Bisits v Registrar-General

Supreme Court of NSW|2002-06-07|Before: Windeyer J

CITATION : Bisits v Registrar-General [2002] NSWSC 543 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4104 of 2001 HEARING DATE(S) : 7 June 2002 JUDGMENT DATE : 20 June 2002

PARTIES : Adam Bisits, Warwick Malouf and Votraint No 540 Pty Limited (Plaintiff) Registrar-General of New South Wales (Defendant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr R B S Macfarlan QC with him Mr I Pike (Plaintiff) Mr I Wales, SC (Defendant) SOLICITORS : Blake Dawson Waldron (Plaintiff) K C Hall (Defendant) CATCHWORDS : REAL PROPERTY - partition of land - sub-division - original portion divided by road sub-divided into two lots shown on Deposited Plan - one of the two lots divided by the road - plan lodged for registration of that lot into two lots in accordance with road division without sub-division certificate - whether sub-division plan or identification plan Conveyancing Act 1919 s7, Div 3, 3A, Conveyancing Act Regulations, 1961, Part IV LEGISLATION CITED : Conveyancing (General) Regulation 1992, s14, s19, Sch 4 Crown Lands Alienation Act 1861 s5 Interpretation Act 1987, s87 Real Property Act 1900, s37 Rapley v Martin [1865] 4 SCR 173 CASES CITED : Registrar General v Lee (1990) 19 NSWLR 240 Baalman and Wells Land Titles Office Practice 5th Ed para 131.200 Hallmann's Legal Aspect of Boundary Surveying as Apply in New South Wales 2nd Ed, E.K Ticehurst, paragraph 14.28 DECISION : See paragraph 19

12 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4104/01 ADAM BISITS & ORS v REGISTRAR GENERAL OF NEW SOUTH WALES JUDGMENT 1 The question for decision is whether a plan lodged by the plaintiffs with the Registrar General for registration, which he has refused to register, is a plan of identification or a plan of sub-division within the Conveyancing Act 1919. If the former, the Registrar General is bound to register it; if the latter he is not bound, because it does not have a sub-division certificate endorsed upon it. Facts 2 The plaintiffs are registered proprietors of the land in Folio Identifiers 1/826655 and 2/826655 being respectively Lot 1 and Lot 2 in Deposited Plan 826655. The land is at Tilba on the south coast. Lot 1 comprises 2.04 hectares and Lot 2 16.78 hectares. 3 The land in question comprises Portion 178 Parish of Noorooma (now Narooma) excluding the area of a road passing through the portion. The land was purchased from the Crown by conditional purchase 1895/38 Moruya and Land Grant Vol 4335 Folio 207 issued in 1929. A copy of the relevant plan catalogued in the Lands Department D3270-18 appears below. 4 Most of the plan is represented in the diagram on the land grant. The words within the lines showing the road where it passes through Portion 178 are "Res Road 100 wide". 100 is 100 links. On the northwest the road separates Portion 234 from Portion 178 and is not within the portion. On part of the south side the road separates Portion 178 and the ten acres shown as PR 4363. 5 In 1992 the plaintiffs as registered proprietors, registered a plan of sub-division of Portion 178. A copy of the relevant part of their plan appears below. The plan was registered as Deposited Plan 826655 on 3 December 1992 and it was as a result of this that the current Folio Identifiers issued. 6 In 2000 the plaintiffs lodged with the Registrar-General for registration a plan described as "a plan of division of Lot 2 in DP 826655". A copy of this appears below. The plan was allocated number DP 1015451 upon lodgement. The Registrar-General has refused to register this plan in the absence of a sub-division certificate. The plaintiffs contend no such certificate is required as the plan is an identification plan. If the plan were registered new folios would issue for each of the lots shown as 21 and 22 on that plan. Legislation 7 Conveyancing Act 1919 7 Definitions … "Crown plan" means a plan (such as a county or parish map, a town or village map or a portion plan) that has been prepared by or on behalf of the Crown and is held by the Surveyor-General, and includes a registered plan that has been lodged for registration at the office of the Registrar-General by or on behalf of the Crown. … "Existing lot" means:

(a) a lot whose boundaries are shown in a current plan, or

(b) in relation to land that is not included in a current plan, any distinct lot or portion of land whose current boundaries are identified in the document or documents that evidence current legal interests in the land,

whether comprising the whole of a parcel, or 2 or more parts of a parcel separated by land reserved or acquired for a road, railway or other like purpose. … "Registered plan" means any of the following:

(a) a plan of subdivision, a plan of consolidation or a plan of identification (each within the meaning of section 195) that is registered in accordance with Division 3 of Part 23,

(1) In this Act, "current plan" means a Crown plan or a registered plan, but does not include so much of a Crown plan or registered plan as is taken not to form part of a current plan because of subsection (2), (3) or (4).

(2) So much of a Crown plan or registered plan as merely identifies:

(a) land that is proposed to be acquired, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of the land by compulsory process, or

(b) the residue of land of which part is proposed to be so acquired, is taken not to form part of a current plan until such time as the land is so acquired.

(3) So much of a Crown plan or registered plan as merely identifies: (a) land that is, or is proposed to be, leased (otherwise than for a period that, including the period of any option to renew, exceeds 5 years), or (b) land the subject of a plan of subdivision for lease purposes (within the meaning of Division 3B or 3C of Part 2),

(4) So much of a Crown plan or registered plan as relates to land the subject of a later current plan (that is, a current plan that was filed or lodged at the office of the Registrar-General after the Crown plan or registered plan was so lodged) is taken not to form part of a current plan. Division 3A---Transactions with respect to existing lots

23F. Certain transactions to refer to lots shown on current plan

(1) This section applies to the following transactions: (a) the conveyance or transfer of part of an existing lot, (b) the lease of part of an existing lot, (c) the mortgage of part of an existing lot, (d) the partition of an existing lot. (2) The Registrar-General may refuse to register a transaction to which this section applies unless: (a) the land to which the transaction relates is shown on a current plan, and (b) the boundaries of each part into which the land is divided as a result of the transaction follow the boundaries of an existing lot. (3) This section does not apply to an agreement with respect to land the subject of: (a) a proposed plan of subdivision, a proposed plan of consolidation or a proposed plan of identification within the meaning of section 195, or (b) a proposed strata plan, proposed strata plan of consolidation or proposed strata plan of subdivision within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 ,

but the agreement is taken to be conditional on the registration of the proposed plan. Division 3---Plans 195. Definitions

(1) In this Division: " miscellaneous plan " means a plan that shows one or more of the following matters: (a) the site of an interest in land in the nature of an easement, profit à prendre or restrictive or positive covenant, being an interest that is to be created, by some other instrument, after the plan is registered, (b) survey information in relation to land the subject of some other plan, (c) such other matters relating to land as are prescribed by the regulations, but does not include a plan of subdivision, a plan of consolidation or a plan of identification. "plan of consolidation " means a plan that shows the consolidation of 2 or more existing lots into a single lot, where there is no simultaneous re-division of them into 2 or more new lots, whether or not the plan also shows one or more of the matters referred to in paragraph (a), (b) or (c) of the definition of "miscellaneous plan".

"plan of identification" means: (a) a plan supporting a primary application to bring one or more existing lots under the provisions of the Real Property Act 1900 , including a surround plan (being a plan that defines the external boundaries of a number of existing lots but merely refers to the existence of, and does not define the boundaries between, those lots), or (b) a redefinition plan (being a plan that redefines the boundaries between the lots referred to in a surround plan along the same general lines as those that defined the boundaries between those lots immediately before they were brought under the provisions of the Real Property Act 1900 , as referred to in paragraph (a)), or (c) a delimitation plan (being a plan prepared for the purposes of section 28V of the Real Property Act 1900 ), or (d) a plan that is registered for the purpose of showing the boundaries of land for which a folio of the Register kept under the Real Property Act 1900 has been created as a result of the correction of a misdescription of land, or

(e) a plan redefining the boundaries of an existing lot, or …

"plan of subdivision" means a plan that shows: (a) the division of an existing lot into 2 or more new lots, or

(b) the consolidation of 2 or more existing lots and their simultaneous re-division, along new boundaries, into 2 or more new lots, or

(c) the dedication of an existing lot as a public road under section 9 of the Roads Act 1993 or as a public reserve under section 49 of the Local Government Act 1993 , or

(d) the setting aside of an existing lot as a drainage reserve under section 49 of the Local Government Act 1993 ,

whether or not the plan also shows one or more of the matters referred to in paragraph (a), (b) or (c) of the definition of "miscellaneous plan" , and includes a plan of subdivision for lease purposes (within the meaning of Division 3B or 3C of Part 2) and any other plan that shows the division of land, but does not include a plan of consolidation or a plan of identification

(1) A plan lodged under this Division shall: (a) be prepared in the prescribed manner, (b) contain all prescribed particulars, (c) be certified, in the form prescribed under the Surveyors Act 1929 , by a surveyor registered under that Act, unless the Registrar-General dispenses with the certificate, and (d) contain a statement showing: (i) which roads (if any) shown on the plan are intended to be dedicated to the public, and (ii) whether any public reserve or drainage reserve shown on the plan is intended to be created by registration of the plan, and (e) in the case of a plan of subdivision, be endorsed, in accordance with the regulations, with a subdivision certificate. (2) Subsection (1) (e) does not apply to a plan of subdivision that is filed or lodged by or on behalf of the Crown in right of the Commonwealth. 8 Real Property Act 1900 37. Transactions effecting the subdivision of land

(1) The Registrar-General: (a) may refuse to accept a dealing or instrument for registration in the Register, or (b) may refuse to register a dealing or instrument in the Register, or (c) may reject a dealing or instrument lodged for registration in the Register, if the dealing or instrument purports to give effect to a transaction that contravenes section 23F of the Conveyancing Act 1919 . (2) The Registrar-General may refuse to create a folio of the Register for any land, and may refuse to issue a certificate of title for any land, if the land does not comprise one or more existing lots in a current plan within the meaning of the Conveyancing Act 1919 . 9 Conveyancing (General) Regulation 1992 Section 14 14. Certain deposited plans to be plans of survey (1) A deposited plan containing 5 lots or more must be in the form of a plan of survey unless the Registrar-General otherwise permits. (2) A deposited plan containing 4 lots or less must be in the form of a plan of survey if the Registrar-General so requires. Section 19 19. Deposited plans to comply with Schedule 4 requirements

A deposited plan must comply with the requirements set out in Schedule 4. …

… 5. All parcels of land in the plan (including parcels intended for public reserves and drainage reserves, but excluding roads) must be numbered consecutively in strict numerical sequence.

Parcels must not be identified by reference to a "section" or "block". 7. The complete dimensions (including area) of each parcel must be shown. 10 Conveyancing Act Regulations, 1961 (under which the relevant plan may have been prepared):

Part IV - Plans Division 1 - Plans Intended to be Registered as Deposited Plans

Every plan which contains more than four lots and which is intended to be lodged for registration as a deposited plan shall be a plan of survey. 38 Every plan containing less than Five lots shall, if the Registrar-General so requires, be a plan of survey. …

All parcels of land in a plan (other than roads) including parcels intended for public reserves and drainage reserves shall be numbered consecutively in a strictly numerical sequence, and such parcels shall not be identified by reference to a "section" or "block":

Provided that where part of any parcel is land subject to the provisions of the Real Property Act, 1900, and part is land not so subject, each such part shall be separately numbered, and for the purpose of this Part of these Regulations shall be regarded as a separate parcel. …

Every plan (not being a plan of survey) intended to be lodged for registration as a deposited plan shall contain the following particulars:- … (c) the area and the bearings and lengths of boundaries of every parcel comprised in the plan. … Question - Is the plan a plan redefining the boundaries of an existing lot? Discussion 11 The commencing point of the plaintiffs' claim is the decision in Registrar-General v Lee (1990) 19 NSWLR 240. The effect of that decision was to confirm that insofar as a portion of land was severed by a road opened or dedicated as a public road prior to 1920, such crossing or division created separate lots on either side of that road. In other words the resumption of an area of a portion subject to conditional purchase or lease or grant for the purpose of a road, or its reservation for and dedication, out of a Crown land portion as a road, operated as a sub-division with the land on either side of the road being treated as separate lots so that a plan lodged for registration as a deposited plan showing such areas as separate lots would be registered without the requirement for council consent. This was the position whether or not the area was in fact in use as a road: Rapley v Martin [1865] 4 SCR 173 12 The evidence is deficient, as often is the case in land matters, in that it does not establish whether Portion 178 ever existed in a form encompassing the area later excluded from it by the road. Nor does the evidence establish the road area has ever been dedicated as a public road. It may have been, and probably was, reserved pursuant to s5 of the Crown Lands Alienation Act 1861 and it may have been dedicated in accordance with that section. The original land grant by its description appears to accept the existence of a dedicated road. Lee does not necessarily establish a sub-division prior to 1920 just because a road crosses a portion. I will however proceed on the basis that the road is a public road properly dedicated as such and that it affected a sub-division which the Registrar-General was bound to recognize or at least would have been bound to recognize prior to 1998. 13 The plaintiffs accept that DP 826655 is the current plan within the definition under s7A of the Conveyancing Act. That is because it is a registered plan and the latest registered plan relating to the land in question, this being the definition requirement provided by the somewhat difficult wording of s7A(1) and (4) of the Act. They contend that DP 1015451 is a plan of identification because it is a plan redefining the boundaries of an existing lot being a lot whose boundaries are shown in a current plan, namely DP826655. 14 This argument proceeded upon the basis that Lot 2 in DP 826655 is not only that one lot but also two separate lots, namely the area or parcels of land generally to the east and west of the road shown on DP 1015451 as Lots 21 and 22 and that redefinition takes place by defining by more precise statement the boundary measurements and bearings. 15 I consider that the part of the definition of plan of identification relied upon, namely "a plan redefining the boundaries of an existing lot" would encompass a plan redefining the boundaries of more than one lot: s8 of the Interpretation Act 1987. 16 The argument of the plaintiffs would require the court to find that whatever the sub-division of Portion 178, any areas of land separated by the road were separate lots - for instance a division by extending the line BC on the portion plan in a westerly direction would have had the effect of creating four lots. This, according to the argument of counsel for the plaintiffs is because the Conveyancing Act contains no definition of "lot", that a lot is a distinct portion of land, and that the portions of Lot 2 on either side of the roadway are lots whose boundaries are shown in a current plan. 17 Counsel for the defendant placed considerable reliance upon the words in the definition of "existing lot" namely, "whether comprising the whole of a parcel, or two or more parts of the parcel separated by land reserved or acquired for a road, railway or other like purpose". This reliance was to some extent founded on a statement in Hallmann's Legal Aspects of Boundary Surveying as Apply in New South Wales 2nd edition, E.K. Ticehurst, paragraph 14.28, which is repeated by the same author in Baalman and Wells Land Titles Office Practice 5th Edition para 131.200 that this part of the definition "in referring to a parcel separated by a road (or like feature) is part of the scheme to overcome the decision in Registrar-General v Lee (1990) 19 NSWLR 240 that the opening of a road through a parcel before 1 July 1920 created a lawful division of the land". If that were the intent, the wording may not achieve the required result. If the division by roadway opened prior to 1920 exists it is by no means clear that the division is undone by the definition, as the Registrar-General appears to think. It is not necessary to decide whether Portion 178, before the registration of DP 826655, would have comprised 1 or 2 Lots. 18 The case is, I consider, not determined by that part of the definition just discussed, but by the following reasoning:

(c) It is a plan of sub-division because it is either a division of an existing lot, namely Portion 178 into two new lots, or it is a consolidation of two existing lots and their re-subdivision along new boundaries into two new lots;

(d) It is not a plan of sub-division of two lots into three lots, nor of one lot into three lots. This is quite apparent from the lot numbering and from the areas, both stated in accordance with the relevant Regulation. As is made clear by the definition of existing lot, it can be two parcels of land separated by a roadway, which in this case is what Lot 2 is. What one existing lot created by modern sub-division cannot be is two lots, unidentified as such, lacking statements of areas and not depicting boundaries showing bearings and lengths as required. To hold otherwise would be contrary to the legislative intention, as shown in the definitions of sub-division plan and existing lot and by the regulation. 19 The summons should be dismissed with costs.

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