Applicant v AUBURN COUNCIL

Land and Environment Court (NSW)|1999-03-19|Before: Sheahan J, Mr J

The applicant company commenced these Class 4 proceedings (on 29 August 1997) to establish the existence of, and have the Court enforce, an obligation on the part of Council to construct a "road" (in the sense of a "carriageway" trafficable by motor vehicle) on land allegedly dedicated for that purpose by the company.

Much turns in the matter on the various meanings that can and are ascribed to the word "road" in various contexts.

· the conditions imposed upon the applicant by any one or more of three "development consents" granted by the Council impose upon the Council "a binding obligation … to provide within a reasonable time a 66' wide public road" on the land dedicated "for a public road" by registration of the relevant deposited plan (DP 713708) ("the subject land"); and · that as Council failed to "provide the said road and is unwilling or unable to do so within a reasonable time", it, therefore, holds the land on trust for the benefit of the applicant.

· do all things necessary to close the dedicated road and have it conveyed in fee simple to the applicant; or · "form and construct the said road within 9 months of the date" of any order by the Court.

In order to deal with this application it has been necessary for the Court to address the following questions:

· What is a "road"? · What is the meaning of the word "road" in the context of the dedication made in this case? · On what basis did the applicant dedicate the subject land? What, if anything, was required of the applicant consequent upon that dedication? · What is the status of the subject land now that it has been dedicated? · Does such a dedication create any positive obligations on the part of the Council? If so, to do what and when? · Are any such obligations in the nature of a trust? If so, what do its terms require of the Council? Does s 94 of the Environmental Planning & Assessment Act 1979 ("EPAA") apply? · In what timeframe must these obligations be met? and/or what is "a reasonable time"? · Has there been any breach of any such obligations? If so, does it enliven the Court's jurisdiction? · If the Court has relevant jurisdiction, should relief be granted? If so, what relief?

The hearing proceeded on 17 and 18 September 1998, on the basis of an Amended Class 4 application, filed 16 January 1998, Points of Claim, which were further amended during the trial, and Amended Points of Defence filed 2 September 1998.

When judgment in this matter was reserved , the High Court was still considering its judgment in Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59 (" PWC "), on appeal from the NSW Court of Appeal decision, which is reported at (1997) 41 NSWLR 522.

The parties agreed that the High Court's decision might be relevant to this Court's consideration of this matter.

The High Court's judgment in PWC was handed down on 30 September 1998, and leave was then granted for the parties to make further written submissions in writing on "the effect (if any) of the High Court's decision".

In his written submissions on behalf of the applicant, Mr Robertson sought leave to further amend the Amended Points of Claim, in several respects, purportedly to take account of the High Court's reasoning, and those Further Amended Points of Claim were filed on 24 November 1998.

As Counsel for the Council asserted no prejudice, and has dealt in detail with both Mr Robertson's submissions and those late amendments to the Points of Claim, I now formally grant the leave sought, and approach the task before me on the basis of those amended Points of Claim, even though they alter significantly the basis upon which relief is sought.

Laurex Pty Limited was incorporated for the purpose of making an application to the Council in September 1972 , on what would appear to be a somewhat co-operative basis, despite its commercial nature, to fill and compact an existing brickpit, demolish the existing brickworks, and then subdivide and sell the filled and level area of land for industrial purposes. Laurex sold its business name to a Brambles company and "reversed" the spelling of its corporate name to "Xerual", so as not to breach a restrictive covenant.

The Laurex site occupied an area of approximately 15 acres at the time and formed part of the land bounded by Junction, Newton and Carnarvon Streets, Silverwater. The land now has as its south-western boundary, the western motorway. (See DP 713708, annexed to Paul Donovan's affidavit).

The north-east boundary of the old Clyde Brick Company brickworks and brickpit was the boundary of a railway reserve on the eastern bank of Duck River/Creek.

At the time of the original development application, the brickpit was approximately 1,000' long, 300' wide and 100' deep. There were nearby three 120' high brick chimneys.

The September 1972 application proposed to fill the pit with innocuous industrial waste, topped with a 1m crushed concrete and brick surface to serve as a base for containers. The site was zoned "extractive industrial" under Council's Planning Scheme, which had been assented to on 18 September 1970. The 1972 application included an application to rezone the land "industrial A". The relevant documents appear in Exhibit X7 .

The application was reported to a meeting of Council's Development & Building Committee on 27 November 1972 with a recommendation that Council impose a fee assessed at $3,425 and describing the application as for the "rezoning of Clyde Brick Company Ltd. land … from extractive industrial to general industry to permit the filling of the pit as a commercial enterprise". Once the fee was paid, the Council would submit the rezoning application to the then State Planning Authority ("SPA").

By letter dated 11 December 1972 the solicitors for the company expressed the wish "to confine its application to the use of the subject land as a commercial tip" for the disposal of industrial and other waste. The solicitors described the proposal as "the logical manner of rehabilitating the area". There was at the time an acute shortage of appropriate tipping areas and the client was anxious to commence tipping urgently. They had negotiated with the current extractive operators to phase out as soon as approval was notified.

An application was necessary to the then SPA for the suspension of the subject area from the Auburn Planning Scheme to provide for filling operations to be classified as a permissible use. The relevant application for suspension was made to the SPA on 1 March 1973 . The proposed zoning was to change from extractive industrial 4(d) to industrial light 4(b). A county road proposal is noted on that application. That would appear generally to be what is now the motorway, and that area of land had been excised from the block.

Council wrote to the SPA on 3 April 1973 reporting on Council's consideration at the meeting of 21 March 1973. The letter dealt with the change in proposed zoning from general industrial 4(a) to light industrial 4(b) because "the greatest part of the property is located opposite a residential 2(a) and light industrial 4(b) zones, where greater control of future industrial development is required". Provision was made for 5% of the total land area on the plan to be set aside for open space purposes "located adjacent to proposed expressway for a distance of 50' in a northerly direction and extending between Newton and Junction Streets".

Council advised the SPA that it proposed to adopt the rezoning to 4(b) and 6(a) on certain conditions including "provision of a 66' wide road extending from Junction Street to Carnarvon Street". The report in those terms went to Council on 12 March 1973 . The SPA advised of the Minister's approval in principle on 18 June 1973 . Such approval was conditional upon the making of an Interim Development Order ("IDO") providing that interim development may be carried out for the following four purposes:

(a) Filling of the existing brickpit. (b) Subsequent development in accordance with light industrial 4(b). (c) "A 20m (66 feet) wide road extending from Junction Street to Carnarvon Street". (d) The 15m strip of open space.

That communication was reported to Council on 25 June 1973 . Interim Development Order No.10 ( Exhibit A1 ), gazetted on 6 July 1973 , was specific to the relevant site, and the plans attached thereto clearly indicated the land which was to be set aside for both open space and "road purposes".

The Council Committee received a further report on 23 July 1973 with a recommendation that the development application to fill the disused brickpit and operate it as a waste disposal depot be approved subject to relevant conditions which included conditions (f) "dedication of that portion of land shown as proposed road and open space under IDO No.10 …"., and (h) "last 4' of fill over that section of property indicated as proposed road to be in accordance with Council's requirements". 23. Development Consent ("DC") AMC 206/73 to this effect was issued on 10 August 1973 .

Council issued a further consent AMC 26/80 on 21 February 1980 , in response to a development application dated 17 January 1980 in respect of "Silverwater Waste Disposal Tip, Newton Street, Auburn" seeking approval to excavate an area.

The conditions of the approval relevantly included item (g), which required that:

"all conditions of Development Consent No. 206/73 not altered by this consent shall be observed ivz (sic): … 5. dedication of that portion of land shown as proposed road and open space under IDO No.10 …. … 7. last 1.219m of fill over that section of property indicated as proposed road to be in accordance with Council's requirements. …" (see Exhibit X6 , document 3).

At a meeting of the Finance & Works Committee of Council on 3 March 1982 , the Chief Health & Building Surveyor reported that "Laurex Waste Disposal Tip" was not complying "with conditions of development consent". (see Exhibit X6 , document 4). It referred to consent 26/80 as having been issued "for the enlargement of the filling area".

One of the conditions stated to have not been complied with in its entirety was condition (f) of DC 206/73. No specific mention in the report is made of any of the other conditions that were specifically imposed by DC 26/80. Council's Committee resolved that the file be forwarded to Council's solicitors "with instructions to institute injunction proceedings against the company to restrain the use of the premises".

Matter No.40053 of 1982 was then commenced by Class 4 application dated 26 April 1982 seeking, amongst other things, an order requiring the respondent company to comply with conditions (g)5 and (g)7 of DC 26/80.

The Court file of those proceedings was produced at the hearing of these proceedings, and an affidavit sworn by the then solicitor for the company, Mr Hannaford, was tendered as Exhibit A3 .

The proceedings were continually being adjourned while a deed was being negotiated between the parties. Ultimately a final version of the proposed deed appears to have been arrived at on 14 April 1983 and Orders were made in the proceedings on 13 May 1983 , to the effect that the application be dismissed and the respondent pay the applicant's costs.

On 9 August 1982 Council issued its consent to DA 123/82 (while the proceedings were current) (document 5 in Exhibit X6 ).

The principal purpose of that 1982 consent was further excavation "as an ancillary use to the subsequent disposal of waste material within such excavation", works described by the respondent as an extension of, and ancillary to, those approved in 1973 and 1980.

Condition (j) of the 1982 consent provided that all conditions of development consent 206/73 not altered by the latest consent, must be observed. Specific reference was made to conditions (g)5 and (g)7, referred to in para 25 above.

The filling and levelling of the company's land continued into the 1980's when the present use for storage of containers commenced.

The deed referred to above was in negotiation from early 1982, against the background of the earlier proceedings. Its final terms were agreed as the proceedings settled and it was executed on 16 May 1983 (see Exhibit A6 ).

The recitals include reference to consent 206/73 and consent 26/80, copies of both of which were annexed to it. Recital E says "The Council alleges that the company has failed to comply with certain of the conditions of each of the development consents … which allegation the company does not admit and the Council requires the company to observe all the conditions of consent and which conditions of consent the company has agreed to observe". The company covenanted to expedite its plan of subdivision, but a commitment to construct a dish drain etc. apparently has still not been fulfilled. The dedication of the subject land

The dedication of the subject land did not take place until DP 713708 was registered on 13 January 1986 . A survey report from Mr Watson indicated the area of the land dedicated for "road" as 4477m2. The relevant survey had been completed, noting the intention to dedicate land for public reserve and public road purposes, on 7 May 1982 , and the Council certificate thereon is dated 14 March 1985 .

The applicant complains that some of the subject land has been used for storage of "junk" or heavy equipment and materials, seemingly in conjunction with property to the south, some or all of which was cleared to one side in about May 1998 , to enable the recent grading of an earthen pathway through it, to which road base has been added.

The works carried out to date on the subject land involve placing a small amount of gravel on a pre-existing track. The northern boundary of the subject land was enclosed by a fence which is some 2-3m from the southern edge of the western end of the Carnarvon Street carriageway. At least one panel of this fence was removed after the work was done on the "track".

The 2-3m wide section of the road reservation between the kerbing and guttering on the edge of Carnarvon Street and the northern boundary of the subject land has been grassed; so physical movement of a vehicle from the carriageway of Carnarvon Street onto the subject land is "awkward".

The applicant complains that these recent works are not a genuine attempt to fulfil the Council's real obligation under the condition, and/or the deed, to construct a "proper road", but were carried out merely for the purposes of these proceedings.

Xerual had written to the Council on 30 July 1992 enquiring whether "if the Junction Street Roadway was not going to be built within the next say three-four years, Council might be interested in leasing this land to me for whatever period it is going to remain vacant". It would stop people dumping rubbish on it and "the land would be in better condition after years of vehicle movements on it. We would want to use the land for open storage similar to our existing land usage. It would be fenced and maintained by my company …". (There is photographic evidence before the Court of the relative state and appearance of the two parcels of land at various relevant times. In particular Exhibit X8 shows the landscaping downslope on the company's land towards its boundary with the subject land).

Council's Chief Town Planner objected to the proposed lease as it was "not possible to lease a public road without its formal closure and I would not support the closure of this road, as I see it as having value as a north-south link across the freeway". He expressed other objections as well. The Council resolved on 2 September 1992 that "the request cannot be approved".

Xerual's solicitor complained again in 1997 that his client had been deprived of the subject land, yet the Council had made it available for occupation by a competitor. A TV exposure was threatened. I readily infer, from all the evidence available, that the applicant has had an ongoing and genuine concern about the condition and use of the subject land.

For its part, Council commenced proceedings 40111 of 1998 against Lifese Pty Limited ( Exhibit A4 ) on 23 June 1998 , alleging a failure to comply with a s127(27) order in respect of the use of "a public road known as Junction Street Auburn between Adderley Street and Carnarvon Street … for the purposes of storage of machinery, pieces of metal and the like". (Those proceedings were dealt with by Cowdroy AJ on 15 March 1999).

The Council's programme of road and other relevant construction

There is no evidence of any plans or programmes for the construction of a road on the subject land by Council between 1973 and its dedication in 1986. Given the general layout of other roads in the locality, the applicant's town planner expresses the view that the construction of "this section of road" would have been difficult to justify on town planning or traffic management grounds. In any event, Council has taken no action to construct it to a vehicular standard.

After submissions by Xerual's solicitors, Council wrote, on 6 May 1997 , in response to a suggestion that the subject land be re-acquired, indicating that it still "requires the dedicated land for the construction of the proposed road which is seen as an important north south link within the local government area". The point was made that Council had been committed to the construction of such a road since the dedication but the cost was considerable and allocation of funding subject to budget constraints over a lengthy period. Council believed it had satisfied any legal obligations arising out of the dedication of the land as part of the original development consent.

The evidence given for the applicant by Laurence Charles O'Neil , a director of the company, Stewart Alan Levitt , his solicitor, Harvey Sanders , his consultant town planner, and John Arthur Watson , the valuer, really focuses on the following:

· substantial roadworks have been carried out under the expressway at the northern end of the existing alignment of Junction Street; · on the subject land only the minor works (already referred to) to construct a pathway linking that northern extremity of Junction Street to Carnarvon Street have been carried out; and · fencing, etc., precludes the public from actually identifying the subject land as a "road" which is accessible to the public.

Exhibit X6 includes various documents from Council's files, including a draft 1996/97 "Urban Road Construction Programme", in which the following proposed work is mentioned, but no timing is given:

"Junction Street: Construction and sealing of roadway between Adderley Street (west) and Carnarvon Street including associated kerb and gutter and stormwater drainage construction. $610,000".

This would appear to be the first time relevant "roadworks" have has been included in any programme. The use of the word "roadway" in this draft programme is perhaps significant. What has recently been "constructed" on the subject land is perhaps better described as a "pathway". It is necessary to examine these terms more closely in due course.

I will now attempt to summarise briefly the arguments involved in this case.

The applicant argues that the IDO provided specifically for the construction of a "road" on the subject land, and intended that "road" to be for vehicular use, as evidenced by the requirement of an easement of 66' in width (ie 20m as compared with 6m for a "laneway") and by the evident need and desire to extend Junction Street as part of an alternative route to "cross" the motorway from Auburn to Silverwater.

The applicant submits (written "further submissions" 20 November 1998 para 4) that, on various grounds which I will summarise later in this judgment, Council holds the subject land under the obligations imposed by an institution in the nature of a " statutory trust ", the concept of which is "that the Council holds property subject to a legal obligation to perform the condition (a public purpose) subject to which the property was received. The obligation is not enforceable as a breach of trust, but rather by way of public law remedies such as declaratory or injunctive relief or orders in the nature of mandamus".

The applicant also submits that its town planning evidence, the oral and photographic evidence of the dumping of material on the subject land, and the sheer lapse of time since the dedication prove that the purpose of the trust has failed.

The applicant recast its case somewhat after the High Court's decision in PWC .

As now pleaded, the case includes a claim for " restitution " of the subject land on the grounds of " unjust enrichment ", on the basis that (op.cit.para 8) "where it is obvious that the intention to construct a public road which is capable of use as such by the public is no longer held by the public authority, it would be unjust for that authority to keep the benefit of the dedication without performing the condition which is implicit in its acceptance of the land". The Council's case

Council argues that a "road" is not defined by reference to any minimum standard of construction or quality of access.

Council primarily argues that it has no obligation at all - under any statute, any of the 3 consents, the deed or the common law - to do anything "active" in respect of the subject land. Prior to the 1982 consent the parties were negotiating the deed, from which it is clear that the deed was to be entered, and the dedication made, in purported but belated compliance with the 1973 and 1980 consents. Council, therefore, argues that the parties' respective obligations are governed by the pre-1980 law.

Council submits that nothing in the 1972 proposal or the 1973 consent suggests that construction of a "trafficable pavement" was an urgent necessity, or was within the contemplation of the parties as an immediate outcome of approval.

The subject land, having been dedicated as a "public road", is, and remains, in all senses, a "road", regardless of the standard to which it is constructed, if at all. Therefore, a "pathway" is a "road" at common law, and satisfies any requirement imposed on Council to "improve" the subject land. Council argues that the applicant's case requires the word "road" to be construed to mean a "roadway" physically constructed for the carriage of vehicular traffic.

Council submits that the dedication of the subject land as a "public road", in order that such land will be available for probable future "roadway" construction and use, is, in itself, a public purpose, and imposes upon Council obligations to refrain from disposing of it, and to neither use it nor allow it to be used for any "non-road" purpose. 62. Dedication does not require Council to construct anything on it, and/or to maintain the land and any construction on it to any particular standard, and/or to do anything about it in any particular timeframe. The subject land remains a "road". See, e.g., Bignold J in Sharreal Pty Limited v Wyong Shire Council , No.10740 of 1998, 30 November 1998.

Council must, and does, hold the land for the benefit of the public, on the basis that in due course some construction work may be carried out on it, when demand dictates the need for Council to allocate relevant funds for the purpose. The Council submits that the standard and timing of any construction is a matter for its discretion, and not a matter for the applicant or this Court. Council has no obligation to facilitate any more than access by the public, and, in particular, has no obligation to facilitate access by motor vehicles.

Council submits that the evidence establishes that:

· The subject land remains zoned as "road"; · Council has not disposed of any interest in the subject land, but has retained the subject land for the purpose for which it has been dedicated; · The purpose and standard of construction in the parties' minds during negotiation of the deed was a "domestic crossing" and clearly not a "full scale carriageway"; · Council has rendered the subject land "trafficable" (as in "passable" by the public) in that the fence has been opened, a pathway established, and steps taken to remove materials deposited on the subject land; and · Council has acknowledged that the subject land will remain set aside for probable future development of a "roadway". 65. Council, therefore, argues that it has honoured all its duties and obligations regarding the subject land, and its dedication, and that there has been no breach of the EPAA such as to enliven this Court's jurisdiction to grant relief.

Council further submits that, even if there were some relevant breach by it of an obligation in law or in equity, such obligation might be enforceable by, for example, the Attorney General as advocate of the public interest, but not by a private party such as the applicant in a private action such as this. As Mr Ayling summarised the matter (in para 7 of his written submissions of 24 November):

"The respondent acquired the road as a result of the applicant's voluntary act of dedication, and once it had acquired it, the respondent's powers, functions and duties in relation to it became ordered by statutory regimes, including the Roads Act, which make it clear beyond argument that a simple retransfer is not legally feasible. Even if the respondent wished to retransfer the road, it would not have the power to do it, at least without the undertaking by it and the Minister of processes which are not amenable to the jurisdiction of this Court, and possibly of any court."

The Council contends that the subject land is a "public road" in every legal sense - in fact as well as in law - and is a public asset, vested in the Council for all the people of the municipality, out of whom the applicant alone cannot be singled out to benefit (as it would if an order were made for the "transfer back" of the land).

The Council also resists an order that the "road be constructed", on the basis that it is not for the Court to define what works are appropriate, and when, and that a "pathway" is a "road" under relevant statutory provisions.

All the historical evidence would indicate that it is likely the Council simply wished to put the road/land aside against a probable future need. Even if such an intention could invalidate the condition - and that is not admitted - the Court is not entitled to ascribe to the Council satisfaction as to the need for the road within a period it fixes as reasonable. In the result, the land has been a public road since 1986. It now has a pathway on it. "A public road does not have to be constructed to a standard capable of supporting vehicular traffic". The "road" is an asset vested in the Council as a public asset for the people of Auburn. The Council still identifies in its works programme the possibility of constructing it as a trafficable thoroughfare. Accordingly, it is submitted, any trust type of obligation on Council does not seem in any way to have failed simply because a trafficable pavement has not been constructed.

The Council disputes that, if a trust of any sort is found to exist, there has been any failure or breach of it. The Council's obligations regarding the land are clear and are being observed. If they are governed by any trust it still exists and can be executed. Its purpose of providing a "road" is currently being achieved and will continue to be so. Any trust to be inferred does not involve physical construction of a pavement to any particular standard and/or within any particular timeframe.

The trustee may in this case not have fully completed its functions but the subject matter has not disappeared and the execution of the trustee's responsibilities has not become impossible. The trust, if it exists, can be executed to achieve its purpose. It has not failed. Council denies that there is any breach of the EPAA to ground any intervention by the Court in this case (see ss 122-124 of EPAA). However, if the Court does have power to grant relief in this case, it possibly could order the Council to construct the road. Council submits, however, that it has already done so to the standard of the need it identifies. In a matter such as this, the appropriate standard of construction is not one for the Court to decide. That is a matter which, under the relevant legislation, is within the discretion of the Council, and the Court has no evidence before it as to how that discretion should be exercised in this case. 72. The nature of Council's obligations in respect of the "road" are quite clear and the subject land is not "within the gift" of either the Council or the Court. If it is to cease to be a "road", there is a complex procedure to be followed to have it "closed", and higher authorities would play a role in its post closure use or disposition. Under the Roads Act 1993 the respondent Council could not transfer the road except to another roads authority, and then only by executive order; a closure notice can only be given by the Minister after public notification procedures are carried out, and the Court would not make any order for closure without hearing from the Minister. (As to transfer, see sections 146ff, and, as to closure, see sections 33-38). The applicant has no more interest in the land, having dedicated it, than anyone else in the community. Any proposal by the Council to return the land to the applicant, even by way of lease, will require a public process to be undertaken.

Council submits that the applicant's "unjust enrichment" point is pleaded beyond any leave arising out of the implications or relevance of the High Court's decision in PWC . PWC merely defined the legal nature of the trust arrangement established by such dedications and contributions, rather than altering any trust's implications or consequences for the "rights" of the "parties" to it. The Council may be thought to get no tangible benefit, in the nature of "enrichment", anyway, from holding the subject land since its dedication - it cannot dispose of it, it has some serious obligations in respect of it, and it holds it specifically in anticipation of some future need for roadworks. The law of restitution may apply to Councils, but cannot apply to land dedicated for road purposes, as in this case.

Mr Ayling does submit, however, that PWC confirms that the applicant in this case has no special locus to demand specific relief in its favour if any trust has been breached or avoided. The Terminology of Roads

As the 1973 condition required, in terms, "dedication … as proposed road" it is necessary to consider in some detail how the word "road" should be construed. The Court will now endeavour to clarify the various terms used in various circumstances regarding roads, pathways, roadworks, etc.

In New South Wales the relevant statutes, over time, have traditionally dealt with "public roads", but we can still seek assistance from some of the decided cases.

Mr Robertson, on behalf of the applicant, suggests that the use of the word "road" in development consents, such as in this case, requires it to be construed in its "ordinary sense". Development consents are not statutory instruments, but executive or administrative acts of a Council, and there is, therefore, no reason to infer into the consent any definition of the word in a statute or statutory instrument.

In his submission, the word "road" is defined widely in planning law and statutes, so as to cover a wide range of situations consent authorities might encounter in dealing with subdivisions and the like. He notes that the statutory definition in the Local Government Act 1919 ("LGA") is to be employed, "unless inconsistent with context …" and that in the EPAA there is much less formality imported into dealing with documents of consent.

He submits that the word "road" in this case should thus be construed to mean what it does in "everyday language".

On the other hand, Mr Ayling, on behalf of the Council, relies upon the definition of "road" in the LGA. The word "road" (not the term "public road") appears in IDO No.10, the words of which were transcribed over into the 1973 consent to which it related. So, he argues, "road" in that consent must mean what it meant under the LGA, as the 1973 and 1980 consents applied to "interim development" under Part XIIA of the LGA, under s 342V of which "the Council shall have and may exercise and discharge all the powers, authorities, duties and functions conferred and imposed on it by an interim development order".

Under the LGA the following definitions applied:

" public road means road which the public are entitled to use, and includes any road dedicated as a public road by any person or notified, proclaimed or dedicated as a public road under the authority of any Act, including this Act, or classified as a main road in the Gazette of the thirty-first day of December, one thousand nine hundred and six".

" road means road, street, lane, highway, pathway, or thoroughfare, including a bridge, culvert, causeway, road-ferry, ford, crossing, and the like on the line of a road through or over a watercourse".

" pathway means a public road provided for the use only of foot passengers and of such classes of vehicles as may be defined by ordinance".

"Footpath" is not specifically defined, but "paving" with reference to a footpath includes "any method of treating the surface of the footpath to facilitate traffic". "Traffic" is not defined.

Other provisions of the LGA which are relevant for the purpose of interpreting these consents included Part 9 (Sections 220-277B), dealing with "public roads", which were classified under s 226 as follows:

"(1) Public roads may be classified in relation to the use which they are intended or calculated to serve. (2) The classification shall be as follows: (a) main roads, being roads proclaimed as main roads under the Main Roads Act 1924; (b) secondary roads, being roads declared as secondary roads under the Main Roads Act 1924; (c) tourist roads, being roads proclaimed as tourist roads under the Main Roads Act 1924; (d) distributor roads, being roads other than those referred to in paragraphs (a)-(c) or (e)-(g); (e) local roads, being roads primarily for access to premises; (f) pathways, being roads exclusively for foot passengers and such classes of vehicles as may be prescribed; and (g) lanes, being roads primarily for supplementary access to premises."

Section 240 empowered a Council to "construct improve maintain protect repair drain and cleanse any public road". Section 249 provided that a Council "shall have the care control and management of every public road", and "may" do certain things by way of control and regulation, identification, naming, etc. The Act contained powers to close and lease roads. The leasing power in s 276A referred to "any public road or part thereof which the Council considers is not needed for present public use".

"On registration in the office of the Registrar-General of a plan referred to in subsection (1) of section 327, which bears a statement of intention to dedicate specified land as a public road, such land shall be deemed to be opened as a public road and thereby to be dedicated accordingly and shall without any further assurance vest in the council for an estate in fee-simple by virtue of such registration and of this Act."

The Roads Act 1993 is comprehensive and specific roads legislation, and its dictionary contains the following relevant definitions:

" classified road means any of the following: (a) a main road, (b) a State highway, (c) a freeway, (d) a controlled access road, (e) a secondary road, (f) a tourist road, (g) a tollway, (h) a State work."

" private road means any road that is not a public road".

" public road means: (a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and (b) any road that is declared to be a public road for the purposes of this Act".

" road includes: (a) the airspace above the surface of the road, and (b) the soil beneath the surface of the road, and (c) any bridge, tunnel, causeway, road-ferry, ford or other work or structure forming part of the road."

" road work includes any kind of work, building or structure (such as a roadway, footway, bridge, tunnel, road-ferry, rest area or service centre) that is constructed or installed on or in the vicinity of a road for the purpose of facilitating the use of the road as a road, the regulation of traffic on the road or the carriage of utility services across the road, but does not include a traffic control facility, and carry out road work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a road work."

" roads authority means a person or body that is, by or under this Act, declared to be a roads authority and, in relation to a particular public road, means the roads authority for that road".

" temporary public road means a public road that has been dedicated by means of a plan of subdivision that bears a statement of intention that the public road is to be a temporary public road.

" unclassified road means a public road that is not a classified road".

The Act contains no definition of the word "roadway", but it appears in s 115(3) and s217(5) viz:

"115 (3) A roads authority may not restrict the passage of heavy vehicles or animals along the roadway of an earth road unless clear side tracks have been provided for their passage."

"217 (5) In this section, a reference to a gutter includes, in the case of a roadway that is laid to the kerb in a permanent manner, a reference to such part of the roadway as is within 450 millimetres of the kerb."

From these two references I deduce that informed usage of the term "roadway" would connote some construction or formation work, not necessarily to the standard of pavement, but adequate to allow at least some vehicles, as well as pedestrians, to pass.

"All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority".

"Except as otherwise provided by this Act, the dedication of land as a public road: (a) does not impose any liability on the owner of the road that the owner would not have if the owner were merely a person having the care, control and management of the road, and … (e) does not authorise the owner of the road to dispose of any interest (other than an easement or covenant) in the land, …"

The Act also sets out the procedures, in which Councils and other road authorities must involve the public, for:

· "short term leases of unused public roads", (see ss 153ff); · the closure of public roads (see ss 33ff); and · the disposal of land comprising closed public roads (see ss 42 ff).

It is only in the case of a "temporary public road" that direct return, to a former owner, of land comprising a closed road, is contemplated (see s 40).

In circumstances where no statutory definition applies, the Courts have found it necessary to explore and use the common law.

The Full Federal Court decision Re Warumungu Land Claim; Ex Parte Attorney-General (NT) (" Warumungu ") (1987) 77 ALR 27, which concerned a claim under the Northern Territory Aboriginal Land Rights legislation for lands which included a proclaimed "stock route". The legislation specifically excluded "a road over which the public has a right of way". Prior to the legislation, roads had been defined without reference to stock routes, which were dealt with in a different ordinance. In introducing the Act the Minister had referred only to the exclusion of roads from the Act and not to the exclusion of stock routes. 1987 amendments to the legislation referred separately to stock routes and roads. It was apprehended that the Aboriginal Land Commissioner might rule that a stock route was a "road over which the public has a right of way" for the purposes of the Act. 95. The Court held that, as there was a clear distinction, both physically and in terms of local legislation, between the road system and the stock route system in the Territory, and that the reference to roads in the legislation was intended to describe the general roadway system and not the system of stock routes which was outside it. Hence a stock route was not a "road" for the purposes of the relevant sections of the Land Rights legislation.

Beaumont J commented that statutory references to "road" depend upon their context and that "highway" had a settled meaning under the general law. See also The Mayor, Councillors and Citizens of the City of Keilor v O'Donohue and Ors (1972) 126 CLR 353 (per Windeyer at 363). He referred to the Macquarie Dictionary in which the definitions of 'road' included "a way usually open to the public for the passage of vehicles persons and animals" and "the track on which vehicles etc pass, as opposed to the pavement". He reviewed a series of cases in which a clear distinction was drawn between a "highway" and a "road", and quoted several High Court judgments, including that of Windeyer J in Permanent Trustee Company of NSW Limited v Council of the Municipality of Campbelltown & Anor. (1960) 105 CLR 401 (" Campbelltown ") at 420:

"…when the Act speaks of a public road as a road the public are entitled to use, it means land over which a public right of way exists - that is to say, a highway in the common law sense…

It is the public right to use the land as a way, rather than its physical nature, that makes land a highway … At common law a highway was created when a competent landowner manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proffered dedication".

In City of Tea Tree Gully v Jennings Estates and Finance Ltd (1971-2) 27 LGRA 268 Wells J (at 275-6) discussed some of the words used but not specifically defined in the then South Australian Planning and Development Act 1966-71: "… 'road' is appropriate where emphasis is to be placed upon passage, upon coming and going; 'street' is appropriate when emphasis is to be placed, not so much on those passing along the way, but on the buildings or houses lining it. 'Roadway' has a more circumscribed meaning and, in my opinion, denotes the central, specially constructed, portion of a road that is designed to be used, and is used, by vehicular traffic (in contrast to the footpaths and the verges); it is sometimes spoken of as the carriageway. As impliedly appears from s 51 (conformably with common usage and experience) when a roadway is created, the land constituting the relevant part of the road or street is first formed, then constructed, next paved, and finally sealed. It is formed by laying out on the land itself the exact location, boundaries, levels, contours and gradings of the roadway delineated on the surveyor's plan; it is constructed when upon the formed surface its foundation and essential structure (by the use generally of heavy or coarse material) is laid and completed up to, but just short of, the paving; it is paved when the surface layer of small or flat stones, or of tiles, bricks or other suitable material is added; and it is sealed when bitumen or other such material is introduced into the pavement to produce a smooth, and usually impervious, surface".

It would seem that the LGA definition of "road" reflects the common law definition of "highway". The LGA provided that context must dictate the meaning to be applied to the word "road", and what is involved here is not a common law highway, even though the LGA definition of "road" includes "pathway".

Campbelltown indicates that the test of a "road" is not its "improvements", but the rights which attach to it in favour of the public. If a citizen can pass along it, with whatever degree of difficulty, it is a "public road".

I conclude from the application of this analysis to the facts of this case:

· that the word "road" in the relevant conditions should be construed as "public road", as defined in the LGA; · that the dedication process in this case rendered the subject land a "public road" in that sense; · that Council's role in respect of that "public road" is now regulated by the Roads Act; · that the recent works, and other Council actions, have rendered the public road on the subject land usable by the public; and · that the Roads Act functions as a code, which would preclude the "restitution" of the subject land to the applicant in the event of the closure of the public road comprising the subject land.

The basis, requirements and consequences of the dedication

The dedication of the subject land on 13 January 1986 could be said to flow from any of the three relevant development consents, ie those of 1973, 1980 or 1982, and/or from the terms of the deed dated 16 May 1983:

· The obligation to dedicate the subject land arose initially under a condition imposed upon the 1973 consent (see para 22). · That condition was unfulfilled and became the subject of further conditions, imposed upon the 1980 consent (see para 25), and, later, the 1982 consent (see para 33). · Enforcement of relevant conditions in both the 1973 and 1980 consents was sought in the 1982 proceedings (see para 26ff). · Performance of the relevant conditions was negotiated between the parties, as they jointly sought to resolve those 1982 proceedings, by entering into a deed, which was finally executed on 16 May 1983 (see paras 35 and 36).

Dedication, reservation, and even use of the subject land as a public road, do not of themselves appear to require construction of a useable carriageway. 103. The IDO and the 1973 consent resulted from a fairly consensual process followed by the Council and the company, and yet the 1972 DA and the 1973 consent are silent in respect of the timetable, if any, for the construction of a "road" on the dedicated land.

It is not unusual for the Courts to imply terms into transfers of land between public and private owners. See, e.g. Corben & Anor v Commissioner for Main Roads (1983) 52 LGRA 388.

The applicant contends that the dedication in this case imposes an obligation on the part of the Council to make the dedicated land capable of its proposed use, and to do so by making the land available for the purpose of providing the "amenity of a public road" within a reasonable time. The subject land is wide enough for the development of a "real road" (in the sense of a paved carriageway), as would be generally understood by the public.

The applicant contends that the proposed use of the subject land is for such a road and not merely a "pathway". What was intended was the provision of an alternative traffic route under the expressway, and the SPA and the IDO "required" a vehicular road when it provided that the dedication be for "road purposes". It can be implied from the consent that any right of way of such width would call up a public road involving pavement, kerbing and guttering, footpaths, etc.

The applicant's planning expert, Mr Sanders, says in his evidence, as filed:

· "…it is my opinion as a town planner that to the extent that a 'pathway' may have been formed as a consequence of the works recently undertaken by the Respondent, it is not 'capable of use by the public' in vehicles nor is it obviously 'available for use by the public'. In my opinion, the contrary is the case as the pathway appears to be part of private land."

· "…for the purposes of the proper planning of the area, neither the creation of the paper road, the creation of the road reservation nor the dedication of the land have any practical effect unless the road is physically constructed, and connected at either end to existing formed roads over which the public have unfettered access for vehicles as well as pedestrians".

In Sanders' view, as expressed in his oral evidence, roads need to be capable of use by, or need to permit the use by, motor vehicles unless they are paper roads, eg Martin Place. A road may be simply beaten earth. He agrees it is physically possible to drive or walk along the whole length of the subject land. The gates at the southern end are not mentioned in the affidavit but appear in the photographs he took ( Exhibit A2 ). If entering the site from Carnarvon Street you would think you were trespassing on private land but there is now no physical bar as there are gaps in the fence. Vehicular access remains difficult. (He was not aware that the deed included an agreement that the company would carry out some road related works within the Carnarvon Street reservation).

It is clear that the subject land, even with a gravelled track, has never really "functioned" as a "public road", in the sense generally understood by the public. It has been fenced, and used for apparently illegal storage (Patrick Robinson's affidavit). The recent development of the track may enable heavy vehicles now to move on it. Whatever indicators there are, it is not inviting to the public. However, Council submits that the works it has done and the other action it has taken rectify the shortcomings Sanders identified. The law as to conditions

As the relevant conditions in the 1973 and 1980 consents remained unfulfilled as at the commencement date of the EPAA, their enforceability is a live issue in these proceedings, at least for the applicant, even though there was no real challenge to their validity.

PWC involved a 1979 consent, and the case proceeded on the assumption that s 94 of the EPAA did not apply to it. Whether or not s 94 applies to this matter is a key issue to be addressed.

Inter alia, s 94 confers on consent authorities a power to impose on consents, in circumstances of projected increased demands for public amenities and services, conditions requiring a reasonable "dedication of land free of cost", the payment of reasonable monetary contributions, or the provision of "a material public benefit". Section 94(3) and (4) of the EPAA (prior to the July 1998 amendments) provide:

"(3) The consent authority shall hold any monetary contribution paid in accordance with a condition … (and any additional amount earned from its investment) for the purpose for which the payment was required and apply the money towards providing public amenities or public services or both within a reasonable time and in such a manner as will meet the increased demand for those amenities or services or both. … (4) Land dedicated … in part or full satisfaction of a condition imposed … shall be made available by the consent authority for the purpose of providing public amenities or public services or both within a reasonable time."

It is necessary to review in some detail the key relevant decisions before and since the enactment of s 94 and then to consider the relevance of PWC to the facts of this case.

Prior to the enactment of s 94 Councils relied on the common law which applied certain tests to their decisions to impose conditions. The test of validity of conditions is often referred to as "The Newbury Test" [ Newbury DC v The Secretary of State for the Environment [1981] AC 578; [1980] 1 ALI ER 731. See Parramatta City Council v Peterson (1987) 61 LGRA 286 per Stein J at 293, and Sellar v Sutherland Shire Council , 10667 of 1988, Bignold J, 30 October 1989]. For a condition of consent to be valid it must:

(a) be for a planning purpose; (b) fairly and reasonably relate to the development; and (c) not be "unreasonable" in the Wednesbury sense [ Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680; [1948] 1 KB 223].

In Rockdale Municipal Council v Tandel Corporation Pty Limited (1974-5) 34 LGRA 196 (" Tandel "), the question of power to impose a condition was considered by the Court of Appeal in the pre EPAA environment. The major judgment was delivered by Glass JA, with whom Samuels JA agreed.

Glass JA at 205 quoted from Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 20 LGRA 208 at p 216 to the effect that the discretion to impose conditions was not unlimited but Councils had power "to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised".

"The test of validity having been expressed in such wide terms it is not possible in my opinion to state a priori that all conditions involving a money payment lack validity. It will no doubt be impossible to justify the collection of money with which the Council intends merely to augment its revenue or which it proposes to spend on certain purposes without any obligation to do so. But I consider that a council may arguably claim that it has imposed a valid condition in circumstances where residential development in a given area will create a need for additional open space if the amenities of the neighbourhood are to be preserved, the provision of open space on the development site is not commercially feasible, money collected from each developer is to be expended on the provision of such open space, the money is impressed with a trust which would prevent its expenditure for any other purpose and the space to be provided is proximate enough to the site to present a reasonable connexion with the needs generated by development on it. It goes without saying that the relationship between the proposed development and the proposed facility raises questions of degree and therefore of fact which the trial judge will determine by applying to his findings on the evidence the appropriate measure of validity expressed, as it must be, in the general language adopted by the High Court. On the other hand, it will be necessary for him to consider and deal with the submission that the Council in requiring the payment was not exercising power under the Ordinance at all but imposing a local rate otherwise than in accordance with the Local Government Act . The resolution of this disputed question of characterization will depend upon an examination of the relevant provisions of the Act and Ordinance, the December policy decision and the course of dealings between the parties. The answer to these questions must depend upon a consideration of all the circumstances proved and cannot be allowed to turn on the simple temporal relationship between the date of payment and the date of consent". (emphasis added).

It is to be noted that Glass JA refers to no timeframe.

Section 94 has been considered many times in this Court, and attention has been given to the "trust" aspect. The words "on trust" were deleted from s 94 as a result of legislative amendments made in 1985 and 1991.

In Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261 (" Toadolla ") there was a question of whether or not there had been a breach of trust in the handling of the contribution monies. It was common ground between the parties that no work had been done in respect of roadworks and other purposes contemplated by the requirement for the monetary contribution "within a reasonable time". The applicant also claimed that there was no evidence of any resolution of the Council indicating a proposal or plan to do the work required, and sought to draw an inference that the Council did not intend to spend the contributions for the purpose for which they had been required. The Court declined to draw such an inference and said at 269: "Nothing in s 94(3) requires evidence of a plan or proposal for the application of the funds, so long as they are expended within a reasonable time".

"However, when one examines the statutory trust created by s 94 in the town planning context, it becomes obvious that there are features which distinguished that 'trust' from 'trusts' that are usually the subject of trust law. The s 94 'trust' refers to monetary contributions which the Council receives in order to discharge public administrative functions. There are no circumstances here of enforcement of private rights between private citizens. Next, I would be loathe to conclude that the beneficiary of the trust is the contributor who paid the monetary contribution, in the sense that the Council, as trustee, would need to act solely in that beneficiary's interest. That is not at all the case - there is a special purpose attached to the trust which involves the public as a whole in the provision of public amenities and public services. Furthermore, the Council, as trustee under s 94, must have a discretion as to the method of implementing the trust in a workable and manageable manner … Lastly, s 94 contemplates that a contribution may not be sufficient to defray the whole of the cost of providing public amenities and services because it provides that the Council will '… apply the money towards …' the provision of those amenities and services.

For all these reasons, it is, in my opinion, inappropriate to apply general principles of trust law to the 'trust' created by s 94(3) so as to find breaches of trust, unless the language of the section expressly or by necessary implication imports those principles. I think it does not, and I am not, accordingly, prepared to find that the Council committed breaches of trust by depositing the monetary contributions in a trust bank account with other trust funds, or by failing to invest the monetary contributions at interest."

In PWC a contribution in cash and a dedication in kind, of land for carparking purposes, were both required by the development consent, and s 94 was, as noted above, thought, and assumed, but not specifically held , not to apply to it.

PWC argued before Talbot J that an express or constructive trust for carparking purposes had been established. His Honour adopted the reasoning in Toadolla , and, although he did not find an express or constructive trust, he found a "trust for a public purpose", obliging Council to provide a public amenity in the form of a carpark.

The Court of Appeal, on appeal from the decision of Talbot J, found that the trust for public purposes was a constructive trust. Sheller JA, after surveying Tandel and Allen Commercial Constructions , described Glass JA's comments in Tandel as obiter, and said (at 527) that "to be valid, a condition of a development consent which requires a contribution of money must carry with it an obligation by the authority to apply the money for the related purpose".

Sheller JA noted that that was the consequence now reflected in s 94, which, he said, did not apply to the instant case. Until the trust concept was removed from s 94 in 1991, "the sub section displayed a legislative intent to confirm the concept, of which Glass JA spoke, that a consent authority holds money paid, in accordance with a condition of consent, impressed with an obligation of trust not to apply it for some unrelated purpose". He opined that a constructive trust arises by operation of law without reference to the intention, actual or implied, of the parties concerned.

At 528 he said: "There are present here subject matter, trustee (the Council), and personal obligation attaching to the property, namely the obligation of the Council to use the development consent credit land to provide off-street car parking spaces." He went on to hold that no beneficiary need be identified and that the land was held on trust for the purpose of providing a carpark for members of the public, that being a trust for a public purpose.

The High Court dismissed the appeal against the Court of Appeal decision but disavowed the reasoning of Sheller JA. In para 67 of the judgment [1998 HCA 59] the Court said:

"The term 'trust' in cl 6(2)(b) of Sched 7 is apt to include those governmental responsibilities which, whilst not imposing a trust obligation as understood in private law, may fairly be described as a 'statutory trust' which bound the land and controlled what otherwise would have been the freedom of disposition enjoyed by the registered proprietor of an estate in fee simple. The trust was 'not a trust for persons but for statutory purposes' [ Fouche v The Superannuation Fund Board (1952) 88 CLR 609 at 640. See also Harmer v Federal Commissioner of Taxation (1991) 173 CLR 264 at 274]. It would be no answer to the existence of such a constraint that there was lacking a beneficial owner of the nominated lots with standing in a court of equity to enforce observance by the Council of the dedication of the nominated lots to the provision of parking spaces. It had been within the competence of the Attorney-General to seek to restrain action incompatible with 'the due exercise of the powers of the [C]ouncil or the due discharge of its duties' [ Attorney-General v The Council of the City of Parramatta (1949) 49 SR (NSW) 283 at 291].

The High Court's reasoning echoes that of Glass JA in Tandel , which would seem now to be firm authority for applying to land dedications, in appropriate cases, the principles which Glass JA espoused regarding monetary contributions.

It is common ground between the parties that consents granted pre EPAA are deemed to be consents under the EPAA by virtue of the Miscellaneous (Planning) Repeal and Amendment Act 1979, ("the Miscellaneous Act"), as amended by the Environmental Planning Legislation Amendment Act 1995 (following a decision by Bannon J in Winn v Director-General of National Parks & Wildlife & Anor (" Winn "), 40209 of 1995).

Mr Robertson, however, goes further on the applicant's behalf, and relies upon the second Winn decision (Talbot J, 20 December 1996), and the decision of Stein J in Fitch v Shoalhaven City Council (1987) 67 LGRA 165 (" Fitch "), to argue that all the provisions of s 94, in all their implications, should be applied to conditions of pre-1979 consents "continued" by the Miscellaneous Act.

I accept Mr Ayling's well argued contention that, in the absence of some express retrospectivity, the Miscellaneous Act, and the Court's decisions in Winn and Fitch , do not go that far, and I can find no authority for the proposition that they do, or should. PWC was decided on the basis of Tandel , not by some retrospective application of the principles of s 94. It is, therefore, authority for the opposite of the submission made by Mr Robertson. 132. The Council's position is that this is not a case, in any event, about enforcement of a condition. Hence, Mr Ayling submits, the Miscellaneous Act has no real work to do in this matter. The validity of the conditions has not been challenged. The applicant performed the condition, ie dedicated the land, albeit late in time, and so discharged its obligations under all three consents and the deed. The consents create no obligations on Council, so any obligations on the Council must flow from the deed, and the dedication itself.

In this context it should be noted that the 1982 consent relates to works which were an extension of and ancillary to the works approved by the consents of 1973 and 1980. In these circumstances, Council submits that s 94 is not directly relevant to the question of any obligations falling on the respondent as a result of compliance by the applicant with the condition imposed. If s 94 does apply, the trust thereby established would not permit the selling of the land, nor its use otherwise than as a road, but would put the Council under no positive obligation to expend money on it for the purpose of improving it to a particular standard, and/or to do so within a particular timeframe. Hence the allegation of a breach of trust is not established.

If the dedication is to be regarded as having been made pursuant to a condition of the 1982 consent, s 94 would apply to it, regardless of the Miscellaneous Act, and Council would be required to carry its purpose to fruition within a reasonable time.

The applicant relies in this situation on the following line of authority:

· Barclays Bank Limited v Quistclose Investments Ltd [1970] AC567 (" Barclays ") is authority for the proposition that the appropriate remedy when the purpose of the trust fails is for the property to revert to the settlor unless the trust deed specifically provides otherwise.

· Registrar of the Accident Compensation Tribunal v Commissioner of Taxation of the Commonwealth of Australia (1991) 178 CLR 145 (" Registrar ") involved compensation awards to be invested by a Board for the benefit of the persons entitled to them, and is authority for the proposition that public bodies may have the same trustee obligations as private bodies, even though clear words are required before an obligation of this kind could be imposed upon the Crown.

· Holland J held in Levadetes v Hawkesbury Shire Council (1988) 67 LGRA 190 (" Levadetes "), at 195, that there were four elements in the duty imposed upon the consent authority - (1) to hold the money in trust for the purpose for which the payment was required; (2) to apply the money towards the relevant public amenities or services; (3) to do so within a reasonable time; and (4) to apply the monies in such a manner as will meet the increased demand for those amenities or services. Holland J expressed caution that where Council had a general fund for the provision of parking at strategic places within its area, from which developers in individual sites benefit by being relieved of the need to use parts of their own sites to provide parking, the Council may reasonably expect to be free to acquire contributions to the fund over a period of time in accordance with appropriate planning decisions.

· Cripps J held in Idameneo (No.9) Pty Ltd v Great Lakes Shire Council (1990) 70 LGRA 27 (" Idameneo ") that there had been a breach of trust which was remedied before the hearing and observed "Section 94 is silent as to what consequences follow if the Council cannot or will not perform its statutory obligations. Section 124, however, provides that where the Council is satisfied that a breach of the Act has been committed or will occur the Court may make such orders as it thinks fit to remedy or restrain the breach".

In Denham Pty Limited v Manly Council (1995) 89 LGERA 108 (" Denham "), Talbot J considered Toadolla, Levadetes and Idameneo when trying to segregate out an unspent part of a contribution so that consideration could be given to it being refunded when a consent may have lapsed or been abandoned. He noted that the question of "reasonable time" was a central issue in Levadetes and Idameneo .

If s 94 were to apply to the situation in this case, the older cases would, in Mr Robertson's submission, need to be viewed in the light of the principles laid down in Registrar , which he contends overtakes decisions such as Toadolla . Mr Ayling does not accept that contention, and believes Registrar is confined to the operation of trust accounts in a taxation context.

Mr Robertson further submits that cases like Denham , Levadetes and Idameneo throw the onus on the Council to explain its intentions, such that the Court would normally expect lengthy planning evidence to be called by the Council in circumstances such as these. Unlike those cases, there is in this case no evidence before the Court regarding reasons for delay in construction, or intentions as to works. Information regarding relevant works is usually wholly within the Council's keeping, but Mr Robertson submits that, on any test, a reasonable time has passed.

None of these key events - the granting of condition consent in 1973, the reimposition of the relevant condition by the 1980, and then the 1982 consents, the making of the deed, the 1982 proceedings - has any real meaning without reference back to the negotiations and circumstances regarding the original development application and consent in 1972-73.

The deed was extant in its final draft form well prior to the 1982 development consent. It recites the 1973 and 1980 consents and the parties agreed upon the applicant's compliance with the earlier consents. Hence, the evidence leads me to accept the Council's submission that the dedication, however tardy, flowed primarily and directly from the 1973 consent.

Accordingly, I have come to the conclusions that: (i) the law which applies to the dedication is that pertaining to consents granted, and conditions imposed, prior to the commencement of the EPAA and associated legislation on 1 September 1980; and (ii) EPAA s 94 does not apply to the dedication.

LGA s 327(1)(b) obliged the Council to satisfy itself that any necessary works required prior to the "opening" of the "public road" had been carried out prior to dedication. It is not suggested that that obligation was not met by Council, and one can infer from DP 713708 that Council was appropriately satisfied. 143. Nothing in any of the three consents lends weight to a proposition that the construction of some carriageway or other works on the dedicated land was within the contemplation of the Council or the holder of the consent at any material time. None of the consents requires more of the developer than the dedication of the land. No physical works, nor monetary contribution towards the cost of such physical works by the applicant/developer, were sought at any time from the applicant, either under the pre-1980 authority of Tandel or the post-1980 authority of s 94.

The Council does not concede that the imposition of the conditions requires the Court to draw an inference that the Council had, prior to imposing them, identified a public purpose, amenity or service which justified them. However, the submission continues, if the Court found that to be a case, the public purpose, amenity or service would not require the carrying out of works on the road/land within any particular time-frame.

The Council imposed the conditions for the public purpose of ensuring that land, which might at some time in the future be needed for the provision of a constructed road, was not developed in a way which would impede its ultimate use for that purpose.

The Court cannot infer from the conditions, which Council imposed on the applicant, any duty on the part of the Council to construct a "road" within a specific period, regardless of whether the need had arisen by that time. Nor is it entitled to ascribe to the Council the need for the "road" to be constructed within some particular period of time, fixed by the Court as "reasonable".

If there were a need for the Court to determine a "reasonable time", I would hold that the relevant legislation (Roads Act, LGA, EPAA) leaves to the discretionary judgment of the Council all questions of the need for the work, the availability of resources, the timing of the relevant DA, etc.

I, therefore, accept the primary submission of the Council that neither the imposition of the conditions in 1973 and 1980, nor their observance by the dedication, creates any obligation on the part of the Council necessarily to construct a roadway on the subject land.

Once the land had been dedicated, and the "public road" thereby "opened", Council's duties and obligations (in the same way as s 94 contributions can be spent only on the purposes for which they are obtained) are:

(i) to hold it for the benefit of the public, in reserve for the purpose for which it was dedicated, namely a possible future need for a vehicular roadway; and (ii) to observe the restrictions on its use and disposition, until further road related development works are appropriate.

Albeit that these obligations may have the substance of some form of statutory trust [ PWC ], I am satisfied there is no evidence that they have in any way been breached by Council.

Neither can I find any breach of either the Tandel/PWC principles, or of EPAA s 94.

Having found that the dedication was effected in order to comply with the 1973 consent, and that s 94 does not apply, one consequence is that no breach of the EPAA has occurred. If that is correct, the Court could not grant relief under s 124(i) of the EPAA (although its general jurisdiction to entertain proceedings to enforce the conditions of consent is preserved by the Miscellaneous Act).

Having found, however, in any event, no breach by Council of any relevant duty or obligation, no relief is available in these proceedings.

As the application has been entirely unsuccessful, it is appropriate that it be dismissed, and that, in accordance with the usual principles applied in Class 4 matters, the applicant be ordered to pay the Council's costs.

(i) Application dismissed. (ii) The Applicant will pay the just and reasonable costs of the Respondent. (iii) All the exhibits may be returned except Exhibits A3 and A4 .

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 44 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.

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.

Land and Environment Court of New South Wales CITATION: Xerual Pty Limited V Auburn Council [1999] NSWLEC 64

At a glance

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