Central Coast Council v Minister Administering the Crown Land Management Act 2016

Medium Neutral Citation: Central Coast Council v Minister Administering the Crown Land Management Act 2016 [2026] NSWSC 238

Hearing dates: 2 and 3 December 2025

Date of orders: 20 March 2026

Decision date: 20 March 2026

Jurisdiction: Equity - Real Property List

Before: Ball JA

Decision: (1) Grant leave to the plaintiff to file the amended statement of claim emailed to Ball JA’s chambers on 5 December 2025;
(2) Within 14 days the parties are to provide to my Associate short minutes of order to give effect to the conclusions of this judgment and any agreement in relation to costs;
(3) If the parties cannot reach agreement on the form of orders then within a further 14 days the parties are to provide my Associate with the form of orders that each party seeks and a short outline of written submissions not exceeding 5 pages setting out the reasons why the Court should make those orders; and
(4) Stand the matter over until 24 April 2026 or such other date as is agreed with my Associate.

Catchwords: ADMINISTRATIVE LAW — judicial review — judicial review of decision by a delegate of the Minister to sell land comprising a Crown road to an adjoining landholder in 15 lots — whether proposed transaction amounts to an impermissible subdivision not authorised by the Environmental Planning and Assessment Act 1979 (NSW) — proposed transaction not authorised
ADMINISTRATIVE LAW — procedural fairness — scope of obligation of procedural fairness attracted by a decision to sell or dispose of a Crown road under s 152E of the Roads Act 1993 (NSW)
CONTRACTS — formation — where decision to sell Crown land made to compromise proceedings commenced by adjoining landholder — agreement between the Minister and the adjoining landholder recorded in a Settlement Agreement signed at mediation — where the terms of the Settlement Agreement required the subsequent execution of a deed of release, a formal contract of sale, and an easement in favour of the plaintiff council — application of Masters v Cameron (1954) 91 CLR 353 — whether the parties intended for the Settlement Agreement to be legally binding immediately
CONTRACTS — remedies — specific performance — whether specific performance of Settlement Agreement available — essential condition of agreement unable to be satisfied — specific performance not available

Legislation Cited: Conveyancing Act 1919 (NSW) ss 7, 7A, 23F, 23G
Crown Land Management Act 2016 (NSW) ss 1.9, 5.3
Environmental Planning and Assessment Act 1972 (NSW) ss 1.5(1), 4.2, 4.3, 6.2, 6.3, 6.13(1)
Real Property Act 1900 (NSW) ss 13, 13A, 13D
Roads Act 1993 (NSW), ss 152A, 152B, 152C, 152D, 152E, 152F, 152G, 152H
Supreme Court Act 1970 (NSW) s 69
Uniform Civil Procedure Rules 2005 (NSW) r 59.9

Cases Cited: Butt v M’Donald (1896) 7 QLJ 68
Christian Community Ministries Ltd v Minister for Education and Early Learning [2023] NSWSC 272
Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576
D’Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201
Hick v Raymond [1893] AC 22
Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91
Mackay v Dick (1881) 6 App Cas 251
Masters v Cameron (1954) 91 CLR 353
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Picos v Council of the New South Wales Bar Association [2023] NSWCA 218
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Stellar Vision Operations v Hills Health Solutions [2023] NSWCA 102
Tilley v Thomas (1867) LR 3 Ch App 61

Texts Cited: New South Wales, Parliamentary Debates, Legislative Council, 10 May 2017, 19 (Niall Blair, Minister for Primary Industries, Minister for Regional Water and Minister for Trade and Industry)

Category: Principal judgment

Parties: Central Coast Council (Plaintiff)
Minister Administering the Crown Land Management Act (First Defendant | Cross Defendant)
The Secretary, Department of Planning, Housing & Infrastructure (Second Defendant)
Darcy Peter Smith (Third Defendant | Cross-Claimant)

Representation: Counsel:
J Hutton SC with TJ Boyle (Plaintiff)
K Richardson SC with S Gerber (First and Second Defendant | Cross-Defendant)
J Ireland KC (Third Defendant | Cross-Claimant)
Solicitors:
Martin Ball, Central Coast Council (Plaintiff)
Clayton Utz (First and Second Defendant | Cross-Defendant)
DC Balog & Associates (Third Defendant | Cross-Claimant)

File Number(s): 2024/261853

Publication restriction: Nil

JUDGMENT

Introduction

1. By an amended summons filed on 31 October 2024, the plaintiff, the Central Coast Council (the Council), seeks judicial review of a decision of a delegate (the Delegate) of the relevant Minister (now the Minister for Planning and Public Spaces) made on 14 February 2024 to sell part of the land comprising a Crown road known as Bakali Road, Forresters Beach NSW (the Land) to the third defendant, Mr Darcy Smith, in 15 lots for a total price of $195,000 (the 2024 Decision). The grounds for review have been amended on several occasions. Most recently, they were set out in an amended statement of claim circulated on 5 December 2025. This judgment addresses the grounds of review by reference to that document.

2. By an amended cross-claim filed on 16 June 2025, Mr Smith seeks specific performance of what is said to be an agreement the Delegate entered into to give effect to the 2024 Decision (the Settlement Agreement). In the alternative, Mr Smith seeks two types of relief. First, in the event that he is not entitled to enforce the Settlement Agreement either because the 2024 Decision is invalid or because the Minister succeeds in his argument that the Settlement Agreement is not an enforceable one, he seeks specific performance of what is said to have been an agreement entered into on 23 April 2020 (the 2020 Agreement) to sell the Land to him in that form (that is, as 15 lots) for $37,471.60. Second, in the event that he is not entitled to obtain specific performance of the 2020 Agreement (for whatever reason) and is not entitled to seek specific performance of the Settlement Agreement because the 2024 Decision was invalid, he seeks damages for breach of the Settlement Agreement.

3. In the light of the position taken by Mr Smith, and in the event that Mr Smith is successful in establishing the existence of the 2020 Agreement, the Council also seeks judicial review of the decision of a delegate of the Minister (the First Delegate) that led to the Minister entering into that agreement (the 2020 Decision).

4. This judgment concerns the claim by the Council in respect of the 2024 Decision and Mr Smith’s claim for specific performance of the Settlement Agreement. The effect of amended orders made by the Court on 5 December 2025 is that the question whether Mr Smith is entitled to specific performance of the 2020 Agreement (if he fails in relation to the Settlement Agreement), the question whether the 2020 Decision is valid (assuming that it is still operative) and the question whether Mr Smith is entitled to damages for breach of the Settlement Agreement, if those questions arise, are all to be determined separately and at a later time.

Background

5. It is common ground that prior to 2020 the Land formed part of a Crown road governed by the Roads Act 1993 (NSW) (Roads Act).

6. In May 2017, Mr Smith, whose land adjoins the road, made an application to purchase part of the road under s 152C(1) of the Roads Act (set out in para [40] below).

7. The then Minister, through what was then known as the Department of Industry (the Department) caused notice of the sale to be advertised in the local newspaper on 15 November 2018 and provided notice of the proposed sale by letter to affected public authorities and adjoining landowners, which included the Council.

8. The letter to the Council relevantly stated:

The Minister for Lands and Forestry proposes to consider the proposed sale of the roads identified by black and orange hatching and/or plain orange fill on the attached diagram. It is noted that roads are intended to be sold in accordance with section 152B of the Roads Act 1993. If sale of road proceeds the road will cease to be a public road upon transfer of the road to freehold land in accordance with section 152H of the Roads Act 1993.

The proposal will be advertised in the Central Coast Express Advocate on 15th November 2018 and a copy of the advertisement is attached for your information.

9. The advertisement relevantly stated:

In accordance with section 152D of the Roads Act 1993, notice is hereby given of the proposed sale of the Crown public roads listed in Schedule 1. If a sale proceeds, the road(s) will cease to be a public road upon transfer of the road to freehold land in accordance with section 152H of the Act.

Schedule 1:

● Crown Roads at Forresters Beach. West of The Entrance Road, South of Bellevue Road, adjoining the properties of 100 & 130 Bakali Road (File Ref: 17/06442, Cluster: 600597)

All interested persons are hereby invited to make submissions concerning the proposal to Department of Industry — Lands & Water, PO Box 2215, DANGAR NSW 2309 within twenty-eight (28) days of the date of this advertisement.

10. Set out below is an extract from the diagram attached to the letter. The key to the diagram indicates that the area shaded in red belongs to Mr Smith and the area shaded in teal belongs to the Council.

11. The Council made a brief submission on 24 January 2019 (outside the 28 day time limit specified in the notice). In that submission, it objected to the road closure and sale on the basis that the Council had “infrastructure within the road reserve being a sewer pump station – SPS FB04, and 225mm gravity and 100mm rising mains” and that if the Land were to pass into private hands it would make “the operation, maintenance and repair of the infrastructure more difficult”.

12. It appears that there were subsequent discussions between the Council and the Department in which the Council indicated that it may be prepared to remove its objection if it were granted an easement in respect of its services. Little then happened until 30 August 2019, when the Department wrote to the Council setting out the history of the matter and the fact that the Department had been chasing the Council “on and off” for a clear indication of the location of the proposed easement, without success. The letter continued:

Therefore this letter is giving council 28 days to supply the easement location information – after this time the department will make a decision based on the information at hand.

Please respond in writing within 28 days being Friday 27****th September 2019 as the department can no longer hold the application in abeyance. [emphasis in original]

13. The Council responded to that letter on 25 September 2019. It maintained its objection to the closure. It gave the following reasons:

• Council has significant sewer infrastructure located within the Crown road reserve being a sewer pump station (SPS FB04), a 225mm diameter gravity sewer main and a 100mm diameter rising main. The Crown road reserve may also be required to support future augmentation of the sewer network.

• An Ecological Endangered Community of Swamp Sclerophyll Forest is located within the Crown Road reserve and transfer to Council would ensure the vegetative corridor is maintained between 987-991 The Entrance Road, 130 Bakali Road 100 Bakali Road.

• Adjacent subdivision developments discharge directly into the Swamp Forest / Crown Road reserve with the quantity and location of discharge controlled to replicate historic development conditions. Given the low lying / flood affected nature of the Swamp Forest there is no defined natural flow path beyond the Crown Road reserve.

14. The Council’s response also raised an issue concerning the extent of the northern boundary of the Land.

15. The sale was approved by the First Delegate on 24 February 2020. The approval excluded that part of the road adjacent to the Council’s land. The approval was supported by a “Submission Report” prepared by the Department. The report identified the public authorities that had been consulted and their responses. It observed that the Council itself had requested that the Land be transferred to it.

16. Under the heading “Decision”, the report records the following:

After consideration of all submissions received, the roads shown by orange on the Diagram “C” are considered surplus to departmental needs and are suitable to be disposed of to an adjoining landholder. On registration of the transfer of sale these Crown roads will cease to be road.

17. In relation to the Council’s objections, the report states:

Submission received from Central Coast Council requesting transfer is overruled with a BC [Business Centre] decision being that the priority is for the road disposal, as:

• Council has advised that they have existing infrastructure within the road corridor and agreed to easement/s to protect their assets if the road is approved for disposal.

• Council have previously advised that due to an ecological endangered species being located within the road corridor, the corridor will not be developed as a physical road. Zoning of the land (Deferred matter) will determine what development is permitted which is a matter for Council separate to this Crown road purchase application.

• The Crown is to ensure a fair and equitable return in regards to its assets. Numerous surrounding freehold parcels of similar size have all recently been subdivided. If transferred, the potential for Council to close the road and sell to the applicant for an inflated value is high. The “Administration of Crown Roads Policy” deems a transfer to council to be suitable when it is in the interest of the applicant and public, and in this case, a transfer would not fall within this category.

18. The report stated that an appropriate price was $5 per sqm and that the total price depended on a survey. An addendum to the report indicates that the area of the road to be sold was 6,770 sqm, making the proposed sale price $33,850. The addendum also indicates that the Land would be sold as a single lot.

19. On 26 March 2020, the Department sent Mr Smith an offer to sell the Land for $33,850. The letter included a document which stated “This agreement is to be regarded as a contract for sale of the land”. The letter asked Mr Smith to sign and return the document by 26 April 2020. The document included the following paragraph:

3. I/We require the plan to be prepared with:

□ A single lot

□ ________ lots with title to be issued in accordance with the attached diagram which I/we have clearly marked showing separate lots required

(please tick the appropriate box – where no box is ticked a single lot will be issued in the name of the applicant)

20. Mr Smith returned the document on or about 31 March 2020 (although it is dated 31 February 2020). He ticked the second box of item 3 and inserted the number “15” in the blank space indicating the number of lots he required. It is that document which Mr Smith says constitutes the 2020 Agreement.

21. On 7 April 2020, the Department wrote to the Council indicating that the Delegate had determined to sell the Land to Mr Smith. The letter set out the Delegate’s reasons, which largely repeated the reasons given in the report which formed the basis of the Delegate’s decision.

22. On 24 July 2020, the Department sent an email to the Council attaching a linen plan showing that the Land would be split into 15 lots. The email relevantly said:

Crown Lands is unsure of the implications or risks that this plan registration may bring for Council. Can you review and internally circulate accordingly where feedback within 14 days would be appreciated. [emphasis in original]

23. On 7 August 2020, the Council provided an extensive response to that request in which it objected to the sale going ahead in 15 lots. It asserted that such a sale would be contrary to the public interest and have various adverse planning consequences. It also asserted that such a sale would have the effect of creating a subdivision of the Land without satisfying the legal requirements relevant to a subdivision and in doing so would avoid the restrictions on the development of the Land under the current applicable planning instrument, Interim Development Order No. 122 (IDO 122), which was said to impose a minimum lot size of 40 hectares (the size of each proposed lot was approximately 450 sqm). The letter also pointed to “numerous other engineering, flooding, hydrology, drainage, bushfire and ecological issues related to this land”, which meant that development consent for the creation of 15 lots would likely be refused. In making that submission, the Council repeated several of the problems it had raised in its earlier submissions. It again submitted that the Land should be transferred to it.

24. On 2 February 2021, the Delegate was copied in on an internal departmental email which attached a “brief in relation to the contentious Darcy Smith matter for review”. The “brief” was a memorandum which summarised the position to date. The memorandum stated (emphasis in original):

As a 15-lot subdivision is not the norm for the CRDP [Crown Road Disposal Program], further enquiries were made in relation to this proposal. From all advice received, there is nothing preventing the 15-lot plan from being registered and the sale to Mr Smith being completed.

However, the CRDP decision to sell the Crown road to Mr Smith has proven exceptionally controversial with Central Coast Council who strongly object for several reasons. All Central Coast Council’s concerns are itemised in their letter dated 07/08/2020 (DOC20/176813).

Impact

The sale has been held in abeyance for approximately 6 months while the CRDP tries to identify the best way forward.

Mr Smith consistently seeks updates, pressing for the sale to proceed, and is becoming increasingly impatient.

Central Coast Council are not interested in a compromise, they maintain their position that the Crown road should not be sold and seek transfer of the Crown road to Council.

I believe there are only two real options for the CRDP, both are controversial with significant legal and reputational risk, and none are mutually acceptable to Mr Smith and Central Coast Council. The options are:

1. Continue with the sale of the road to Mr Smith

2. Renege on the sale of the road to Mr Smith

Note:

• From all dealings/discussions with Mr Smith and Central Coast Council, I don’t consider there is any compromise on either side i.e. There can be no agreement/middle ground.

• Should CRDP renege on the sale to Darcy Smith, it would be most probable that the Crown road would be transferred to Council.

Next Steps

CRDP has discussed the matter with Legal branch who have agreed to independently review the matter and provide advice.

Depending on the advice received, the business (CRDP) will ultimately make a choice between the above options.

25. On 17 August 2021, the Department wrote to the Council saying:

In your letter dated 7 August 2020 Council raised concerns about the registration of 15 lots. Mr Smith was provided with a copy of the Council’s letter and made further representations. Crown Lands then obtained further advice and sought an independent review of the matter which has now been finalised.

I can now advise you that Crown Lands is prepared to complete the sale of the Crown Road to Mr Smith as a single lot only. Crown Lands will not agree to the proposed deposited plan subdividing the Crown Road into 15 lots because to do so would circumvent the requirement for the subdivision to be subject to consideration and scrutiny in the usual way under NSW planning and development legislation.

26. Mr Smith was also informed of this decision in similar terms.

27. On 30 November 2021, Mr Smith wrote to the Honourable Melinda Pavey MP complaining about what had happened. Then, in 2023, he commenced proceedings against the Minister seeking, among other things, specific performance of what was said to be a binding agreement to sell the Land to him in 15 lots. Those proceedings were set down for hearing on 26 and 27 March 2024 (the 2023 Proceedings).

28. A mediation in the 2023 Proceedings was scheduled for 14 February 2024. In preparation for the mediation, the Department prepared, and the Delegate and others approved, a briefing note the final version of which was dated 7 February 2024. The briefing note sought approval from the Deputy Secretary to settle the proceedings within the reasonable bounds of:

Transfer 1 Lot (as per original application) with no further payment being applicable from either party and each party to pay their own costs, to

Transfer 15 Lots (as per Mr Smith intention) with no further payment being applicable from Mr Smith and the Department to pay Mr Smith’s costs in respect to the matter

An intermediate position may consider payment from Mr Smith for an agreed Market Value for 15 Lots and/or partial payments of Mr Smith’s costs.

29. Under the heading “Sensitivities/Contentious issues” the briefing note relevantly said:

The sale of the road is not in dispute, the Department’s decision to sell the road followed due process, including the assessment of all objections. Council was informed of the decision to sell the Crown road to Mr Smith on 7 April 2020. A mediated resolution that results in the transfer of 15 Lots to Mr Smith will be contentious with the Central Coast Council, as they have indicated strong opposition to the subdivision. In addition, the Department confirmed to Council on 18 August 2021 that the sale of the road would not be subdivided into 15 Lots; this position was based on previous advice. If mediation resolution results in the transfer of 15 Lots, the Department will engage with Central Coast Council (in conjunction with LAM), and advise that whilst the subdivision will be actioned, this activity does not erode or preclude Council’s normal administrative functions in respect to the statutory planning framework and its associated processes.

30. On 18 January and 7 February 2024, the Department received internal valuations of the Land on three scenarios. The valuations (in the form of emails) indicated that on Scenario A, which was the sale of the Land as a single lot, the value was between $35,000 to $40,000; that on Scenario B, which was the sale of the Land as 15 lots but no entitlement to erect dwellings, the value was approximately $10,000 per lot; and that on Scenario C, which was the sale of the Land as 15 lots with an entitlement to erect a dwelling on each lot, the value was within a range of $4,000,000 to $5,000,000.

31. On 14 February 2024, the Delegate and Mr Smith attended the mediation. At the mediation, both signed the Settlement Agreement. A copy of that document is Annexure A (243 KB, pdf) to this judgment.

32. In a Statement of Reasons prepared and served in this proceeding pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 59.9, the Delegate, after describing the decision she made at the mediation and the background facts, relevantly said that in reaching her decision she agreed with:

(a) the reasoning set out in the Briefing Note dated 7 February 2024 which I had previously reviewed and approved on 1 February 2024;

(b) the reasoning set out in an earlier Submission Report and Addendum to the Submission Report which were approved on 24 February 2020 (which formed part of Ex DAS-1) except to the extent that they:

(i) recommended the sale be in a single lot for $33,850, because I had formed the view that a sale in 15 lots was appropriate for a higher amount; and

(ii) suggested that Mr Smith needed the Crown Road for access to his property, because Mr Smith subsequently indicated that he wished to acquire the Crown Road for the purpose of developing it.

33. The Delegate also said the following:

I also took into account the inclusion of the following clauses in the Mediation Agreement before making the Decision, namely:

(a) Clauses L and M which respectively state:

“The Department will prepare the instrument for the Council easement and provide it to Council for its signature (Instrument). The Department will state to Council that it supports the registration of a plan for 15 lots and the Council easement”

and

“Following settlement of the sale of the land, the [Minister] will undertake and carry out any necessary acts or give any necessary consents on its part to ensure title to the 15 lots is issued in the name of the Plaintiff.”

Therefore, whilst the Department was supportive of the registration of the Crown Road into 15 lots and would carry out any “necessary acts or give any necessary consents on its part” to give effect to same, it was ultimately a decision of the Council; and

(b) Clause O which states:

“It will be the Plaintiff’s responsibility to register the Survey Plan and Instrument with NSW Land Registry Services. The Plaintiff acknowledges that any decision to register the transfer is a matter for NSW Land Registry Services. Consistently with the Letter of Offer of 26 March 2020, it will be the Plaintiff’s responsibility to pay any fees associated with registration.”

This was an acknowledgement by both the Department and Mr Smith that, whilst the Department supported the registration of the Crown Road as 15 lots, it was ultimately a matter for NSW Land Registry Services. [emphasis in original]

34. Following the signing of the Settlement Agreement, there was correspondence between DC Balog & Associates acting for Mr Smith and Clayton Utz acting for the Minister in relation to the terms of the deed of release and contract for the sale of the Land as contemplated by the preamble of the Settlement Agreement. However, no agreement has been reached on the terms of either document. Nor has the Council agreed to the terms of an easement in its favour over the Land.

The issues

35. The Council advances six grounds of review in relation to the 2024 Decision:

(a) The Delegate failed to take into account the Council’s submission dated 7 August 2020 (Ground 1); (b) The notice given in November 2018 did not satisfy the requirements of s 152D(1) of the Roads Act because it did not state that it was proposed to sell the Land in the form of 15 lots, with the result that a precondition to the power conferred by s 152E was not satisfied (Ground 2); (c) The registration of 15 lots comprising the Land could not be effected in the absence of a plan of subdivision with the result that the Delegate made an error of law in assuming that it could or alternatively the Minister did not have power to sell or to dispose of the Land in the absence of a plan of subdivision (Ground 3); (d) The Delegate reasoned that the sale of the Land in 15 lots would not affect the Council’s ability to approve or not to approve the development of the Land with the result that either the Delegate’s decision was infected by a material error of law or the Delegate failed to engage with and therefore to take into account the Council’s submission of August 2020 (Ground 4); (e) In the alternative to Ground 3, if the Delegate was not satisfied that the Settlement Agreement was effective to sell the Land to Mr Smith in 15 lots because a plan of subdivision was required or because NSW Land Registry Services would not register the transaction or for any other reason, then her decision to enter into the Settlement Agreement was not one to dispose of or to sell the Land and consequently was not a proper exercise of power or was legally unreasonable (Ground 5); (f) The purpose or effect of the 2024 Decision in agreeing to the transfer of the Land as 15 separate lots was to facilitate a residential subdivision which was not a permissible purpose or effect in the exercise of the power under s 152E of the Roads Act and was therefore ultra vires (Ground 6).

36. Ground 6 was sought to be added by a notice of motion filed in Court on 2 December 2025. A draft of an amended statement of claim including that ground had previously been served on the defendants. The Minister did not oppose the amendment. Mr Smith did. I reserved on the question whether I would allow the amendment on the basis that I would deal with the issue in this judgment. On the second day of the hearing, the Council sought to make other amendments to the statement of claim. I indicated that I intended to reject some and to allow others. Ultimately, in light of those indications, the defendants agreed to a form of that document being filed. Nothing more needs to be said about that application to amend. The Council should be given leave to file that document.

37. In defence of the cross-claim, the Minister asserts that the Settlement Agreement was not a concluded agreement but fell within the third class of case identified by the High Court in Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 (Masters v Cameron) – that is, the class in which “the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract”: at 360. That is the only issue raised by the cross-claim that requires determination in this judgment.

The legislative framework

Power of the Minister to sell or to dispose of a Crown road

38. Section 5.3 of the Crown Land Management Act 2016 (NSW) (the Crown Land Management Act) relevantly provides:

5.3 Powers of Minister generally

(1) Subject to this Act (particularly, Part 2), the Minister can do anything with Crown land that a registered proprietor of land can do.

(2) …

(3) Without limiting subsection (1), the powers of the Minister include—

(a) selling, exchanging, transferring or in any other way disposing of or dealing with Crown land, and

(b) …

…

39. Section 1.9 of the Crown Land Management Act relevantly provides:

When land ceases to be or is not Crown land

(1) Land ceases to be Crown land if--

(a) the land is sold, or lawfully contracted to be sold, and the purchase price or other consideration for the sale has been received by the Crown (or by a person on behalf of the Crown) regardless of whether the purchaser is recorded in the Register as the registered proprietor of the land, or

(b) contracts for the sale of the land have been exchanged and the deposit has been received by the Crown (or by a person on behalf of the Crown).

(2) Land to which subsection (1)(b) applies becomes Crown land again if the purchaser fails to complete the purchase following the exchange of contracts.

…

40. Division 1A of Pt 10 of the Roads Act relevantly provides:

Division 1A Functions with respect to Crown roads and surplus Crown land

152A Crown roads generally not to be dealt with under Crown Land Management Act 2016

(1) A Crown road may not be dealt with under the Crown Land Management Act 2016 while it is a Crown road, except as provided by this section or the regulations.

Note: The roads authority for a Crown road is the Minister administering the Crown Land Management Act 2016—see section 7(2).

…

152B Power to sell or dispose of Crown road without first closing it

The roads authority may sell or otherwise dispose of a Crown road, or part of a Crown road, without first closing it.

152C Applications for sale or disposal of Crown road

(1) An application for the sale or disposal of a Crown road may be made to the roads authority for the road by any person.

…

152D Notification of proposal to sell or dispose of Crown road

(1) The roads authority must cause notice of the proposed sale or disposal of a Crown road—

(a) to be published in a local newspaper, and

(b) to be given to all owners of land adjoining the road.

(2) The notice—

(a) must identify the road that is proposed to be sold or disposed of, and

(b) must state that any person is entitled to make submissions to the roads authority with respect to the sale or disposal of the road, and

(c) must indicate the manner in which, and the period (being at least 28 days) within which, any such submission should be made.

152E Decision on proposal

(1) After considering any submissions that have been duly made with respect to the proposal, the roads authority may sell or dispose of the Crown road concerned.

(2) However, a Crown road may not be sold or disposed of to a person who is not an owner of land adjoining the road or a public authority unless each owner of land adjoining the road consents to it.

152F Conditions that may be included in contracts of sale for Crown road

(1) The roads authority may include in the contract of sale for a Crown road any conditions that the roads authority determines.

…

152G Purchase price for sales

(1) The roads authority may require the purchase price for the sale of a Crown road, or part of a Crown road, to be paid in full or by instalments.

…

152H Effect of registration of sale or disposal

(1) On the transfer registration for a Crown road or part of the Crown road concerned—

(a) the road or part ceases to be a Crown road, and

(b) the rights of passage and access that previously existed in relation to the road or part are extinguished.

…

41. It is plain from these provisions that the Minister is entitled to sell or to dispose of a Crown road or part of a Crown road but must do so in accordance with Part 10, Division 1A of the Roads Act.

Effect of the Environmental Planning and Assessment Act 1979 (NSW)

42. Section 4.2 of the Environmental Planning and Assessment Act 197**9 (NSW) (the EPA Act) relevantly provides:

4.2 Development that needs consent

(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—

(a) such a consent has been obtained and is in force, and

(b) the development is carried out in accordance with the consent and the instrument.

Maximum penalty—Tier 1 monetary penalty.

(2) For the purposes of subsection (1), development consent may be obtained—

(a) by the making of a determination by a consent authority to grant development consent, or

(b) in the case of complying development, by the issue of a complying development certificate.

…

43. Section 4.3 of the EPA Act provides:

4.3 Development that is prohibited

If an environmental planning instrument provides that—

(a) specified development is prohibited on land to which the provision applies, or

(b) development cannot be carried out on land with or without development consent,

a person must not carry out the development on the land.

Maximum penalty—Tier 1 monetary penalty.

44. “Development” is defined in s 1.5(1) to include relevantly “the subdivision of land” (para (b)) and “the erection of a building” (para (c)).

45. At the time Mr Smith sought to buy the Land, the relevant environmental planning instrument was IDO 122. Clause 18 of that instrument relevantly provides:

Subdivision

(1) This Clause applies to land within Zone No. 1(a), 1(b), 1(c), 1(d), 7(a), 7(b), 7(c2), 7(c3), 7(c4), 7(c5), 7(d) or 7(e).

(2) A person shall not subdivide land to which this Clause applies except in accordance with this Clause.

(3) Except as provided in subclauses (4) and (5), a person shall not subdivide land to which this Clause applies so as to create an allotment having an area of less than-

(a) in the case of land within Zone No. 1(c), 1(d), 7(a), 7(c4), 7(d) or 7(e) - 40 hectares;

(b) …

…

46. At the time, the Land was zoned 7(a) Conservation. Neither subclause (4) nor (5) contains a relevant exception. Accordingly, under IDO 122, subdivision of the Land to create an allotment of less than 40 hectares was prohibited.

47. IDO 122 was replaced by the Central Coast Local Environmental Plan 2022 (the LEP). Under cl 2.6 of the LEP, subdivision of the Land requires development consent. That was the position with respect to the Land at the time the 2024 Decision was made.

48. Section 6.3 of the EPA Act provides:

6.3 Work or activity that requires certificate under this Part

(1) A person must not carry out any of the following work or activity without a certificate under this Part that is required by this Part for that work or activity—

(a) building work,

(b) subdivision work,

(c) the occupation or use of a building (including a change of use),

(d) the subdivision of land,

(e) any other activity to which this Part applies.

(2) A person must not, in carrying out any such work or activity, contravene a certificate under this Part that applies to the carrying out of the work or activity.

(3) A certificate under this Part is not required for the carrying out of exempt development.

(4) This section does not apply to a compliance certificate.

Maximum penalty—Tier 1 monetary penalty.

49. Section 6.13(1) of the EPA Act provides that “[a] subdivision works certificate is required for the carrying out of subdivision work in accordance with a development consent”.

50. Section 6.2 of the EPA Act defines “subdivision” for the purposes of that Act. It relevantly provides:

6.2 Meaning of “subdivision” of land

(1) For the purposes of this Act, subdivision of land means the division of land into 2 or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected—

(a) by conveyance, transfer or partition, or

(b) by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition.

…

(3) However, subdivision of land does not include—

(a) …

…

(d) a division of land effected by means of a transaction referred to in section 23G of the Conveyancing Act 1919, or

(e) the procuring of the registration in the office of the Registrar-General of—

(i) a plan of consolidation, a plan of identification or a miscellaneous plan within the meaning of section 195 of the Conveyancing Act 1919, or

(ii) a strata plan of consolidation or a building alteration plan within the meaning of the Strata Schemes Development Act 2015. [emphasis in original]

51. Section 23G of the Conveyancing Act 1919 (NSW) (the Conveyancing Act) sets out transactions which are exceptions to the requirements of s 23F. Section 23F relevantly provides:

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 [which relevantly defines a “plan of subdivision” as a plan that shows “the division of an existing lot into 2 or more new lots”], or

(b) …

but the agreement is taken to be conditional on the registration of the proposed plan.

52. The exceptions stated in s 23G include the following transactions:

(a) a transaction that relates to the whole of the land comprised in a folio of the Register kept under the Real Property Act 1900,

(b) an application by the Crown to bring Crown land under the provisions of the Real Property Act 1900,

(b1) a transaction, initiated by the Crown, that redefines a boundary of Crown land that was brought under the provisions of the Real Property Act 1900 on the application of the Registrar-General under section 13D of that Act,

…

(l) a transaction that relates to the whole of the residue of an existing lot, where part of the lot—

(i) has been the subject of a transaction referred to in paragraph (h), (i), (j) or (k), or

(ii) has been acquired, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process, or

(iii) has been dedicated as a public road,

…

53. “Existing lot” is defined in s 7 in the following terms:

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.

54. “Current plan” is defined relevantly in s 7A to mean “a Crown plan or a registered plan”. “Crown plan” is defined in s 7 to mean “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 Registrar-General, and includes a registered plan that has been lodged for registration with the Registrar-General by or on behalf of the Crown”.

55. Part 3 of the Real Property Act 1900 (NSW) (the Real Property Act) deals with Crown lands. It relevantly contains the following provisions:

13 Application of this Part

(1) …

(2) This Part applies to land--

(a) sold, leased, dedicated, reserved or otherwise disposed of or dealt with,

(b) in the course of being sold, leased, dedicated, reserved or otherwise disposed of or dealt with, or

(c) capable of being sold, leased, dedicated, reserved or otherwise disposed of or dealt with,

by or on behalf of the Crown under the Crown Land Acts (as defined in the Crown Land Management Act 2016) or under any of the Acts specified in Schedule 2, being land in respect of which a grant has not issued and which, unless the context otherwise indicates or requires, is not under the provisions of this Act.

13A Bringing of purchases etc of Crown land under Act

(1) Where a person has an estate in fee simple in land to which this Part applies (not being a homestead selection under the Crown Lands Acts), the Registrar-General may, by creating a folio of the Register in the name of the person who, in the opinion of the Registrar-General, is entitled to be the registered proprietor of the land, bring the land under the provisions of this Act.

(2) The Registrar-General shall, in accordance with subsection (1), bring land referred to in that subsection under the provisions of this Act if the Registrar-General is satisfied that—

(a) the purchase money (if any) and all other money payable to the Crown in respect of the land have been paid, and

(b) where the land was sold or otherwise disposed of subject to conditions, those conditions have been performed or complied with, as the case may be.

…

13D Bringing of other Crown land under Act

(1) The Registrar-General may bring under the provisions of this Act any land to which this Part applies (not being land referred to in section 13A(1) or 13B(1)) by creating a folio of the Register recording “The State of New South Wales” as the proprietor of the land.

(2) Where the Registrar-General creates a folio of the Register in respect of land to which subsection (1) applies, the Registrar-General may record in that folio such particulars relating to any dedication, reservation, lease, licence, permit, occupancy or other matter affecting that land from time to time as the Registrar-General considers appropriate.

…

Ground 1

56. Ground 1 raises two issues. The first is whether the Delegate was required to take into account the Council’s submission dated 7 August 2020 in making her decision. The second is whether she did so.

57. The answer to the first question is governed by the requirements of Pt 10 Div 1A of the Roads Act and, in particular, s 152E, which states that the “roads authority” (in this case, the Minister) may sell or dispose of the Crown road concerned “[a]fter considering any submissions that have been duly made with respect to the proposal”. The “proposal” is the proposed sale or disposal of a Crown road in respect of which notice has been given in accordance with s 152D.

58. The reference to “submissions” should not be construed as a reference to the documents by which submissions are made but rather as a reference to the substantive points made in those documents. In many cases, there will be no practical difference between the two. But in this case there is. The Council provided the Minister with several documents over an extended period of time in which it made submissions on why the Land should not be sold and should not be sold as 15 separate lots. The context in which the submissions were made to some extent changed over time. In particular, the original submissions made by the Council proceeded on the basis that the Land would be sold as one lot whereas that was not the final form of the proposal. Provided the Delegate considered all matters raised in submissions that were duly made, she discharged the obligation arising from s 152E, even if she did not consider each document. Having considered the submissions that were duly made, she was not obliged to give reasons for her decision.

59. The proposal that was the subject of the notice was a proposal to sell part of a Crown road. The only information that the Minister was required to include in the notice of the proposal was the information set out in s 152D(2). That information did not include information on, for example, how the sale was to be effected or the proposed price. There is a question whether submissions on those matters would be “duly made”. In my opinion they would be. “Duly” in this context means submissions that were appropriate and in accordance with proper procedures. It may be that submissions would not be duly made if they were expressed in offensive language or they were made by someone with no interest in the matter. However, in my opinion, submissions on how the sale ought to be effected by someone with an interest in the sale (such as the Council) are duly made because they are directly concerned with the circumstances in which such a sale should be permitted.

60. Section 152D does not specify a time limit within which submissions are to be made. Rather, it leaves that issue to the roads authority (here, the Minister) but requires the roads authority to specify a period of not less than 28 days. Section 152D requires a time to be specified in the notice, but it was not suggested by any of the parties that the roads authority could not extend that time.

Ground 2

65. Ground 2 is that the notice given in November 2018 of the possible sale of the Land was defective because it did not state that it was proposed to sell the Land in 15 lots.

66. In my opinion, that ground must be rejected. There is nothing in s 152D which requires the Minister to state the terms of the proposed sale, including the number of lots in which the Land would be sold. Indeed, as in this case, that may not be known at the time the notice is given and may be the subject of negotiation if the Minister decides to sell the Land after considering submissions that were duly made. All that the notice is required to do is to identify “the road that is proposed to be sold or disposed of”: s 152D(2)(a). As the Minister points out in his written submissions, it may be inferred from the fact that notice must be published in a local newspaper that the purpose of the requirement of notice is to permit adjacent landowners and members of the public to object to the closure of the road which would be an inevitable consequence of its sale. That conclusion is supported by the Second Reading Speech during which the then Minister said:

The Government recognises that Crown roads can play an important role in providing access for fishers, bushwalkers, fossickers and other recreational users. They can also be the only means of access to a property or properties. For this reason, the bill includes safeguards to ensure that appropriate consultation is conducted on the sale of Crown roads.

Public consultation must occur if a Crown road is proposed to be sold. Under the bill, the public must be provided with at least 28 days to comment or make a submission about the proposed sale of a Crown road. In addition, adjoining landowners must be individually notified of the proposed sale.

(See New South Wales, Parliamentary Debates, Legislative Council, 10 May 2017, 19 (Niall Blair, Minister for Primary Industries, Minister for Regional Water and Minister for Trade and Industry)).

67. The Council submits that procedural fairness required the Minister “to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made” (quoting from Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 at 592 per Northrop, Miles and French JJ). But in that case, the question was whether the Commissioner had failed to discharge his statutory obligations in refusing to grant the appellant a wholesale or retail ‘X’ video merchants licence. Under the relevant legislation, the Commissioner was required to grant such a licence if the Commissioner was satisfied “on reasonable grounds in the circumstances that the applicant is a fit and proper person to hold a licence of that type”: at 586. As the Court pointed out (at 590), a decision of that type attracted an obligation to accord the applicant procedural fairness:

The Business Franchise (“X” Videos) Act does not exclude the common law requirement of procedural fairness and, in any event as a matter of statutory construction, the licence grant process attracts the requirements of procedural fairness at least in so far as it involves a determination whether the Commissioner is satisfied on reasonable grounds in the circumstances that the applicant is a fit and proper person to hold a licence of that type.

The obligation identified by Council by reference to that case was an aspect of the obligation arising from the fact that the decision-maker in that case had to make an assessment whether a person was a fit and proper person to hold a licence. But in this case the obligations that are required to be satisfied as an incidence of the decision under s 152E of the Roads Act are set out in that Act; and all the Act requires is that the decision-maker gives the notice required by s 152D(2) and considers submissions that are duly made. The nature of the decision does not attract an obligation of procedural fairness. As the Minister points out, a large number of people could be affected by a decision to sell a public road and might make submissions on the proposal. It could not have been intended that each of them would be accorded procedural fairness above an obligation to consider any submissions duly made by them: see Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 at 99-100 (Cole JA, Rolfe and Sheppard AJJA agreeing).

Ground 3

68. Ground 3 raises two issues. The first is whether the Delegate made a reviewable error of law in assuming that the Land could be registered as 15 lots in the absence of a plan of subdivision. The second is whether the Minister has power to sell or to dispose of the Land in 15 lots in the absence of a subdivision, or to put the position more accurately whether the Minister has power to sell the Land in accordance with the terms of the Settlement Agreement.

69. It is not clear on what basis the Council maintains an argument based on the first limb of this ground. Section 69 of the Supreme Court Act 1970 (NSW) relevantly provides:

(1) Where formerly—

(a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or

(b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course,

then, after the commencement of this Act—

(c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but

(d) shall not issue any such writ, and

(e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and

(f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules.

(2) …

(3) The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings—

(a) jurisdiction to quash the ultimate determination of the court or tribunal, and

(b) if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

(5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision.

70. It is accepted that relief under s 69 of the Supreme Court Act is only available for jurisdictional error or error of law on the face of the record: D*’*Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201 at [42] (Simpson AJA, Macfarlan and Leeming JJA agreeing). It is unclear whether error of law on the face of the record is available as a ground of review except where the decision-maker is a court or tribunal: see Christian Community Ministries Ltd v Minister for Education and Early Learning [2023] NSWSC 272 at [7] (Basten AJ); Picos v Council of the New South Wales Bar Association [2023] NSWCA 218 at [76]ff (Gleeson JA, Leeming and Payne JJA agreeing). In any event, the Council accepted during the course of the hearing that the Delegate’s statement of reasons was not part of the record for this purpose and no other document was identified that was said to satisfy that description.

71. Moreover, it is not clear what the first limb of this ground adds to the second. If the Minister does not have power to sell or to dispose of the Land in accordance with the terms of the Settlement Agreement, that is the end of the matter. On the other hand, if the Minister does have power to sell the Land in accordance with those terms, it is difficult to see what error of law on the face of the record the Delegate made in deciding to enter into that agreement.

72. The answer to the second argument advanced by the Council depends on whether the Settlement Agreement amounts to a subdivision, and, if so, whether it falls within one or more of the exceptions to the definition of “subdivision” that are identified by reference to s 23G of the Conveyancing Act.

73. If the Settlement Agreement constitutes a subdivision that does not fall within one or more of those exceptions, there is nothing in the provisions of the Roads Act or the Crown Land Management Act that permits the Minister to sell or to dispose of all or part of a Crown road without complying with the relevant provisions of the EPA Act. The various exceptions to the definition of “subdivision” in s 6.2 of the EPA Act proceed on the assumption that but for the application of one or more of the exceptions the Minister is bound to comply with the provisions of the EPA Act.

74. The Settlement Agreement records in cl A that “[t]he parties have agreed that title for the Land can be issued in 15 lots (subject to registration by NSW Land Registry Services)”. Under cl K, the obligation is on Mr Smith to engage a surveyor to prepare “a full survey plan”. Under cl O “[i]t will be [Mr Smith’s] responsibility to register the Survey Plan … with NSW Land Registry Services” and Mr Smith acknowledges “that any decision to register the transfer is a matter for NSW Land Registry Services”. Settlement is to occur when relevantly “[Mr Smith] has provided a final survey plan”: cl I(a). Under cl M, following settlement “[the Minister] will undertake and carry out any necessary acts or give any necessary consents on its part to ensure title to the 15 lots is issued in the name of [Mr Smith]”.

Ground 4

82. Ground 4 also has two limbs. The first limb is that the Delegate made an error of law in concluding that the sale of the Land in 15 lots did not affect the Council’s ability to approve or not to approve the development of the Land. The second is that the same conclusion involved a failure to take account of the Council’s submission of August 2020.

83. Neither ground is made out. As I have explained a mere error of law on the part of the decision-maker does not give rise to a ground of review, and the Council accepts that the Delegate’s statement of reasons does not form part of the record, even assuming that error of law on the face of the record is an available ground of review in this case. The Council does not point to any other document which is said to be part of the record where the error is supposed to have been made. In oral submissions in reply Mr Hutton SC, who appeared for the Council, properly conceded that “we might not get far with para 62 of the statement of claim” (which raises this issue). Nothing further, therefore, needs to be said about it.

84. For the reasons stated earlier in relation to Ground 1, it is plain that the Delegate took account of the submissions made by the Council in August 2020. Nothing more needs to be said about this aspect of Ground 4.

Ground 5

85. Ground 5 is an alternative to Ground 3. Since I have concluded that the Council should succeed in relation to Ground 3, it is unnecessary to consider this ground. However, even if Ground 3 had not been made out, I would have rejected this ground. There is no reason to suppose that the Delegate concluded that the Settlement Agreement was not sufficient to sell the Land to Mr Smith in 15 lots. Assuming that the Settlement Agreement is enforceable (an issue that is dealt with below), the effect of the agreement if implemented is that the Land will be sold to Mr Smith in 15 lots. If the conditions to the agreement are not satisfied, it will not. However, there is no reason why the Minister could not enter into a conditional agreement for the sale of the Land. Section 152F(1) of the Roads Act expressly permits the Minister to do so.

Ground 6

86. Although Mr Smith objected to the inclusion of this ground, it seems to me that this ground adds little to Ground 3 to which no objection was ultimately taken. The question that both grounds raise is the scope of the power conferred by s 152E of the Roads Act. I have concluded that the effect of the section (taken together with the relevant provisions of the EPA Act) is only to permit a subdivision to the extent that the subdivision is necessary in order to enable the sale or disposal of the “Crown road concerned”. It does not permit the further subdivision of the Land for any purpose without complying with the relevant provisions of the EPA Act.

The cross-claim

87. By his amended cross-claim, Mr Smith seeks specific performance of the Settlement Agreement. The Minister resists that claim on the basis that a Settlement Agreement was not a concluded agreement, but instead fell within the third class of case described in Masters v Cameron.

88. As the Minister points out, in light of my conclusion that the Minister did not have power to enter into the Settlement Agreement, this issue does not arise. However, it is necessary to deal with it in the event that I am wrong about my primary conclusion.

89. In essence the question whether Mr Smith is entitled to specific performance raises two questions. The first is whether the parties intended the Settlement Agreement to be a legally binding document immediately. The second is whether the agreement is sufficiently certain to be a legally binding document.

90. So far as the first question is concerned, I accept Mr Smith’s submissions that the parties did intend the document to be legally binding immediately.

91. The relevant principles were stated by the Court of Appeal (Bell CJ, Hammerschlag CJ in Eq and Adamson JA) in these terms in Stellar Vision Operations v Hills Health Solutions [2023] NSWCA 102 at [64] (citations omitted):

Whether parties intend to create binding legal relations is ascertained objectively, that is, by determining whether a reasonable person in the position of the parties would have taken them to have intended to contract. The presence (or absence) of that intention is fact-based, to be found in all the circumstances, including by drawing inferences from their words and their conduct in making their agreement. In ascertaining their intention, whether from a series of communications or from a single document, regard can be had to the commercial circumstances in which the parties exchanged their communications and to the subject matter of the supposed contract.

92. In the present case, the Settlement Agreement is expressed to be an agreement. The introductory words to the document state that “[t]he parties have agreed to resolve the [2023 Proceedings] on the following terms and subject to entering into a Deed of Release and contract for the sale of land”. The document was prepared in the course of a formal mediation at which both parties were legally represented. The purpose of the mediation was to resolve the 2023 Proceedings that had been listed for hearing on 26 and 27 March 2024.

93. The Minister submits that the parties did not intend the agreement to be immediately binding because it was expressed to be subject to execution of a deed of release and formal contract of sale. He submits that that is a strong indication that the agreement was not intended to be legally binding. He points to the following passage from the reasons of Dixon CJ, McTierney and Kitto JJ in Masters v Cameron at 362-3 in support of that submission:

This being the natural meaning of “subject to contract”, “subject to the preparation of a formal contract”, and expressions of similar import, it has been recognized throughout the cases on the topic that such words prima facie create an overriding condition, so that what has been agreed upon must be regarded as the intended basis for a future contract and not as constituting a contract. Indeed, Lord Greene MR remarked during the argument in Eccles v Bryant and Pollock that when the expression “subject to contract” was used he had never known a case in which it had been suggested, much less held, that this did not import that there was nothing binding till the exchange of parts of the formal contract was made. The effect of the early cases on the subject was stated by Sir George Jessel MR in Winn v Bull when he said in a passage which has become well-known: “It comes, therefore, to this, that where you have a proposal or agreement made in writing expressed to be subject to a formal contract being prepared, it means what it says; it is subject to and is dependent upon a formal contract being prepared. When it is not expressly stated to be subject to a formal contract it becomes a question of construction, whether the parties intended that the terms agreed on should merely be put into form, or whether they should be subject to a new agreement the terms of which are not expressed in detail”. (footnotes omitted)

94. In my opinion, reliance on this passage is misplaced. In this passage, the High Court was concerned with cases in which the agreement itself is expressed to be “subject to contract”. That is not the present case. Rather, the Settlement Agreement is expressed to be subject to the satisfaction of three conditions – the execution of a deed of release, the execution of a formal contract of sale on terms identified in the Settlement Agreement and the execution of an easement in favour of the Council. The Settlement Agreement states that the deed of release must be executed within 14 days and that the contract of sale must be issued by the Department (the Minister) within a further 14 days, although there is a question whether time is of the essence in satisfying that condition. The Settlement Agreement does not state by when the third condition must be satisfied. In the absence of a specific time, a reasonable time would be implied: Hick v Raymond [1893] AC 22 at 28 (Lord Herschell LC), 32-3 (Lord Watson); Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 (Perri) at 543 (Gibbs CJ), 554 (Mason J), 557 (Wilson J), 567-8 (Brennan J, Stephen J agreeing). If the conditions precedent are not satisfied, the Settlement Agreement does not take effect. If they are, it does. Moreover, in my opinion, it was an implied term of the Settlement Agreement that each party would take reasonable steps to satisfy the conditions precedent: Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607 (Mason J), citing Mackay v Dick (1881) 6 App Cas 251 at 263 (Lord Blackburn) and Butt v M*’*Donald (1896) 7 QLJ 68 at 70-1 (Griffith CJ). Neither party could avoid their obligations under the Settlement Agreement simply by refusing to execute the other agreements contemplated by that agreement.

95. There does not appear to be a serious issue in relation to the formal contract of sale. The Settlement Agreement states that it is to be prepared by the Department and sets out its terms (the terms of the earlier contract with the modifications stated in cl G). The focus of the Minister’s submissions was on the other two conditions.

96. In relation to the deed of release, the Minister points out that the only thing the Settlement Agreement says about its scope is that it is to “provide for the release of [the Minister] from liability associated with the sale of the Land, with the release to take effect upon settlement occurring”: cl F. In fact, the parties have been unable to reach agreement on the scope of the release let alone within a period of 14 days.

97. In my opinion, that is not fatal. I do not accept that time is of the essence: see Perri at 568 (Brennan J, Stephen J agreeing) citing Tilley v Thomas (1867) LR 3 Ch App 61 at 67 (Lord Cairns LJ). Moreover, where the deed of release relates to the settlement of court proceedings and the parties do not specify the terms to be included in the deed, it is reasonable to interpret their agreement as an agreement that the scope of the release will mirror the “release” that would be obtained through the doctrines of res judicata, issue estoppel, Anshun estoppel (see (1981) 147 CLR 589) and the like. Consequently, absent agreement it would be possible for the Court to determine the scope of the release agreed by the parties.

Conclusions and orders

99. On the conclusions I have reached the Minister did not have power to enter into the Settlement Agreement because it provides for a subdivision of land that does not comply with the requirements of the EPA Act.

100. The parties should be given an opportunity to make submissions on the form of orders that should be made by the Court in the light of those conclusions and on the question of costs. It will also be necessary to list the matter for further directions to deal with the outstanding issues in the case.

101. Accordingly, the orders of the Court are:

102. Grant leave to the plaintiff to file the amended statement of claim emailed to Ball JA’s chambers on 5 December 2025;

103. Within 14 days the parties are to provide to my Associate short minutes of order to give effect to the conclusions of this judgment and any agreement in relation to costs;

104. If the parties cannot reach agreement on the form of orders then within a further 14 days the parties are to provide my Associate with the form of orders that each party seeks and a short outline of written submissions not exceeding 5 pages setting out the reasons why the Court should make those orders; and

105. Stand the matter over until 24 April 2026 or such other date as is agreed with my Associate.

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