Ashfield Municipal Council v Roads & Traffic Authority of NSW

COUNSEL : Mr J J Webster (Appellant) Mr J A Ayling (Respondent) SOLICITORS : Pike Pike & Fenwick (Appellant) Crown Solicitor (Respondent) CATCHWORDS : Land Law - Resumption of Land - Compulsory Acquisition - Appeal from Land and Environment Court - Whether Land and Environment Court had jurisdiction to determine compensation - Whether provisions of Roads Act 1993 or Land Acquisition (Just Terms Compensation) Act 1991 governed compensation for resumed lands - Where resumed lands contained part of road - Whether a "public road" - Whether "owned" by Council - Meaning of "public road" and "own" in Roads Act 1993 (NSW), ss 145, 204, 206 - Land Acquisition (Just Terms Compensation) Act 1991 - Land Law - Resumption of Land - Compulsory Acquisition - Appeal from Land and Environment Court - Determination of compensation - Compulsory acquisition of land owned by Council - Whether market value of land should be reduced by two-thirds due to restrictions imposed by Crown Lands Act - Where lands used as public open space for recreation - Crown Lands Act 1989 (NSW) - Land Acquisition (Just Terms Compensation) Act 1991 - D Conveyancing Act 1919 Crown Lands Act 1989 Crown Lands Consolidation Act 1913 Crown Lands (Continued Tenures) Act 1989 Interpretation Act 1987 Land Acquisition (Just Terms Compensation) Act 1991 Land Tax Assessment Act 1910 LEGISLATION CITED : Local Government Act 1919 Local Government Act 1993 Local Government (Consequential Provisions) Act 1993 Main Roads Act 1924 National Parks Act 1912 Public Roads Act 1902 Roads Act 1993 State Roads Act 1986 Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1986) 67 ALR 282 Commissioner for Main Roads v BP (Australia) Pty Ltd (1964) 10 LGRA 423 Corrie v MacDermott [1914] AC 1056 Hornsby Shire Council v Roads and Traffic Authority of NSW [1996] NSWLEC 152 Hornsby Shire Council v Roads and Traffic Authority of NSW (1998) 100 LGERA 105 Knox County v Ninth National Bank 147 US 91 (1893) McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 CASES CITED: Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495 Newington v Windeyer (1985) 3 NSWLR 555 Prince Alfred Park (D500038) Reserve Trust as Trustee of the Prince Alfred Park v State Rail Authority of New South Wales (1997) 96 LGERA 75 Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610 Sydney Sailors' Home v Sydney Cove Redevelopment Authority (1977) 35 LGRA 106 Vale v Whiddon (1949) 50 SR (NSW) 90 Western Stores Ltd v Orange County Council [1971] 2 NSWLR 36 Wilover Nominees Ltd v Inland Revenue Commissioners [1973] 2 All ER 977 DECISION : 1. The Court remits the matter for rehearing in respect of the lands excluding the 2349 square metres part of Dobroyd Parade; the Court directs that the parties bring in Short Minutes of Order within 21 days reflecting the outcome of the Court's reasoning.

ASHFIELD MUNICIPAL COUNCIL v ROADS & TRAFFIC AUTHORITY OF NSW

Land Law - Resumption of Land - Compulsory Acquisition - Appeal from Land and Environment Court - Whether Land and Environment Court had jurisdiction to determine compensation - Whether provisions of Roads Act 1993 or Land Acquisition (Just Terms Compensation) Act 1991 governed compensation for resumed lands - Where resumed lands contained part of road - Whether a "public road" - Whether "owned" by Council - Meaning of "public road" and "own" in Roads Act 1993 (NSW), ss 145, 204, 206 - Land Acquisition (Just Terms Compensation) Act 1991

Land Law - Resumption of Land - Compulsory Acquisition - Appeal from Land and Environment Court - Determination of compensation - Compulsory acquisition of land owned by Council - Whether market value of land should be reduced by two-thirds due to restrictions imposed by Crown Lands Act -Where lands used as public open space for recreation - Crown Lands Act 1989 (NSW) - Land Acquisition (Just Terms) Compensation Act 1991

The respondent ("the RTA") decided to improve and realign Dobroyd Parade. Part of Dobroyd Parade was on Crown land, within the boundaries of reserves managed by the appellant ("the Council"). The RTA made resumptions of 5590m2 land, 3241m2 of which was land that would be affected by the proposed road works. The remaining 2349m2 was land that was part of Dobroyd Parade, but was outside the road reserve within the public reserve. The RTA advised the Council that the Valuer-General had determined the compensation offered to be $77,000. The Council lodged an objection with the Land and Environment Court, seeking compensation under s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ("the JTC Act").

The Land and Environment Court ordered that $169,750 was payable in relation to the 3241m2. The calculation of this figure involved a deduction of two-thirds for the effect of restrictions on the Council's interest in the land created by the Crown Lands Act 1989 (NSW) because the land was subject to a trust, of which the Council was manager.

However, in relation to the 2349m2 the Land and Environment Court held that it did not have jurisdiction to award compensation because compensation for that land was governed by the Roads Act 1993 (NSW) rather than the JTC Act. The RTA appealed.

"(1) A council is entitled to compensation under this Division for a public road owned by the council that is acquired by the Crown by compulsory process. (2) The provisions of the Division apply in substitution for the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 with respect to compensation."

Held by Heydon JA (Mason P and Davies AJA concurring):

1. The primary judge did not err in holding that ss 204 and 206 of the Roads Act (rather than the JTC Act) applied to the 2349m2, because the area was part of a "public road" and was "owned" by the Council. a. Dobroyd Parade was a "public road". i. It was declared to be part of a main road, and that could only have been done lawfully by the Minister for Roads if the Minister for Lands had granted a licence for the use of it by the public. ii. Alternatively, it was a "public road" at common law by reason of a dedication which has not been proved but should be presumed. b. If Dobroyd Parade was a public road, then s 145(3) of the Roads Act operated to give the Council fee simple and the Council therefore "owned" it. Held by Davies AJA (Mason P and Heydon JA concurring), remitting for rehearing the assessment of compensation for the 3241m2:

2. The primary judge erred in his calculation of the compensation by reducing the market value by two-thirds for the effect of restrictions on the Council's interest in the land created by the Crown Lands Act 1989 (NSW). a. In this case, the Council had adequate power to make an unqualified sale of the lands provided it considered it appropriate to do so and the Minister consented. Sydney Sailors' Home v Sydney Cove Redevelopment Authority (1977) 36 LGRA 106, distinguished. b. Therefore, the assessment should be of the fair market value of that which was taken. The lands were accessible, level and in an area of limited public recreation space. The community would have put a high value on the lands as public space and in this context the restrictions on the land had little significance. Hornsby Shire Council v Roads and Traffic Authority of NSW (1998) 100 LGERA 105, distinguished. O R D E R S

1. The court remits the matter for rehearing in respect of the lands excluding the 2349 square metres part of Dobroyd Parade.

2. The court directs that the parties bring in Short Minutes of Order within 21 days reflecting the outcome of the court's reasoning.

ASHFIELD MUNICIPAL COUNCIL v ROADS & TRAFFIC AUTHORITY OF NSW

1 MASON P: I agree with the orders of Davies AJA. 2 In doing so I agree with the reasons of Heydon JA and Davies AJA save that I do not agree with Heydon JA's comments suggesting that the present case might qualify for relegation to listing limbo. The Crown is no longer one and indivisible and the several arms of the Executive serve and are responsible for different constituents. Each arm is subject to the rule of law. One consequence is that disputes between each arm may have to be resolved in the courts. Many disputes involve waste of public and private resources and, in proper cases, courts have remedial and verbal weapons at their disposal to discourage one group of litigants from affecting other litigants' access to justice. On the material before us, I am not persuaded that this is one of those extreme cases attracting any such sanction. 3 HEYDON JA: Background Dobroyd Parade is an important arterial road in the inner western suburbs of Sydney. At Haberfield it abuts a southern inlet of Sydney Harbour, namely Iron Cove, and passes next to Robson Park and Richard Murden Reserve. Part of Dobroyd Parade was constructed in the 1960's and was open for public use. However, some of the road was not constructed within the boundaries shown on cadastral maps as being the road reserve. That area of road was constructed on Crown land, which lay within the boundaries of reserves managed by the appellant ("the Council"). 4 The respondent ("the RTA") decided to improve and realign Dobroyd Parade. In order to carry out the works it was necessary to make resumptions of the land which would be affected by the proposed road works. The area of this land was 3241m2. It was also decided to resume the land which, though part of Dobroyd Parade, lay outside the road reserve within the public reserve. The area of this land was 2349m2. The resumptions were effected by an acquisition notice published in Government Gazette No 119 on 7 November 1997. The operative parts of that notice were (Blue 2): "The Roads and Traffic Authority of New South Wales by its delegate declares, with the approval of His Excellency the Governor, that the land described in the schedule below is acquired by compulsory process under the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 for the purposes of the Roads Act 1993. … All that piece or parcel of land situated in the Ashfield Municipal Council area, Parish of Concord and County of Cumberland, shown as Lot 15 Deposited Plan 868083, being part of the land dedicated for public recreation by notification in the Government Gazette of 12 January 1945 on page 61, excepting from the acquisition of Lot 15, the Easement for Electricity Purposes shown on Deposited Plan 638982. The land is said to be in the possession of the Crown (Owner) and Ashfield Municipal Council (Trustee). Also all those pieces or parcels of land situated in the Ashfield Municipal Council area, Parish of Concord and County of Cumberland, shown as Lots 16 and 17 Deposited Plan 868083, being parts of Reserve 91335 for public recreation notified in the Government Gazette of 1 December 1978 on page 4997. The land is said to be in the possession of the Crown (Owner) and Ashfield Municipal Council (Corporation appointed to manage the affairs of the Reserve Trust)."

Lot 15 was part of Robson Park. Lots 16 and 17 were part of Richard Murden Reserve. 5 By Compensation Notice dated 9 December 1997 the RTA advised the Council that the Valuer-General had determined that the amount of compensation offered was $77,000. It invited the Council to lodge an objection with the Land and Environment Court. This it did. It sought compensation under s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 ("the JTC Act"). On 15 June 2000, after a hearing on 6-10 December 1999, Sheahan J ordered that $169,750 was payable. This is an appeal from that order. 6 The Council contended that the primary judge erred in two respects. 7 First, the primary judge held that of the 5590m2 which was acquired, the 2349m2 which was outside the road reserve was governed by s 206 of the Roads Act 1993, and not by the JTC Act. This had the result that the Land and Environment Court had no power to award compensation in respect of that 2349m2, and any argument about compensation would have to be resolved by an agreement between the responsible Ministers or by the Premier: Roads Act 1993 s 261. The Council contended that s 206 did not apply because the 2349m2 were not part of a "public road" and because they were not "owned" by the Council. 8 Secondly, the primary judge held, in relation to the 3241m2 which the primary judge held that the Land and Environment Court did have power to determine compensation for, that its market value was $152.50 per m2. That produced a total figure of $494,252.50. He said that should be reduced by two-thirds to allow for the effect of restrictions created by the Crown Lands Act 1989 on Council's interest in the land. That produced $164,750.85. To that figure, it was common ground, $5,000 should be added for disturbance. The total was $169,750.83. 9 If the Council succeeds in this appeal on the first issue, its success will cause to be increased from 3241m2 to 5590m2 the area to which the figure of $152.50 per m2 is to be applied. If the Council succeeds in this appeal on the second issue, its success will reduce the total market value figure, arrived at by applying $152.50 per m2 to either 3241m2 or 5590m2 by some fraction less than two-thirds.

The history of the land 10 The history of Lots 15, 16 and 17 is as follows. 11 On 12 January 1945 Lot 15 (DP 868083) was dedicated for public recreation by notification in the Government Gazette dated 12 January 1945. 12 On 23 February 1945 the Council was appointed trustee of Lot 15 by notification in the Government Gazette. 13 On 9 December 1960 Dobroyd Parade was declared as secondary road No 2056 by Government Gazette No 143. 14 On 29 April 1966 a variation in the route of Dobroyd Parade was gazetted in Government Gazette No 43. 15 On 3 February 1967 the notice of 29 April 1966 was rescinded, and a further declaration of secondary road No 2056 was published in Government Gazette No 10. 16 On 14 July 1970 a declaration of secondary road No 2056 was made in Government Gazette No 93 (Blue 318). 17 On 28 September 1970 the declaration of secondary road No 2056 on 14 July 1970 was revoked, and a fresh declaration of secondary road No 2056 was made (Blue 321). 18 On 1 December 1978 Lots 16 and 17 (DP 868083) were declared as a reserve for public recreation by Government Gazette No 169, pp 4985 and 4997, and given reserve No 91335. 19 On 22 January 1993 the declaration of Dobroyd Parade as secondary road No 2056 made on 28 September 1970 was revoked, and Dobroyd Parade was declared as main road No 650 pursuant to s 4 of the State Roads Act 1986 (Blue 322). 20 On 4 November 1994 the Council was appointed as manager of the Richard Murden Reserve Trust (which included Lots 16 and 17). The primary judge described it as "a long narrow strip of parkland". 21 On 18 October 1996 the Council was appointed and gazetted as trustee of Robson Park (which included Lot 15), though the primary judge said that Lot 15 was "somewhat isolated from the bulk of" the Park. 22 On 7 November 1997 an acquisition notice was published in the Government Gazette for the acquisition of Lots 15, 16 and 17.

The 2439m2 and the Roads Act The legislation 23 The Roads Act 1993 provides: "204 Council entitled to compensation if Crown compulsorily acquires public road (1) A council is entitled to compensation under this Division for a public road owned by the council that is acquired by the Crown by compulsory process. (2) The provisions of this Division apply in substitution for the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 with respect to compensation. 206 Compensation where council does not have to construct new road

(1) This section applies except where it is necessary for the council to construct a new public road to replace an existing public road that has been acquired by the Crown by compulsory process. (2) The amount of the compensation to which a council is entitled under this section is the sum of: (a) the money (if any) that the council paid for the acquisition of the land, and

(b) the money that the council has spent on the construction of the road, and

(c) the money that the council has spent in erecting or constructing, in, on or over the road, any conduits, poles or structures for use in connection with any water, sewerage or drainage work of, or any trading undertaking carried on by, the council, which, at the time of the acquisition by the Crown, were owned and used by that council in connection with any such work or trading undertaking,

but does not include any money spent on the maintenance, replacement or repair of the road or any such conduits, poles or structures. (3) Compensation is not payable under subsection (2) (c) to the extent to which any such conduits, poles or structures can reasonably continue to be used by the council in connection with any such work or trading undertaking." 24 The central question was whether it could be said that the land was "a public road owned by the" Council.

The reasoning of the primary judge 25 The reasoning of the primary judge was put thus: "The applicant submits that as Council is not the ' owner ' for the purposes of s 204, the Roads Act is not enlivened in this case to oust the operation of the JTC Act. Council is only the manager and/or trustee under the CLA and would have needed the Minister's consent to alienate the land for road purposes. The land encroached by the roadway cannot become dedicated as a road under the Roads Act 1993, by virtue only of some default, and in the absence of some dedication process. On the other hand, the respondent [RTA] relies on the bundle of maps and Gazette notices in Exhibit R11 , and on the aerial photograph in Exhibit R13 (see par 10 above) to submit to the court that, as the road in the vicinity of the reserved lands appears to date back well beyond 1993, it is taken to be a public road within the terms of the Roads Act 1993, which acts as a code. (See discussion of the law on roads in Xerual Pty Ltd v Auburn Council [1999] NSWLEC 64). I accept Mr Ayling's submissions [for the RTA] on this point. As the relevant road was declared as MR 650 in 1993, all the pre-conditions required by s 206 are present. (See Commissioner for Main Roads v BP (Australia) Pty Limited & Anor (1964) 10 LGRA 423). There is no reason the relevant area of the subject land cannot at the same time lie within a Crown or public reserve for the purposes of the CLA." 26 On appeal counsel for the RTA, whose submissions had been accepted by the primary judge, said that the primary judge's "reasons in respect of this issue were somewhat cryptically expressed". But counsel pointed out that the primary judge "refers specifically to the respondent's counsel's submissions and agrees in them". It was accepted by the Council that in part the outcome of the appeal turned on the merits of the RTA's argument to the primary judge, which it repeated on appeal. As a matter of background it is therefore convenient to summarise the RTA's argument before the primary judge. 27 The RTA contended that the Council "owns" Dobroyd Parade. It said that the purpose of s 204 was as follows: "RA sections 204 and following are clearly designed to ensure that councils do not profit unfairly from the process of compulsory acquisition where what has been taken is a public road which (it is assumed) has cost the council nothing but the money it has expended in constructing it. The provisions of the Land Acquisition (Just Terms Compensation) Act 1991 are set aside in favour of a scheme which limits compensation to proven financial losses associated with expenditure." 28 It continued: "Sections 204 and 206 apply where the land taken was a public road. The RA Dictionary defines 'public road' as 'any road that it opened or dedicated as a public road, whether under this or any other Act or law, and any road declared to be a public road for the purposes of the Act'. This definition need not, however, detain us, as we know that the road in question precedes 1993. In fact it appears to date back to the mid-1960's, when the bridge was opened. Clause 15 to Schedule 2 to RA provides that any public road before the commencement of the Act 'is taken to be a public road within the meaning of this Act'. The immediately preceding statute to the RA was relevantly the State Roads Act of 1986 ('SRA'), which was repealed by the RA. SRA section 2 contained a definition of 'public road' in the following terms: 'a road the public are (sic) entitled to use'. It can hardly be suggested that Dobroyd Parade immediately before 1 July 1993 was not a road, or that the public was not entitled to use it. It was therefore a public road within the meaning of SRA and is ex post facto a public road under RA. Section 206 applies, accordingly, to the part of the land acquired which lies within the constructed portion of Dobroyd Parade. If there were any doubt at all about the matter, there could be recourse to decided authority: Commissioner of Main Roads v BP (Australia) Pty Limited (1964) 10 LGRA 423, a decision of the Full Court of the Supreme Court of New South Wales, in which the leading judgment was delivered by Walsh J. The effect of the judgment is that the taking of the administrative action by the Commission in declaring a road to be a main road, combined with the opening of the road to public use, is sufficient to support a finding that the road is a public road (and, accordingly, vested in the council under section 232 of the LGA 1919). In the present case, declaration of the road as a secondary road under section 18 of the Main Roads Act (an analogous procedure) took place on several occasions and there was a declaration in 1993 as a main road (MR 65) under SRA. On the authority of BP , the road has been a public road since declaration, at least no later than the opening of the bridge over Hawthorn Canal. All the conditions prescribed by section 206 are present and the section therefore applies. The fact (if it be one) that the land is also part of a public reserve is simply not to the point, as there can be no rational basis for a finding that in a case concerning the quantum of compensation payable upon compulsory acquisition the nature of the title (in the technical sense) held by the council to a road has a bearing. For the purposes of RA section 204, the tests are 'ownership' by the council, and the existence of the road. To hold otherwise would defeat the evident purpose of the statutory scheme evident in sections 204 and 206."

The grounds of appeal 29 The relevant grounds of appeal are: 1. His Honour erred at law when he determined that there was no reason that the relevant area of the subject land (when a road was built) cannot at the same time be a Public Road and a Crown or Public Reserve under the Crown Lands Act .

2. His Honour erred at law when he failed to determine that the Minister for the Respondent has [no] power either under the Public Roads Act 1902 or the Roads Act 1993 to declare any part of the subject land reserved as a Public Road.

3. His Honour erred at law in determining that the land was declared as MR650 in 1993 and finding that the compensation should therefore be determined under s 206 of the Roads Act .

Was Dobroyd Parade a "public road"? The parties' arguments 30 The first major group of arguments advanced by the Council centred on the fact that s 204 and s 206 do not apply unless a Council is claiming compensation in relation to a "public road". The Dictionary to the Roads Act defines "public road" as meaning: "(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."

Four primary arguments were advanced. 31 First, the Council submitted that the relevant land was not a public road because it was never opened or dedicated as a public road, and was never declared to be a public road for the purposes of the Roads Act. 32 Secondly, the Council submitted that not only had the relevant area not been opened as, or declared to be, a public road, but it could not have been, because s 6 of the Crown Lands Act 1989 forbad this. Section 6 provides: "Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence, reservation or dedication or other dealing is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989."

The Council submitted that there was no dedication of the land, or other dealing with the land, as a public road in either the Crown Lands Act 1989 or the Crown Lands (Continued Tenures) Act 1989. The Council also submitted that there had been no relevant dedication or other dealing so as to make the area public land before 1989. The Council drew attention to the fact that s 6(2) of the Crown Lands Consolidation Act 1913, the predecessor of the Crown Lands Act 1989, provided: "Crown lands shall not be sold, leased, dedicated or reserved or otherwise dealt with unless the sale, lease, dedication or reservation or other dealing is authorised by this Act."

It was submitted that there was no relevant dedication or dealing under that Act. It would, of course, be possible for other legislation to repeal such provisions, expressly or by implication, but the RTA pointed to none. 33 Thirdly, the Council submitted that the mere fact that on 22 January 1993 Dobroyd Parade was declared as a main road did not necessarily make it a public road. The Council pointed out that ss 3(2), 8(1) and 15(2) of the Main Roads Act 1924 assumed that a road could be proclaimed a main road even though it was not a public road, and submitted that nothing in that Act provided that a proclamation of a road as a main road was to have the effect that it become a public road. The sole purpose of proclamation as a main road was to facilitate the funding and maintenance of roads. The Council then pointed out that the State Roads Act 1986, ss 2(3) and 4(1)(a), again assumed that a main road need not be a public road. 34 Fourthly, the Council submitted that even if the declaration of Dobroyd Parade as a secondary road under s 18 of the Main Roads Act 1924 on 28 September 1970 was capable of making it a public road, it did not do so because the land declared to be a secondary road did not correspond with the land actually used as a road. 35 The RTA did not seek to meet the first argument advanced by the Council by pointing to any formal dedication. It also conceded that the State Roads Act 1986 was silent about whether the mere declaration on 22 January 1993 of Dobroyd Parade as a main road pursuant to s 4(4) gave the public an entitlement to use the road and thereby made it a public road. The RTA repeated the argument advanced to the primary judge based on Schedule 2 clause 15 of the Roads Act 1993. That argument depended on identification of Dobroyd Parade as "a public road" immediately before the "relevant commencement", which is defined in Schedule 2 clause 2 as meaning "in relation to a provision of this Act, … the day on which that provision commences". All provisions commenced on 1 July 1993. The argument selected the relevant definition of "public road" as being that in the State Roads Act 1986, s 2(1), namely "a road the public are entitled to use". It contended that the constant use of the road by the public suggested an entitlement to do so. 36 The RTA pointed out that in determining whether to recommend the declaration of a main road, it was obliged to consider "whether the road is or will be a main route for traffic" (s 4(4)(a)) and "the potential of the proposed route to function satisfactorily as a main route for through traffic of a general type" (s 4(4)(d)). These provisions suggested that Dobroyd Parade either was or would be a main route and that it would be a main route for through traffic. Neither role could be fulfilled unless the public had an entitlement to use it. 37 The RTA also said that the status of Dobroyd Parade as a public road was demonstrated by Commissioner for Main Roads v BP (Australia) Pty Ltd (1964) 10 LGRA 423. 38 The Council advanced three arguments in answer to the RTA's Schedule 2 clause 15 argument. 39 First, the Council contended that Schedule 2 clause 15 was merely one of the "Savings, transitional and other provisions". It could not convert into a public road something which fell outside the definition of "public road" in the Dictionary to the Roads Act 1993. 40 Secondly, the Council submitted that though the Crown had never stopped anyone from using Dobroyd Parade as a road, since it was Crown land which was not a public road, the Crown could do so. Hence, even though Dobroyd Parade was a main road in fact used by thousands of vehicles every day, the public were not "entitled" to use it and hence it did not fall within the definition of "public road" in the State Roads Act 1986, s 2(1). (The RTA submitted that this argument of the Council produced an absurdity which revealed that it must be flawed. It was absurd to conclude that Dobroyd Parade, which had been a busy road for nearly 40 years, on which many cars travelled daily, and which had been declared as a main road since 1993, was not a "public road" or a road which the public were not entitled to travel on. It was submitted that while "as a matter of theoretical law that might be possible and it might be possible for us as lawyers to conceive of that situation, it's really almost too much to suggest that such a state of affairs could be brought about intentionally by the legislation".) 41 Thirdly, the Council submitted that Commissioner for Main Roads v BP (Australia) Pty Ltd (1964) 10 LGRA 423 was irrelevant "as the considerations in that case did not involve Crown land". 42 It is possible to dispose of some of the competing arguments quickly.

Misdescription 43 The Council's contention that even if the declaration of Dobroyd Parade on 28 September 1970 as a second road were capable of making it a public road, it did not do so because of misdescription, should be rejected. The 28 September 1970 declaration is to be construed as referring to the tarred road known as Dobroyd Parade, not some other areas not actually used as a road and not known as Dobroyd Parade.

Definition of "public road" in Dictionary 44 The Council's contention that the definition of "public road" in the Dictionary to the Roads Act 1993 prevented Schedule 2 clause 15 from having any wider effect is unsound. In the period of time immediately before the relevant commencement on 1 July 1993, the definition in the Dictionary had no effect, but Schedule 2 clause 15 assumes that there were "public roads" quite independently of any satisfaction of that, as yet unenacted, definition. It is necessary to give scope both to the definition in the Dictionary and to the operation of Schedule 2 clause 15.

Inference of entitlement from actual user 45 The RTA's concession that there was no dedication of Dobroyd Parade as a public road and its reliance on Schedule 2 clause 15 meant that it had to find an "entitlement" in the public to use Dobroyd Parade. It wavered between submitting that Schedule 2 clause 15 by itself sufficed without recourse to the 22 January 1993 declaration of Dobroyd Parade as a main road (or earlier declarations of it as a secondary road), and submitting that the 22 January 1993 declaration of Dobroyd Parade as a main road, or perhaps earlier declarations of it as a secondary road, sufficed when considered in the light of Commissioner for Main Roads v BP (Australia) Pty Ltd (1964) 10 LGRA 423. So far as the RTA's argument depended on Schedule 2 clause 15 by itself, it was said to be "unanswerable". It was put thus: "Clearly Dobroyd Parade was a road. Just as clearly the public was entitled to use it, as it had done without let or hindrance for over thirty years. Thus it was, for the purposes of the State Roads Act, a public road. Because of this it was 'taken to be' a public road under the Roads Act."

The weakness in the argument is that it does not point to any source of entitlement in the public beyond the fact of actual user "without let or hindrance". It does not follow from actual user of the road that that user was of right. A multiplicity of trespasses, however numerous, does not mean that the use of the road was pursuant to an entitlement.

Commissioner for Main Roads v BP (Australia) Pty Ltd 46 The consequence is that the RTA's argument must rely on the various declarations read in the light of Commissioner for Main Roads v BP (Australia) Pty Ltd (1964) 10 LGRA 423. The RTA submitted that the ratio decidendi of that case was to be found in Walsh J's judgment, with which McClemens J agreed. The facts were that the Commissioner purchased parcels of land on Epping Road from private owners with a view to constructing a deviation in Epping Road. Some of that land was proclaimed as part of a main road under the Main Roads Act 1924 s 8 on 25 September 1959. The road was opened to traffic at the end of 1959. The Commissioner leased some of the land to Ampol Petroleum Ltd. The Commissioner sold some other land and took a covenant from the purchaser not to use the land for purposes other than residential purposes. Most of the land expressed to be benefited by the covenant formed part of the road, but two small portions did not. The purchaser sold to the second defendant, who in turn resold to the first defendant. The first defendant threatened to develop the land as a service station. The Commissioner sought an injunction to prevent this. 47 Walsh J said (at 433-434): "The suit was dismissed on the ground that the appellant acted beyond its statutory powers, conferred by the Main Roads Act , in taking the restrictive covenant which is in suit. His Honour did not find it necessary to decide a question which has been much debated before this Court, namely the question whether the relevant section of Epping Road was at the relevant dates vested in the appellant or in the local council. But I think it is necessary to resolve this question, because it is not until it has been resolved that one can properly determine whether what the Commissioner did was within power or not. The land which now forms part of the road constitutes a major part of the land which in the restrictive covenant was described as the land to which the benefit of the covenant was intended to be attached. For the respondents it is contended that at the time when the public became entitled to use the road it became a 'public road' within the meaning of the Local Government Act and vested in the council under s 232 of that Act. If this be right the result is that except for two small portions of land not included in the road the Commissioner did not have at the time of the taking of the covenant and has not now any title to the land to be benefited and for this reason it is argued the covenant is not enforceable at the suit of the appellant. By the Local Government Act the expression 'Public road' means a road which the public are entitled to use. Since this land was from December 1959 onwards part of a road which the public were entitled to use it would seem that the section operated upon the title to it, unless upon one or more of the grounds now to be considered its operation ought to be denied. These grounds are (1) the expression public road in s 232 should be taken not to include a main road proclaimed as such under the Main Roads Act ; (2) although s 232 may be capable of operating upon a main road so proclaimed it does not operate unless and until the road is, under s 225, proclaimed to be a public road and is, under s 226, classified and these conditions have not been fulfilled; (3) the road was, so far as the land in question was concerned, a public road which was 'by law vested in any public body other than the council', within the meaning of s 221; (4) section 232 did not operate for the reason that the exception applied, which is stated in the operating words of that section, that is the words 'except where otherwise expressly provided.'" 48 Thus Walsh J did not list as a ground for consideration the question: "On what basis was the public entitled to use the road?" Rather he assumed that the public was entitled to use the road without examining the possible bases for that entitlement. He discussed s 8 of the Main Roads Act 1926, pursuant to which the road had been proclaimed to be a main road. But he did not discuss whether this could have occurred quite independently of the road being a public road. 49 The RTA submitted that the ratio was: "the combined effect of the declaration of this particular piece of construction as a main road, there being no suggestion it was ever declared a public road, and the use of that road by the public subsequent to its construction was sufficient to render it a public road for the purpose of the Local Government Act (1919) and, therefore, vest the title of the road under the Local Government Act in the Council. The concept was of course that if the Council had become the owner the Commissioner was no longer the owner, the covenant was unenforceable because the Commissioner ceased to own the land which had the benefit of the covenant."

However, the RTA was cautious in the language it used about the case. It said that the primary judge "found some comfort" in it, though "obviously the statutory regime … was not exactly the same". The case was said to be "extraordinarily complicated" and "very difficult" to "follow … from beginning to end". The truth is that the case is not a decision binding this Court on the question in issue. At most Walsh J may have made an assumption that proclamation of the road as a main road coupled with user by the public gave the public an entitlement. He arrived at no decision to that effect, because no competing argument was presented. He did not even advance dicta on the present point. The Council is also correct in submitting that the land was not Crown land, so that the arguments of Council resting on s 6 of the Crown Lands Act 1989 and its predecessor are not dealt with. The most that can be extracted from the case from the RTA's point of view is that some weight can be placed on any assumption about the law made by so great a lawyer as Sir Cyril Walsh.

Presumption of regularity: Ministerial consent 50 There is, however, another argument, though it was not advanced by the RTA, in support of the position for which it contends and in support of the assumption made by Walsh J. If the user of the relevant 2349m2 of Dobroyd Parade had been sued before the resumption by the Crown as owner of the fee simple for the tort of trespass to land, that user could have defeated the action by alleging a licence to use the area. It might have been possible for the Crown to have forbidden future entry onto the area without notice. That would be a strange result, liable to defeat the expectations of all the persons who chose to occupy particular houses, establish places of business, or construct a variety of social institutions, in reliance on the likely continued existence of Dobroyd Parade as a road open to all. But it is a result which may be possible in law. However, a person travelling along the road in the relevant area could not, in the absence of any prior prohibition, have been sued in damages for the tort of trespass. The Council conceded this. Once a journey onto the relevant area had commenced, the user could lawfully proceed because the user had a bare gratuitous licence to do so. A bare gratuitous licence can be revoked at any time without notice, but the licensee will not become a trespasser until a reasonable time within which to withdraw has passed. The Council contended that the Crown could have stopped anyone using the road, but did not deny the proposition just stated. 51 How far is that state of affairs congruent with s 6 of the Crown Lands Act 1989? The user of the relevant area in the example employed above was not using it as an occupier; and no sale, lease, dedication or reservation has been pointed to. That leaves three possibilities. It is possible that the activity of a road user under the bare gratuitous licence just described can be termed an activity which has been "licensed" within the meaning of s 6. It is possible that that activity can be said to have caused the land to have been "used" within the meaning of s 6. It is possible that the permission granted to the user means that the land was "otherwise dealt with" within the meaning of s 6. None of these three expressions is defined. None appears to be narrow. It follows that the acts of the Crown in permitting the use of the relevant area as a road contravened s 6 unless authority for them can be found in the Crown Lands Act or the Crown Lands (Continued Tenures) Act. No authority was pointed to in either Act. However, the Minister for Roads certainly approved the use of the relevant area as a road on 22 January 1993. He was not the "Minister" for the purposes of the Crown Lands Act, i.e. the Minister for Lands. But it would be presumed that the Minister for Roads would not declare the relevant area as part of a main road, thereby communicating to the public a permission to use the area for motor travel, unless that Minister acted lawfully; if the only way in which that declaration and that communication of permission could be lawful was as a result of consent by the Minister for Lands, and thus a licence from the Minister for Lands to the public, it would be presumed that that consent and that licence had been granted. 52 The Council argued that the declaration of 22 January 1993 of the relevant area as a main road was, within the meaning of s 4(1)(a) of the State Roads Act 1986, a declaration in relation to "a road that, although not a public road, passes through a public reserve". This declaration, the Council submitted, had the effect of bringing into operation various provisions of the Act entitling the RTA to decide certain matters in consequence of changing the classification of the road from a secondary road to a main road, but did not approve its use as a road. The RTA in response submitted: "A change in the classification of a road (from 'secondary' to 'main') cannot be (and here was not) made in a factual vacuum. In this case the relevant land had been physically occupied by the road, and had been in continuous use as such, at least since the 1960s, when the Hawthorn Canal bridge was opened, as evidence in the form of aerial photographs established. If the Minister's action did not 'approve' - in the ordinary sense of giving an imprimatur to - the continued use of the land by the public as a road, then the purpose of the declaration was lost and the exercise of ministerial power was a hollow charade."

That response is valid. 53 The declaration of the area as part of a main road on 22 January 1993 was made by the Minister for Roads because he desired, intended and expected that it would be used as part of a main road by the public as of right - as a matter of entitlement - and he consented to that use. That use, and his consent to that use, was not lawful unless the Minister for Lands licensed that use. Indeed s 6 imposed on the Minister for Roads a statutory duty not to deal with the area unless the licence of the Minister for Lands was obtained pursuant to s 34(1)(b) of the Crown Lands Act, together with s 45. There is a rebuttable presumption that "statutory duties are duly and properly performed": Wilover Nominees Ltd v Inland Revenue Commissioners [1973] 2 All ER 977 at 983; [1973] 1 WLR 1393 at 1399 per Goulding J. The 22 January 1993 declaration by the Minister could only be made on the recommendation of the RTA (State Roads Act 1986 s 4(1)). It must be presumed that it did make that recommendation. In making that recommendation it had to consider whether the road "is or will be a main route for traffic" (s 4(4)(a)), what the potential of that route was "to function satisfactorily as a main route for through traffic of a general type" (s 4(4)(d)), and "any other factors deemed to be relevant" (s 4(4)(f)). In considering these factors, the RTA would necessarily have to consider whether the road could lawfully be used for traffic and hence whether the Minister for Lands had licensed the area for that use or would do so. Where a statutory power is conferred on terms requiring the prior formation of a particular opinion by the donee of the power, it will be presumed from the exercise of the power that the donee had the required opinion: Western Stores Ltd v Orange County Council [1971] 2 NSWLR 36 at 46-47 per Moffitt JA, Asprey JA and Taylor AJA concurring; Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1986) 67 ALR 282 at 297 per Wilcox J. A similar presumption must apply where the donee is obliged to consider various factors, namely, that it did consider those factors. And if the RTA is to be presumed to have considered the factor of legality - of the present or future existence of a licence from the Minister for Lands - it must be presumed that that licence was in fact granted. 54 In McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 at 850 Griffith CJ approved the following formulation of Brewer CJ in Knox County v Ninth National Bank 147 US 91 at 97 (1893): "where an act is done which can be done legally only after the performance of some prior act, proof of the latter carries with it a presumption of the due performance of that prior act."

Here the declaration of the area as part of a main road could only have been done legally by the Minister for Roads after a licence had been granted by the Minister for Lands: proof of the declaration carries with it a presumption that the Minister for Lands duly granted a licence. 55 The operation of the presumption of regularity in the various forms just examined can be relied on with greater confidence because neither the Council nor the RTA challenged the validity of the 22 January 1993 declaration. 56 The RTA referred to Vale v Whiddon (1949) 50 SR (NSW) 90. In that case, decided under an earlier statutory regime, a road known as The Lady Wakehurst Drive which traversed the Royal National Park was treated as a public road by the Full Court. Street J (with whom Maxwell J concurred) noted that in 1939 The Lady Wakehurst Drive was proclaimed as a main road, graded, covered with bitumen, and provided with safety fences. He then said (at 97): "I find it impossible to conceive that a road such as The Lady Wakehurst Drive, formed and constructed as I have described, and being in fact a main traffic artery leading from Sydney to the South Coast and proclaimed by the Governor to be a main road, could, with any show of reason, be argued to be a road which the public were not entitled to use. It is obvious that the road was intended for public use. It traverses ground dedicated for public purposes and it was built by public moneys. There are no gates or other indications which prohibit the flow of traffic along the road, and by the proclamation itself it is described as 'Main Road No. 393'."

Herron J said at 104: "As the case stands, on the evidence adduced at the trial, the plaintiffs were entitled to have it assumed in their favour that all steps, if any, that may have been necessary to constitute the highway a public road had been taken."

The case appears to be an example of the application of the presumption of regularity. 57 After pointing out that the presumption could give way to contrary evidence, the Council submitted: "In the present case the maxim has no part to play. There was no dedication of this land under the State Roads Act or the Roads Act 1993 (see s 12). The Respondent did not rely upon any purported 'dedication' or any assertion that the road was a 'dedicated' road at common law, they specifically relied upon the declaration made under the Main Roads Act (9th December 1960 and 29 April 1966) and under the 'State Roads Act' as a Main Road on 22nd January 1993 (see paragraph 70 of the Judgment), to assert that the 'road' fell within s 204 of the Roads Act 1993, which limits compensation for a 'road owned by a Council' that is acquired. There was no reason to call evidence to show that the land was not a 'Public Road' at common law as such an assertion was not made. The question as to the status of the area of 2439m2 and how the road became constructed upon that part of the reserve was never in evidence or a issue before the Court. More particularly, any such construction would not have fallen within the Main Roads Act or the State Roads Act, but under the Public Roads Act 1902 and then under Crown and Other Roads Act 1990."

To this the RTA retorted: "The appellant persists in asserting that on the hearing the respondent 'relied upon' the declarations of 1960, 1966 and 1993 (and, inferentially, upon nothing else). The primary submission below was, however, simply that the State Roads Act operated so as to bring the land within the provisions of section 204 of the Roads Act 1993, as the road was, as matter of fact, clearly one the public was entitled to use: see written submission to Sheahan J attached to the respondent's first submission in chief to this Court. The declarations were important if that primary submission failed, because of the decision in the BP case . (It ought to be noted that Vale v Whiddon (supra) was also a case in which a declaration had been made.) That principal submission is supported by the application of the maxim, which provides a legal basis for the inference that there was an 'entitlement to use' which the facts would in any event demand be drawn."

It is true, as the Council submits, that there is no evidence to the contrary of the presumption. But that does not make it inapplicable.

Presumption of regularity: dedication 58 The RTA's argument based on Schedule 2 clause 15 of the Roads Act 1993 depends on selecting the definition of "public road" in the State Roads Act 1986. That course is not irrational, since the State Roads Act was the corresponding piece of legislation in force before the Roads Act 1993. But it is necessary to consider whether any other definition could apply. The only other possible definition appears to be that which operated at common law. In Newington v Windeyer (1985) 3 NSWLR 555 at 558-559 McHugh JA said (Kirby P and Hope JA concurring): "At common law the making of a public road requires the fulfilment of two conditions: an intention to dedicate the road as a public road and an acceptance by the public of the proffered dedication … . The dedication could be made expressly or be inferred from the conduct of the owner … . Dedication to the public may also be presumed from uninterrupted user of the road by the public … . But care must be taken to distinguish evidence of user, from which dedication can properly be inferred, from mere evidence of continual use even for a very long period. At common law, continual trespassing could not create a public road. The evidence must raise the inference that, at some point of time, the owner dedicated the road to the public." 59 Further, s 178 of the Conveyancing Act 1919 provides: "No dedication or grant of a way shall be presumed or allowed to be asserted or established as against: (a) the Crown, or (b) persons holding lands in trust for any public purposes, by reason only of user, and this whether in proceedings instituted by or on behalf of the Crown or not, and whether such user commenced before or after the eighteenth day of October, one thousand eight hundred and sixty-one (being the day of the commencement of the Crown Lands Alienation Act of 1861 )."

However, even though no dedication has been proved in the sense that the RTA has not pointed to any dedication or acceptance, the presumption of regularity discussed in earlier paragraphs would operate, if necessary, to permit satisfaction of the common law definition of "public road". 60 The Council submitted that the land could not have been the subject of dedication at common law because various acts in relation to it, including dedication, were prohibited by the Crown Lands Consolidation Act 1913, ss 6(2) and 235B and by the Crown Lands Act 1989 s 6 unless authorised by statute. In answer the RTA pointed to passages in Vale v Whiddon (1949) 50 SR (NSW) 90 which discussed s 8 of the National Parks Act 1912, depriving the trustees of the National Park of any powers alienating, charging or in any other way disposing of the relevant land. At 97 Street J (Maxwell J concurring) said: "It was argued that the prohibition against alienation read with the section which vests the soil of roads in the local council was an indication that the sections could not be so construed as to create The Lady Wakehurst Drive a public highway. I do not think there is any force in this argument. The trustees have not attempted to exercise any power of alienating the land over which the road in question passes, and whether s 232 in the circumstances of this case operates to vest the fee simple of this land in the local council is not a matter which needs to be determined."

At 102 Herron J said: "… there is not any reason why trustees in whom land is vested for public purposes cannot dedicate the surface to the use of the public as a highway. … … Here … neither power of regulation nor an examination of the circumstances of the trust property deny in any way the power of the trustees to make roads for use as a highway by members of the public, nor does a reference to s 8 of the Public Parks Act, 1912, deny such a right. The trustees are, by that section, not capable of alienating or disposing of the land. This, however, does not prevent the trustees themselves from allowing public rights of easement on roads constructed by themselves or the construction of which and the maintenance of which is handed over to some public authority, or under the provisions of the Main Roads Act, 1924-48."

Those passages, however, do not apply to statutory prohibitions on dedicating land. 61 However, s 80 of the Crown Lands Act 1989 gives the Minister power to dedicate Crown land for a public purpose. Section 24(1) of the 1913 Act contained a similar power. The point of the presumption of regularity is to permit an inference to be drawn until the contrary is established. The Council has not established that there never was any dedication under either s 80 or s 24(1). Accordingly the relevant inference can be drawn.

Did the Council "own" Dobroyd Parade? 62 The second major group of arguments advanced by the Council centred on the contention that the Council did not own Dobroyd Parade. Rather the Council submitted that it was the Crown which owned it. That position was not altered by the Crown Lands Act 1989. Section 92(1)-(2) provided: "The Minister may, by notification in the Gazette, establish and name a reserve trust and appoint it as trustee of any one or more specified reserves or any one or more parts of a reserve. A reserve trust established under subsection (1) is constituted by this Act as a corporation having as its corporate name the name assigned to the trust in the notification of its establishment."

Section 100(1) provided: "For the purposes only of this Part and a by-law under this Part, a reserve trust that, but for this section, would not have an estate in fee simple in the reserve has such an estate."

It was common ground that the 2349m2 was part of a "reserve" and that the Council was a "reserve trust". That meant that the Council had a fee simple in the land, but only for the purposes of Part 5 of the Crown Lands Act 1989: Prince Alfred Park (D500038) Reserve Trust as Trustee of the Prince Alfred Park v State Rail Authority of New South Wales (1997) 96 LGERA 75 at 79. The Council submitted that while it had a sufficient interest in the land as trustee to justify a claim for compensation pursuant to s 37 of the JTC Act, it did not "own" the land. 63 The RTA submitted that ss 204-206, and their predecessor, s 233 of the Local Government Act 1919, adopted a restrictive policy in relation to compensating Councils whose roads were compulsorily acquired. The policy was to compensate Councils only for their costs. This may be true, but it does not illuminate the construction of s 204 and s 206. The RTA's specific argument on the construction of the word "owned" was that since the Dictionary to the Roads Act 1993 defined "owner of land" as meaning "any person who has an interest in land", a public road was owned by the Council if the Council had an interest in it, being an interest which need not be a fee simple. Without referring to it, the RTA was in effect appealing to s 7 of the Interpretation Act 1987, which provides: "If an Act … defines a word or expression, other parts of speech and grammatical forms of the word or expression have corresponding meanings." 64 In reply, the Council pointed out that if ss 204-206 applied, the compensation which a Council received did not correspond with any particular interest the Council might have in the public road in question. That in turn suggested that the sections only applied to instances where the Council owned the public road in fee simple, and did not apply where it merely had a more limited interest. Sections 204-206 postulated public roads on which Councils had spent money in acquisition and construction. They did not postulate roads through reserves administered by Councils as reserve trusts owned by the Crown, being reserves in which the Councils as reserve trusts had a fee simple for the limited purposes of the Crown Lands Act 1989, Part 5: see s 100(1). That type of land holding - land owned in fee simple by the Crown for general purposes, with a conferral of limited powers of management on Councils which ordinarily would never spend money in acquiring or constructing roads - is, on the Council's submission, entirely outside the contemplation of s 204 in its reference to public roads "owned by" the Councils. 65 Section 145(3) of the Roads Act 1993 provides: "All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority."

The appropriate road authority was the Council by reason of s 7(4) of the Roads Act . If Dobroyd Parade is a public road, s 145(3) purports to vest it in the appropriate roads authority, namely, by reason of the operation of s 7(4), the Council. Against its own interests, in this Court the Council conceded this. It did so in the following language: "WEBSTER: … So far as this road was concerned, it was never opened or dedicated as a public road under the Crown Lands Act, in other words it was never a road which in any way, nor could it be, when it was within a public reserve as it was, and nor was it a road declared to be a public road for the purposes of this Act. So that there was nothing which in the circumstances made it a public road, so therefore under s 145 there was no provision in that which would enable the fee simple of the particular area that we were made trust manager of for it to vest in us. It would be incongruous to suggest that we are a trust manager under the Crown Lands Act with both limited and extensive powers under that Act for then us to have a fee simple under the Roads Act, because in fact the Crown Lands Act does provide for a council where it is appointed as a trust manager to have powers under the Local Government Act. DAVIES AJA: Section 145 speaks about the appropriate road authority. Who would be the appropriate road authority? …

WEBSTER: … The council for the local government [area] is the road authority for all public roads within the area. … DAVIES AJA: Let me just follow this through. For all public roads within the area other than any public road for which some other public authority is declared by the regulations to be the road authority. Was anyone declared to be the road authority? WEBSTER: Not in this case, your Honour, no … . DAVIES AJA: I'm just trying to get to it very slowly. You concede I take it that if it were a public road that council would have had a fee simple title in relation to this part of the road? WEBSTER: If the land fell within the definition of public road within the Roads Act then obviously those sections would apply and therefore it would come within the provision of s 204 … ." 66 In further written submissions invited after the close of oral argument, the Council submitted that even if, contrary to earlier submissions, the area of 2439m2: "was presumed to be dedicated as a Public Road, thereby entitling the Public to use that road at common law, that does not change the ownership of this land. The land still remains in the name of the Crown and [s 204] does not apply, as the Council was not 'the owner of the road' as required by s 204."

This appears to be a departure from the concession. This would not matter, save that the Council did not advance any reason for supposing that the concession was unsound and that the departure from it was correct. 67 In oral argument in this Court the RTA said its argument did not depend on s 145(3), but on the proposition that the word "owned" referred to the ownership of interests less than the fee simple. In further written submissions invited after the conclusion of oral argument, the RTA altered its position. It said: "It is submitted that the better view is one which, having recognised the land's permanent status as a public road for the purposes of the Roads Act, accepts that the land is vested by virtue of section 145(3) of that Act (and by virtue of earlier measures) in the council."

One of the "earlier measures" is s 232 of the Local Government Act 1919, which was said by the RTA to have "operated to vest the fee-simple of all public roads in the council". However, further investigation of the source by which the Council acquired a fee simple in the road is made unnecessary by its concession that if the road was a public road, it had the fee simple and by the fact that its departure from that concession was not supported by any reasoning.

Change of course by RTA 68 The legislative background to the compensation claim in relation to the 2349m2 is as follows. The JTC Act s 29(1) provides that land may be compulsorily acquired by the RTA even though it is Crown land. The JTC Act s 19(1) provides that the RTA has power to declare by notice published in the Gazette that any land described in the notice is acquired by compulsory process. The effect of the publication was to vest the land in the RTA. The relevant notice was published in the Gazette on 7 November 1997, and it identified Lots 15, 16 and 17. As indicated above, the notice said of Lot 15 that the "land is said to be in the possession of the Crown (Owner) and Ashfield Municipal Council (Trustee)." The notice said of Lots 16 and 17 that the "land is said to be in the possession of the Crown (Owner) and Ashfield Municipal Council (Corporation appointed to manage the affairs of the Reserve Trust)." Section 37 provides: "An owner of an interest in land which is divested, extinguished or diminished by an acquisition notice is entitled to be paid compensation in accordance with this Part by the authority of the State which acquired the land."

Section 42(1) provides: "An authority of the State which has compulsorily acquired land under this Act must, within 30 days after the publication of the acquisition notice, give the former owners of the land written notice of the compulsory acquisition, their entitlement to compensation and the amount of compensation offered (as determined by the Valuer-General)."

Section 42(2) provides: "The compensation notice must be given to all former owners of the land who, immediately before the acquisition: (a) had a registered interest in the land; or (b) were in lawful occupation of the land (but only if the authority of the State considers they are entitled to compensation); or (c) had, to the actual knowledge of the authority of the State, an interest in the land which entitles them to compensation." 69 On 9 December 1997 (that is, slightly more than the 30 days after publication of the acquisition notice in the Gazette on 7 November 1997) the RTA sent the Council a Compensation Notice pursuant to s 42(2). The first four paragraphs read: "A Proposed Acquisition Notice dated 6 August 1997 was given to you by the Roads and Traffic Authority of New South Wales advising that your interest in the land described in the attached schedule would be compulsorily acquired. The Acquisition Notice was published in Government Gazette No 119 of 7 November 1997. A copy of the page of the Gazette on which the notice appears is enclosed for your information. The effect of the Acquisition Notice is to extinguish your interest in the land and convert such interest into a claim for monetary compensation. The Valuer-General has determined the amount of compensation to be offered to you for your interest in the acquired land at $77,000. A copy of the determination is attached."

The determination does not appear to be in the appeal papers. The "attached schedule" described Lots 15, 16 and 17. Paragraph 5 told the Council what it should do if the $77,000 was acceptable. Paragraph 6 read: "If the offer of compensation is not acceptable and you have lodged a Claim for Compensation with the Roads and Traffic Authority of New South Wales you may lodge an objection with the Land and Environment Court within 90 days of the date you receive this notice." 70 As has been said above, the area of 2349m2 in relation to which the RTA successfully contended before the primary judge that no compensation was payable under the JTC Act, is that part of Lot 15 which is the road called Dobroyd Parade. It is significant that the Compensation Notice did not say in paragraph 3 or paragraph 6 or elsewhere words to the effect: "Your claim for monetary compensation may only be pursued in the Land and Environment Court with respect to 3241m2 of the land, because the other 2349m2 (being a large part of Lot 15) is part of the public road which you own. Any claim for compensation as to that 2349m2 can only be pursued, if at all, under s 261 of the Roads Act 1993." If the RTA had issued the Compensation Notice on the basis that the 2349m2 was owned by the Council, as it contends in this litigation, the Compensation Notice was objectively misleading in that it did not distinguish between the 2349m2 and the 3241m2. Counsel for the RTA said: "We are bound by what we say in the compensation notice but all the compensation notice says is that the effect of the acquisition notice is to extinguish your interest in land and convert your interest into a claim for monetary compensation and $77,000 is offered. It doesn't say and you are entitled to so much per square metre for every square metre that we have taken."

A reasonable and responsible officer of the Council reading the Notice might think that the task to be considered was to compare the value of the whole 5590m2 with $77,000, not to compare the value of only 3241m2 with $77,000. To the extent that that officer spent money or time on preparing to assess the value of 2349m2, it would be spent on an enterprise beyond that which the RTA contemplated as appropriate. And the Council officer would be surprised to learn that in relation to 2349m2, a large part of the land, the Council should be pursuing the Council's rights, if any, under s 261 of the JTC Act. 71 In these circumstances it might have been open to argue that in this litigation the RTA was debarred from contending that s 204 applied on the basis that it has. It might have been argued that the RTA had made, in a document which it had a statutory duty to issue, an admission from which it should not be allowed to depart. It might have been argued that some conventional estoppel or some other estoppel operated against it. In fact none of these arguments were advanced by the Council either before the primary judge or in this Court. 72 In the case of some types of litigation, it would be a matter of surprise and regret that the ostensible posture of the RTA had apparently altered. This is not litigation of that type. Whatever the Council recovers may be applied in accordance with directions given by the Minister pursuant to s 106 of the Crown Lands Act 1989, and the compensation may be directed away from the reserve land or from any other activity of the Council. In effect, one arm of the Crown is suing another arm of the Crown. Were it not for the fact that the appeal has been filed and listed for hearing in the normal way, there would in fact be much to be said for the proposition that it should not be dealt with until every other civil appeal filed had been heard and decided, every criminal appeal had been heard and decided, every criminal prosecution in the court had been disposed of using the judges of appeal as trial judges, and every civil action in the court had been disposed of using judges of appeal as trial judges. Only then would it be right to give an appeal having so low a priority a hearing. But lacking in entitlement to urgent, or indeed any, consideration though this appeal is, given that the Council has taken no objection to the conduct of the litigation by the RTA, it does not seem right for this Court to intervene of its own motion and hold that the RTA is debarred from now taking a course different from that which it took in the Compensation Notice.

Grounds 1-3: conclusion 73 The reasoning to this point has led to the conclusion that Dobroyd Parade was a "public road" because it was declared to be part of a main road: that can only have been done lawfully by the Minister for Roads if the Minister for Lands had granted a licence for the use of it by the public; and that grant should be presumed: see [50]-[57]. Alternatively, it was a "public road" at common law by reason of a dedication which has not been proved but should be presumed: see [58]-[61]. By reason of the Council's concession that if the road was a public road s 145(3) operated to give it the fee simple, ss 204 and 206 apply, and Grounds 1-3 fail. 74 It follows that the RTA is correct in its contention that the primary judge rightly applied his market value analysis not to the whole 5590m2 but only the 3241m2.

Compensation 75 I agree with the reasoning of Davies AJA on this subject.

Orders 76 I agree with the orders proposed by Davies AJA. The short minutes should provide for the respondent to pay the appellant's costs of the appeal. 77 DAVIES AJA: This is an appeal from the judgment of a Judge of the Land and Environment Court of New South Wales ("the Court"). The proceedings arose from the compulsory acquisition by the Roads and Traffic Authority of New South Wales ("the RTA") of Lots 15, 16 and 17 Deposited Plan 868083. Lot 15, which was part of Robson Park, had been dedicated for public recreation by notification in the Government Gazette of 12 January 1945. The Ashfield Municipal Council ("the Council") was appointed trust manager of Robson Park on 18 October 1996. Lots 16 and 17 were parts of the Richard Murden Reserve, a reserve for public recreation notified in the Government Gazette of 1 December 1978. The acquisition was associated with a construction by the RTA of the City West Link Road, which linked Victoria Road, Rozelle to Boomerang Street, Haberfield. The road ran along Dobroyd Parade near Haberfield and it was the realignment of Dobroyd Parade in the vicinity of relevant public reserves and the UTS Haberfield Rowing Club which occasioned the acquisitions. 78 Lots 15, 16 and 17 comprised a total of 5,590 square metres. Subsequent to the acquisition, it was ascertained that the existing alignment of Dobroyd Parade encroached to the extent of 2,349 square metres upon the acquired land. 79 Three relevant notices had been given: a notice dated 6 August 1997 advising that the lands would be compulsorily acquired; a notice published in the Government Gazette of 7 November 1997 which provided that the interests in the lands were thereby acquired under compulsory process; and a compensation notice dated 9 December 1997 which determined the amount of compensation at $77,000. Clause 6 of the compensation notice stated:- "6. If the offer of compensation is not acceptable and you have lodged a Claim for Compensation with the Roads and Traffic Authority of New South Wales you may lodge an objection with the Land and Environment Court within 90 days of the date you receive this notice."

The Council lodged such an objection. 80 Each of the notices described the lands in these or similar terms:- "All that piece of parcel of land situated in the Ashfield Municipal Council area, Parish of Concord and County of Cumberland, shown as Lot 15 Deposited Plan 868083, being part of the land dedicated for public recreation by notification in the Government Gazette of 12 January 1945 on page 61, excepting from the acquisition of Lot 15, the Easement for Electricity Purposes shown on Deposited Plan 638982. The land is said to be in the possession of the Crown (Owner) and Ashfield Municipal Council (Trustee). Also all those pieces or parcels of land situated in the Ashfield Municipal Council area, Parish of Concord and County of Cumberland, shown as Lots 16 and 17 Deposited Plan 868083, being parts of Reserve 91335 for public recreation notified in the Government Gazette of 1 December 1978 on page 4997. The land is said to be in the possession of the Crown (Owner) and Ashfield Municipal Council (Corporation appointed to manage the affairs of the Reserve Trust)."

Public Road 81 Notwithstanding the description of the lands in those notices, when the matter came before the Court counsel for the RTA submitted that the Court lacked jurisdiction to deal with the claim for compensation for the 2,349 square metres of land upon which Dobroyd Parade actually encroached. Counsel for the RTA relied upon the provisions of s 204 of the Roads Act, 1993 which provides:- "204 Council entitled to compensation if Crown compulsorily acquires public road (1) A council is entitled to compensation under this Division for a public road owned by the council that is acquired by the Crown by compulsory process. (emphasis added)

(2) The provisions of this Division apply in substitution for the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 with respect to compensation." 82 Section 206 of the Roads Act makes provision for compensation to be paid for such an acquisition in lieu of that which would be payable under the provisions of the Land Acquisition (Just Terms Compensation) Act, 1991. I need not describe those terms, save to say that the Council was not entitled to compensation thereunder, insofar as the subject lands were concerned. 83 Counsel for the RTA referred to s 145(3) of the Roads Act which provides:- "(3) All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority."

He submitted that the land upon which the road encroached was thus "a public road owned by the council" and that ss 204 and 206 of the Roads Act excluded the jurisdiction of the Court. 84 The trial Judge held that ss 204 and 206 of the Roads Act applied and that the question of compensation payable was not a matter for the Court, as it lacked jurisdiction. 85 On this issue I agree with Heydon JA. I would add, moreover, that the 2349 square metres of land that was part of Dobroyd Parade no longer had value as open space available for public recreation. For that purpose, the land was valueless, being devoted to use as a road. As the Council founded its claim for compensation on the value of public open space, the roadway was properly excluded from consideration. Compensation 86 On the issue of compensation, the trial Judge held, correctly, that the subject lands should not be valued as if they could be used as residential lands. His Honour examined the value of comparable open space. His Honour concluded that the most relevant, if not genuinely comparable, of the eighteen sales before the Court were the Cammeray sale ($146 per square metre), the Sans Souci sale ($156 per square metre), the La Perouse sale ($63 per square metre), the Randwick sale ($111 per square metre) and the Belmore sale ($286.80 per square metre). Taking the average of these sales, his Honour arrived at $152.50 per square metre as the value of comparable open space. 87 The Cammeray land had been purchased by a municipal council for local open space. On the evidence of Mr T M Dundas, the valuer called on behalf of the Council, the only way the land could be accessed was through a park from a suspension bridge. Mr Dundas said that its use was very, very limited. The price paid was $146 per square metre. The Sans Souci land was purchased at $156 per square metre by the Rockdale Council for open space purposes. It was an inferior site, bisected by a large open drain. In the view of Mr Dundas, it was inferior to the subject lands. The La Perouse land, sold at $63 per square metre, was purchased as an addition to the Botany Bay National Park and, at the time, was zoned county open space. The Randwick land was sold for $111 per square metre. It was, at the time, open space, being part of a transport corridor, previously a tram route. The Randwick Council purchased the land as a result of public pressure to acquire open space land. The Belmore land was purchased for $286.80 per square metre by the Canterbury Council for open space purposes. The Canterbury Council intended to purchase additional properties in the area to create a useable park. 88 The quality of Lots 15, 16 and 17 would seem to have been equal to or higher than the quality of these other properties, having regard to the relatively level slope of their land, the proximity to Parramatta River, the view of the water and accessibility. 89 His Honour then turned his attention to the interest which the Council had in the lands. The trial Judge said:- "48. Section 100(1) [of the Crown Lands Act ] states that, for the purposes of Part 5 (ss 78-128) of the CLA and any by-law made under that part, 'a reserve trust that, but for this section, would not have an estate in fee simple in the reserve has such an estate'. 49. I accept Mr Ayling's contention that this means that the Crown holds the fee simple of the trust lands, but vests in the Council, for the purposes of the Council's exercise of its functions as trustee or trust manager under the CLA, those incidents of the fee simple which the Council needs in order to achieve those purposes.

50. Council's interest is, therefore, 'limited', but it is regarded as an estate in fee simple for the purposes of only the CLA. Such limited interest is, however, an interest for which the Council is entitled to be paid compensation. ( Prince Alfred Park Reserve Trust v SRA (1997) 96 LGERA 75)." 90 In Prince Alfred Park Reserve Trust v State Rail Authority of NSW (1997) 96 LGERA 75, the Sydney City Council was the manager of the Prince Alfred Park Reserve Trust constituted under Part 5 of the Crown Lands Act, 1989 as trustee of the reserve. Pearlman J held, at p 81:- "Here, the reserve trust has a panoply of powers, although their exercise is not unfettered, since the Minister's consent is required. It is clear, however, that the Crown Lands Act contemplates that those powers (of leasing, sale, mortgage etc) are exercisable, not by the Minister, but by the reserve trust itself. For example, the language of s 103 is that the 'reserve trust may sell, lease … the reserve in accordance with the terms of the Minister's consent' and s 105 refers to the 'exercise of functions' by the reserve trust. It is also clear, I think, that the reserve trust has more than the mere 'control' of the reserve trust in respect of which it is appointed - it may exercise the powers which I have set out, including the power of leasing. I conclude that the applicant has an 'interest' in the resumed land within limb (b) of the definition of 'interest' in s 4 of the Just Terms Act. It exercises powers of sale, leasing and mortgaging in relation to Prince Alfred Park, which are, in my opinion, powers over or in connection with the Park, including the resumed land. The applicant is accordingly entitled to be paid compensation under s 37 of the Just Terms Act." 91 Pearlman J awarded to the Prince Alfred Park Reserve Trust the market value of the resumed land, having regard to comparable sales. No discount was given for restrictions, such as the restriction that a reserve trust may sell or lease the land only with the Minister's consent and in accordance with the terms of the Minister's consent. 92 Notwithstanding that decision and notwithstanding that the subject lands were held upon similar trusts, the trial Judge reduced the market value derived from comparable sales by two-thirds. His Honour said, referring to the powers and restrictions set out in Division 5 of Part 5 of the Crown Lands Act:- "56. In view of those matters, I believe I should follow the principles laid down and applied in cases such as the NSW Court of Appeal decision in Hornsby Shire Council v RTA of NSW (1998) 100 LGERA 105, and so have regard to Mr Finlay's opinion that the value should be reduced by as much as 75%. To resolve any ambiguity in favour of the claimant, I intend to apply the discount applied by Bannon J in Hornsby , namely two-thirds, despite Stein JA's comment, on appeal (at 108), that such may be considered 'generous'." 93 In Hornsby Shire Council v Roads and Traffic Authority of NSW (1998) 100 LGERA 105, the Court of Appeal, Priestley, Stein JJA and Sheppard AJA, considered an appeal from the judgment of Bannon J in the Court. Bannon J had arrived at a value from sales which were put forward as comparable sales and, after taking into account the fact that the subject land was classified as "community land" under the Local Government (Consequential Provisions) Act, 1993, his Honour had reduced that value by two-thirds. At pp 107-108, Stein JA, with whom Priestley JA and Sheppard AJA agreed, said:- "In examining the issue of the restriction, Bannon J noted that community land could only be used in accordance with a plan of management of the land and that the land was largely dedicated to public use. Accordingly, he concluded, 'the value of the land in the market place must be regarded as small'. Having held that, but for the resumption, the land would have remained restricted open space, his Honour said he was unable to award the full amounts set out by Mr Wood 'or anything like them'. He noted that there was no 'yardstick afforded by the evidence as to the value to the council of the subject parcels as open space subject to restrictions ' (emphasis added). After having correctly and in accordance with Corrie v MacDermott , rejected a nominal value, Bannon J said: 'Doing the best I can, I regard the market value of the subject land, having regard to the restrictions applicable, as being one-third of Mr Wood's open space valuations.' It seems apparent that his Honour was 'valuing' the restriction at two-thirds of the market value. That is, he concluded that the depressive effect of the restriction reduced the market value to one-third. In doing so, his Honour properly applied Kitto J in Royal Sydney Golf Club v Commissioner of Taxation (Cth) (at 391)." 94 The facts of that case were significantly different from the facts which were before the trial Judge in the present case. In Hornsby, the land was classified as "community land". There were detailed requirements relating to such land, requirements which now appear in Part 2 of Chapter 6 of the Local Government Act, 1993. A council had no power to sell, exchange or otherwise dispose of community land. A council could grant a lease or licence or other estate in respect of community land but only for the very limited purposes specified in the statute. The lands which are the subject of the present proceedings were not community lands and were not subject to those restrictions. The trial Judge expressly held that he could "see no basis on which I should reduce the value of the acquired lands to take account of the provisions of the LGA". 95 Before turning to the restrictions to which the lands were subject, I should say something about the principles to be applied. The Land Acquisition (Just Terms Compensation) Act provides, inter alia:- " 37. An owner of an interest in land which is divested, extinguished or diminished by an acquisition notice is entitled to be paid compensation in accordance with this Part by the authority of the State which acquired the land. … 54. (1) The amount of compensation to which a person is entitled under this Part is such amount as, having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of the land. … 55. In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division): (a) the market value of the land on the date of its acquisition;

(b) any special value of the land to the person on the date of its acquisition;

(f) any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired. 56. (1) In this Act: "market value" of land at any time means the amount that would have been paid for the land if it had been sold at that time by a wiling but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid): (a) any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired; and

(b) any increase in the value of the land caused by the carrying out by the authority of the State, before the land is acquired, of improvements for the public purpose for which the land is to be acquired; and

(c) any increase in the value of the land caused by its use in a manner or for a purpose contrary to law." 96 The matter in issue before the trial Judge was the market value of the Council's interests in Lots 15, 16 and 17. It was not in dispute that the Council's interests were such that it should be treated as the owner of the Lots and that any relevant restrictions imposed upon the use or dealing with the Lots should be taken into account. In Corrie v MacDermott [1914] AC 1056, Lord Dunedin, delivering the judgment of their Lordships, said, at p 1062:- "The value which has to be assessed is the value to the old owner who parts with his property, not the value to the new owner who takes it over. If, therefore, the old owner holds the property subject to restrictions, it is a necessary point of inquiry how far these restrictions affect the value." 97 In Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495, Dixon J said, at pp 571-572:- "Compensation prima facie means recompense for loss, and when an owner is to receive compensation for being deprived of real or personal property his pecuniary loss must be ascertained by determining the value to him of the property taken from him. As the object is to find the money equivalent for the loss or, in other words, the pecuniary value to the owner contained in the asset, it cannot be less than the money value into which he might have converted his property had the law not deprived him of it. You do not give him any enhanced value that may attach to his property because it has been compulsorily acquired by the governmental authority for its purposes ( Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam (1939) AC 302, at p 318). Equally you exclude any diminution of value arising from the same cause. The hypothesis upon which the inquiry into value must proceed is that the owner had not been deprived by the exercise of compulsory powers of his ownership and of his consequent rights of disposition existing under the general law at the time of acquisition." 98 In Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610, it was held that, in arriving at the unimproved value of land under the Land Tax Assessment Act, 1910, the land should not be valued without regard to the provisions and effect of the County of Cumberland Planning Scheme Ordinance, which was a general law applying to the land and limiting its use. 99 A more limited restriction was given effect in Sydney Sailors' Home v Sydney Cove Redevelopment Authority (1977) 36 LGRA 106. In that case, it was held that it was necessary to have regard to the restrictions which were imposed upon the sale of the land and the circumstances in which it could be sold. Hope JA, with whom Moffitt P and Glass JA agreed, held that it was necessary to take account of the fact that the property had been the subject of a dedication of Crown lands for a purpose which may be briefly described as the carrying on of the Sydney sailors' home. The company holding the land had executed a declaration of trust under the Crown Lands Consolidation Act, 1913, which included a provision that the land would not be sold, exchanged, leased, mortgaged or charged or otherwise dealt with, without the approval of the Governor for the State of New South Wales with the advice of the Executive Council of the State. Hope JA held that the restriction on sale, without approval, was a relevant matter and that the assessor could not assume that consent would be given without a restriction on the disposition of the proceeds of sale. 100 It was, therefore, necessary for the trial Judge to take into account, insofar as they were relevant, any restrictions placed upon the use of the lands, any restrictions imposed upon the sale of the lands and any restrictions imposed upon the disposition of the proceeds of sale. 101 Each of the Lots was subject to a trust to which the provisions of Division 5 of Part 5 of the Crown Lands Act applied. The Council was the manager of the trust. Section 102 provided that the trust may not sell, lease or mortgage land, unless the trust has decided that it is desirable to do so, has given public notice of its intention and the Minister has consented in writing. Section 102(6) provides that, in giving consent, the Minister may impose such terms and conditions as the Minister thinks desirable. Section 106 provided, inter alia, that proceeds from a sale, lease, etc, made by a trust shall be applied in accordance with directions, if any, given by the Minister and that, in the absence of a direction, the proceeds shall be applied for the general purposes of the trust. 102 Under these provisions of the Crown Lands Act there was adequate power to sell the lands provided that the Council considered it appropriate to do so and the Minister consented. As a market value presupposes a ready and willing vendor and a ready and willing purchaser, it is difficult to see why it should not be assumed that a sale to the RTA may have been regarded as appropriate and one to which the Minister would have consented. The trial Judge accepted that alienation "for such public purposes as the making or improvement of public roads" was a possibility. There was no evidence before the trial Judge that the circumstances were such that it should be inferred that the Minister's consent would not have been given. 103 In Sydney Sailors' Home, the position was different. It was there held that the unqualified sale of the land was not an object in accordance with which the land was to be used and the consent of the Governor-in-Council could not have been given to what would have been a breach of trust. That is not the present case. 104 The position, therefore, is that the Lots were lands which the RTA wished to acquire and did acquire and they were lands which the Council had power to sell with consent. In this circumstance, the assessment to be made was an assessment of the fair market value of that which was taken. The first and most important factor to be considered was the land itself, its position and qualities. The subject lands were accessible, level land adjacent to the Parramatta River. They were in an area of Sydney in which the land available for public recreation was limited. The trial Judge referred to a report which "highlighted the deficiency of the Council in open space". 105 The community would have regarded the lands as valuable public open spaces. Increasingly, public open space is regarded as a necessary and valuable community asset. Increasingly, councils are building up their reserves, not destroying them. In the area in which the subject lands were situated, there was not such an abundance of open space land that the subject lands would have been regarded as having only minimal value. 106 It was, therefore, significant that the comparable properties upon which the trial Judge relied were properties which had been purchased by municipal councils for public recreation or public open space. Those sales demonstrated the value which communities in Sydney were prepared to pay to obtain such land. Although none of the land in the comparable sales was subject to any specific restriction, public open space was its highest and best use and, in each case, the land was purchased for that purpose. In no case was the land purchased for profit making, for development or for resale. It was purchased with the intention that it would be held and used as public open space or for public recreation. 107 In this context, the restrictions imposed upon the subject Lots had little significance. The comparable sales were of lands which had been acquired for a comparable use. The comparable sales reflected the value which the community placed upon such land. 108 The task is always to assess the value of that which has been acquired. The subject lands were held by a municipal council and were devoted to public recreation. The comparable sales, which reflected acquisitions made by councils of land to be devoted to such a purpose, were good evidence of the value to the Council of the lands from which it has been dispossessed. 109 In my opinion, the trial Judge erred in law in applying the two-thirds discount which was applied by Bannon J, at first instance, in Hornsby Shire Council v Roads and Traffic Authority of NSW [1996] NSWLEC 152. There is no practice or principle of law which makes a two-thirds discount appropriate in itself to a case involving restrictions of the type with which we are concerned. Every case turns upon its own facts. 110 In Hornsby, the judgment of Bannon J shows that the comparable sales were "sales of other open space lands, not being sales for medium density or residential housing … the lands examined were not subject to the same restrictions as the subject parcels at the time of purchase, although they were generally in areas zoned for open space or public recreation". The crux of Bannon J's findings was expressed in these words:- "Having arrived at the lugubrious conclusion that but for the resumption, the land would remain restricted open space, I am unable to award to the Council the full amounts set out by Mr Wood [the RTA valuer] in his Exhibit 9, or anything like them. By comparison to West Princes Street Gardens below the Castle in Edinburgh this is wild gully country. No yardstick was afforded by the evidence as to the value to the Council of the subject parcels as open space subject to restrictions. Mr Wood's valuation was of open space without restrictions." 111 It will be seen that Bannon J did not regard the comparable sales as truly comparable. Moreover, he regarded the land which had been compulsorily acquired as "wild gully country". As there is a great deal of such country in and adjacent to the Hornsby Shire, Bannon J was well justified in concluding that the land acquired did not have a great value. It was on this basis that his Honour placed a discount of two-thirds on the figure arrived at from available comparable sales. 112 The facts in Hornsby are not the facts of the present case. The subject lands were public open spaces adjacent to the Parramatta River. They were in an area where public open space was limited. The community would have regarded the lands as valuable community assets. 113 In my opinion, the trial Judge erred in law in his approach. The trial Judge adopted the two-thirds discount applied in Hornsby without considering its relevance to the facts of the case before him. 114 Unless the parties agree on the amount of compensation that should be awarded, I would remit the matter for rehearing in respect of the lands excluding the 2349 square metres part of Dobroyd Parade. I would direct that the parties bring in short minutes within 21 days. **********

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