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[2012] NSWLEC 142
respondent. Proceedings dismissed. Applicants to pay respondent's costs from and including 20 April 2012; no costs orders prior to that date. Exhibits may be returned. (See Orders [48] and costs reasoning...
Waverley Council put up a notice at 10A Illawong Avenue saying it intended to compulsorily acquire the land. Neighbouring owners sued, saying the notice was an unlawful proposed acquisition notice under the Just Terms Act. The Court found the notice was not a statutory PAN but an inquiry notice to help the Council locate heirs before seeking Ministerial approval to issue PANs. The Court dismissed the proceedings, did not adjudicate the applicants' possessory title claim, refused a premature owner identity declaration, and ordered the applicants to pay the Council's costs from 20 April 2012.
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2,140 words · generated 20/06/2026
Waverley Council attached a notice to the gate at 10A Illawong Avenue, Tamarama on 29 November 2011 stating the Council's resolution to compulsorily acquire Lot 12 DP1153358 (the Land) and announcing that after 31 December 2011 the Council would proceed with compulsory acquisition (Notice). The Land adjoins the applicants' properties at 12 and 14 Illawong Avenue, and each applicant holds registered rights‑of‑way over parts of the access handle to the battle‑axe lot. The applicants commenced judicial review proceedings in the Land and Environment Court challenging the Notice as an unlawful proposed acquisition notice (PAN) under the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act). They also advanced claims for possessory title and for a declaratory judgment as to the identity of the owner of the Land (owner identity claim). (See [1]–[3], [10]–[16], [24].)
4 cited instruments linked from this judgment.
Key procedural facts: Council resolved on 15 October 2011 to proceed with compulsory acquisition and to seek Ministerial approval under s 187 LG Act (see [13]); it published newspaper notices (14 December 2011) and letters to local residents (30 November 2011) and affixed the Notice on 29 November 2011 (see [15], [16], [23]). The registered proprietor shown on title was Ellen Fletcher who had died in 1908; the Land is an old system title. Council applied to the Minister on 14 March 2012 for approval to issue PANs (see [27]). Proceedings began by summons on 16 February 2012 initially limited to the unlawful PAN claim (see [24]). The Department of Premier and Cabinet suspended consideration of the Council's application to the Minister until these proceedings were resolved (see [28]). Judgment was delivered by Biscoe J on 26 June 2012 dismissing the proceedings and ordering costs against the applicants from 20 April 2012 (see Orders [48] and the costs discussion [43]–[47]).
Central legal issue: Was the Notice a statutory PAN under the Just Terms Act or was it a non‑statutory inquiry notice intended to locate unknown heirs as part of the antecedent procedural step of obtaining the Minister's approval under s 187 of the Local Government Act 1993 (LG Act)?
Statutory framework:
Application of the framework to facts:
Consequences for the other claims:
Costs: The applicants were unsuccessful. The Court adopted a moderated costs approach because the Notice was unintentionally misleading on its face and it was reasonable to construe it initially as a PAN (see [43]–[46]). The Council, however, did not clearly plead that the Notice was not a PAN until 16 April 2012. The Court allowed the applicants a short time to reconsider (crediting them until 19 April 2012) and ordered the applicants to pay costs from 20 April 2012, with no costs order for the period before that date (see [46] and Orders [48]).
Before this judgment: The statutory law governing PANs (Just Terms Act), council powers and the need for Ministerial approval (LG Act s 187), and regulatory/administrative guidance (LG Regulation cl 401 and Department Guidelines) already existed. What this judgment clarifies is the interplay between those instruments: it recognises that a notice erected to satisfy administrative expectations for Ministerial approval is not automatically a statutory PAN simply because it uses PAN‑like language.
After this judgment: Crane v Waverley Council establishes that context matters: a court must read a notice against the procedural backdrop in which a council acts. Where a council is making an antecedent factual inquiry to comply with cl 401/Guidelines for a Ministerial submission under s 187, the court will construe an erected notice as a pragmatic inquiry instrument rather than the statutory PAN, provided that the council's intention and the procedural context support that construction. The decision therefore reduces the risk that councils will be found to have issued defective PANs where they are in fact taking pre‑approval locational steps, but it also warns councils to be clear in their communications to avoid misleading neighbours and predictable litigation.
Paragraph 33: "It is understandable that the applicants construed the Notice, on its face, as a defective PAN..." Plain English: The notice looked like a PAN, it used familiar legal words and said the Council would proceed, so it was reasonable to think it was a statutory notice.
Paragraph 35: "I accept that the Council did not intend the Notice to be a PAN ... but, rather, to be for the purpose of inquiry ... as a step towards obtaining the Minister's approval under s 187." Plain English: The judge accepted the Council's explanation that it put up the notice to try to find heirs and to show the Minister it had made reasonable efforts, not to serve the formal statutory PAN.
Paragraph 36: "Having 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..." Plain English: Taking everything around the notice into account, the judge decided it should be read as a search-for-owner notice, not a mis‑made statutory notice.
Paragraph 42(a)–(c): Statutory points about who must be served and protection of acquisition validity/compensation. Plain English: The law only needs PAN service to certain people (registered owners, occupiers, known claimants); if someone cannot be identified despite diligent searches, the scheme provides that acquisition can still be valid and compensation mechanisms still apply.
Paragraph 45–46 (costs): "The Notice was unintentionally misleading ... The Council's defence ... should have been sufficiently clear ... The applicants should be credited ... until 19 April 2012 ... order costs from 20 April 2012." Plain English: The judge thought the notice could have reasonably misled the applicants so did not penalise them for the early part of the litigation; once the Council clearly said it was not a PAN, applicants had a fair short window to reconsider. After that, applicants should bear the usual costs risk.
Where those facts align, Crane v Waverley Council signals that a court will examine the broader procedural purpose and context; if the dominant purpose was inquiry and Ministerial pre‑approval, the court may construe the notice as non‑statutory and decline to treat it as an unlawful PAN.
(As required, this deep dive confines itself to the source judgment. The judgment itself did not discuss later authorities. Practitioners should check for subsequent citations of Crane v Waverley Council in databases to see how it has been applied. The present analysis notes that the decision establishes an interpretive approach informed by administrative context and guidance documents; later courts would likely follow or distinguish it depending on the presence or absence of clear Council intent and the form/content of the notice, and whether the Council complied with cl 401/diligent inquiry requirements.)
Degree of proof required to show an erected notice is an inquiry step: The Court accepted the Council's explanation and statements to residents, but it did not lay out a formal evidentiary threshold for when a notice will be characterised as an inquiry rather than a PAN. Future disputes may require clearer guidance on what documentary or contemporaneous steps (drafting files, minutes, solicitor notes) are necessary to demonstrate non‑statutory purpose.
Content requirements to avoid misleading neighbours: The judgment recognises the Notice was unintentionally misleading. Councils must balance compliance with the Guidelines' wording and clarity in communications to neighbours. What minimum additional wording would be sufficient to avoid reasonable misinterpretation (for example, an express statement 'this is not a proposed acquisition notice under the Just Terms Act; it is a notice to locate possible heirs for Ministerial submission') remains undecided.
The line between administrative/precautionary notices and PANs: Where notices perform both functions (to locate owners and to commence statutory consequences), the Court's contextual approach may require additional markers to resolve ambiguity. The decision suggests context controls but leaves open how mixed-purpose instruments will be treated where elements of both purposes are present.
Interaction with s 33 and compensation safeguards: The Court notes acquisition validity is not defeated by Part 2 notice failures (s 33) and compensation is protected. However, where a council's failure to serve PANs affects a particular claimant's practical ability to make a compensation claim or to protect registered rights (for example rights of way), there may be tensions not fully explored in this judgment.
Role of administrative Guidelines: The Guidelines played a central interpretive role. Their status as administrative instruments rather than law means questions may arise about their weight where they conflict with statutory form requirements or where councils rely on them to justify steps that, on their face, mirror statutory notices.
Practical takeaways for practitioners: examine the context and Council processes when assessing whether a notice is a statutory PAN; secure clear contemporaneous council records demonstrating purpose; if representing neighbours, press for clarity early and be mindful of costs exposure once the respondent clarifies its position; if representing a council, communicate plainly that pre‑approval notices are not PANs and ensure letters and filings make that clear.
INTRODUCTION 1These judicial review proceedings spring from a notice dated 29 November 2011 (Notice) by the respondent, Waverley Council, concerning the Council's proposed compulsory acquisition of Lot 12 DP 1153358 known as 10A Illawong Avenue, Tamarama (Land), under the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act) and the Local Government Act 1993 (LG Act. The Land adjoins Tamarama Park and residential properties owned by the applicants. 2The applicants put forward three claims at the hearing: (a)that the Notice was a "proposed acquisition notice" (PAN) under the Just Terms Act but was unlawful because it did not comply with statutory requirements (the unlawful PAN claim); (b)that the applicants have possessory title to much of the Land including the part providing access to their properties from Illawong Avenue (the possessory title claim); and (c)that the Land is owned (subject to the applicants' possessory title claim) by the executors of Marianne Fletcher who died in 1937 (the owner identity claim). 3The Council denies that the Notice was a PAN within the meaning of the Just Terms Act, denies that the possessory title claim is a matter which involves the Council or is within the jurisdiction of this Court, and disputes the owner identity claim.
STATUTORY CONTEXT 4The LG Act provides: 186 For what purposes may a council acquire land? (1) A council may acquire land (including an interest in land) for the purpose of exercising any of its functions. ...
187 How does a council acquire land? (1) Land that a council is authorised to acquire under this Part may be acquired by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. (2) A council may not give a proposed acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991 without the approval of the Minister.
674 Remedy or restraint of breaches of this Act-other persons (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act. ... 676 Functions of the Land and Environment Court (1) If the Land and Environment Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. ... 5The Just Terms Act provides in relation to PANs as follows: 4 Definitions (1) In this Act: ... 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. ... owner of land means any person who has an interest in the land. ... 11 Notice of intention to acquire land by compulsory process (1) An authority of the State may not acquire land by compulsory process unless the authority has given the owners of the land written notice of its intention to do so. (2) The authority of the State is not prevented from acquiring the land by agreement after giving the proposed acquisition notice.
12 Owners to be given notice (1) A proposed acquisition notice need only be given to all the owners of the land who: (a) have a registered interest in the land, or (b) are in lawful occupation of the land, or (c) have, to the actual knowledge of the authority of the State, an interest in the land. ...
13 Minimum period of notice (1) A proposed acquisition notice must be given at least 90 days before the land is compulsorily acquired. (2) A shorter period of notice may be given if: (a) the authority of the State and the owners of the land agree in writing to the shorter period, or (b) the Minister responsible for that authority approves of the shorter period, but only if that Minister is satisfied that the urgency of the matter or other circumstances of the case make it impracticable to give any longer period of notice.
14 Compulsory acquisition to be completed as soon as practicable (1) As soon as practicable after the expiration of the minimum period of notice of a proposed compulsory acquisition, the authority of the State must: (a) acquire the land by compulsory process or by agreement, or (b) withdraw the proposed acquisition notice. ... 15 Particulars to be included in proposed acquisition notice A proposed acquisition notice given to an owner of land must: (a) be in the form prescribed by the regulations or (if no such form is prescribed) in the form approved by the Minister, and (b) specify the authority of the State proposing to acquire the land, and (c) contain a description sufficient to identify the land proposed to be acquired, and (d) specify the period within which the land will be compulsorily acquired, and (e) request any owner who wishes to claim compensation for the acquisition to lodge with the authority of the State a claim for compensation within the period specified in the notice (being not less than 60 days after the notice is given to the owner), and (f) be accompanied by the form for a claim for compensation under section 39.
33 Validity of compulsory acquisition Once land has been acquired by compulsory process under this Act, the validity of the acquisition is not affected by: (a) a failure to comply with any requirement of this Part relating to the giving of notice of the proposed acquisition, or (b) a subsequent failure to comply with a requirement of this Act relating to the acquisition. 6As regards s 15(a) of the Just Terms Act, the Minister has approved a form of PAN (published in the NSW Government Gazette on 12 June 1992). It is very different from the form of the Notice.
THE UNLAWFUL PAN CLAIM 7The unlawful PAN claim is that the Notice was intended to be a PAN under the Just Terms Act but was unlawful because it did not comply with statutory requirements. In particular, it was given without the approval of the Minister as required by s 187(2) of the LG Act, was not given to the applicants who have registered interests in the Land in the form of registered rights-of-way over the Land (s 12(1)(a) Just Terms Act), and did not describe all the owners (s 11(1) Just Terms Act). 8In response to the unlawful PAN claim, the Council contends that the Notice is not a PAN but a non-statutory inquiry into the ownership of the Land as a step in obtaining the Minister's approval to give a PAN under s 187(2) of the LG Act, and that it made this clear to the applicants in letters to them dated 30 November 2011 and 20 February 2012. 9The purpose of the acquisition was to incorporate additional green space into the adjoining Tamarama Park and enhance community access into the Park from Illawong Avenue. The Land consists primarily of cliff tops/escarpments as well as a battle-axe access from Illawong Avenue to the applicants' properties and Tamarama Park. The Land has an old system title. 10Since 2006 the first applicant, Mr Samuel Crane, has been the registered owner of Lot 100 DP 1057168, a residential property at 12 Illawong Avenue (Crane Property) adjoining the Land. Since 1979 the second applicant, Mrs Pamela Bailey, has been a registered owner of Lots 1 and 2 DP 1147729, a residential property at 14 Illawong Avenue (Bailey Property), also adjoining the Land. 11Annexed to this judgment is a copy of DP1153358 showing the Land, the Crane Property and the Bailey Property. 12The battle-axe access of the Land provides the only means of access to the Crane and Bailey Properties from Illawong Avenue. Each of those properties has the benefit of a registered right-of-way over about half the width of the handle part of the battle-axe access, which is insufficient to provide access for motor vehicles, as well as over the axe part of the battle-axe access. Consequently, the applicants also utilise the other half of the handle part. They have been accustomed to parking motor vehicles on the axe part, which is immediately adjacent to their properties. They have placed a new concrete surface over the handle part, built a new gate across the entrance from Illawong Avenue and built new fences along the boundaries of the right-of-way. They also built a carport on its southern end but, on the Council's order, had to demolish it because they had not obtained development consent. 13On 15 October 2011 the Council resolved to proceed with the compulsory acquisition of the Land in accordance with the Just Terms Act and the LG Act, to apply to the Minister for approval in accordance with s 187(1) and (2) of the LG Act, and to classify the Land as community land upon acquisition. 14On 9 November 2011 Mr Crane's solicitors wrote to the Council stating that without unhindered access over his right-of-way, the proposed acquisition will detrimentally and permanently affect the value and amenity of his property. Reference was made to a Council report recommending compulsory acquisition of the Land, which will include the right-of-way. The Council was requested to make clear precisely what land would be the subject of the acquisition. The Council's solicitors replied on 1 December 2011: see below at [22]. 15On the face of s 12(1)(a) of the Just Terms Act, the Council is required to serve a PAN on the registered proprietor of the Land. Ellen Fletcher is recorded as the registered proprietor of the Land. She died in 1908. In order to identify any person with a claim as creditor, beneficiary or otherwise to the estate of the late Ellen Fletcher, the Council appears to have made diligent inquiries including by affixing or publishing notices as follows: (a)on 29 November 2011 it affixed the Notice to the gate at the boundary of the right-of-way and Illawong Avenue; (b)on 30 November 2011 it wrote to most of the residents in Illawong Avenue, including the applicants, advising them of the intention to compulsorily acquire the Land and setting out the basis upon which the Council's action was founded; and (c)on 14 December 2011 it published notices in the Sydney Morning Herald and the Wentworth Courier (circulated locally). 16On 29 November 2011 the Council affixed the Notice of that date to the gate at the boundary of the right-of-way and Illawong Avenue. It states: WAVERLEY COUNCIL LEGAL NOTICE OF COMPULSORY ACQUISITION OF LAND Local Government Act 1993 (NSW) Land Acquisition (Just Terms Compensation) Act 1991 (NSW) PROPOSAL Waverley 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 (NSW) and the Local Government Act 1993 (NSW).
Upon acquisition the Land will be classified as "community land" under Part 2 of the Local Government Act 1993 (NSW).
STATEMENT OF PUBLIC PURPOSE The compulsory acquisition of the Land is for the purpose of incorporating additional green space into Tamarama Park and eventually, enhancing the community access into Tamara Park from Illawong Avenue.
NOTICE The registered proprietor of the Land is Ellen Fletcher. She died in the State of New South Wales 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 with Waverley Council on or before 31 December 2011. After 31 December 2011, Waverley Council will proceed with the compulsory acquisition of the Land having regard only to the interests of which Waverley Council is aware of.
FURTHER INFORMATION For further information on the proposal or if you are a person who has a claim, please send your correspondence: Contact: Greg Worner, Manager of Business Services and Property Division, Ph. 93698018 Address: Waverley Council PO Box 9 Bondi Junction NSW 1355 Fax: 9387 1820 Email: gregw@waverley.nsw.gov.au Date of notice: 29 November 2011 Anthony Reed
General Manager Waverley Council 17The Notice did not comply with requirements for a PAN under s 15(a) of the Just Terms Act, including the requirement that it be approved by the Minister: s 187(2) LG Act. 18The Council contends that the Notice was not, and was not intended to be, a PAN but an attempt to locate the owner of the Land as a step towards obtaining the Minister's approval under s 187(2) of the LG Act; and, to that end, that the content of the Notice, its affixture to the front gate of the Land and the newspaper advertisements were all required by [1.16] of the Department of Local Government's "Guidelines for the Compulsory Acquisition of Land by Councils" of June 2006 (Guidelines). The Guidelines state at [1.16]: 1.16 What if council cannot locate the land/interest owner? When council can not locate the land/interest owner, and - + native title is not in issue; and + the land will not be acquired for re-sale the council must satisfy the Minister and the Governor that adequate steps have been taken to find the owner before the compulsory acquisition can be approved.
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 . 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.
THE POSSESSORY TITLE CLAIM 37The applicants claim possessory title to much of the Land including the part providing access to their properties from Illawong Avenue. As part of that claim, they plead that the title of Marianne Fletcher and her successors in title has been extinguished under s 65 of the Limitation Act 1969. Under s 65, if A dispossesses the documentary owner, B, B must bring an action to recover possession within 12 years or else forfeit not only the right to recover possession but also the title to the land: Butt, Land Law, 6th ed (2010) Lawbook Co at [22 03]. 38An application for possessory title is required to be made to the Registrar-General: s 45D(1) Real Property Act 1900. An applicant dissatisfied with the decision of the Registrar-General may apply to the Supreme Court for a review of the decision: s 122(1) Real Property Act. No claim to possessory title has yet been perfected pursuant to the Real Property Act. However, Mrs Bailey has lodged with the Registrar-General a plan of redefinition, DP1175689, which would give her possessory title over the land shown subject to a right-of-way in favour of the Crane Property upon her proceeding to apply for, and prove, possessory title. This course of action is pursuant to an agreement between Mr Crane and her. 39At the hearing the applicants did not press the possessory title claim but instead pressed only for a finding, which is non-contentious, that they have taken steps towards an application to the Registrar-General for possessory title by Mrs Bailey under the Real Property Act. I so find.
THE OWNER IDENTITY CLAIM 40The applicants claim a declaration that the Land is owned (subject to the applicants' possessory title claim) by the executors of Marianne Fletcher who died in 1937. This appears to be the foundation for the possessory title claim. Unless the possessory title claim is perfected, it is difficult to see what interest the applicants have in the owner identity issue. 41The Land is registered in the name of Ellen Fletcher who died in 1908. Under her will, the Land passed to Marianne Fletcher who died in 1937 leaving the Land to her executors. Her executors have died. An apparently thorough search by or on behalf of the Council through title, will and probate records has not so far revealed a living heir or descendant. The Notice and the newspaper advertisements were among the steps taken in that regard. 42In my view, no such declaration should be made for the following reasons. First, any question as to the ownership of the Land only arises if, and after, the Minister approves the Council giving a PAN. Secondly, the statutory scheme is not frustrated by an inability to serve a PAN on a person who cannot be identified as an owner despite diligent inquiries because: (a)"Owner" of land in the Just Terms Act means "any person who has an interest in the land": s 4(1). A PAN need only be given to all the owners who have a "registered interest" or are in lawful occupation or have, to the actual knowledge of the authority of the State (in this case the Council), an interest in the land: s 12(1). They are or include Ellen Fletcher and the applicants (by reason of their registered rights-of-way) but do not include unknown inheritors of the Land from Marianne Fletcher or anyone else who cannot be identified despite diligent inquiries. (b)Once land has been acquired by compulsory process under the Just Terms Act, the validity of the acquisition is not affected by a failure to comply with any requirement of Part 2 relating to the giving of a PAN: s 33. (c)Under Part 3, entitled "Compensation for acquisition of land", of the Just Terms Act an owner of an interest in land which is compulsorily acquired is entitled to be paid compensation irrespective of whether that person was given a PAN: ss 37, 39, 40, 46.
COSTS 43The applicants have been unsuccessful. Normally in judicial review proceedings the unsuccessful party pays the successful party's costs of the proceedings. However, in this case there are some unusual circumstances which should be taken into account. 44The proceedings were commenced as a challenge to the lawfulness of the Notice as an alleged PAN. As stated earlier at [33], it was reasonable to have construed the Notice as an intended PAN. On that premise, it clearly was an unlawful PAN because of non-compliance with statutory requirements such as the Minister's approval. However, its complexion changes when the context in which the Notice came into existence is disclosed. The context was obtaining the necessary Minister's approval for a PAN under s 187 of the LG Act. According to the Guidelines, the Minister had to be satisfied that adequate inquiries had been made to locate the owner, and in this respect, a notice had to be affixed to the land intended to be acquired. The Council had an eye to the Guidelines when drawing the Notice. 45However, I consider that the Notice was unintentionally misleading on its face because of the combination of matters referred to above at [33] and, consequently, could reasonably have been construed as an intended PAN. 46The Council's letters to the applicants of 30 November 2011 and the Council's solicitors' letter to Mr Crane of 1 December 2011 both indicated that a PAN had not yet been issued: above at [21] - [22]. However, they did not specifically refer to the Notice which had almost contemporaneously been affixed to the front gate of the Land on 29 November 2011. Following commencement of the proceedings on 16 February 2012, the Council's solicitors' letter of 20 February 2012 to the applicants' solicitors was directed not to the Notice but to the Council's letters to the applicants of 30 November 2011: at [25] above. However, the Council's defence that the Notice was not intended to be, and was not, a PAN should have been sufficiently clear to the applicants when the Council filed its Points of Defence on 16 April 2012. The applicants should be credited with a short time thereafter to consider their position, say until 19 April 2012. Until then, in my view, there should be no order for costs in the unusual circumstances of this case even though the applicants ultimately lost. Thereafter the applicants were of course entitled to continue with their case, but if they did so they were at risk of the usual adverse costs order if they lost. They not only continued with their case but expanded it to include other claims, and ultimately they were unsuccessful. 47In the circumstances, I propose to order the applicants to pay the Council's costs from 20 April 2012 and to make no costs orders for the period prior to that date.
ORDERS 48The orders of the Court are as follows: (1)The proceedings are dismissed. (2)The applicants are to pay the respondent's costs from and including 20 April 2012. No order as to costs prior to that date. (3)The exhibits may be returned. Annexure DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2012
Crane
Waverley Council
Proceedings dismissed. Applicants to pay respondent's costs from and including 20 April 2012; no costs orders prior to that date. Exhibits may be returned. (See Orders [48] and costs reasoning [43]–[47])