The following administrative requirements must be satisfied before council's application for acquisition can be progressed -
+ publication of notice in a local paper; and
+ erection of a notice on a board or other structure in a conspicuous place on the land proposed to be acquired; and
+ Australia-wide white pages search for surname of owner; or
+ (if a title search indicates that the owner is likely to be deceased) publication of the notice in the public notices section of a nationally circulated newspaper.
Requirements on the format, fixing and publishing of the notice are the same as those specified under clause 401 of the Local Government (General) Regulation 2005.
19The last quoted sentence from the Guidelines directs attention to cl 401 of the Local Government (General) Regulation 2005 (LG Regulation), which provides:
401 Meaning of "diligent inquiry"
(1) For the purposes of section 188 (2) (b) of the Act, a diligent inquiry for the owner of land that a council intends to acquire by compulsory process for the purpose of resale is the taking of all the actions named and described in this clause.
(2) Searching of registers, being the searching of:
(a) the Register kept under the Real Property Act 1900, and
(b) the General Register of Deeds kept under the Conveyancing Act 1919, and
(c) the National Native Title Register kept under the Native Title Act 1993 of the Commonwealth,
to identify every person who has a legal or equitable estate or interest in the land, or an easement, right, charge, power or privilege over, or in connection with, the land.
(3) Fixing a notice to the land, being the placing, on a board or other structure in a conspicuous place on the land, of a notice:
(a) stating that the council intends to acquire the land specified in the notice by compulsory process for the purpose of resale, and
(b) inviting the owner of the land to contact the council at an address specified in the notice.
(4) Publishing a notice, being the publishing, in a newspaper circulating in the area in which the land is situated and in a newspaper circulating generally in New South Wales, of a notice referred to in subclause (3).
...
20Clause 401(1) refers to s 188(2)(b) of the LG Act. Section 188 provides:
188 Restriction on compulsory acquisition of land for re-sale
(1) A council may not acquire land under this Part by compulsory process without the approval of the owner of the land if it is being acquired for the purpose of re-sale.
(2) However, the owner's approval is not required if:
...
(b) the owner of the land cannot be identified after diligent inquiry has been made and at least 6 months has elapsed since that inquiry was made.
(3) For the purposes of subsection (2) (b), diligent inquiry has the meaning given by the regulations...
21The Council sent letters dated 30 November 2011 to the applicants, which were identical except for the different references to their respective properties. The letter to Mrs Bailey is in the following terms:
We understand that you are the registered owner of Lot 1 & 2 in DP 1147729 known as 14 Illawong Ave, Tamarama NSW 2026.
Proposal
Council has resolved to compulsorily acquire the whole of Lot 12 in DP1153358 known as 10A Illawong Avenue, Tamarama (Land) in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 and the Local Government Act 1993.
It is Council's intention that the Land benefit the community. The Land will be incorporated as additional green space into Tamarama Park and eventually, enhances the community access into Tamarama Park from Illawong Avenue.
Accordingly, upon acquisition the Land will be classified as "community land" under Part 2 of the Local Government Act 1993.
For your information, a copy of a plan showing the Land outlined in blue is enclosed with this letter.
Landowner
The registered proprietor of the Land is Ms Ellen Fletcher. She died on or about 4 April 1908.
Council has conducted a diligent inquiry for an heir of the late Ms Ellen Fletcher and to date, Council has been unable to locate an heir of the late Ms Ellen Fletcher.
Compensation
In accordance with the Land Acquisition (Just Terms Compensation) Act 1991, Council must pay compensation to the owner of the Land for the acquisition of the Land having regard to the following matters:
1 the market value of the Land on the date of the acquisition;
2 any special value of the Land to the person on the date of the acquisition;
3 any loss attributable to severance;
4 any loss attributable to disturbance;
5 solatium; and
6 any increase or decrease in the value of any other land of the person at the date of the acquisition which adjoins or is severed from the acquired Land by reason of the carry out of, or the proposal to carry out, the purpose for which the Land was acquired.
If you have a legitimate claim, Council will discuss compensation with you in good faith.
Right of Way
We understand that whilst folio identifiers have been created for Lots 1 and 2 in DP1147729, these lots are old systems land. In this regard, we understand Lots 1 and 2 in DP1147729 known as No. 14 may have the benefit of a right of way.
Despite Council's proposal to acquire the Land, the acquisition notice will "except" all rights of way to preserve the benefit of the right of way for Lots 1 and 2 in DP1147729 following the acquisition of the Land by Council.
Way forward
Council is in the process of preparing a submission to the Minister for Local Government and issue proposed acquisition notices to every person that has an interest in the Land.
The notices will include a 'claim for compensation' form.
In the absence of any agreement on compensation from the date of the proposed acquisition notice, the recipients of the notices will have 90 days in which to lodge a claim for compensation.
If you believe that your rights are impacted by Council's proposal and that you have a compensable interest, please let us have your reasons as to how that compensable interest arises.
Council will publish the acquisition notice for the Land in the NSW Government Gazette in accordance with the Land Acquisition (Just Terms Compensation) Act 1991, approximately 90 days after the proposed acquisition notices have been served.
On the date of publication of the acquisition notice in the NSW Government Gazette, the Land will be vested in Council.
Further information
If you require further information on the proposal, please do not hesitate to contact Greg Worner, Manager of Business Services and Property Division of Waverley Council by email gregw@waverley.nsw.gov.au.
Council recommends that you seek your own independent legal advice in this matter to the extent you feel it necessary to do so.
Please let us have your response within 21 days of the date of this letter.
22On 1 December 2011 the Council's solicitors replied to Mr Crane's solicitors' letter of 9 November ([14] above) stating that Mr Crane has or will shortly be receiving the Council's initial letter confirming that it proposes to except the rights-of-way burdening the Land so as to preserve the existing property rights enjoyed by Mr Crane and others. The letter said that despite the preservation of the right-of-way, to the extent that Mr Crane feels he has a compensable interest under the Just Terms Act, this may be discussed further or ultimately be determined by the Valuer-General. The letter also said that Mr Crane will receive more detail in the PAN when it is issued.
23On 14 December 2011 the Council published the following public notice in the Sydney Morning Herald and the Wentworth Courier:
Waverley Council
Legal Notice of Compulsory Acquisition of Land
Local Government Act 1993 (NSW)
Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
After 28 days from publication of this notice, Waverley Council will proceed to make an application to compulsorily acquire Lot 12 in DP1153358 known as 10A Illawong Avenue, Tamarama, NSW 2026 registered in the name of Ellen Fletcher, who died on or about 4 April 1908.
Any person having any claim, whether as a creditor or beneficiary or otherwise, is requested to lodge a claim in writing with Greg Worner, Manager Business Services and Property, Waverley Council, PO Box 9, Bondi Junction NSW 1355 within 28 days of the date of publication of this notice.
After 28 days from the date of publication of this notice, Waverley Council will proceed with the compulsory acquisition of that land having regard only to the interests of which Waverley Council is aware of.
Tony Reed, General Manager
24On 16 February 2012 these proceedings were commenced by summons. The summons was limited to the unlawful PAN claim and sought a declaration that the proposed acquisition of the Land by the Council's "Proposed Acquisition Notice dated 29 November 2011 is unlawful". The unlawful PAN claim was somewhat amended in subsequent pleadings. The possessory title claim was added in Points of Claim filed on 8 March 2012. The owner identity claim was added in Amended Points of Claim filed on 7 May 2012.
25On 20 February 2012 the Council's solicitors wrote to the applicants' solicitors stating (among other things) that the Council's letters dated 29 November 2011 to the applicants are not, nor were they intended to be, PANs within the meaning of the Just Terms Act. This reference to the Council's letters dated 29 November 2011 suggests a misunderstanding (possibly because the Council's solicitors had not been briefed with a copy of the Notice). It was the Notice which was dated 29 November 2011, the summons referred to a notice of that date, and the letters to the applicants from the Council's solicitors were dated 30 November 2011. The letter of 20 February 2012 referred to the newspaper advertisements and indicated that to the extent that parties who have an interest in the Land could be identified, the Council would then be in a position to commence the preparation of a submission to the Minister to request consent to issue PANs under the Just Terms Act. It was noted that a PAN must take the form approved by the Minister and that the approved form had been gazetted. The applicants were requested to discontinue the proceedings.
26On 24 February 2012 the applicants' solicitors replied to the Council's solicitors. They said that the latter appeared to misunderstand the case brought against the Council and enclosed a copy of the notice referred to in the summons for their information. The enclosure was a copy of the Notice. Pleadings were foreshadowed.
27On 14 March 2012 the Council applied to the Minister for Local Government for approval to issue PANs in order to permit the Council to acquire the Land from Ellen Fletcher (deceased). The letter and annexures said that she was the registered owner of the Land who had died in 1908 and that the Council's lawyers had been assisting to locate her descendants without success. Details of considerable attempts to locate her descendants were provided. It was noted that the Council had written to the applicants indicating that it intended to "except" the rights-of-way from the acquisition so as to ensure their rights. The letter noted the commencement of the applicants' proceedings and that a without prejudice meeting had been held with the applicants on 2 March 2012.
28On or about 4 April 2012 the Council received a letter from the Department of Premier and Cabinet's Division of Local Government advising that further consideration of the Council's application for approval by the Minister would be suspended until the applicants' proceedings were concluded.
29On 16 April 2012 the Council filed Points of Defence denying that the Notice was a PAN within the meaning of the Just Terms Act. This appears to have been the first time that the Council had clearly made that contention in relation to the Notice. As I have earlier observed at [25], the Council's solicitors' letter of 20 February 2012 was directed not to the Notice but to the letters of 30 November 2011.
30On 21 May 2012 the Council's solicitors wrote to the applicants' solicitors maintaining its position that it had not issued a PAN and that, pursuant to s 187(2) of the LG Act, it cannot do so without the approval of the Minister, and again inviting the applicants to discontinue the proceedings.
31The parties' competing submissions in effect are that the Notice is aimed at different targets and should be construed accordingly. The applicants contend that it is a defective PAN under s 11 of the Just Terms Act. The Council contends that the Notice was a step in the antecedent process of obtaining the Minister's approval for a PAN under s 187 of the LG Act. The Council says that, according to the Guidelines, in order to obtain the Minister's approval, it had to show that it had taken adequate steps to locate the owner of the Land including by erecting such a notice on the Land.
32Clearly enough, the Notice includes notice of the Council's intention to acquire the Land by compulsory process. That was both a requirement of a PAN under s 11 of the Just Terms Act and a requirement of the Guidelines, read with cl 401(1) of the LG Regulation, for obtaining the Minister's approval to issue a PAN under s 187 of the LG Act. The very fact that it is an overlapping requirement of both is part of the genesis of the dispute in the present case.
33It is understandable that the applicants construed the Notice, on its face, as a defective PAN under the Just Terms Act given: (a) the Notice's title, "Legal Notice of Compulsory Acquisition of Land", followed immediately by references to the LG Act and Just Terms Act; (b) the fact that there is no statutory requirement for a "legal notice" prior to compulsory acquisition other than a PAN and an acquisition notice published in the Gazette (s 19 Just Terms Act), and that a PAN is at the heart of all the pre-acquisition procedures to which Division 1 of Part 2 of the Just Terms Act is directed; (c) the Notice's statement that after 31 December 2011 the Council will proceed with the compulsory acquisition; and (d) the absence of any statement in the Notice that its only purpose was to locate any person having a claim on the estate of the late Ellen Fletcher.
34However, the picture changes when regard is had to the context of the antecedent process of obtaining the Minister's approval for a PAN. In that context, according to the Guidelines, the Council had to satisfy the Minister that it had taken adequate steps to locate the owner and, to that end, had to erect a notice in a conspicuous place on the Land which included the statement that it intended to acquire the Land by compulsory process.
35I accept that the Council did not intend the Notice to be a PAN contemplated by the Just Terms Act but, rather, to be for the purpose of inquiry, given that the registered owner Ellen Fletcher had died in 1908, as to anyone who had a claim on her estate, as a step towards obtaining the Minister's approval under s 187 of the LG Act. I also accept that in settling the form of the Notice, the Council had regard to the Guidelines for councils seeking the Minister's approval under s 187 where the owner of land is not known.
36Having regard to the context, I consider that the Notice should not be construed as a defective PAN but as a notice attempting to locate the owner of the Land as a step towards obtaining the Minister's approval for a PAN.