Land and Environment Court (NSW)|1997-10-30|Before: Cowdroy AJ, Mr J

BROKEN BAY PENINSULAR PTY LIMITED v. MINISTER ADMINISTERING THE NATIONAL PARKS AND WILDLIFE ACT 1974 No. 30136 of 1995 [1997] NSWLEC 165 (30 October 1997)

Parties Applicant Broken Bay Peninsular Pty Limited

* Costs - Indemnity - Offer of Compromise pursuant to Pt 22 of Supreme Court Rules - absence of date and of signature on Notice of Offer does not render Notice invalid - circumstances claimed to justify exercise of Court's discretion under Pt 52 r 4 in favour of respondent

* Supreme Court Rules Pt 22, Pt 52A r 4, Pt 65 r 6

Appearances Applicant Mr T F Robertson (Barrister)

* Respondent pay applicant's costs on indemnity basis from 11 July 1997 and otherwise on a party party basis

OF NEW SOUTH WALES DECISION DATE:30 October 1997

. The applicant seeks an order that the respondent pay indemnity costs of its application from 11 July 1997 and otherwise on a party party basis. The application is made upon the fact that, by letter dated 11 July 1997, the applicant's solicitor forwarded to the respondent's solicitor a document entitled "Notice of Offer of Compromise" ("the Notice"). The letter forwarding such document was written on the letterhead and signed in the name of the firm by an unknown person who was apparently an employee of the firm but who was not a solicitor. It can be inferred from the reference on the letter, that the signature was that of a secretary or clerk in the employ of that firm. The letter states:-

"Please find enclosed by way of service a Notice of Offer of Compromise."

The attached document states that the applicant makes an offer of compromise to the respondent pursuant to Pt 22 Div 1 of the Supreme Court Rules 1970 ("the Supreme Court Rules") in the sum of $1,950,000 plus statutory interest and plus costs and less any amounts of compensation and such interest paid by the respondent to date.

The Notice also states that the offer is open for 28 days. The Notice is undated and unsigned.

. The respondent opposes such application upon grounds, firstly that the Offer of Compromise did not constitute a valid offer because the offer document was neither signed nor dated, and secondly because of certain circumstances which are relied upon as being "peculiar".

. As to the first ground, Pt 22 of the Supreme Court Rules, applicable to this Court by virtue of Pt 6 and of Pts 13 and 29 of the Land and Environment Court Rules 1996, states the requirements for making an offer pursuant to that Part. Part 65 r 8 of the Supreme Court Rules nominates various Court documents which require signature but an offer of compromise is not specifically included in the list. Nor is there a specific requirement that the document must be dated, although Pt 65 r 4, which refers to the fact that dates, sums and other numbers are to be expressed in figures and not in words, implies that such documents to which the rule applies will be dated. It should be noted that there is no form prescribed by the Supreme Court Rules for the making of an offer of compromise.

. In McLean v Commonwealth (SC NSW, Sperling J 22 August 1996 unreported) an offer of compromise made pursuant to Pt 22 was held not be defective merely because there had been a error in the notice of offer by referring to the offeror as the defendant when in fact the offeror was the plaintiff in the action. In the instant case, there is no error as such, but rather an alleged deficiency. The Notice complies with the Supreme Court Rules, which do not make it mandatory for such Notice to be signed or dated.

. It would be quite artificial not to consider the circumstance which surrounded the making of such offer. It was attached to a letter written by the applicant's solicitors which specifically referred to the fact that the enclosed document was a Notice of Compromise and that it was enclosed by way of service. The respondent's solicitor replied by letter dated 17 July 1997 in the following terms:-

"I refer to your letter of 11 July 1997 and acknowledge receipt of the Offer of Compromise attached to it."

. In these circumstances the respondent was under no misapprehension as to the intent of the Notice. It treated the Notice as an offer of compromise for the purposes of the litigation.

. I should add that s 68(2) of the Land and Environment Court Act 1979 entitles the Court to treat any act or omission as therein stated as an irregularity and not as a nullity. Section 68(2) provides:-

68.(2) Where, in beginning or purporting to begin and proceedings before the Court or at any stage in the course of or in connection with any such proceedings, there is, by reason of anything done or left undone, a failure to comply with the requirements of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect -

(a) the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings; and

(b) subject to subsection (3), the Court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its functions under this Act and the rules to allow amendments and to make orders dealing with the proceedings generally.

. In the present circumstances, I consider that the requirements of Pt 22 have been satisfied and, even if not, that s 68(2) would have applied to remedy any deficiency in relation to the document as suggested by the respondent. The applicant also relies upon the provisions of s 81 of the Supreme Court Act 1970. To my mind this has a similar effect to the provisions of s 68(2) of the Land and Environment Court Act and would, if necessary to rely thereon, operate to render valid any non-compliance with the provisions of Pt 22.

. Lastly, the applicant submits that, in any event, even if the provisions of Pt 22 were not satisfied, the letter from its solicitor, together with the accompanying Notice would operate at least as a Calderbank letter in accordance with the principle in Calderbank v Calderbank [1976] Fam 93. In view of my findings above, it is not necessary to decide this issue, but in the event that I should prove to be in error, I find that the purpose of the letter, as was clearly understood by the respondent's solicitor, was to offer a compromise in the proceedings in accordance with the Notice attached to its letter. It would be absurd not to afford recognition of the purpose of the correspondence as understood by the respondent. Accordingly the letter would have the effect contended for by the applicant, namely it would operate as a Calderbank letter, even though the claim is made for a monetary amount.

. Pursuant to Pt 52A r 22(4), where an offer is made by a plaintiff (in this case the applicant) and not accepted by the defendant (in this case the respondent), and the plaintiff (applicant) obtains an order or judgment on the claim to which the offer relates no less favourable to it than the terms of the offer, then, unless the Court otherwise orders, the plaintiff (applicant), subject to r 33, is entitled to an order against the defendant (respondent) for the plaintiff's (applicant's) costs in respect of the claim from the day on which the offer was made, assessed on an indemnity basis, in addition to his costs incurred before and on that day, assessed on a party and party basis.

. The respondent contends that a discretion is provided to the Court and that it should, in this case, exercise its discretion against making an order for indemnity costs as and from 11 July 1997 in view of the "peculiar circumstances". Such circumstances relate to the protracted length of the case, and of the complex matters that were raised relating to engineering issues, valuation issues and other matters of detail.

. The hearing was set down for 15 days. It extended to 28 hearing days. Every issue in the case was contested. Experts were called on each side in respect of virtually every facet of land development, planning, subdivision, fauna and flora protection, ground conditions, archaeological issues, engineering aspects and costings and valuation matters. Evidence, adduced in support of the claim, was examined in minute detail to the point where the principal issues in the case at some stages seemed quite remote. These observations are not to be taken to be as critical of the legal advisers, who conducted the case for each party with the utmost efficiency and competence. The necessary inquiries resulted from the fact that issues arose which warranted thorough examination.

. It must have been obvious to each of the parties, prior to the commencement of the hearing, that the case would be long and complex. The applicant points out that the issues were clearly defined, and that it had served all of its important evidence prior to 11 July 1997 (the date of the letter enclosing the Notice). It therefore contends that all of the relevant matters concerning the length and complexity of the hearing would have been known to the respondent before the hearing commenced.

. There is no evidence that the respondent ever made a Counter Offer of Compromise. In the circumstances, the Court can infer that the respondent was prepared to let the Court decide all issues. This has been done, and the respondent must accept the consequences which flow. In my view there are no circumstances which would warrant the Court exercising its discretion in favour of the respondent.

. That the amount of compensation to which the applicant is entitled pursuant s 54 of the Land Acquisition (Just Terms Compensation) Act 1991 is $2,470,000.

. That the respondent pay the applicant's costs of the proceedings and that those costs be assessed on an indemnity basis from 11 July 1997 and otherwise on a party party basis.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 6 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE ACTING JUSTICE DENNIS A COWDROY

Parties Applicant Broken Bay Peninsular Pty Limited

* Compulsory acquisition of lands - principles of assessment of compensation - application of San Sebastian - sterilisation of land by planning scheme - effect of land value - development potential - claim for disturbance - actual use of land

Hearing Dates 28 - 31 July, 1, 4 - 8, 11 - 15, 18, 21 - 22, 25 - 29 30 September,

Appearances Applicant Mr T F Robertson (Barrister)

* Matter listed 9.30 am Wednesday 29 October 1997 to assess the nature of any further hearing or to make orders

OF NEW SOUTH WALES DECISION DATE:24 October 1997

. In these proceedings, the Court is required to assess compensation in respect of the acquisition of a parcel of land comprising 26.95 hectares (66 acres 2 roods 12.75 perches) known as Lot 5 in DP 240182. The land is located at Hawke Head Drive, Killcare, in the Parish of Kincumber and County of Northumberland. Such land is herein after referred to as "the land" or "the subject land".

The Site of the Subject Land and its Characteristics

. The land is located on the north-western side of a sloping and undulating plateau area, including hillside and ridges on Box Head headland between Tallow Beach on the east side, and Hardy's Bay, Pretty Beach and Wagstaffe to the west. Box Head comprises the northern headland of Broken Bay, and is contained in an area of spectacular scenic beauty. Generally the land has commanding views to the north and north-west, and remain undeveloped other than for the provisions of fire trails. It is covered with dense natural vegetation of bushland, and is adjacent to the Bouddi National Park ("Bouddi Park"), previously known as Bouddi Natural Park or Bouddi State Park.

. The applicant has been the registered proprietor of the land from approximately 1955. In this year the applicant was formed by three shareholders, namely Ronald Edward Walters, John Barry and Oskar Speck, principally for the purpose of developing the land and adjacent lands for a holiday resort and a golf course. Each of such persons had previously owned parcels of land and other adjoining parcels were added from time to time to form a parcel of approximately 130 acres, including the land the subject of these proceedings. An Agreement dated 14 September 1954 made between each of the above three shareholders records the intention to create the applicant and sell to it their respective land holdings. At this time there was no planning scheme which affected the land.

. Following a subdivision in 1970, a 63 acre portion of land comprising the eastern portion of the applicant's land, with an aspect to the Pacific Ocean was sold to the National Parks and Wildlife Service ("NPWS"). The residue of the applicant's land, being Lot 5 in Deposited Plan 240182, was retained.

. As detailed hereunder, the land was compulsorily acquired on 16 June 1995. On 30 June 1995 a claim for compensation in the sum of twelve million dollars ($12,000,000) was made, predicated upon the assertion that a subdivision of the land would yield 240 residential lots with a value of $50,000 per lot. The claim has since been revised to $2,470,000. The respondent has assessed the value of the land to be $850,000 excluding consequential claims relating to disturbance pursuant to s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 ("the Act").

. By application dated 1 May 1959 the applicant sought to have the whole of its land (which included the subject land) zoned as "urban" or otherwise capable of development for residential purposes. In response, the Town Planner of the Shire of Gosford ("Gosford Council") recommended to Gosford Council that it be re-zoned as Residential "A" within the proposed Gosford Planning Scheme. At a special meeting of Gosford Council held on 10 January 1961, Gosford Council resolved that the Town Planner's recommendation be approved and be submitted to the Town Planning Committee's next meeting for consideration. At such meeting, held on 17 January 1961 it resolved that it concurred with the decision of Council made on 10 January 1961 in respect of re-zoning. Despite such decision, following consultation with the Department of Local Government, a resolution was passed determining to hold over its decision "pending clarification by the Minister for Local Government" concerning the land. Thereafter the matter languished.

. At a meeting of the State Planning Authority of New South Wales ("SPA") held on 23 April 1965, the National Trust of Australia ("National Trust") was invited to nominate areas of natural beauty outside the County of Cumberland for consideration in future local planning schemes. On 14 July 1965 the National Trust wrote to the Honourable T L Lewis, Minister for Lands, drawing his attention to the significance of the area in which the land is located and urging the extension of Bouddi Park by the incorporation of "the reserve between Putty Beach and Wagstaffe Beach incorporating Box Head".

. By letter dated the 10 September 1965 the National Trust wrote to the Secretary of SPA drawing attention for the need to require and obtain lands which appeared to include the land for public use. It urged that steps be taken to ensure that all of the available land held in private ownership be acquired to preserve the whole of Box Head in its natural state. By letter dated 30 March 1966 it wrote to the Secretary of the SPA stating, inter alia, that its investigation of the ownership of land on Box Head had been completed. Such letter continued:-

"This has shown that some of the high land is in private ownership and the Trust has now made strong representations to the Minister for Lands recommending that it be added to the adjacent reserve."

On the same day it wrote to the Honourable T L Lewis confirming the desirability of assuring the preservation of such lands and stating, inter alia:-

"The high land forming the ridge between Box Head and Pretty Beach commands extensive views in all directions, embracing the ocean, Pittwater, Broken Bay, Brisbane Water and adjacent lands and there can be little doubt that it comprises one of the finest vantage points in the whole of the Central Coast."

The letter went on to urge that private land in this area be incorporated into the adjacent reserves.

. Such letter was responded to by the Secretary of SPA. He advised the National Trust that the proposed Shire of Gosford Planning Scheme had been exhibited by Gosford Council and that objections were being submitted to the SPA for examination prior to recommendations being made to the Minister. It noted that National Trust's interests would be taken into account. In another letter, the National Trust was advised that under the proposed Gosford Planning Scheme, the lands on Box Head were proposed as "Open Space - recreation zone under the Shire of Gosford Planning Scheme" and that in such a zone land could only be used for recreational and agricultural purposes.

. The applicant raised objection to the zoning in the proposed Planning Scheme and in respect of its landholding requested a zoning alteration from the proposed Non-Urban "B" zoning to residential zoning.

In respect of such request, Gosford Council recommended to the SPA that the objection to the proposed zoning not be allowed on the grounds that:

"at this stage of development no occasion or need has so far arisen for the change of zoning requested. Such a course would be premature and the development is considered to be not warranted at this stage as the land lies between the residential area of Hardy's Bay, Pretty Beach and the open space recreation area known as Box Head"

"It would appear, however, that at some future date this land must either be released for subdivision or, more desirably acquired by Council or some other public authority for the development for the public as a whole and considerations and investigations for the future use of these lands should be left for consideration in an amending and varying scheme upon the plan being prescribed..."

. The applicant appealed to the SPA. An internal minute paper of the SPA dated 5 May 1966 refers to the objection and states that it was to be disallowed "as they relate to land earmarked by the National Trust". Accordingly, the SPA advised the applicant that:

"After consideration of the issues involved, the Authority has dismissed the appeal on the grounds that the proposed development would be -

(a) contrary to the provisions of the proposed Shire of Gosford Planning Scheme;

(b) premature, in that any further subdivision of the subject land for residential purposes should be considered in a future varying scheme for the Shire; and

The letter made no reference to the issue raised by Gosford Council, namely that the property would either have to be released for residential use or acquired at some stage in the future.

. On 25 August 1966, Gosford Council refused a subdivision application in respect of the applicant's land.

. By letter dated 17 October 1967 the Acting Director of NPWS wrote to the SPA in answer to an inquiry made by the National Trust in relation to the incorporation of additional lands at Box Head into the Bouddi Park. The letter stated inter alia:

"the Service has done a considerable amount of investigation on this matter and a tentative decision has been made to add the Box Head lands to Bouddi Park."

. By letter dated 20 January 1968 the Acting Secretary of the SPA wrote to the Under Secretary, Department of Lands referring, inter alia, to future expansion of population and exploitation of the areas surrounding Broken Bay. In relation to Box Head the letter stated:

"The Box Head peninsula is of considerable importance, both with regard to its significance as a vantage point and a major landscape feature. However, the present pattern of freehold land could permit urban development along the ridge of the peninsula and thus spoil the scenic features of the headland. The present boundaries of the reserves are not related to the topography and no public access is provided between the reserves at Box Head and Wagstaffe Point.

It is understood that the National Trust of Australia (NSW) in March, 1966, made representations to the Minister for Lands that certain freehold lands on the ridge of Box Head should be acquired and added to the existing reservation to form an open space reserve from the shoreline to the ridge and to provide a contiguous open space area to Wagstaffe Point. The effect of such reservation would be to maintain that part of Killcare Heights, visible from the ocean and Broken Bay, free from urban development and preserve the natural feature of the coastline.

The Authority has endorsed the Trust's proposal which provide for the acquisition, in order of importance, of three areas of freehold land. The land in question is proposed to be zoned Non-urban "B" and Existing Open Space in the Gosford Planning Scheme. The Authority further endorsed the Trust's proposal that acquisition of the land be undertaken in the following manner. The accompanying plan shows the area under reference.

The acquisition of these areas was considered of primary importance to preserve the ridge and to provide public access between Wagstaffe Point and the major reserve at Box Head.

The acquisition of this land was considered necessary to restrict urban development to land below the ridge and increase the open space to include this high point.

It was considered that the reservation of this area as open space would provide a further vantage point with an outlook over Hardy Bay and parts of Brisbane Waters."

. It is obvious that the land comprised part of lands contained in a map tendered in evidence, in which the greater portion of the land is incorporated in areas designated as Second Priority and Third Priority. The land acquired in 1970 was included as First Priority. The letter concluded:

"The Department is accordingly requested to give consideration to the acquisition of the abovementioned lands as additional to the Crown lands already proposed for open space purposes under the Shire of Gosford Planning Scheme."

By letter dated 1 July 1968 the National Trust was informed that investigations had reached an advanced state and that negotiations were nearing completion with Gosford Council concerning the acquisition of certain freehold lands which had been purchased and which were proposed to be purchased by Gosford Council for addition to Bouddi Park.

. On 8 July 1968, the applicant made an inquiry of the Minister for Lands concerning the suggested resumption of part of its lands at Box Head, and indicated its objection thereto. The applicant also wrote on 24 July 1968 to Gosford Council raising a similar objection. On 6 August 1968 the Minister responded noting that the objections of the applicant had been recorded. The Minister stated:

"Your objections have been recorded by the National Parks and Wildlife Service, who has informed me that a detailed investigation into the desirability of acquiring certain areas in the vicinity of your Company's land at Killcare, is still to be undertaken."

. On 12 August 1968 the Minister for Lands wrote to Mr E H Humphries, M.L.A. who had made personal representations on behalf of the applicant conveying the applicant's objections to the resumption of its land for addition to Bouddi Park.

"The National Parks and Wildlife Service is negotiating, on the recommendations of the State Planning Authority, to add certain lands in the vicinity of Killcare to the Bouddi Park.

The Service is attempting to acquire these lands on a priority basis and a detailed investigation into the desirability of adding certain areas in the vicinity of the Company's land at Killcare has still to be undertaken. If the results of these investigations indicate that lands owned by the Company would make a desirable addition to the Park the Service will approach the Company with a view to ascertaining if the Company is prepared to sell any part of its land for addition to the Park."

. By letter dated 20 October 1968 the applicant's Solicitor wrote to the Director of NPWS referring to an interview with a Mr Abbuhl of that Service and stated:

"Our client subsequently has [sic.] a personal interview with Mr Abbuhl when it was eventually discovered that your department intended the acquisition of the whole of our client's 150 acres along Box Head Road."

. Meetings were apparently held on 6 November 1968 and 12 December 1968 between the applicant and NPWS. Such meetings appeared to culminate in the recommendation contained in the file note of 10 April 1969 prepared by the Director of NPWS which states:

"At the following meeting of the Council held on 13 March,1969, it was resolved that despite the high cost of acquiring lands considered to be essential additions to the Park, the Council, nonetheless, urged that every effort should be made to acquire those lands and that, if necessary, special funds should be provided to allow this to be done. In our discussions the other day I drew attention to the fact that the adoption of the Plan would virtually commit the Service to begin acquiring lands in question and this would necessitate some changes in the land acquisition priorities currently approved. However, it will obviously take some years for the Service to acquire all the lands which are needed and I think that these can be integrated into the general acquisition programme of the Service during the next few years."

. The above recommendation was consistent with the Bouddi Park Plan of Management adopted under s29 of the National Parks and Wildlife Act 1967 ("the 1967 Act") by the Minister for Lands on 27 June 1969. Such plan incorporates a diagram which reveals that a substantial portion of the applicant's land was marked as "proposed park additions" whereas other lands, most of which is now the subject land, were described as:

"freehold - low priority (when acquisition can be negotiated)".

. At least since the publication of the aforesaid plan on 27 June 1969 it became apparent that at least part of the applicant's land was intended for use for public purposes. Any doubt that had hitherto existed concerning the future use of at least that portion of the applicant's land was, for the first time, unequivocally removed.

. The publication of the plan also instigated proposals for acquisition of part of the applicant's land. On 14 August 1968 the Director of NPWS wrote to the applicant stating inter alia:

"The Minister for Lands on the advice of the National Parks and Wildlife Advisory Council has now approved the plan of Management, in an amended form which requires certain variations in the original boundary to facilitate management requirements. Part of these variations include some of your Company's lands and the Service would like to enter into negotiations with you, with a view to purchasing them, or alternatively, if you prefer, all of the lands held in the Company's name, for addition to the Park."

. On 16 April 1969 the applicant made an application to Gosford Council to subdivide a portion of its land. By letter dated 24 November 1969 Gosford Council rejected such application, stating as follows:

"With reference to your letter of 16/4/69, I have to inform you that the abovementioned application has been refused for the reason that the land is zoned Non Urban "B" in the Shire of Gosford Planning Scheme and a subdivision of land in that zone into lots of less than 25 acres is prohibited by the Scheme Ordinance."

. There was, however, at about this time substantial activity on the part of NPWS towards acquisition of a substantial portion of the applicant's land at Box Head. A memorandum (undated) prepared by the Director NPWS states inter alia:

"One large landholder , Broken bay Peninsula Pty Ltd, has, however, agreed to sell to the Service, and this property needs to be acquired as "high priority" for the following reasons:

(a) The land forms part of the Box Head ridgeline and must be acquired to preserve the visual integrity of Killcare Heights (which is visible from the ocean and Broken Bay) by keeping it free from housing development.

(b) This area is considered to be a "key" acquisition in that once purchase is complete, other owners of top priority lands may be influenced to sell to the Service, as local opinion seems to view this acquisition as a "Test Case".

Having discussed the valuation of the land the memorandum continued:

"Apart from the recreation reserves at Box Head under the control of Gosford Shire Council, the subject land represents the biggest single parcel of land on Box Head Peninsula for acquisition by the Service. If acquisition of the remaining freehold lands along the Peninsula is to be meaningful, the Service must first secure this property. Thus this acquisition holds the key to the extension of Bouddi Park along the box Head Peninsula."

However, at about this time, in January 1970, NPWS wrote to the Under Secretary of the Department of Lands, stressing the need to preserve the applicant's land. A map enclosed with such letter shows the applicant's land included in an area designated as "proposed boundary Bouddi Park".

. Negotiations took place between the applicant and NPWS for the purchase of the parcel of 63 acres, 3 roods 26.5 perches, and on 11 August 1970 Gosford Council approved the subdivision of the applicant's lands into five lots to enable the sale to proceed. NPWS purchased Lots 1, 2, 3 and 4 (know known as Lots 1, 2, 3, 4 in DP 240182), leaving Lot 5 (the subject land) remaining.

. The agreement pursuant to which the applicant sold lots 1, 2, 3 and 4 of its land at Box Head to NPWS was executed on 24 December 1970. Thereafter the applicant sought approval from Gosford Council to erect a private hospital and sanatorium upon its land. By letter dated 13 May 1971, Gosford Council granted consent for such development. The development however did not proceed.

. By 1973 the potential growth of the Central Coast was prominent in the minds of planning committees. The minutes of the 14th meeting of the Gosford/Wyong Steering Committee held at the offices of the SPA on 6 June 1973 records various matters including the acquisition of lands. The following resolution is recorded:

"It was resolved that land required for public purposes should not have an extra value because it is an area declared as a growth area if the land is to be acquired by public authorities. On the suggestion of Mr Pratt it was agreed that the meaning of "public purposes" should be taken as defined in the Local Government Act."

. Thereafter the applicant sought to develop the subject land by seeking a rezoning to permit residential development on a 5 acre lot basis. Such request made in a letter to the SPA of 16 September 1973 was rejected, it being pointed out that the land was zoned Non-urban under the Gosford Planning Scheme and that the minimum lot size for a country dwelling house was 25 acres. The letter of rejection stated:

"However, because it essential to prevent subdivisions and fragmentation of large Non-urban holdings which could be detrimental to the further planning and development of the Gosford/Wyong area as a major growth centre, the Minister for Local Government has recently approved a change in policy increasing to 100 acres the minimum area requirement for the subdivision of Non-urban lands and the erection of dwelling houses thereon."

. The letter pointed out that although the new requirements had not been incorporated into the Gosford and Wyong Planning Scheme Ordinances, the two Councils had already adopted the 100 acre minimum and accordingly there was little prospect of the applicant's land being rezoned to permit 5 acre development. The letter continued:

"The ultimate use of this land will, of course, depend upon the final decisions taken in respect of the future planning and development of the Gosford/Wyong area generally. In the meantime, I have arranged for a copy of your letter to be forwarded to the President of the Gosford Shire Council for consideration in conjunction with all other representations received in response to the public exhibition of proposed urban strategies for the area."

. By letter dated 14 January 1974 the applicant sought an indication from NPWS as to whether it wished to purchase the remaining 73 acres comprising the land. A notation made at the end of such letter refers to the fact that such area was "low priority" and that the cost of acquisition were likely to be "astronomical". Subsequent correspondence emanating from NPWS in response to representations made by the applicant for acquisition of the land suggests that Lot 5 was of little interest to NPWS due to financial constraints. In notes made following a deputation on or about 15 July 1976, it is stated that NPWS was not interested in acquiring Lot 5.

. On 18 February 1977 Interim Development Order No. 100 - Shire of Gosford became operative. It suspended the provisions of Gosford Planning Scheme, and being based on the findings of the Gosford/Wyong Rural Lands Study undertaken in 1975 by the NSW Planning and Environment Commission, it sought to provide more appropriate land use controls for non-urban areas. Pursuant to such scheme the subject land was zoned 7(a) Rural Conservation. In such zone, the only use permissible without the consent of Gosford Council was agriculture other than pig breeding or poultry farming establishments. The applicant objected to such use on various grounds including the unsuitability of the physical and topographical characteristics of the land with non-existent suitable vegetation for the purposes allowable. In response to such objections Gosford Council resolved to disallow the objection upon the Chief Town Planner's recommendation. The Chief Town Planner's comments were as follows:

"Land prominent and majority should be preserved. If not economically possible to acquire whole of land consideration could be given to a limited tourist development on part of that land, providing waste disposal can be effected without problems. Best to retain 7(a) zoning at this time but consider a development proposal at the appropriate time with a view to special amendment of the Order."

The SPA held the opinion, according to an internal minute, that the effect of such zone was as follows:-

"The intention of the Rural Conservation zone is to protect those areas where development might be difficult or would have an adverse effect on the landscape and environment e.g. steep slopes (20% and over) ridgelines, vegetated areas etc."

. NPWS by letter dated 24 May 1977 wrote to the applicant's solicitors indicating it was not interested in acquiring the land. It did indicate however that it would acquire a different portion of the applicant's lands being Lot 1 in DP 21404. Irrespective of such letter, on 11 July 1977 a report was prepared concerning acquisition of land at Box Head by NPWS. Whilst not specifically referring to the subject land, it appears that they were incorporated in the study which recommended:

"that the land mentioned in the report be acquired in the order defined, as funds permit".

The report noted inter alia that the land had potentially a high value. It stated:

"The strategies adopted rely upon the strength of the land classification adopted by Gosford Shire Council. As at present, no development can be carried out without Council approval. However, the land in question offers views of either Broken Bay, Brisbane Water and Woy Woy peninsular and, therefore, would be highly valued residential land (indicated by the commercial prices placed on identical lots of land, before the adoption of Interim Development Order No. 100 for the Shire of Gosford)."

The report considered various alternatives for acquisition. In the attached diagrams, although no title references are incorporated, it is apparent that the area under consideration included the subject land.

. A confidential memorandum dated 1 November 1977 of the SPA states that key areas in the Gosford/Wyong lands acquisition program had been identified and that other areas would be identified as the planning program progressed. The report recommended that the program be initiated. The report discussed several issues, including the fact that although final management structures had not been finalised, "the combination of the amended structure plan, the two Rural Lands Interim Development Orders (gazetted in February 1977) and planning schemes now under consideration, enable identification of key open space and conservation areas which undoubtedly would be included in a land acquisition program." There was, inherent in this statement, the recognition that the IDOs were playing a vital part in the lands acquisition program. Similar minutes of the Planning Division Board of the State Planning Authority exist, and record that the provision of funds for the acquisition of lands identified for acquisition was limited. Some minutes and correspondence record the need for councils to contribute towards such costs. Other minutes record the fact that the local councils were heavily burdened financially and were unlikely to have the necessary resources to acquire identified lands for various reasons. However such records indicate that both the Gosford and Wyong shires would identify natural areas worthy of protection and inclusion in a continuing regional open space acquisition program.

. In November 1978 the applicant again offered the land to NPWS and suggested a payment plan similar to that which had been negotiated in the previous sale. An internal minute of that date records NPWS did not possess the funds to acquire the land unless it was a "high priority acquisition". A similar response was given to the applicant in September 1979.

. On 30 March 1979 Interim Development Order No 100 was replaced by the gazettal of Interim Development Order No 122 - Shire of Gosford. Under this Order, the subject land was included in zone 7(a): Conservation and Scenic Protection (Conservation). In such zone the purposes which development could be carried out only with the consent of Gosford Council included agriculture; dwelling-houses; parks and gardens; public and other reserves; roads; subdivision. It effectively removed any use on the land from being permissible without the consent of Gosford Council, thereby giving Gosford Council complete control over any development. Further, Clause 18 of the Order specified the minimum lot size for subdivision within the 7(a) Conservation and Scenic Protection Zone as being 40ha.

An internal minute of the SPA dated 30 January 1980 notes as follows:-

"9. Both Gosford City Council and Wyong Shire Council are currently identifying those areas of the 7(a) Conservation zone, within the broad coastal area between Berkeley Vale and Killcare, that should be progressively brought into public ownership to ensure their exclusion from subsequent development pressures and their maintenance for all time as the green drop to the Central Coast.

10. At the present time two methods ob (sic) bringing these lands into public ownership are being pursued. One is the open space land acquisition program funded through the Cumberland Development Fund. The other is through the bonus/dedication provisions of the Rural Lands Interim Development Orders."

. A confidential report dated 10 April 1980 (report No 13/80) prepared by the New South Wales Planning and Environment Commission discusses the transfer of development rights and review of the bonus provisions in the Gosford and Wyong Rural Interim Development Orders which allowed limited development of lands in exchange for dedication of environmentally sensitive lands held in the same ownership. The report indicates that the rural 7(a) zone was intended, in part, to protect such lands "by bringing it into public ownership and thus avoiding subsequent pressures for rezoning". It also noted that such measures had "adverse implications for the value of land".

. In December 1983 the applicant again offered to sell the subject land to NPWS. In a minute dated 10 January 1984 NPWS recorded the following:

"It would seem that the Company sees the Service as the most appropriate purchaser of the land and the latest approach is one of many, dating back almost 10 years.

Part of the land may be of marginal interest to the Service, however the current zoning of rural conservation is adequate to protect the natural values of the area.

As well as being of little interest to the Service, there is no likelihood of funds becoming available to allow purchase of any part of this land in the foreseeable future; having regard to the current land acquisition commitments and a State-wide priority basis which has already been established for the next two years.

It is Recommended that the Company be again informed that the Service has no interest in acquiring lot 5 DP 240182 for addition to Bouddi Park."

By letter dated 12 January 1984 the applicant was so advised.

. Meanwhile, Gosford Council had created its own programme, entitled the "Coastal Open Space System", for the purpose of identifying significant coastal lands. At meetings held on 18 September 1984 and subsequently, it nominated various lands including the subject land for future acquisition. It entered a notation in its records against the lands:

"This land is subject to a resolution or Council, Min. No. 704/84 of 18/9/84 in respect of an acquisition programme for addition to the Gosford City coastal open space system."

. By letter dated 2 November 1984 the applicant offered to negotiate with Gosford Council for the purchase of its land. It did so after noting that it appeared that any subdivision of the land would be out of the question and that it had been paying rates and taxes for thirty years in the hope of a change in use. It also noted that it had been unable to subdivide the land into three equal lots so that the shareholders of the applicant could own their own holiday houses. There was no immediate response to this letter but by letter dated 20 November 1984, Gosford Council wrote to the Secretary of the National Parks and Wildlife Foundation referring to the offer made by the applicant. The letter advised:

"As you may be aware Council already has a major acquisition programme in hand to in to public ownership large areas of ridgeland within the City of Gosford.

As this parcel is also located adjoining Bouddi Park, affording an important northerly extension of the Park with extensive views over Brisbane Water, it is considered more appropriate that the land be purchased for inclusion in the National Park rather than as a Council reserve."

On the same day a letter was written to the Director of NPWS at Gosford conveying the same information.

. By letter dated 18 December 1984, Gosford Council advised the applicant of the approaches it had made to the National Parks and Wildlife Foundation and the NPWS. By letter dated 20 March 1985 NPWS responded to Gosford Council's approach stating inter alia:

"In regards to Lot 5, DP240182, this area has been offered to the Service on numerous occasions and due to limited funds and other State wide priorities, it is unlikely that funds could be made available in the foreseeable future. The Service has previously informed the owners that it has no interest in acquiring the area."

. A minute of the Department of Environment and Planning dated 20 March1985 incorporates a schedule of lands proposed for acquisition by the Sydney Region Development Fund, a fund established by that department for acquisition of significant lands. The subject land is included in such list. However, in a letter written to Gosford Council on 10 April 1985 by the Regional Manager of the Department, it states that it is unable to include such lands in its acquisition program. The letter also notes that such lands may be included in the Department's subsequent acquisition program and that the Gosford Council was also in a position to acquire such lands through the bonus provisions of IDO 122.

By letter dated 19 April 1985, the Chief Town Planner of Gosford Council wrote to the applicant informing it that, due to lack of funding, the NPWS was not in a position to acquire the land.

. Thereafter correspondence with the Department of Environment and Planning suggests that a lack of funds currently available prevented the NPWS, the NPWS Foundation and Gosford Council from proceeding to acquire the subject land. Gosford Council did make an inquiry as to the possible sale price and was advised that it was available for the sum of $660,000. The deliberations recorded in various minutes thereafter reveals that Gosford Council considered a possible exchange under its exchange system, pursuant to which it permitted subdivision on portion of lands zoned 7(a) provided the owner dedicated other land for public purposes. However no conclusion was reached, probably because the applicant did not own any eligible lands for exchange. The applicant, in about October 1986, again offered the land to Gosford Council. Gosford Council resolved to take no further action in the matter "pending a determination by the State Government as to whether it wishes to proceed with the proposal", namely to incorporate the land in the extension of Bouddi Park.

. The records show that moves were made at a political level to attempt on behalf of the applicant to have the land acquired. In early 1987 attempts to negotiate a sale price between Gosford Council and the applicant were unsuccessful. Accordingly, on 15 July 1991 the applicant lodged a development application (D/A No. 14804) in respect of a substantial dwelling on the land. A minute of Gosford Council dated 2 October 1991 states inter alia:

"The site has unique environmental character and it is located on a prominent headland that can be viewed from a wide area within the city and is adjacent to Bouddi Park."

An Environmental Impact Statement was required by Gosford Council. The town planner made the following notation:

"The proposal is sited on an elevated headland visually prominent from a considerable area of the Woy Woy Peninsula and Brisbane Water. The site has been identified for inclusion in the Gosford Coastal Open Space System.(see below) This proposal demonstrates the contradictions inherent in the Coastal open Space System, whereby a site is identified as desirable for acquisition in its natural state, at the same time zoning the site so that development may occur."

. Gosford Council refused the application on 28 July 1992, one of the reasons being the proposal would result in adverse and unacceptable impact on the landscape and scenic quality of the locality. On the same day it resolved to write to the Minister for the Environment, Mr C Hartcher M.P., and to request that the State Government take the necessary steps under the Coastal Acquisition Programme to add the subject land to the existing national park system of Bouddi Park. Such request was made on 6 August 1992.

. At about this time, Gosford Council was continuing to persuade the Department of Planning to reconsider its position and to purchase the land or approve a different zoning. Gosford Council also investigated a change of zoning to zone 8(b) National Parks. In a letter from the Minister for Planning and Minister for Housing to the Minister for the Environment dated 13 October 1992, the following appears:-

"as you may be aware, the subject property is a residue area earmarked under the Council's own Coastal Open Space System for acquisition, and funding should be made from this Council's funds..."

On 20 October 1992 the Manager of Gosford Council again wrote to Mr Hartcher imploring his department to acquire the land, and emphasising that an "opportunity will be lost forever" if acquisition did not occur. The letter stressed that there was "no other parcel of land that is a more worthwhile addition to the National Park system that this parcel". The Mayor wrote to a local resident on 11 January 1993:

"This land is critically important to have in public ownership, as you well no Council has no funds left having already identified its priorities for 1993."

. By minute No. 1543-92 Gosford Council resolved to prepare a Draft Local Environmental Plan to rezone the subject land to 8(b). Thereafter on 23 December 1992 a fresh development application (DA 16719) to erect a dwelling house on the land was lodged by the applicant. Gosford Council was deemed to refuse this application. The application prompted correspondence from the Mayor of Gosford Council to the Minister for the Environment (Mr C Hartcher) which advised that Gosford Council was defending an appeal by the applicant in the Land and Environment Court relating to the refusal of its development application and seeking assistance in terms of "evidence and court costs". In a minute dated 16 April 1993 it appears that the Minister requested that assistance should be given to Gosford Council to oppose the development application "as the land should be preserved in some way or added to Bouddi NP."

. The appeal to this Court was dismissed on 13 August 1993 on the ground that, although a dwelling was permissible, the "significant public interest inherent in the purpose of that zone" required minimal environmental impact.

. Further correspondence ensued between Gosford Council and NPWS in which Gosford Council stressed that development of the site would impinge upon "any future ability of Council to acquire the land with an approved development. The NPWS staff and local residents often believe the land is part of the National Park."

A Ministerial Memorandum dated 15 September 1993 the following statement appears:-

"The question that now arises is how can we assist Council and keep the land in tact for future addition to Bouddi".

. Numerous letters and minutes of Gosford Council, NPWS, Department of Environment and Planning, NPWS Foundation which, in summary acknowledge the need to preserve the subject land but which state that insufficient funds prevent the purchase, and suggest that one or other should assume the financial liability of purchase. The potential damage to the land if not acquired is referred to in records, documents and minutes involving the NPWS, politicians and Gosford Council in the ensuing months.

. The applicant lodged another development application (DA 17866) for the erection of another single storey dwelling house. Subsequently on 8 November 1993, Gosford Council refused the development application.

. The records reveal that on 27 July 1993 Gosford Council resolved to prepare a Draft Local Environmental Plan to include the subject land in Zone No.8 National Parks.

. An appeal was filed in this Court on 20 December 1993. Such appeal was dismissed on 19 July 1994 upon the grounds, inter alia, that necessary clearance would expose the development and be publicly visible, and that the public interest would be affected by the necessary works and visibility of the proposed development.

. Gosford Environmental Plan No 308 was published in the New South Wales Government Gazette on 17 February 1995. Pursuant to such plan, the land was incorporated in a zone in which any purpose authorised by or under the National Parks and Wildlife Act 1974 or subsidiary purpose only was allowed. Thereafter, by notification published in the New South Wales Government Gazette on 16 June 1995, the subject land was declared to be compulsorily acquired under the provisions of that Act, for the purposes of the National Parks and Wildlife Act 1974, and vested in the Minister administering that Act.

It is necessary to state the above history, and the facts which follow to comprehend the basis for the applicant's claim for compensation, and of the consequential findings.

(bbb) The land, but for the proposals to acquire the same for public space in the future, would have been zoned to permit a residential subdivision;

(ccc) That the sole reason that the land has remained in a zone 7(a) until recent times was to preserve the lands until such time as its acquisition could be paid for from public monies;

(ddd) That the true value of the land must be assessed on the basis that it had value for potential subdivisional purposes;

(eee) That a realistic and reasonable proposal for subdivision would have resulted in a 55 lot subdivision producing a nett amount of $2,470,000 to the applicant; and

(fff) That such sum represents such sum the appropriate compensation now payable by the respondent.

(ccc) That the land was never zoned for residential purposes;

(ddd) That the hypothetical subdivision proposed would have caused such detrimental environmental and ecological damage to the area that a subdivision to residential lots would never have been permitted; and

(eee) If a subdivision into residential lots had been allowed the nett realisation would have been substantially less than the amount claimed and in this respect the site difficulties and costs associated with the provision of utility services to the sites would have in effect, rendered the subdivision uneconomic, that its valuation if the land as an en globo parcel of land, having a valuation of $850,000, is appropriate compensation.

Potential to Utilise the Subject Land for Residential Subdivision

. Mr Alan Ross Carey, a retired Senior Surveyor formerly engaged by the Department of Lands gave evidence that he was involved in the 1970 subdivision of the applicant's lands. He drew up the plan of subdivision, to ensure that any development on the land not being acquired (the subject land) was not visible from the sea. He specifically made provision on the proposed plan of subdivision for vehicular access into the land being retained by the applicant to co-ordinate with a proposal for the future subdivision of that land into 249 residential lots.

. Mr Carey was also required to value the applicant's lands. He assessed the value upon the basis of residential subdivision. He prepared a hypothetical subdivision of 437 lots in respect of the whole of the lands of the applicant. He made an assessment of the value of such lots at $4,205 per lot. Such assessment was based upon the values then current for residential lots in the area, after taking account of profit and risk.

. Mr Carey had a very clear recollection of his task, and had kept notes from which he refreshed his memory. He specifically recalled that the whole of the applicant's land "was to be zoned residential". He was so informed in a meeting with the Town Planner of Gosford Council, Mr Peter Smithers. He assumed that the subdivision was to take place "fairly soon" thereafter.

. Ronald Edward Walters, one of the shareholders of the applicant, gave evidence that its lands was the only parcel of lands held. The applicant did not, and had not, engaged in land speculation but that it hoped to develop the lands at some future time.

. At the time of purchase, no planning scheme existed. In about 1959 Mr Walters had a conversation with Mr Wardlaw, the Town Planner of Gosford Council, who advised that the zoning was a "holding zone" until some future scheme was prepared. Mr Walters was told not to be concerned about the zoning of Non Urban (b).

. In the middle 1960s, a plan was lodged for subdivision of the applicant's lands into 430 residential lots. The proposal was rejected, and an appeal was lodged to the SPA which dismissed the appeal as an administrative matter.

. As at 1965, Mr Walters was not aware of the representations made by the National Trust to the SPA. Indeed it was not until late 1968 that Mr Walters became aware of attempts to have the applicant's lands zoned "open space". The applicant was not aware of reports prepared by a Mr Ashton of the SPA referring to the need to acquire the lands for public use, and only became aware of public interest as the result of a newspaper article. The applicant promptly objected by letter dated 8 July 1968.

. Negotiations took place subsequently with officers of NPWS concerning its initial purchase of 63 acres of the applicant's lands. At one meeting, the representatives of NPWS said "with Council's approval you will be able to subdivide the residue of the land", thereby referring to the subject land. The subdivision was in fact slightly altered, but the intent remained the same, namely that NPWS should acquire so much of the land as would ensure that lands up to the ridge were purchased so that any further residential development was not visible from the sea.

. Mr Walters said that following the successful negotiations of the 63 acre parcel, Mr Lewis, the Minister for Lands told him that a subdivision of the remaining land (ie the subject land) could go ahead without any further restrictions. Mr Ashton, of the SPA, made a similar statement. At that time Mr Walters said Gosford Council saw no difficulty in the subdivision of such lands, and, as he understood both the NPWS, as represented by the Minister, and the SPA had been in liaison with Gosford Council in respect of the 1970 subdivision. In cross examination of Mr Walters it was suggested that no application was in fact made to subdivide the subject land after the 1970 subdivision. Mr Walters explained that such absence of activity was due to a period of indecision by the applicant, during which it considered purchasing additional adjacent lands to replace the lands which had been compulsorily acquired.

. Mr Barry, another director of the applicant, testified that in approximately 1981, he met with Mr Kettle, Town Planner of Gosford Council to discuss development of the land. He was informed that no development could be recommended and that Gosford Council wanted to acquire it but did not have the funds available. At later meetings with successive mayors of Gosford Council, lack of funding was revised as the reason for its inability to acquire the land. Development was refused. At one meeting, Mr Kettle who was no longer engaged by Gosford Council, represented the applicant to suggest alternative proposals. Such representations were unsuccessful. Subsequent meetings with Gosford Council revealed that no approval would be given for the erection of houses, since Gosford Council wanted the land to be retained as open space and it had requested the Minister for the Environment to make arrangements for its acquisition.

. Meetings were also arranged with politicians, senior officers of NPWS and Gosford Council. It became clear from such meetings that the prospect of development was non-existent, and that no funds were available to purchase the subject land. At one meeting, the applicant was warned that the subject land might be resumed without any compensation.

. In the 1990s, the applicant had meetings with successive managers of Gosford Council, arranged by Mr Kettle. At one meeting, Mayor Harrison stated that it was Gosford Council's policy to add the subject land to the park, and that no hope could be given that it would be developed. During a meeting was held with the Minister for the Environment, Mr Chris Hartcher MP in 1990 words were said by him to the following effect:

"Your land is absolutely ideal to be added to the Bouddi Park. The land is an icon for the people of Terrigal. You will not be able to develop the land".

. The above represents a summation of the principal matters relating to the restrictions imposed upon the subject land created by the various zoning alterations since 1959. It clearly discloses that pressure was exerted upon NPWS and the Department of Lands by the National Trust and by a community group, named the Killcare Wagstaffe Trust, to bring the subject land into public ownership. No doubt such interest, as well as that of certain officials who held a special interest in the preservation of the areas of scenic beauty around the Bouddi Park, contributed to the continuing attention which was given to the subject land by NPWS, the SPA and the Minister for Lands.

. But for such agitation, the prospect that the land could be developed for residential purposes after 1970 was real. The Minister for Lands and the SPA contemplated such development. The Gosford Council Town Planner was aware of it also, and the 1970 plan of subdivision was consistent only with such proposal because of the provision therein for two access roadways for future subdivisional use.

. The acquisition of the land by the NPWS on 16 June 1995 was the culmination and implementation of a concept which had been under consideration for approximately 30 years. On any objective view of the records, it is obvious that the SPA and its successors, the NPWS and the Gosford Council had recognised the unique beauty and attraction of the area since prior to 1970. As early as 1965, the National Trust had drawn the attention of the SPA to the significance of this land and had advised lands which remained private ownership should be acquired and obtained for public use. The land clearly formed an integral part of a majestic landscape and its development for purposes inconsistent with the National Park was recognised as being undesirable.

. The sole reason for its non-acquisition at an earlier point in time appears to have resulted from lack of funds. Partly in consequence of its inability to acquire all lands having public significance, Gosford Council introduced its scheme pursuant to which it would permit increased subdivision of lands zoned for residential use (lands in zone 7(c)) provided the owner dedicated lands which had higher conservation value (lands zoned in zone 7(a)). By this method, Gosford Council was able to secure lands of high conservation value without any capital expenditure. The scheme ("bonus point scheme") contained in IDO 100 and IDO 122 required dedication of Zone 7(a) land, or the payment of money for acquisition of Zone 7(a) land. But it was also applicable to the purchase of open space land if the other holding was developable: but not the acquisition of open space in which the only other landholding was 7(a) zoned land. Accordingly the applicant was unable to benefit from such scheme.

. Minute papers of the New South Wales Planning and Environment Commission also revealed that, as early as 6 July 1976, "tactical" buying was considered in conjunction with the question of "conservation" lands which were to be preserved as result of the implementation of draft Rural Lands Interim Development Orders. Such measures taken in conjunction with the Gosford Council were part of a concerted plan to identify natural areas worthy of protection for inclusion in a continuing "Regional Open Space Acquisition Program".

. Various press releases issued by the Minister for Planning and Environment in 1980 and 1981 stressed the policy of the State Government in introducing "planning controls to ensure that rural lands of Gosford and Wyong are maintained for long term benefit of both Central Coast residents, visitors and tourists" and stated the objective to ensure "the magnificent green backdrop of Central Coast either through dedication or purchase of the conservation lands". The clearest statement made by the Gosford Council concerning the acquisition of the lands is contained in the letter written by the Town Clerk addressed to the Department of Environment and Planning on 11 March 1995. The letter states inter alia:

"It would be appreciated if the Department would give its most serious consideration to this proposal as a means of bringing additional important ridge type lands into public ownership as quickly as possible to ensure that the important environmental features of the City of Gosford are maintained."

The letter attached a schedule which included the applicant's lands.

. Extracts of the Chief Town Planner's report to Gosford Council contain a detailed analysis of Gosford Council's policy concerning proposals to rezone land from 7(a) Rural Conservation to open space. The Chief Town Planner recommended that wherever possible, Gosford Council acquire lands as part of a continuous Coastal Open Space System including a number of additional areas "in the vicinity of Bouddi Park". The plan attached to such recommendation identifies the subject land for acquisition.

. Numerous records tendered in evidence show that lack of funding was the principal reason for non-acquisition of the lands prior to 1995 and of the expressions by the Minister for Lands, the NPWS and its Foundation and Gosford Council to the effect that responsibility for acquisition lay with one or other of these entities. Irrespective of such posturing, it is clear that all parties were unanimous that the lands were required for public purposes.

. The applicant contends that the "acquisition process" in respect of the land commenced as early as 21 February 1961 when the Gosford Council, having received advice from the Department of Local Government, resolved to postpone any permission to permit development in the "altered zones" pending "clarification by the Minister for Local Government" and that the proposed plan in respect of residential zoning be submitted to the Department. It is asserted that from this time, Gosford Council, effectively suspended consideration of the zoning of the subject land. Meanwhile, the National Trust made its several representations. The applicant draws attention to a press report of the "Central Coast Express" dated Wednesday 9 November 1966 which reports that an application (of the applicant) to rezone the subject land and to permit a subdivision into 430 home lots was rejected on the ground that such a course would be "premature", but that simultaneously approval was granted for a 90 lot subdivision of land off the Scenic Highway at Killcare Heights.

. The minutes of the sixth meeting of the SPA, held on 29 May 1964, records that Mr S Chivers, a divisional planner was appointed for the Central Region, which relates to the Central Coast. Various minutes of the SPA show that there was a close association between that body and the National Trust and that as early as 4 September 1964, the SPA was represented on the Council of the National Trust.

. The Bouddi Park Plan of Management was prepared on 27 June 1969. It was prepared pursuant to s 29(1) of the1967 Act following meetings of the National Parks and Wildlife Advisory Council, established pursuant to s 9(1) of that Act. In such meetings, the desirability of acquiring privately owned lands in respect of lots which have been included in proposed park boundaries was considered. At the meeting held on 12 September 1968 it was specifically noted that various land "owned by the Broken Bay Peninsula Company is a desirable acquisition". The maps attached to the plan of management clearly include the applicant's land. By virtue of s 29 of the 1967 Act, it was provided the Minister "may adopt the plan of management without alteration or with such alterations as he may think fit....". Accordingly, the Advisory Council obviously had an important role in the preparation of any plan. By virtue of s 29(2) of the 1967 Act, it was provided that the plan of management "in respect of national park, state park and historic site shall contain a detailed written scheme of the operations which it is proposed to undertake in or in relation to a park or site to carry out the purpose and objects of this Act". The applicant contends that the words "in relation to" in s 29(2) was sufficiently extensive to cover the acquisition of additional lands for the park and points to the fact that the recital to the 1967 Act refers, inter alia, to the provision "for the reservation of further national parks, state parks and historic sites" and that the Advisory Council was empowered to consider lands beyond those already reserved for national parks or state parks. Section 6(3) of the 1967 Act specifically empowered the Director to investigate proposals "for the addition of areas to any national park, state park or historic site ....".

. In 1971 by the National Parks and Wildlife (Amendment) Act 1971 ("the Amending Act") specific recognition was given (by s 3(h)(i)) of a fact that a plan of management may relate to land "acquired or occupied, or proposed to be acquired or occupied, pursuant to s 19A or 19B of this Act". The applicant contends that such section was included to remove any doubt which had been previously expressed in the above minutes relating to the inclusion in the plan lands not yet included in those set aside for national parks. A further change was introduced in the Amending Act in s 4 which provided, inter alia, that lands could henceforth become parks by proclamation published in the Government Gazette rather than by statute.

BROKEN BAY PENINSULAR PTY LIMITED v. MINISTER ADMINISTERING THE NATIONAL PARKS AND WILDLIFE ACT 1974 No. 30136 of 1995 [1997] NSWLEC 165 (30 October 1997)

At a glance

Court

Decision date

Before

Source

Judgment (307 paragraphs)

BROKEN BAY PENINSULAR PTY LIMITED v. MINISTER ADMINISTERING THE NATIONAL PARKS AND WILDLIFE ACT 1974 No. 30136 of 1995 [1997] NSWLEC 165 (30 October 1997)

Legislation Cited (12)

Cases Cited (5)