City of Parramatta Council v Transport for NSW

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 7.4, 7.6, 7.10
Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 4, 37, 42, 46
Real Property Act 1900 (NSW), ss 31, 31B, 32

Cases Cited: Breskvar v Wall (1971) 126 CLR 376; [1971] HCA 70
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Clos Farming Estates Pty Ltd v Easton [2002] NSWCA 389
Dial A Dump Industries Pty Ltd v Roads and Maritime Services (2017) 94 NSLWR 554; [2017] NSWCA 73
Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378
Karacominakis v Big Country Developments [2000] NSWCA 313
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2017] HCA 17
Olde English Tiles Australia Pty Ltd v Transport for New South Wales (2022) 108 NSWLR 503; [2022] NSWCA 108
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; [1986] HCA 7
Sweetwater Action Group Inc v Minister for Planning [2011] NSWLEC 106
Timbarra Protection Coalition v Ross Minning NL (1999) 46 NSWLR 55; [1999] NSWCA 8
White v Betalli (2007) 71 NSWLR 381; [2007] NSWCA 243
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Category: Principal judgment

Parties: City of Parramatta Council (Plaintiff)
Transport for NSW (First Defendant)
Valuer General of New South Wales (Second Defendant)

Representation: Counsel:
N Hutley SC / M Astill (Plaintiff)
P Herzfeld SC / L Waterson (First Defendant)
Submitting Appearance (Second Defendant)
Solicitors:
Allens (Plaintiff)
Crown Solicitor’s Office (Defendants)

File Number(s): 2024/387367

Publication restriction: Nil.

JUDGMENT

1. HIS HONOUR: The dispute that gives rise to these proceedings concerns a parcel of land on Hill Road, Wentworth Park (“the Parent Parcel”). That land, which was owned by SH Hill Road Development Pty Ltd, was subject to a voluntary planning agreement with two other parties: Parramatta City Council (“the Council”) and Sekisui House Australia Pty Ltd, a developer.

2. As part of the expansion of the light rail services of this State, the Parent Parcel was part of a swathe of land which was compulsorily acquired to enable the construction of this new network. The Council sought compensation for the acquisition of their purported interest. Transport for New South Wales (“TfNSW”) and the Valuer General did not accept that any such interest existed and denied its claim. This judgment deals with the Council’s application for judicial review of those decisions.

Background

3. In November 2021, the Council, along with SH Hill Road Development Pty Ltd (“the Owner”) and Sekisui House Australia Pty Ltd (“the Developer”) entered into a Voluntary Planning Agreement (“VPA”) in respect of the Parent Parcel. The VPA was an agreement under the terms of section 7.4 of the Environmental Planning and Assessment Act 1979 (NSW) (“EPA Act”). Section 7.4(1) is in the following terms:

7.4 Planning agreements

(cf previous s 93F)

(1) A planning agreement is a voluntary agreement or other arrangement under this Division between a planning authority (or 2 or more planning authorities) and a person (the ‘developer’)—

(a) who has sought a change to an environmental planning instrument, or

(b) who has made, or proposes to make, a development application or application for a complying development certificate, or

(c) who has entered into an agreement with, or is otherwise associated with, a person to whom paragraph (a) or (b) applies,

under which the developer is required to dedicate land free of cost, pay a monetary contribution, or provide any other material public benefit, or any combination of them, to be used for or applied towards a public purpose. (My emphasis.)

4. Section 7.6 of the EPA Act, which is central to the Council’s argument, is in the following terms:

7.6 Registered planning agreements to run with land

(cf previous s 93H)

(1) A planning agreement can be registered under this section if the following persons agree to its registration—

(a) if the agreement relates to land under the Real Property Act 1900—each person who has an estate or interest in the land registered under that Act, or

(b) if the agreement relates to land not under the Real Property Act 1900—each person who is seised or possessed of an estate or interest in the land.

(2) On lodgment by or on behalf of a planning authority of an application for registration in a form approved by the Registrar-General, the Registrar-General is to register the planning agreement—

(a) by making an entry in the relevant folio of the Register kept under the Real Property Act 1900 if the agreement relates to land under that Act, or

(b) by registering the agreement in the General Register of Deeds if the agreement relates to land not under the Real Property Act 1900.

(3) A planning agreement that has been registered by the Registrar-General under this section is binding on, and is enforceable against, the owner of the land from time to time as if each owner for the time being had entered into the agreement.

(4) A reference in this section to a planning agreement includes a reference to any amendment or revocation of a planning agreement.

5. The VPA provided, through clauses 6.3 & 6.4 that parts of the Parent Parcel would ultimately be dedicated to the Council as is contemplated by section 7.4(1), with certain works having been carried out on the Parent Parcel for the benefit of the Council. However, this dedication or transfer was contingent upon other works being performed by the Developer, and the VPA imposed no obligation for these works to occur. However, clause 8 of the VPA made the following provision:

8 Registration of this agreement

*8.*1 Developer Interest

Land owner represents and warrants to the Council that on the date of this agreement it is the registered proprietor of the Land and has granted the Developer unfettered authority to negotiate the terms of this Agreement on the Landowner’s behalf.

*8.*2 Registration of this agreement

(a) The parties must take all practicable steps to enable this Deed to be registered by the LRS on the title to the Land, including the execution of any documents and procuring the consent of each person whose consent is required to Registration.

(b) Within 7 days of execution of the Deed by the Developer, the Developer must provide to Council:

(i) the Deed, properly executed by the Developer;

(ii) an acceptance of the terms of this agreement and an acknowledgement in writing from any existing mortgagee in relation to the Land that the mortgagee will adhere to the provisions of this agreement if it takes possession of the Land as mortgagee in possession,

(iii) the consent in writing of any person who has an estate or interest in the Land registered under the Real Property Act 1900 (NSW) or is seized or possessed of an estate or interest in the Land, (iv) a cheque payable to NSW Land Registry Services in the amount of $143.50

(c) Within 7 days of execution of this Deed, the Developer must lodge with the LRS, the certificate of title for the Land or if the certificate of title is not in the possession of the Developer, procure the lodgment of the certificate of title by the person who is holding the certificate of title, with the LRS.

(d) In addition to its obligations under clause 8.2(b), the Developer at its own expense must take all practical steps, and otherwise do anything that the Council reasonably requires to procure the execution of any documents to enable the registration of this agreement in accordance with this clause 8.2.

(e) The Landowner consents to the registration of the agreement in accordance with this clause 8.2.

8.3 Removal from Register

The Council must promptly provide a release and discharge of this agreement so that it may be removed from the folios of the Register for the Land (or any part of it) provided the Council is satisfied the Developer has duly fulfilled its obligations under this agreement.

8.4 Caveat

(a) The Developer acknowledges and agrees that:

(i) when this agreement is executed, the Council is deemed to have acquired and the Developer is deemed to have granted, an equitable estate and interest in the Land for the purposes of section 74F( 1) of the Real Property Act 1900 (NSW) and consequently the Council will have a sufficient interest in the Land in respect of which to lodge a caveat over the Land notifying that interest;

(ii) it will not object to the Council lodging a caveat in the relevant folios of the Register for the Land nor will it seek to remove any caveat lodged by the Council provided the caveat does not prevent registration of any dealing or plan other than a transfer.

(b) The Council must, at the Developer’s cost, register a withdrawal of any caveat in respect of the Land within five Business Days after the Developer complies with clause 8.2 and must not lodge any other caveats on the titles to any of the Land, other than in accordance with clause 8.4(a).

6. In June 2023, the Council registered a caveat over the Parent Parcel under clause 8.2 of the VPA and the VPA itself was subsequently registered as contemplated by section 7.6 of the EPA and clause 8.2 of the VPA. On 24 May 2024, after registration of the VPA, TfNSW compulsorily acquired land under the terms of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (“the Just Terms Act”), with details of their acquisition being published in New South Wales Gazette No 185 of 2024. Part of that land included the Parent Parcel.

7. The Council made a claim for compensation under section 39(1) of the Just Terms Acts with the Valuer General on 28 May 2024. On 20 June 2024, TfNSW made a submission to the Valuer General in respect of the Council’s claim. In sum, they denied that the Council had an interest in the land.

8. On 22 July 2024, an officer in the employ of the Valuer General wrote to the Council’s solicitors denying their claim. The letter provides:

“I have obtained legal advice and after considering the material provided to me, I have formed the view that rights held by [the Council] in the [VPA] do not comprise an interest in land, as defined in the [Just Terms Act].”

9. Similarly, on 15 August 2024, an officer in the employ of TfNSW wrote to the Council stating that the Council did not have an interest in the land for the purposes of the Act. The letter provided:

[The Just Terms Act] requires that an acquiring authority is to reject a claim for compensation if the authority considers that the claimant is not entitled to compensation. Section 46 (2) of the [the Just Terms Act] refers.

Accordingly, I hereby notify you that [TfNSW] rejects Council’s claim for compensation

10. By way of Amended Summons, the Council in substance seeks:

11. Declarations that the Council had an interest in land in respect of the Parent Parcel for the purposes of the Just Terms Act, and that interest was diminished by TfNSW’s acquisition such that it is entitled to compensation under the Just Terms Act.

12. An order in the nature of certiorari in respect of the decision of the Valuer General or TfNSW that the Council had no such interest and is not entitled to compensation.

13. An order in the nature of mandamus commanding the Valuer General to determine compensation payable for the diminution of that interest.

14. An order for costs.

Who was the Decision-Maker?

11. The Summons as originally filed formulated the decision under review as being that of the Valuer General’s that the Council had no interest in the Parent Parcel. This was subsequently amended to include an alternative prayer for relief against TfNSW’s decision as the acquiring authority. This was a well-founded amendment.

12. The purported decision of the Valuer General that the Council’s interest is not an interest in land is beyond power. Its statutory function under the Just Terms Act is limited to a determination of the amount of compensation, not the existence of an interest in land: Just Terms Act, s 47. The responsibility for determining whether an entitlement to compensation exists falls to the acquiring authority, by virtue of the regime imposed by sections 42 and 46 of the Just Terms Act. The Valuer General has filed a submitting appearance.

13. The Valuer General exceeding power does not, strictly speaking, give rise to jurisdictional error because it is not material to the outcome: Hossain v Minister for Immigration (2018) 264 CLR 123; [2018] HCA 34. TfNSW, who was the proper decision-making authority, also made a functionally identical decision. Once TfNSW made that decision, the only possible decision that the Valuer General could have made would be to decline to order any compensation. It may yet be necessary to grant relief against the Valuer General if the Council is successful against TfNSW.

14. If the Council succeeds against TfNSW because it is successful in establishing its interest in the Parent Parcel under the VPA is an interest in land for the purpose of the Just Terms Act, and relief is ordered accordingly, ancillary orders in the nature of certiorari against the Valuer General’s decision to not award compensation and in the nature of mandamus commanding a reassessment according to law would seem to naturally follow.

Principles

15. The purpose of judicial review is to ensure an administrative decision-maker’s decision conforms to its governing law. It is not concerned with “merits review”. The Court will not interfere with a fact-finding function that has been delegated to an authority or tribunal by virtue of an Act of Parliament unless the fact is a jurisdictional fact. It is not for the Court to elevate every fact to the level of being of jurisdictional fact, as the effect of so doing deprives Parliament’s delegates from the ability to perform their function with an appropriately free hand, provided they otherwise conform to law.

16. However, that appropriate restraint does not mean that this Court’s supervisory authority is abrogated. There are some facts which Parliament clearly intended must actually, objectively exist before a power is exercised, as opposed to merely depending on the opinion of the decision-maker: Timbarra Protection Coalition v Ross Minning NL (1999) 46 NSWLR 55; [1999] NSWCA 8, at [40] (Spigelman CJ) (“Timbarra”). These “jurisdictional facts” are so important to the proper exercise of the statutory function that judicial review will lie where a failure to observe them has been occasioned. Deciding whether a fact is jurisdictional is a process of ordinary statutory interpretation: Timbarra at [37]-[39].

17. An alternative path to jurisdictional error contended for by the Council is legal unreasonableness. Implied in the conferral of power is a condition that the repository’s ultimate decision lies “within the bounds of reasonableness”: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2017] HCA 17 at [33] (Kiefel CJ, Gageler, Keane and Gleeson JJ) (“MZAPC”). That reasonableness condition is reproachful of arbitrary (or indeed capricious) exercises of power.

Is the Existence of an Interest in Land a Jurisdictional Fact?

18. Central to this dispute is whether the existence of an interest in land is a jurisdictional fact for the purposes of the Just Terms Act. There are two sections which are particularly relevant. The first, section 42, provides for the immediate process following acquisition:

42 Notice of compensation entitlement and offer of compensation

(1) An authority of the State which has compulsorily acquired land under this Act must, within 45 days after the publication of the acquisition notice, give the former owners of the land written notice of the compulsory acquisition, their entitlement to compensation and the amount of compensation offered (as determined by the Valuer General).

(2) The compensation notice must be given to all former owners of the land who, immediately before the acquisition—

(a) had a registered interest in the land, or

(b) were in lawful occupation of the land (but only if the authority of the State considers they are entitled to compensation), or

(c) had, to the actual knowledge of the authority of the State, an interest in the land which entitles them to compensation.

Sub-sub-sections (3)-(8) omitted.

19. Section 42(1) imposes an obligation on the acquiring authority to provide a compensation notice within 45 days of their acquisition to the “former owners of the land”. Sub-section (2) sets out categories of persons to whom that notice must be sent. I consider construction of this sub-section to be determinative to this broader point. Section 42(2)(a) is the real provision in issue, but TfNSW invited me to construct that section by reference to its broader statutory context.

20. I accept the submissions of TfNSW that sub-sub-sections (b) and (c) contemplate an element of subjectivity. However, (b) is not totally subjective. The subjectivity of the second clause of that provision comes in as a qualification to the objectivity of the first. To my mind, the language is mandatory – “must be given to all former owners who…. were in lawful occupation of the land”. I do not consider that there is any room for subjectivity in that provision at all. The subjectivity of the latter part of that provision requires the acquiring authority to make a decision about whether persons in occupation are entitled to compensation by dint of section 37 of the Just Terms Act.

21. Section 37 provides:

37 Right to compensation if land compulsorily acquired

An owner of an interest in land which is divested, extinguished or diminished by an acquisition notice is entitled to be paid compensation in accordance with this Part by the authority of the State which acquired the land.

22. The key is a determination of whether a person has an interest in land. It also requires that the interest must have been divested, extinguished or diminished by an acquisition. Generally, that will be clear, but not always. Suffice it to say, the identification of an interest does not, in and of itself, give rise to a right to compensation under this section, absent divestment, extinguishment or diminution.

23. By way of example, if the authority acquired land subject to a lease, to the end that the current occupant’s rights would not be impaired, then that does not give rise to a right to compensation under section 37 because there has been no divestment, extinguishment or diminution of that interest. Therefore, despite falling within the first clause of section 42(2)(b), an undisturbed lessee remaining in lawful occupation of the land, is not entitled to a compensation notice, because of the formation by the acquiring authority of the subjective belief that he is not entitled to compensation.

24. Section 42(2)(c) turns on actual knowledge of the acquiring authority. A person whose interest is not registered and is not in actual occupation is not entitled to a section 42(1) notice unless the authority knows of his interest. This may apply to an unregistered mortgage whose charge is subject to a caveat. There would doubtless be other means by which knowledge could be acquired in practice. But section 42(2)(c) does not depend on the acquiring authority’s opinion.

25. Returning to section 42(2)(a), I consider the question of whether a former owner had a registered interest in the land to be a jurisdictional fact. Relevantly, section 4 of the Just Terms Act provides a definition of ‘registered interest’:

‘registered interest’ in land means an interest in the land—

(a) recorded in the Register kept under the Real Property Act 1900, or

Sub-sections (b)-(c) omitted.

26. I am unable to accept that this is anything other than a jurisdictional fact. There is no room for subjectivity or a reasonable difference of opinion here – an interest is either registered, or it is not. It either appears on the Register, or it does not. If an interest is on title, the owner is entitled to receive a compensation notice, according to the valuation of the Valuer General. It is not for TfNSW to decide that it will go behind the Register and make its own mind up about whether an interest recorded is actually an interest in land.

27. I now turn to section 46 of the Just Terms Act, which provides:

46 Claim for compensation by person not offered compensation

(1) A person who has not been given a compensation notice may nevertheless lodge with an authority of the State a claim for compensation under this Part.

(2) If the authority of the State considers that the person is entitled to compensation, the authority is to give the person a compensation notice. Otherwise, the authority is to reject the claim by notice in writing given to the person.

(3) A claim for compensation under this section is taken to have been rejected if the authority of the State has not dealt with the claim within 60 days after receiving the claim. However, the authority of the State is not precluded from giving the person a compensation notice after that time.

28. For much the same reasons as expounded above, I do not think that this helps TfNSW’s position. To the extent that “considers” empowers the authority to form a subjective opinion, it is a subjective opinion about the entitlement to compensation, not over an interest in land. I also think that there is weight in the Council’s submissions that the explicit choice of subjective language in sections 42(2)(b) & (c) and 46(2) militate in favour of section 42(2)(a) being construed objectively.

29. More importantly, section 46 seems primarily directed to former owners not covered by the cascading provisions of section 42(2), being those who are not registered, not in occupation or not within the actual knowledge of the acquiring authority. Those covered by section 42(2) should not have fallen through the cracks.

30. I consider that the existence of a registered interest in the land is a jurisdictional fact and consequently that it is amenable to judicial review.

Unreasonableness

31. The Council’s secondary position was that the decision was legally unreasonable. This was raised in oral argument and after the completion of the hearing, and I invited the parties to provide further submissions on this point, which opportunity was taken. Strictly speaking, as I have found that there is a jurisdictional fact to be reviewed, there is no need to consider this argument.

32. I will nonetheless very briefly consider some aspects of the submissions for completeness. From the Council’s written submissions, the gravamen of the argument is that no reasons were given for the decision. I agree that no reasons were given for the decision that the Council’s rights under the VPA did not amount to an interest in land. I do not agree that this was legally unreasonable. That ground was stated.

33. There is no shortage of cases about the obligations of administrative decision-makers to give reasons. The High Court in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; [1986] HCA 7 confirmed that there is no common law right to reasons following an administrative decision (Gibbs CJ at 662). That position has not changed in the decades following that leading judgment. Generally, where one complains of an absence of reasons, one must point to a statutory duty to provide them: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [43] (French CJ, Crennan, Bell, Gageler and Keane JJ). The duty may arise by necessary implication as a matter of statutory construction: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284. I am not satisfied the general rule has been displaced.

Other Discretionary Factors Against Certiorari

34. TfNSW submits that the Court should refuse relief for discretionary reasons. First, they contend that the proper interpretation of sections 42 and 46 of the Just Terms Act bestows the function of determining an interest on TfNSW, and to grant relief would be counter to the legislative scheme. My findings above about the existence of an interest being a jurisdictional fact make this unnecessary to discuss further.

35. Otherwise, TfNSW submits that in circumstances where an appeal lies to the Land and Environment Court under the Land and Environment Court Act 1979 (NSW) (“LEC Act”), it would be inappropriate for the Court to intervene. TfNSW accepts that section 24 of the LEC Act does not deprive this Court of jurisdiction to hear this claim, but its terms provide a clear legislative intent that the LEC will be arbiter of disputes under the Just Terms Act.

36. There is some weight in these submissions. However, I think that the interests of justice warrant judicial determination. Having determined that the question of the existence of a legal interest is a jurisdictional fact, intervention to ensure that administrative decision-makers perform their duties according to law is justified. While the terms of the LEC Act make clear that merits of a claim are to be litigated before it exclusively, the inherent jurisdiction and constitutional role of this Court dictates that it will always have an interest in the supervision of executive power. I do not accept the arguments of TfNSW that I should exercise my discretion to refuse relief.

Did an Interest in Land Exist?

37. Having decided that the question of the existence of a registered interest in the Parent Parcel is a jurisdictional fact, it now falls to me to review it for correctness.

38. Interest in land is given a definition for the purpose of the Just Terms Act in section 4:

‘interest’ in land means—

(a) a legal or equitable estate or interest in the land, or

(b) an easement, right, charge, power or privilege over, or in connection with, the land.

39. This is clearly a broad definition on its face, but that of course has been subject to some restriction. In particular, (b) of that definition needs to be understood in light of the decisions of the Court of Appeal in Olde English Tiles Australia Pty Ltd v Transport for New South Wales (2022) 108 NSWLR 503; [2022] NSWCA 108 and Dial A Dump Industries Pty Ltd v Roads and Maritime Services (2017) 94 NSLWR 554; [2017] NSWCA 73 (“Dial A Dump”).

Council’s Submissions

40. The Council initially argued that its right to the dedication or transfer of the Parent Parcel, by analogy, was an equitable right in the land because its rights are contingent on the Developer’s performance of other works. It has no right under the VPA to enforce that performance. However, the Council submits, that does not vitiate the existence of an equitable interest.

41. Subsequently, in its written submissions of 27 August 2025, it relies upon the registration of its interest as authorised under section 7.6 of the EPA Act as creating a legal interest. It points out registration as being the essential feature of the Torrens system which creates legal rights.

42. The Council’s alternative position is that it falls within paragraph (b) of the definition. It advances five submissions about the nature of its rights – (1) they are valuable commercial rights, (2) they are not a result of a personal arrangement but arise under statute, (3) they are capable of alienation, (4) they are in respect of land, and (5) they are binding on successors in title.

TfNSW’s Submissions

43. TfNSW disputes that the Council had an interest in land as provided by either limb of the statutory definition. Their submissions were detailed and I only summarise them here.

44. On the first limb, TfNSW submits that while a grantee of an option to purchase will have an equitable interest in the land, that is not the position in this case. The rights to the transfer of the land are predicated upon the performance of works by the Developer, and the VPA does not provide an enforceable obligation for those works to occur. Thus, as the Council’s rights to the property were highly contingent, no equitable interest in the property arises. Further, even if such a right was capable of giving rise to an equitable interest, the Council did not provide valuable consideration and is accordingly a volunteer. (I interpolate, the measures taken by the Council under section 7.4 of the EPA to facilitate the proposed development are arguably consideration.) Finally, it says, for reasons I will refer to below, that any interest was not capable of alienation, and thus is not within the definition of interest for the purposes of the statutory definition.

45. TfNSW’s written submissions filed after 13 August 2025 argue strongly against the Council having a legal interest in the property by virtue of registration. It advances six arguments against this proposition. First, registration is not necessary for there to be a legal interest in property. Secondly, the categories of legal interest are closed, and registration of itself does not create a legal interest otherwise unknown to law. Thirdly, planning agreements registered pursuant to section 7.6(3) of the EPA Act do not create any property in land, rather they are in the nature of personal obligations binding successors in title. Fourthly, the VPA was not a dealing within the definition of the Real Property Act 1900 (NSW) (“RP Act”). Fifthly, as above, any interest which did exist was not capable of alienation, and thus not within the statutory definition. Finally, any interest was not “recorded on the Register” within the meaning of the Just Terms Act.

46. Turning to the second limb, TfNSW contends that the Council does not have any rights and privileges over or in connection to the land, as that limb has been interpreted by authority. Three main arguments are advanced. First, the Council’s rights are not of a proprietary or quasi-proprietary nature. Second, there is an insufficient relationship between the Council’s rights and the land proposed to be transferred to constitute a privilege. The third argument is the Council’s rights are not capable of alienation. Given this argument is common to the other grounds of resistance, I will summarise it more completely.

47. TfNSW contends that, in accordance with Dial A Dump at [159], for a right or privilege to fall under (b), it must be capable of alienation. The Council points to clause 13 of the VPA, which contemplates that its rights may be assigned. The thrust of TfNSW’s position is that any assignment would be illegal. For completeness, I interpolate here that the Council submits that illegality is irrelevant.

48. It is firstly submitted that by the terms of section 7.4 of the EPA Act, any planning agreement requires one party to be a planning authority. Assignment by the Council to a person who was not a planning authority would contravene that provision. Next, section 7.3 of the same Act requires that land dedicated must be made available for the purpose of the dedication by the planning authority. For much the same reason as the above, assignment to a non-planning authority would make that impossible. Third, sections 7.3(3)(b) and (c), as well as section 7.10(c) contemplate and authorise amendment or revocation of a planning agreement, but not assignment. Finally, TfNSW submits that such amendment or revocation requires public notice, and where the Minister is not a party “the relevant planning authority” must provide that notice to the Minister. Again, it is submitted that a planning authority will always be a party to that planning agreement.

Consideration

49. What is now the Council’s primary submission has the benefit of simplicity. It points to the crux of the Torrens System: it is a system of title by registration: Breskvar v Wall (1971) 126 CLR 376 at 399; [1971] HCA 70 (Windeyer J) (“Breskvar v Wall”). By registering the VPA on the folio, its legal interest came into existence. It is appropriate to deal with the arguments advanced by TfNSW contrary to this seriatim.

50. To the extent that TfNSW submit that registration is not strictly necessary to create a legal interest, that is true: Dial A Dump at [49] (Beazley P). Certainly, there are types of legal interests that exist absent registration. However, I am of the opinion that this response somewhat misapprehends the Council’s submission on this point, which is fundamentally one of statutory interpretation. The types of legal interests that exist absent registration are the exception, not the rule. Providing certainty of title is a fundamental feature of the Torrens system and the certificate of title provides the necessary conclusive proof: Breskvar v Wall at 384 (Barwick CJ). The fact that some interests may escape the need for registration does not undermine registration as the quiddity of the Torrens system.

51. Both parties accept that the categories of legal interests at common law are closed, and no mere private agreement between parties can create an interest not known to law: Clos Farming Estates Pty Ltd v Easton [2002] NSWCA 389 at [68] (Santow JA) (“Clos Farming”). Registration of such an interest is ineffective to create a right that otherwise does not exist: Karacominakis v Big Country Developments [2000] NSWCA 313 at [52]. I accept all of this. But in this case, there is no suggestion that this was a legal interest known to common law. Rather, as the Council contended, its interest is the creature of statute. Parliament may, in the exercise of its legislative function, alter the general law. It really only remains to determine whether, by force of the statute, registration under section 7.6 of the EPA creates a legal interest vested in the Council.

52. TfNSW contends that the nature of the registration available under EPA s 7.6 does not confer any rights in property, rather merely it is a statutory novation of personal obligations of the owners to their successors in title. It points to the decision of the Court of Appeal in Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378 (“Huntlee”), which, relevantly, examined the meaning of EPA s 93H, the predecessor provision to the current EPA s 7.6. They are substantially identical provisions.

53. I agree to an extent with TfNSW’s submissions on this point. Registration of a planning agreement under this provision does not, ipso facto, create a proprietary interest in land. That is because this provision is not concerned with the substantive nature of the rights themselves, rather, with ensuring that those rights continue to bind successors in title: Huntlee at [135] (Sackville AJA, Beazley JA and Tobias AJA agreeing). Whether the rights under a planning agreement are in rem or in personam requires an analysis of the actual rights conferred by the VPA under section 7.4 of the EPA.

54. The right in question in Huntlee was a right to development contributions due to the Minister under section 7.4 of the EPA. This was a right to the payment of debt due from the owners of the land from time to time. In this case, the right created by clause 6.4 of the VPA by force of section 7.4(1) of the EPA to the transfer of the Parent Parcel by dedication on the fulfilment of certain conditions. The former speaks, as Sackville AJA held (at [133]-[134]), to a right in personam. I agree with the Council that in this case, it is a right in the land itself, even if contingent.

55. TfNSW further contends that the VPA was not a dealing under the definition of such in section 3 of the RP Act, which provides, relevantly:

‘Dealing’—Any instrument other than a grant, caveat or priority notice, including an electronic form of that instrument, being an instrument—

(a) that is registrable or capable of being made registrable under the provisions of this Act, or

(b) in respect of which any recording in the Register is by this or any other Act or any Act of the Commonwealth required or permitted to be made.

56. The same section provides that an instrument is:

‘Instrument’—Any grant, conveyance, assurance, deed, map, plan, will, probate, or exemplification of will, or any other document in writing or in electronic form relating to the disposition, devolution or acquisition of land or evidencing title to land.

57. TfNSW contends that the VPA does not relate to the disposition, devolution or acquisition of land. But the statutory definition does not require that a document actually provides for the disposition of land immediately. The VPA, while contingent, plainly “relates to” the disposition of land which is authorised by sections 7.4 and 7.6 of the EPA. I am not prepared to accept a construction of that document which would defeat the clear (and one must assume deliberately broad) language of the statute.

58. Finally, TfNSW submits that any legal interest which the Council does have is not alienable, and therefore not within the statutory definition as understood in light of Dial A Dump. They advance a number of submissions on this point, which ultimately turn on the construction of sections 7.3, 7.4 and 7.10 of the EPA as necessarily requiring a planning authority remaining at all times a party to a planning agreement. Consequently, assignment of those rights under a planning agreement to a person who was not a planning authority would operate to frustrate the statutory provisions.

59. I agree with TfNSW that these sections establish a regime which requires a planning authority to be a party to a planning agreement. I therefore accept that the interest under the VPA is not assignable to the world at large. However, merely because an interest is not assignable in gross does not necessarily mean it is not capable of alienation. Assignment clauses in contracts are frequently drafted to limit assignment to members of a particular class. This statutory interest is no different. There would be, to my mind, nothing stopping the Council from assigning their right to another public authority. The fact that the size of the class of potential assignees is small is not relevant to the question that it can be assigned and therefore is capable of alienation. In any event as a species of property created by statute it is not essential that the general law attributes of property are present.

60. I find that the Council has a legal interest in the property. I do not consider it necessary to examine whether an equitable interest exists or whether its rights may be otherwise characterised under (b) of the statutory definition.

Was the Council’s Legal Interest Registered?

61. As a final position, TfNSW contends that if a legal interest existed, it was not registered. The Register is comprised, relevantly, of folios (RP Act s 31B(2)(a)), and such folio includes, per RP Act s 32(1):

(1) The Registrar-General creates a folio of the Register for land by making a record of—

(a) a description of the land and of the estate or interest therein for which it is created,

(b) a description of the proprietor for the time being of the estate or interest and the fact that any such proprietor is a minor if the Registrar-General knows that to be the case, and

(c) such particulars, as the Registrar-General thinks fit, of—

(i) other estates or interests, if any, affecting the land, and

(ii) other information, if any, that relates to the land or any estate or interest therein and is included in that record pursuant to this or any other Act (including an Act of the Parliament of the Commonwealth) or an instrument made under any such Act,

and by allocating a distinctive reference to the record so made.

62. TfNSW refers to the dictum of Santow JA in White v Betalli (2007) 71 NSWLR 381; [2007] NSWCA 243 at [71] (“White v Betalli”):

“An interest is sufficiently ‘recorded in the folio’ of the Register of the land if the folio states the registration number of the dealing creating it and identifies the interest (if only in generic terms)” (citations omitted).

63. For completeness, I note that this was a split decision, with Santow and Campbell JJA forming the majority. I would not interpret his Honours words to mean that is the only way such an interest would be sufficiently recorded.

64. The VPA is registered as Item 15 on the folio in the following terms:

“15 PLANNING AGREEMENT PURSUANT TO SECTION 7.6 ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979”

65. TfNSW submits that an absence of a dealing number and the vagueness of the reference to the agreement mean that it falls foul of the requirements expounded in White v Betalli. I do not agree. I think the terms of RP Act s 31(1)(c), specifically “thinks fit”, provides the Registrar-General discretion as to what level of specificity is appropriate. Indeed section 31(1)(c)(ii) envisages information relating to statutory interests will be included. That necessarily invites the exercise of discretion about the extent of the information which will ultimately be displayed on the Register.

66. In any event, the explicit reference to section 7.6 discloses what type of interest is involved, at least generically. If a person inspecting the Register came across that entry and navigated to that section, they would find that “planning agreement” is a defined term, and would be able to determine the types of rights which may exist by reference to section 7.4, and, as TfNSW have pointed out elsewhere, that a planning authority is a party to it.

67. I find that the Council’s interest was registered.

Conclusion

68. I will grant the Council the relief it seeks. Valuation of the interest is a matter for the Valuer General and I will grant the ancillary relief sought. To be clear, I will make the declaration sought, quash the decisions, and issue an order in the nature of mandamus that the Valuer General redetermine the quantification of any compensation in accordance with her expertise.

Orders

69. I therefore order as follows:

70. Declare that the Council is the former owner of a registered interest in land in respect of its rights under the Voluntary Planning Agreement of November 2021 for the purposes of section 37 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).

71. I make an order in the nature of certiorari quashing the decisions of Transport for New South Wales and the Valuer General that no such interest existed.

72. I make an order in the nature of mandamus directing the Valuer General to assess the amount of compensation to be offered under section 42(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) according to law.

73. The first defendant is to pay the plaintiff’s costs of these proceedings.

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Amendments

13 April 2026

Front page: Plaintiff's solicitors corrected to "Allens" Paragraph 17: First Sentence - the word "Council" is added between the words "by the" and "is legal". Paragraph 30: Spelling of the word "amenable" is corrected.