Aquilina v Blacktown City Council

PARTIES : Plaintiff - Frank Aquilina Defendant - Blacktown City Council

COUNSEL : Plaintiff - Mr S Aquilina (plaintiff's son) Defendant - Mr P Kelso

• 12 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

JUDGMENT 1 HER HONOUR: By summons of 8 August 2008 the plaintiff seeks orders revoking the gazettal of certain land as dedicated public roads. The orders are directed to two parcels of land, one designated as Wolseley Ave and the other, merely as an unnamed lane 20 feet wide. The orders sought are directed to the land in Certificate of Title DP 1007 Vol 732 Folio 246. 2 It was not in issue that the land in that Certificate of Title, of which Mr Aquilina was the registered proprietor in 1985, did not incorporate the road and lane in question. It was common ground that the road and lane were always part of the land in Certificate of Title Vol 630 Folio 92. Mr Aquilina has never been the registered proprietor of that land. 3 Mr Aquilina's claim to title in the road and lane came to rest on the provisions of s 45A of the Real Property Act 1900. In 1967, Mr Aquilina acquired the land abutting the road and lane and he continued to own that land in 1985, when the Council took steps to gazette the road and lane as public roads, in accordance with the provisions of the Local Government Act 1919. 4 The application for declaratory relief came to be made because in May 2008, Mr Aquilina was notified by the Council that the road and lane were dedicated public roads. It was common ground that they have never been used by the public as roads. After he made enquiries, in July 2008 Mr Aquilina was advised by Council that the road and lane had been gazetted as public roads in January 1986. It was common ground that the Council did not notify him of its intention to gazette the road and lane as public roads, prior to the gazettal. It was also common ground that at the time of the gazettal, Mr Aquilina was the owner of the land which abutted the road and the lane. 5 Mr Aquilina claimed that in accordance with the applicable provisions of the Local Government Act, the Council ought to have notified him of its intention to gazette the road and lane as public roads, because of his ownership of the road and lane, by virtue of the operation of s 45A of the Real Property Act. The result of the Council's failure was that the gazettal process was not executed according to law; it was ineffective and the declaratory relief sought should be granted. 6 By cross summons of 22 December 2008, the Council sought a declaration that the lands in question are public roads. 7 By a defence of 15 January 2009, Mr Aquilina claimed that the road and lane had never been used as public roads, nor had they been maintained as such by the Council. The 1985 gazettal notice nominated James Henderson Wood and Lawrence MacBriar as proprietors of the land. They were each then deceased. The Gazettal notice stated that they had been served with notice of Council's intention to gazette the land. At the time of the Gazettal notice Mr Aquilina claimed that he was the proprietor of the land and that the Council had failed to notify him of its intentions to Gazette the land, causing him to be excluded from the appeal process established by s 224(3) of the Local Government Act. Accordingly, Mr Aquilina pressed a declaration that the Gazettal was ineffective and that title to the land revert.

The evidence 8 It was common ground that the evidence showed that in about 1883, a plan of subdivision of Lots 1 and 2 of section G Riverstone Estate, was deposited in the Land Titles Office at Sydney, as DP 1007. The Riverstone estate was DP 717. The relevant parcels of land were part of Lot 1 and Lot 2 of section G in DP 717 and part of the land in Certificate of Title Vol 630 Folio 92. At all relevant times the registered proprietor of this land was John Henty, or his executors, not Mr Aquilina. 9 Certificate of Title Vol 630 Folio 92 was later cancelled by transmission application, except for the residue relating to the road and the lane. 10 New certificates were issued in relation to the balance of the land, to the executors of John Henty, James Henderson Wood and Laurence McBriar, being Vol 732 Folio 245 to 247. Certificate of Title Vol 732 Folio 246 was issued on 5 March 1885, in respect of Lots 188 to 220 in DP 1007. By a series of transfers, in 1967 Mr Aquilina came to be the registered proprietor of this land, which abutted the road and lane. 11 On 22 November 1985, the Council published a Notice in the Gazette pursuant to s 224 of the Local Government Act in respect of the relevant parcels, after giving notice to the registered proprietors of those parcels. No notice was give to Mr Aquilina. 12 In 1985, Certificate of Title Vol 14248 Folio 18 was issued, indicating that Mr Aquilina was the registered proprietor of lots 188 to 193 of deposited plan 1007 and Certificate of Title Vol 14248 Folio 19 was issued, indicating that Mr Aquilina was the registered proprietor of lots 194 to 220 of deposited plan 1007. This showed that Mr Aquilina was the registered proprietor of the lots abutting the road and lane at the time of gazettal. 13 It was common ground that these certificates did not include either the road or the lane; they remained within Vol 630 Folio 92. 14 On 13 March 1986, the Registrar General registered the Council's resulting request, W183643. A memorial of that registration was endorsed on Certificate of Title Vol 630 Folio 92. Subsequently, on a date unknown, an endorsement was entered on this Certificate by a stamp 'CANCELLED" followed by the initial 'R'. It was common ground that the meaning of this endorsement was 'residue' and that its effect was to notify persons searching the manual title, that the title had been cancelled, except for the residue which remained, that is the road and lane. On a date unknown the endorsement 'residue comprises roads in DP 1007 and DP 1010' was added to the Certificate by the Registrar General. 15 Lots 188 to 193 and lot 209 in DP 1007 are still presently owned by Mr Aquilina. The other lots abutting the road and lane which were previously owned by Mr Aquilina, are now owned by those to whom Mr Aquilina has transferred those lots since 1985. Consequently, Mr Aquilina is no longer the only person who owns property abutting the road and the lane. Those other persons are not parties to these proceedings.

Consideration 16 Two questions arise for determination. The first, whether Mr Aquilina ever had the interest which he claims in the road and the lane, by virtue of s 45A of the Real Property Act. If he did not, then there was no obligation falling on the Council in 1985 under s 224(3) of the Local Government Act, to notify him of its intention to gazette the road and lane and the basis upon which he approached the Court for relief, falls away. 17 The second question is whether, if Mr Aquilina had the interest which he claims in the land, the Council's failure to notify him in accordance with the requirements of s 224(3) of the Local Government Act provides a basis upon which the relief which he seeks may be granted.

Did Mr Aquilina have the claimed interest in the road and lane? 18 This question turns on the proper construction of s 45A of the Real Property Act and its consequences in these circumstances. There is no issue that the Certificate of Title of the land of which Mr Aquilina is the registered proprietor, does not give him title in the land and the lane. Title to that property has always remained with the registered proprietor of Certificate of Title Vol 630 Folio 92. That title was never transferred to him when he acquired ownership of land comprised in Certificate of Title DP 1007 Volume 732 Folio 246 in 1967. 19 Mr Aquilina's claim to title in the road and land in 1967 when he acquired the property and in 1985, when the road and lane were gazetted, rested only on the operation of s 45A of the Real Property Act. His claim was that the operation of the section defeated the title in the road and lane apparent on the face of the Register as lying with Certificate of Title Vol 630 Folio 92. The section provides:

45A Construction of dealings relating to land abutting on streams or roads

(1) Except as in this section mentioned, the rebuttable rule of construction applicable to a conveyance of land therein indicated as abutting on a non-tidal stream or a road, that the land extends to the middle line of the stream or road, shall apply, and be deemed always to have applied to dealings registered under the provisions of this Act relating to land indicated in the dealings as so abutting.

(2) The fact that an applicant to bring land abutting on a non-tidal stream or a road under the provisions of this Act has not expressly declared that the applicant was entitled to the bed or part of the bed of the stream or to the road or part thereof shall not, but the fact that the applicant had not a title to any part of the bed of the stream or to any part of the road shall prevent the application of the rule mentioned in subsection (1) to a folio of the Register evidencing title to the land or part of the land which was the subject of the application.

20 In Weber v Ankin [2008] NSWSC 106, White J recently had cause to give extensive consideration to the question of the ownership of roads. The circumstances there being dealt with by his Honour differed from the situation here in question, in various ways, two of them of significance. 21 The first difference is that in Weber, the lane in question had always been used and maintained as a road. At issue was whether it was a public road vested in the Council, a claim which the Council there denied. Here, by way of contrast, while the road and the lane have been gazetted as public roads, with Council claiming title to them by virtue of the registration of its interest in the land, they have never been used as public roads. 22 The second difference is that in Weber, there was no certificate of title in respect of the lane there in question, which vested any interest in the lane in persons other than the plaintiff. The certificate of title which originally applied to the land had been cancelled in its entirety, leaving no residue remaining with the registered proprietor. The fact of the absence of any such certificate of title, led White J to observe: 59 Even though a public road did not then vest in a local authority, it would not have been necessary to issue a separate certificate of title for the road because the adjoining land owner, Mr Bushby, would be presumed to own the soil of the road to its middle line. As he owned all of the adjoining lots he would be presumed to own the lane. The ad medium filum rule is that there is a rebuttable presumption that the owner of land adjoining a public highway is the owner of the soil up to the middle line of the road, and that a conveyance of land adjoining a public road conveys also the soil up to the middle line of the road, without, of course, affecting the status of the road as a public way. It was later held that the rule of construction applied to a transfer of land under the Real Property Act (In re Priddle) (1916) 16 SR (NSW) 54). This was ultimately confirmed by s 45A of the Real Property Act 1900 inserted in 1931. (Of course, from 1920, that presumption could not apply to transfers of land abutting public roads because the owners of the adjoining lands did not have title to the roads: see Peter Butt, Land Law, Lawbook Co, 5th ed at [242].) 60 On the other hand, there was serious doubt, not removed until 1911, as to whether the issue of a certificate of title for land which was a public road would vest the land in the registered proprietor free from its dedication to public use as a highway. That doubt was referred to but not resolved in Municipal District of Concord v Coles at 104-106. The point was not decided until Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354. In 1884, there would have been a perceived risk that the issue of a certificate of title for the lane could be inconsistent with the dedication of the lane as a public road.

23 In this case, by way of contrast, while the road and lane were identified on the plan of subdivision, they were never used as public roads, explaining perhaps the approach taken in this case, of issuing a certificate of title in respect of the road and lane and maintaining that certificate over the years. The Register is clear. Title to the land rests with the proprietor of Certificate of Title Vol 630 Folio 92. On White J's approach, that registration of title in the road and lane would have removed any doubt that when the certificate was issued, that title in the road and lane was vested in the registered proprietor of the land. 24 It follows, it seems to me, that the continued existence of the separate certificate of title for the road and the lane, rebuts the presumption arising under s 45A of the Real Property Act on which Mr Aquilina relied. The conveyances of the land abutting the road and the lane, all of which Mr Aquilina ultimately came to own in 1967, cannot have overcome the indefeasibility of the continuing title in the road and the land, which he never acquired from the registered proprietors of the road and lane. Their ongoing title cannot have been displaced by conveyances of the adjoining land. 25 As observed by Peter Butt, in Land Law, Lawbook Co, 5th ed at [238], it is a matter of logic that the s 45A presumption cannot apply where those who conveyed title to Mr Aquilina, themselves never owned the road up to the middle line. Ownership of the road and lane always remained with the original owner, under a separate certificate of title. It never resided with Mr Aquilina's predecessors in title, because the title existing in the road and lane was always that comprised in Certificate of Title Vol 630 Folio 92. The owners of the land comprised in Certificate of Title DP 1007 Volume 732 Folio 246 had nothing to convey, so far as the road and lane were concerned. In those circumstances, there was never any room for the operation of s 45A. In the circumstances the presumption was rebutted. 26 It follows that the Council had no obligation under s 224 of the Local Government Act to notify Mr Aquilina of its intended gazettal of the road. The section provided: 224. (1) Any road left in subdivision of Crown lands or in use over Crown lands shall be and become a public road under the control of and vested in the council on publication of a notification to that effect in the Gazette. (2) Such notification may be given by the Minister for Lands after due inquiry and the prescribed notice to the occupier, if any. (3) Where any road has been left in subdivision of private lands before the commencement of the Local Government Act 1906 and there exists any doubt as to whether or not it is a public road:

(a) the council may serve on the owner of the land comprising the road notice of intention to take over the road; (b) if the owner has any objection he may within thirty days after such service appeal to a district court judge having jurisdiction within the area; (c) such judge may hear and determine the appeal and make such orders as he thinks fit; (d) if the owner does not appeal, or if on appeal the judge so orders, the council may notify in the Gazette that such road is a public road, and thereupon the road shall be a public road and shall vest in the council.

(4) This section shall be in aid of and not in derogation from any other provision of either common or statute law relating to the dedication of roads. 27 Mr Aquilina's ownership of the land abutting the road and lane, which were owned by someone else and were never conveyed to him, did not impose any obligation on the Council to notify him of its intentions pursuant to s 224 of the Local Government Act. 28 If I be wrong in this conclusion, it is necessary to turn to consider the second question.

What was the effect of the registration of the Council's request? 29 Once the Council's interest in the road and the lane was registered in Certificate of Title Vol 630 Folio 92, its estate or interest in the road and lane vested. If Mr Aquilina had the right in the land which he claimed, did the Council's failure to give him the notice required by s 224 of the Local Government Act provide a basis upon which the orders which he seeks can be made? 30 Mr Aquilina argued that all that the order which he seeks would achieve would be to return the Council to the situation which existed before the notice of intention to gazette the roads was given in 1985. The road has never been used as a public road, despite its gazettal. Council would still be free to exercise its powers to have the road and lane declared public roads, if it wished. He and the other owners of the land abutting the road and lane would then be given the required notices and could then exercise their appeal rights, if they wished. 31 The attraction of this course from Mr Aquilina's point of view is obvious. For the Council, however, it was argued not only to be relief not available to him, but that it was a course which the Court would not consider, before other owners of the abutting land were given an opportunity to be heard. They might not agree with Mr Aquilina's approach, they presently having the benefit of the gazettal. 32 The difficulty with what was sought by Mr Aquilina was revealed by a number of authorities, the approach of the Court of Appeal in Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537, readily illustrating the point. There at 542-3, Hutley J observed:

The appellant further relied upon the protection given to it as a registered proprietor by virtue of s. 42 of the Real Property Act . The decision of the Privy Council in Frazer v. Walker [1967] 1 A.C. 569, approving the decision of the majority of the Supreme Court of New Zealand in Boyd v. Mayor etc. of Wellington [1924] N.Z.L.R. 1174 and of the High Court in Breskvar v. Wall (1971) 126 C.L.R. 376 are, in my opinion, conclusive in favour of the council. It is true that indefeasibility of the registered proprietor does not defeat a personal equity between himself and a transferor to him; and reliance was placed on a passage from the judgment of Barwick C.J. in Breskvar v. Wall (1971) 126 C.L.R. 376, at pp. 384, 385 in support of this exception. However, in my opinion, there is no personal equity existing here. The highest point at which the respondent's case can be put is that, because of want of care by the council in the exercise of its statutory powers, he has been improperly deprived of his land, which is vested in the council. It does not necessarily follow from this that he has a personal equity to have his land back. He may be merely entitled to take proceedings against the council for damages for deprivation of his land, because of the way it has exercised its statutory powers; or, indeed, he may have no remedy at all. 33 In City of Canada Bay Council v F& D Bonaccorso Pty Ltd [2007] NSWCA 351, there was a similar result. Even though it was there concluded that the Council's transfer of community land had resulted from its breach of s 45(1) of the Local Government Act, once registered under the Real Property Act, the title which had flowed from the transfer was indefeasible, following the High Court's approach in Breskvar v Wall (1971) 126 CLR 376. There it was held that title was indefeasible, even under a transfer rendered void and of no effect by statute. In Canada Bay the view taken was that prior to registration, the transaction could have been set aside by the Court's order, to prevent registration. That opportunity was lost upon registration (at [86]). 34 I can see no basis upon which any different result is available in the circumstances in which Mr Aquilina here seeks to have the Council's title set aside. Even if his complaint that he ought to have been notified of the proposed gazettal by the Council in 1985, given the requirements of the Local Government Act were able to be accepted, the registration of the Council's title cannot now be set aside, as he seeks. Any remedy which he might now have against the Council, does not include setting aside the title achieved by registration of Council's interest in the land.

What orders should be made? 35 There was a further difficulty with what the parties each sought. On the approach of the Court of Appeal in Mittagong Shire Council v Wood and Others (1978) 38 LGRA 160, there can be no question that current owners of the land abutting the road and lane are proper parties to the proceedings and that no orders which could affect their rights should be made, without giving them an opportunity to be heard. 36 The submission initially put for the Council accepted that whatever conclusions were reached, neither the orders sought by Mr Aquilina, nor those sought by the Council, would be made in the proceedings as presently constituted, given the absence of adjourning property owners as parties to the proceedings. 37 For the Council, the possibility that before dismissing his claim, Mr Aquilina ought to be given the opportunity to take steps to join the other land owners to the proceedings, was also canvassed. It was submitted that had he been represented, the proper course would have been to dismiss his claim, but that in view of the fact that he was unrepresented, that might be thought to be unfair and he should accordingly be given the opportunity to join the other land owners. 38 Any adjournment of the proceedings for such joinder would, of course, prolong these proceedings and increase costs; costs which would unnecessarily be incurred, if the orders sought by both Mr Aquilina and Council were declined. That approach would leave the Council's present standing under the Register in respect of the road and lane intact, but would not affect any rights that any other land owner might have. 39 That, it seems to me, is the appropriate course, given that the Council did not take the step available to it, of joining the other land owners who would be affected by the relief which it seeks. They have not sought to challenge the Council's title. I cannot see why Mr Aquilina ought to be put at risk of having to meet their costs by any joinder application, in circumstances where he has failed to make out any interest on the case which he advances and where it is the Council which has failed to join the other persons who would be affected by the orders which it seeks. 40 It follows, it seems to me, that the proper course is to decline to make the orders sought by either party. There was no basis established for the orders sought by Mr Aquilina and good reason for not making the orders sought by Council, in the circumstances.

Orders 41 For the reasons given, the orders sought in the summons, cross claim and defence are all refused. 42 Neither party pressed an order for costs, understandably it seemed to me, in the circumstances. Should either party wish to be heard on costs, they should approach within 7 days. **********

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