought is satisfied that the proceedings were brought wholly or partly for the purpose of determining title to land, a certificate under subsection (1) is not admissible in the proceedings. 12 After argument about the purpose for which the certificate could be tendered I held in Adams v Great Lakes Council [2010] NSWLEC 14 (Adams No 1) that s 177(2) applied to prevent tender of the Certificate to prove title of the land. The Certificate was subsequently admitted for the limited purpose of proving the land is a separate parcel of land from Kinka Road. It also purports to show the status of the land under the Crown Lands Act. The certificate is in the following terms: I, CHRIS RICHARD ATCHISON being the holder of the position of Program Manager, Commercial, Mid North Coast DO HEREBY CERTIFY that during the period 1 st January 1978 to 1 st December 2009, the land described in the Schedule hereto (which Schedule forms part of this Certificate) Was Crown land between 1 January 1978 and 4 August 1978 comprising Reserve 82316 for Village Purposes Notified 29 January 1960 Was unreserved Crown land between 4 August 1978 and 31 March 2006 Was Crown land between 31 March 2006 and 29 June 2007 comprising part Reserve 1011448 for Future Public Requirements Notified 31 March 2006 Was Crown land from 29 June 2007 to 1 December 2009 (and to date) comprising part Reserve 753168 for Future Public Requirements Notified 29 June 2007

SCHEDULE The land shown on the accompanying diagram "A" edged with red ink being unmeasured lands having an area of about 104.2 square meters and adjoining allotment 4 Section 2 at Seal Rocks, Parish Forster, County Gloucester

(Note: diagram "A" referred to in schedule not here included)

Relevant legislation Crown and Other Roads Act 1990 (repealed by s 265 Roads Act 1993 commencing 1 July 1993) 13 The following sections of the Crown and Other Roads Act 1990 (Crown Roads Act) are relevant: Section 3 provides: (1) in this Act: "Crown road" means: (a) any road or land which was, before the commencement of this section, vested in the Crown and indicated on official maps or plans as being reserved for or left as a road ; [emphasis added] (i) in a subdivision of Crown land; or (ii) in the measurement or granting of Crown land; or (iii) as a consequence of an approval by the Minister administering the Crown Lands Acts, but which was not notified, proclaimed or dedicated as a public thoroughfare or public way before that commencement and which has not been declared to be a public road under part 2 since that commencement; or (b) any land declared to be a Crown road under Part 2.

(2) In this Act, a reference to a road includes a reference to a part of a road.

Section 34 provides: (1) a Crown road is open to the public as of right for the purpose of passing and repassing, irrespective of whether it is formed or constructed as a road. … (3) Until closed in accordance with section 45, a Crown road is not capable of being reserved, dedicated, sold, leased or otherwise disposed of under the provisions of the Crown Lands Act

Section 36 provides: (1) Any land that: (a) is acquired for the purposes of a road; or (b) is declared to be a Crown road; or (c) was, immediately before the commencement of this section, a Crown road, becomes or, as the case may be, continues to be Crown land within the meaning of the Crown Lands Act 1989 until it ceases to be Crown land by virtue of the operation of this or any other Act. Roads Act 1993 14 Sections 145(2) and (3) of the Roads Act provide: (2) All Crown roads are vested in fee simple in the Crown as Crown land. (3) All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority. The transfer of a Crown road to another roads authority (in this case the Council) is provided for under s 151 which states: (1) The Minister may, by order published in the Gazette, transfer a specified Crown road to another roads authority. (2) On the publication of the order, the road ceases to be a Crown road. (3) An order transferring a Crown road to the RTA may not be made except with the consent of the RTA. (4) If the road has been provided in a subdivision of Crown land for alienation, or has been reserved in the measurement of Crown land, the official plans of survey showing the road adjacent to the land subdivided or measured are evidence of the width, extent and position of the road. Schedule 2 "Savings, transitional and other provisions" for Acts including the Crown Roads Act provides in cl 56: Any road that, immediately before the commencement of this Act, was a Crown road within the meaning of the repealed Act is dedicated as a public road and is declared to be a Crown road within the meaning of this Act. 15 Section 124(1) of the EP&A Act provides: (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. 16 Clause 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 (the Regulation) provides: (1) A development application may be made: … (b) by any other person, with the consent in writing of the owner of that land. 17 Section 25B of the Court Act provides: (1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order: (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation): (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.

Council's submissions 18 The Council presented its case first as it is arguing the Court should grant the relief sought in its defence in the exercise of the Court's discretion. Relevant documents in the Council's case contained in the bundle are set out in par 8-12 of the Council's submissions. In or about 1967, staff surveyor R I Hunter prepared report no 67/48 dealing with, amongst other things, the road adjoining Lot 4, Section 2. Staff surveyor Hunter identified that a hatched area within allotment 4 (the triangular section) (the land) is "to be used for road purposes" and that "amendment surveys to Allots 3 and 4 have already been carried out by me as shown on diagram." [see par 7(i)(b) above]

At Agreed Bundle Tab 9 page 90, the triangular section (the land) is described as "the area which has been excluded from allot 4 for road widening". [see par 7(i)(b) above]

The amending survey for Allotment 3 is behind Tab 22 in the Agreed Bundle. As can be seen, it is prepared by surveyor R I Hunter. After adjusting part of the northern boundary of Allotment 3, the remaining triangular section is shown as "road variable width". The delineation between that triangle and the adjoining Kinka road is shown by dashed lines. [see par 7(i)(c) above]

The amendment for Allotment 4 is also prepared by staff surveyor Hunter and is dated 28 March 1968 and is at Tab 23 of the Agreed Bundle. Again after amendment of the northern boundary of Allotment 4 the triangular section (the land) is shown separated by dashed line from the Kinka Road Reserve (and there is also a dashed and dotted line for the existing fencing). The triangular section (the land) is now shown as "required for road widening". [see par 7(i)(d) above] Ultimately a new Certificate of Title was issued for Allotment 3 (see Tab 25 of the Agreed Bundle). As can be seen from that title, everything to the north of the (amended) northern boundary of Allotment 3 is identified as part of Kinka Road. Similarly, a new Certificate of Title was issued for allotment 4 (see Tab 26). Again, that plan shows the amended boundary, with the triangular section (the land) now being shown as part of Kinka Road . [see par 7(i)(d) and 7(i)(f) above]

19 By virtue of the change to the northern boundary of Lot 4 in notation plan G6460-1497 created in March 1968 and identification of the land as "required for road widening" that area of land became Crown road. It continued to be so by virtue of the definition of Crown road in s 3(1) of the Crown Roads Act. 20 The words "required for road widening" on the notation plan G6460-1497 satisfy the requirement in the definition of "Crown road" as land "being reserved for or left as a road" (Crown Roads Act s 3(1)(a)). A Crown road need not be formed as a road to satisfy the definition in s 3(1) of the Crown Roads Act as, under s 34(1), it need not be formed or constructed as a road. Nor is there a distinction between Crown land and Crown road, contrary to the Applicant's submissions. Crown land can be Crown road, as specifically provided for in s 36(1) of the Crown Roads Act. That section states that land declared a Crown road continues to be Crown land. It continued as a Crown road under the Roads Act by virtue of the transitional provisions in cl 56 Sch 2 of the Roads Act. The land was transferred to the Council under s 151 of the Roads Act in the gazettal notice of 5 June 2009 which transferred the Crown road, Kinka Road. 21 While the legal searcher employed by the Applicant, Mr Boyer, found that the land had been reserved in 1960 (Reserve No. 82316) for village purposes then reserved for future public requirements (Reserve No. 1011448) in 2006 (since revoked), if it became Crown road in 1968 it could not then be reserved under the Crown Lands Act by virtue of s 34(3) of the Crown Roads Act.

22 The Applicant relies on the views of one officer in the Department of Lands that the land is not part of Kinka Road (see correspondence in par 7(vi), (vii), (x), (xii)). The different wording used when a small triangle of land was removed from the neighbouring Lot 3 in notation plan G6456-1497 (created in January 1968) and identified on the plan as "road variable width", is accepted by the Department of Lands as giving rise to the inclusion of that area as Crown road. There is no basis for the Department to conclude differently in relation to the land to the north of Lot 4.

23 The Certificate (par 12) is irrelevant as it refers only to the Crown Lands Act. Land can have dual character under both the Crown Lands Act and as a Crown road under the Roads Act and its predecessors. By virtue of the roads legislation, already discussed, the land was part of a Crown road, Kinka Road, and was able to be transferred to the Council by virtue of the gazettal notice of 5 June 2009. The Certificate refers only to the status of the land under the Crown Lands Act. To the extent it is relevant it identifies that the land was Crown land up to 5 June 2009. It is not admissible for the determination of title of the land after 5 June 2009. The Certificate does not consider the Roads Act. Once land is vested in a public authority under the Roads Act it is no longer Crown land by virtue of s 145(3) of the Roads Act. The Certificate does not deal with the gazettal notice of 5 June 2009.

24 In relation to the each of the dot points in the Certificate (par 12) the Council submitted as follows: To the extent it will be necessary for the Court to consider the operation of the Certificate, it simply provides as follows: Upon the coming into force of the Crown and Other Roads Act, on 11 February 1992, the land was unreserved Crown Land. That has never been in dispute. By operation of the Crown and Other Roads Act, 1990 that unreserved Crown land was a Crown Road (see Council's submissions at [16]-[19]. Upon the coming into force of the Roads Act in 1993, the land remained unreserved Crown Land (second bullet point in the Certificate). By operation of cl 56 of Schedule 2 to the Roads Act (being the transitional provisions) the unreserved Crown Road (which was Crown Land) was dedicated as a public road and declared to be a Crown Road (see paragraph [23] of the Council's submissions). Relevantly, the Council notes that pursuant to s 145(2) of the Roads Act 1993, all Crown Roads are vested in fee simple in the Crown as Crown land. That is, there clearly is no inconsistency between the land being both Crown Land and Crown Road. According to the third bullet point of the Certificate on 31 March 2006 the triangular portion of land was reserved pursuant to the Crown Lands Act. That reservation had no effect upon the status of the land as a Crown Road pursuant to the Roads Act (and further, the Council notes that there was no equivalent of s 34 of the Crown and Other Roads Act in the Roads Act 1993, to prevent its reservation). On 5 June 2009 pursuant to s 151 of the Roads Act the Crown Road was transferred to the Council. Upon gazettal it became a public road vested in fee simple and the Council, as the appropriate roads authority (see s 145(3) of the Roads Act 1993) (and see Council's Outline Submissions at paragraphs [25]-[26]). 25 Nor does the Certificate identify a separate parcel of land, contrary to the Applicant's submissions. Section 177(1)(a) refers to specified land but that does not mean it is a separate parcel of land. No certificate of title has been issued for a parcel of land described as Kinka Road. 26 In the exercise of its discretion the Court should not make any order under s 124 of the EP&A Act. The failure to give owner's consent is a technical breach, as outlined in Botany Bay Council v Remath Investments (No 6) Pty Ltd (2000) 50 NSWLR 312 by Stein JA at [15]-[18] (Handley JA agreeing and Fitzgerald JA concurring at [47]).

27 Alternatively an order should be made under s 25B of the Court Act to suspend the development consent with orders made for the provision of owner's consent. The Court is required to consider making such orders under s 25E of the Court Act. Orders are proposed in the amended Points of Defence filed. Applicant's submissions 28 The Applicant opposes the relief sought by the Council. The failure to have owner's consent at the time development consent was granted is not merely a technical breach (see Giles JA (in minority) in Owners Strata Plan 50411 v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5) and the Court should not exercise its discretion to make orders under s 25B of the Court Act.

29 Notation plan G6460-1497 shows that there is a boundary between the triangular lot (the land) and Kinka Road so that even if it became Crown road (which is denied) it did not become part of Kinka Road. The words "reserved for road widening" are the reservation of land for the future. When the land was excised from Lot 4 in 1968 it reverted to the village purposes Reserve No. 82316 granted in 1960 (see par 7(i)). The land does not satisfy the definition of Crown road in s 3(1) of the Crown Roads Act as land "reserved for or left as a road". "Required for widening" is not a reservation of land at the time but a reservation for future use.

30 As found by Mr Boyer, the 1960 Crown land Reserve No. 82316 was revoked in 1978 (see par 7(i)(g)) and the land was simply Crown land until 31 March 2006 when Crown land Reserve No. 1011448 was gazetted. In the gazettal notice dated 29 June 2007 all Crown land in Parish Forster, County Gloucester, within the general Crown land Reserve No. 1011448 for the public purpose of future public requirements was transferred to Crown land Reserve No. 753168, not a road reserve. That has continued as the status of the land. The gazettal notice on 5 June 2009 had no relevant effect on the land. It refers to other unnamed roads in front of different lots in the third paragraph in Sch 1, none of which refers to the land. 31 The Applicant does not rely on the notation plan G6456-1497 for the reconfiguration of the northern boundary of Lot 3 to support its case. The view of Mr Dobinson from the Department of Lands that the triangular area to the north of Lot 3 is part of Kinka Road is noted. The Lot 3 notation plan G6456-1497 refers to land in the small triangle excised from the northern boundary as "road variable width". That plan did result in the incorporation of the triangle of land to the north of Lot 3 into Kinka Road. 32 The Certificate as to the Status of Land under s 177 of the Crown Lands Act confirms that at the time of the gazettal notice of 5 June 2009 the land was in Crown land Reserve No. 753168 for future public requirements. The land is outlined in red in notation plan G6460-1497 attached to the certificate which shows clearly it is a separate lot from Kinka Road. The surveyor, Mr Hunter, marked the land as a red triangle in 1968 when he undertook the survey. 33 The Court can be satisfied on the evidence that the land is in the Crown Reserve No. 753168 gazetted in 2007. It is not a Crown road and did not become so as a result of the 1968 notation plan G6460-1497 which was prepared to change the boundaries of Lot 4 and exclude from it the land as "required for road widening". Alternatively, if "required for road widening" on the 1968 notation plan means the land was Crown road it did not then become part of Kinka Road.

34 The Council also did not consider it was the owner of the land as is clear from the correspondence summarised above in par 7(viii) - (x). In relation to the correct owner of the land, the Department of Lands' view as identified in several emails and letters in the agreed documents bundle (summarised at par 7(vii), (ix), (xi), (xii) and (xiii)) is that it continues as the owner of the land as it considers it to be Crown land held under the Crown Lands Act. The Department does not consider that the land was transferred to the Council in the gazette notice of 5 June 2009 which transferred Kinka Road under s 151 of the Roads Act. The Crown should have been joined as a party by the Council in the proceedings. At the very least, if the Court forms the tentative view that the Council is the owner of the land by virtue of the gazette notice on 5 June 2009, the Court should ask the Department of Lands if it wishes to make submissions in the proceedings.

35 If the Court determines that the Council is not the owner, it cannot be assumed that the Department of Lands would give its consent to the development application of the Second Respondent for development on the land. The Department of Lands' stated view in correspondence is that given the application for a lease of the land by the Applicant and the need to consider the public interest, the use of the land would need to be considered . Finding 36 The lack of owner's consent to the lodgement of the DA required by cl 49(1)(b) of the Regulation at the time development consent was granted was referred to as a technical breach in Remath (see par 26 above). The grant of development consent for the land without owner's consent is not a decision of the Council involving jurisdictional error which renders it void, contrary to the Applicant's submissions relying on Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALR 598. The Applicant relied on the minority judgment of Giles JA in Owners Strata Title No 50411 at [42], but that case does not support a finding that the decision is void. That case was considering whether there was an obligation for a body corporate to give owner's consent to a development application. 37 Lack of owner's consent is a matter that can be cured up to the time of the grant of a consent; see Stein JA in Remath at [15]-[18]. It is also a matter that can be cured by appropriate orders suspending the development consent to enable owner's consent to be given by the Council under s 25B(1) of the Court Act. I have a duty under s 25E of the Court Act to consider making such orders. The Court of Appeal in Kindimindi Investments Pty Ltd v Lane Cove Council (2007) 150 LGERA 333 (Hodgson JA at [24], Tobias JA at [29], and McColl JA at [45]) identified the broad basis on which such orders can be considered. I can therefore consider the matters raised by the Council in considering whether to exercise the Court's discretion to make such an order. 38 I do not agree with the Council's submission (par 5 above) that in the exercise of the Court's discretion, even if the Council is not the owner, I should not make a declaration of invalidity of consent simply because the land is public land. As submitted by the Applicant, if the owner of the land is the Crown it may or may not wish to give owner's consent for the development of the land for the benefit of the Second Respondent.

39 The Council asserts that it is now the owner of the land. The land is, and has been, part of Kinka Road since 1968 and that road was transferred to the Council by the notice of gazettal on 5 June 2009 under s 151 of the Roads Act. The description of the road transferred in the gazettal notice is set out in Sch 1 (par 8 above) and refers to Crown public road being Kinka Road between two points and also describes unnamed roads which are also transferred. It is agreed the land is not specifically referred to in the schedule.

40 The boundary of Lot 4 was resurveyed in 1968 by the Land Board surveyor, Mr Hunter, to exclude the land from Lot 4. Whether that land then became part of Kinka Road, a Crown road, as it satisfied the definition in s 3(1) of Crown road in the Crown Roads Act of land "being reserved for or left as a road" is the issue.

41 The realignment of the boundaries of Lots 3 and 4 in 1968 is the subject of evidence. The previous northern boundaries of the lots is represented by a dashed line on the respective notation plans. There is no suggestion that a dashed line is a boundary line on the notation plans for Lot 3 or Lot 4. As identified by the Council the dashed line bears the points of the azimuth (bearing) used by the surveyor to measure the triangular area removed from both lots. The boundary of Kinka Road on both notation plans is shown as a solid line on the northern and the southern sides, including along the new boundary of Lot 3 and Lot 4 as surveyed in 1968. This results in both small triangular areas of land to the north of Lots 3 and 4 being included within the solid boundary line that depicts Kinka Road. 42 For completeness I note that there is another dashed line on or very close to the "old" boundary of Lot 4 also represented by a dashed line, the purpose of which is not identified on the notation plan. The Council's counsel submitted this may be a fence line but there is no evidence about what it was intended to represent. It does not alter my findings in the previous paragraph concerning the boundary line. 43 Much of the argument focussed on the meaning of the words used in the notation plan G6460-1497 identifying the purpose of the excised land when the northern boundary of Lot 4 was altered. This was contrasted with notation plan G6456-1497 for the change in the northern boundary of Lot 3. The description of the land as "required for road widening" on notation plan G6460-1497 (Lot 4) is an expression of an intention to reserve the land at that time for the future use of road widening. That phrase comes within the definition of "Crown road" in s 3(1)(a) of the Crown Roads Act of land on an official plan "being reserved for or left as a road".

44 For these reasons, I consider the land did become Crown road in 1968 as it was then "reserved for or left as a road". It also became part of Kinka Road in 1968. That it has never been used as a Crown road is irrelevant in light of s 34(3) of the Crown Roads Act which provides such a road need not be formed (contrary to the reasoning of Mr Boyer as set out in par 2 of his conclusions identified in par 7(i) above). The land continued as a Crown road under the transitional provisions in the Roads, Act Sch 2. It could therefore be the subject of the transfer of Kinka Road under s 151 of the Roads Act to the Council by the Minister on 5 June 2009. 45 This view is confirmed by the Parish map (exhibit 2) which shows the land as within Kinka Road. Further, the certificates of title for Lots 3 and 4, relied on by the Council (par 7(i)(e) and (f)), are also confirmatory of that position as the realigned boundaries to the north of both blocks are shown as Kinka Road. 46 The Applicant submitted that as the wording of the Council's resolution dated 26 May 2009 (par 7(v) above) that it: … accept dedication of Kinka Road, between Thomas Road and Lot 3 DP 847752, including the triangular parcel of land fronting Lot 4 Section 2 (the land) , as shown on Crown plan G6460-1497 as being "required for road widening" was not the wording used in the gazettal notice, the land was not transferred. That was argued to further support a finding the land was not transferred. Whether the land became part of Kinka Road, a Crown road, in 1968 depends entirely on what happened in 1968. Anything later is immaterial, including that the Council passed that resolution in May 2009. 47 The Certificate under s 177(1) of the Crown Lands Act is not material to my conclusion in par 44. That Certificate cannot be tendered for the purpose of proving ownership of the land under the Crown Lands Act by virtue of s 177(2) and my finding in Adams No 1. It does not on its face deal with the status of the land as Crown road under the Crown Roads Act and then the Roads Act as it refers only to the Crown Lands Act. As submitted by the Council, land could be a Crown road and also Crown land by virtue of s 36 of the Crown Roads Act and this continues under the Roads Act. Further, when the land became a Crown road in 1968 as part of Kinka Road it could not be later reserved under the Crown Lands Act by virtue of s 34(3) of the Crown Roads Act and later the Roads Act. The Council's submissions on the Certificate, set out at par 24, apply. 48 It is clear from the correspondence relied on by the Applicant (par 7(viii)-(x) and par 34) that the Council and its solicitor considered at various times that the Council was not the owner of the land but that is not relevant to the issue I must determine. That the Council's solicitor held that view at one time does not represent an admission of some kind relevant to the determination of the issue before me. Conclusion 49 My preliminary view based on the evidence and submissions and for the reasons set out in the preceding paragraphs is that the Council has been the owner of the land since the transfer of Kinka Road by the gazette notice of 5 June 2009. 50 Correspondence from a senior officer in the Department of Lands in the tender bundle of documents suggests that he considers the land continues as Crown land under the control of the Department of Lands. He is aware of the proceedings, judging from the communications between himself and the Applicant in the tender bundle. That was also the position of the Department when the Minister's consent as owner was sought on behalf of the Second Respondent in relation to the land (par 7(x), (xiii)). 51 I am determining the issue of who can provide owner's consent in the context of the EP&A Act, which is not precisely the same question as who has title to the land, but the issues are closely related. The Department is not a party essential to the resolution of that issue. Nor is it bound by my findings in this matter. As discussed during the hearing, if the Department wishes to assert ownership rights it believes it has over the land in the future, whether the Second Respondent can develop the land in accordance with the development consent granted by the Council would still be in issue. In the interests of finally resolving the issue of who can develop the land and to avoid further litigation (an objective encouraged by s 22 of the Court Act), the Department should be given the opportunity of participating if it wishes to either join as a party or to make submissions about my preliminary finding and any orders I may make. It will need to be formally notified of the proceedings and provided with a copy of this judgment in order for this to occur.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.