F & D Bonaccorso Pty Ltd v City of Canada Bay City Council

F & D Bonaccorso Pty Ltd v City of Canada Bay City Council - [2007] NSWLEC 159 - NSWLEC 2007 case summary — Zoe

[9]

Attorney General v Ashfield Municipal Council (1951) 18 LGR 123; Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; Boyd v Mayor of Wellington [1924] NZLR 1174; Breskvar v Wall (1971) 126 CLR 376; Crago v McIntyre [1976] 1 NSWLR 729; Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1; Ferdinands v Commissioner for Public Employment (2006) 224 ALR 238; F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306; Frazer v Walker [1967] 1 AC 569; Halloran v Minister Administering National Parks and Wildlife Act 1974 (2006) 224 ALR 79; Hillpalm Pty Ltd v Heaven's Door Pty Pty Ltd (2004) 220 CLR 472; Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2002) 55 NSWLR 446; Hughes v Schofield [1975] 1 NSWLR 8; ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697; Kogarah Municipal Council v Golden Paradise Corporation & Anor [2005] NSWCA 230; CASES CITED: Koompahtoo Aboriginal Land Council v KLALC Property & Investment Pty Ltd [2006] NSWSC 856; Leichhardt Council v Roads and Traffic Authority of NSW [2006] NSWCA 353; Lindsay Petroleum Company v Hurd, Farewell and Kemp (1874) LR5 PC 221; Mansfield v Director of Public Prosecutions of Western Australia (2006) 228 ALR 214; National Parks and Wildlife Service & Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573; North Cronulla Precinct Committee Incorporated v Sutherland Shire Council (1999) 107 LGERA 274; Palais Parking Station Pty Ltd v Shea [No. 3] (1980) 45 LGRA 216; Pratten v Warringah Shire Council (1969) 17 LGRA 371; Quach v Marrickville Municipal Council (1990) 22 NSWLR 55; Re McBain; Ex Parte Australian Catholic Bishops Conference (2002) 209 CLR 372; Roach v Bickle (1915) 20 CLR 663; Scharer v State of New South Wales (2001) 53 NSWLR 299; Seaton v Mosman Municipal Council (1996) 93 LGERA 1; Shergold v Tanner (2002) 209 CLR 126; South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603; State of South Australia v Tanner (1988) 166 CLR 161; Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19

[32]

16 The meaning of "public park" in the LG Act and the operation of cl 6 of Schedule 7 was considered by the Court of Appeal in North Cronulla Precinct Committee Incorporated v Sutherland Shire Council (1999) 107 LGERA 274 on an appeal from this Court. The Court of Appeal held that the land in issue in that case was a public park. It confirmed that no formal resolution or dedication is required to make land a public park and that the characterisation of land as a public park, turns on its use by the council rather than its status in formal terms. Sheller JA stated: [8] In the present case no formal step was taken by the respondent to provide a park under s 348(1) of the 1919 Act nor was there any formal act of dedication unless, in either case, the laying out of the park itself was enough. It seems to me that for the appellant to succeed the respondent must be shown to have intended, by laying out the park and thereafter permitting the public to use it as of right , to provide a public park or dedicate the land as a public park. … [13] As I have said the Chief Judge decided this case on the basis that there was no formal act whereby the respondent dedicated or provided a public park. But, ultimately, in this appeal, the question is whether on the evidence the appellant has shown that the respondent acted in a way which indicated that it intended to dedicate the land in question for use as a public park. 17 Beazley JA held at [50]: "It is therefore sufficient, in my opinion, for land to be categorised as a public park within Sch 7 cl 6(2)(a), for the council to have taken sufficient steps to use or to permit the use of the land as a public park". Her Honours analysis included the following: [74] The land remains landscaped and is well grassed with some bushy vegetation and has some planted flower beds. It is surrounded by low wooden log fencing to prevent vehicular access. For many years the land has been used by locals and visitors for recreational purposes such as picnicking, playing ball games, exercising dogs and flying kites. There are taps on two of the lots, used for various purposes. For example, beach-goers use the taps to wash sand from their feet and beach gear. … [77] Later again in time, the council decided to landscape and maintain the land as has been described. The manner in which it did so was said to be no different from the way it provided and maintained other coastal parks in the area. The council's use of the land in this way was authorised by ss 347 and 348 of the 1919 Act. That use had persisted for eight to nine years prior to its 1994 resolution to characterise the land as operational land.

[35]

[85] From the additional word public , a public park is something more than a park. An area will be a park if it meets the physical description, including as to use, in the definition of park , but an area of private or non public land may meet that physical description. … [88] The evidence of use of the land to which Beazley JA refers also shows that, prior to and as at 1 July 1993, those who used the land for recreation were members of the public and those for whose use the land was made available by the council were members of the public. The users of the land were not a class or group of users having some common characteristic or qualification other than as members of the public, and it seems that anyone who wanted to use the land for recreation could do so and did so: cf Australian Softwood Forests Pty Ltd v Attorney General (NSW) (1981) 148 CLR 121 at 135-136 per Mason J; (at 143-144) per Wilson J. … [106] The council acquired the land for mixed and sometimes unclear purposes, but generally for purposes which did not exclude development or use otherwise than as a park. In its representations prior to the 1980s it left open that the land might not in the future be treated as open space. But in the first half of the 1980s it developed the land expressly as a park, and in a similar manner to the other coastal parks in the Cronulla area . It did this in response to suggestion that the land be developed into a park, and while there was no evidence of a council resolution for the development of the land as a park it was implicitly adopted in minutes of the council's Works and Traffic Committee. There was then public use as a park, to the knowledge of the council and in accordance with its intention, without limitation on access by the public or some kind of stipulation for non-public status of the land; nor did the council indicate that the public use was to be conditional or temporary. [107] The use of the park by members of the public was not trespassory. The members of the public must have been acting in the belief that they were entitled to use the park, and more importantly it must have been apparent to the council that they were acting in that belief. It was not a situation of mere tolerance of public use by the council, that is, permitted but conditional or temporary use by members of the public. In my view it should be inferred that, prior to 1 July 1993, the council intended that the park should be dedicated to public use, so that it was a public park as at that date.

[48]

29 Secondly, the council submitted that the sign at Chapman Reserve provided little or no support for the applicant's claim that the land in question was a public reserve as at 1 July 1993. Its detailed reasoning was to the following effect. The notice, on its face, has its source in Ordinance 48 under the Local Government Act 1919. Ordinance 48 was made in April 1981 and operated until its repeal on 1 July 1993. By reference to the definition of "reserve" in Ordinance 48 it should be concluded that Chapman Reserve was not a public reserve. Clause 3 of the Ordinance defined "reserve" as follows: Reserve means - (a) a public reserve, as defined in the Act, which is under the care, control and management of a council; (b) except in Part V includes any other land under the control of a council being - (i) land used for the purposes of public health, recreation or enjoyment or any purposes of the like nature; or (ii) a garden, playground, gymnasium, golf links, tennis court or cave, and includes part of any such public reserve or other land. 30 The council's submission continued as follows. The "Act" referred to in this definition was the Local Government Act 1919, which defined "public reserve" as including a public park. The definition of "reserve" had two limbs. The first limb related to a "public reserve" as defined in the 1919 Act. The second limb related to other land under the control of the council which, in effect, was used for public purposes. Accordingly, under Ordinance 48, land could be a "reserve" notwithstanding that it was not a "public reserve" as defined in the 1919 Act. Under cl 20 of Ordinance 48, a council was empowered, by notice, to regulate the use of a reserve, in particular, regulate such matters as the lighting of fires, the taking of animals onto the reserve, vehicular access, the playing of games and so on. While there was reference in the second line of the notice at Chapman Reserve to certain activities being prohibited "in this public reserve", elsewhere in the notice there were two separate references to the affected land being a "reserve". This is consistent with the land falling within the second limb of the definition of "reserve" in the Ordinance and was also consistent with the physical attributes of the land at Chapman Reserve. The land comprised two vacant lots and had none of the "usual trappings" of a public park i.e. there was no landscaping, playground equipment, tables, barbeques or benches and so on. Further, the council's general manager's report described the land as a "land reserve" and not as a public park or public reserve.

[50]

32 Thirdly, the council submitted that although it is true that 17 and 19 Chapman Street were acquired for the purposes of a park that changed critically by reason of the subsequent zoning history of the area in which Chapman Reserve was located, prior to 1 July 1993. That area has been called the "Strathfield Triangle". It is bounded by Parramatta Road, Leicester Avenue and the main northern railway line at Strathfield. Chapman Street is to the west of and parallel with Leicester Avenue. The council's zoning history submission may be summarised as follows. In 1989, council received an application for rezoning of the area to mixed commercial, residential and retail development. The applicant for rezoning submitted to the council that the area was likely to decline as a residential area because of its low level of residential amenity and was more suited to commercial development. The council resolved to prepare a draft local environmental plan. By February 1990, a report proposing rezoning had been prepared. The report noted that the applicant had suggested that the land be rezoned to 3(d) Business (Redevelopment). A letter dated 8 May 1991, from the mayor to residents, referred to the long running proposal to rezone and redevelop the area west of Leicester Avenue. By August 1991, the council was finalising an amended draft local environmental plan and development control plan for the proposed rezoning. In November 1991, the Department of Planning advised that its Director had decided not to approve the draft local environmental plan being certified for exhibition, but did not object to the council's Chief Town Planner certifying a draft plan which incorporated certain principles. In January 1993, the Concord Local Environmental Plan No 34 was made. One of its aims was to rezone the relevant land to Zone No 10(b) - Enterprise Area. I note, however, that (a) another aim was to "encourage development for the purposes of residential and commercial use and to promote the coincidence of place of living and place of work"; (b) permitted purposes included residential as well as commercial; and (c) the objectives of Zone 10(b) - Enterprise Area included "permit development to be carried out for residential, commercial and recreational purposes", "provide for a range of residential accommodation in the landscaped and integrated environment" and "create a park-like environment".

[84]

55 Consistently with the goals of the Torrens system, registration of a transfer expressly declared void by a subsequent statute is nevertheless effective to confer a good title on the transferee. That was the unanimous decision of the High Court in the leading case of Breskvar v Wall (1971) 126 CLR 376. There, a memorandum of transfer of land was executed, but at the time of execution the name of the purchaser was not inserted in the memorandum. Months later and in fraud of the transferor, a certain name was inserted in the memorandum of transfer. It was thus invalid under s 53(5) of the Stamp Act 1894 (Q) which provided: "No instrument of conveyance or transfer executed on or after the first day of November, 1918 of any estate or interest in any property whatsoever ... shall be valid either at law or in equity unless the name of the purchaser or transferee is written therein in ink at the time of the execution thereof. Any such instrument so made shall be absolutely void and inoperative, and shall in no case be made available by the insertion of a name or any other particulars afterwards". The High Court held that the interest of the registered proprietor was not dependent on the antecedent instrument of transfer and so was not affected by the Stamp Act rendering the instrument void. A submission was rejected that the Stamp Act had effected an implied repeal pro tanto or an implied amendment of provisions of the Torrens title legislation, which would otherwise operate to give validity to registration of the transfer. Barwick CJ made the following classic statement (at 385): The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void. The affirmation by the Privy Council in Frazer v. Walker [[1967] 1 A.C. 569] of the decision of the Supreme Court of New Zealand in Boyd v. Mayor, &c., of Wellington [[1924] N.Z.L.R. 1174, at p. 1223], now places that conclusion beyond question. Thus the effect of the Stamp Act upon the memorandum of transfer in this case is irrelevant to the question whether the certificate of title is conclusive of its particulars.

[95]

The authorities to which Quach had particular regard in the context of these remarks were South-Eastern Drainage Board and Pratten . 62 Another exception to indefeasibility was recognised by a minority of the High Court in Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 which was decided 18 months after Breskvar. Four of the judges in Travinto (where there was a bench of five) also sat in Breskvar (where there was a bench of seven). In Travinto there was a sale of land subject to an existing lease. The vendor did not disclose that the lease contained an option to renew. The purchaser sought compensation for error or misdescription of the property. The High Court held that there was no error or misdescription because the lease, and therefore the option, was void under s 88B of the Industrial Arbitration Act 1940 (NSW). It was held that the registration of the lease under the RP Act (NSW) had not validated the lease or given the tenant an indefeasible right to renew. Barwick CJ, McTiernan and Stephen JJ decided the case on the conveyancing ground that illegality of the option under s 88B would have been a bar to a suit by the tenant for specific performance of the option, and so the option to renew did not create an equitable interest in the land which would could be the subject of the indefeasibility provisions of the Real Property Act. Of more significance for the present case is the reasoning of Gibbs J that the provisions of the Industrial Arbitration Act, which made the lease void, having been enacted after the RP Act, prevailed over inconsistent provisions of that Act. Gibbs J said at 34: There is a clear distinction between the present case and Breskvar v. Wall [(1972) 126 C.L.R. 376], in which this Court considered the position of a person who obtained registration by means of a transfer which, by reason of the provisions of s 53 (5) of the Stamp Act 1894 (Q.), a statute passed later than the Real Property Acts (Q.), was absolutely void and inoperative. In that case the fact of registration vested the title in the transferee and it did not matter that the title was derived from a void instrument. The question whether s 53 (5) of the Stamp Act should be regarded as effecting an implied repeal pro tanto or an implied amendment of any provisions of the Real Property Acts was mentioned by Walsh J. [at p 402] , who answered that question in the negative. The two statutes there could stand together; the Stamp Act avoided the transfer but the Real Property Acts had the result that registration of the void transfer was effective to vest the title in the registered proprietor. In the present case the Industrial Arbitration Act renders void the lease itself and not merely some document or transaction from which the title of the lessee was derived. If the Real Property Act were held to have the effect of validating the lease, its provisions would be irreconcilable with those of s 88B which declares the lease to be void.

[102]

67 In the High Court in Hillpalm (2004) 220 CLR 472 the majority (McHugh ACJ, Hayne and Heydon JJ, in a joint judgment) did not reach the question whether indefeasibility was overridden by the later statute because (on their view of the evidence) the council had not in fact imposed the condition and, even if it had, it was not a condition of continuing use such as to bind a subsequent purchaser. They held at [42] - [43] that "Where as here, the subdivision of the land was the relevant development, the subsequent purchaser of a subdivided lot does not 'carry that development out' by occupying, and thus using, one of the lots in the subdivision. It follows that, even if there was a relevant condition of the subdivision concerning the creation of a right of way, the appellant did not contravene s 76A of the EPAA by using the land without creating that right of way. It did not breach s 76A because it did not carry the development of subdivision out on the land". Consequently, they held that s 123 did not apply. Thus, on the majority view, only an unfulfilled council consent condition that related to the continuing use of the land, as distinct from the once-only event of subdivision, could bind later registered proprietors. The majority touched on, but did not decide, the issue of consistency between a council consent and the effective operation of the Torrens title system and the issue whether a development consent creates a right in rem: [51] If the Council's consent to the subdivision operated to create a right in rem that may be relied on by any later transferee of any lot in the subdivision, that would present a fundamental question about how the creation of such a right would be consistent with the effective operation of a system of Torrens Title. In particular, the existence of such a right would be inconsistent with s 42(1) of the Real Property Act. That provides that, subject only to the four kinds of exception specified in the succeeding paragraphs of s 42(1), and the further exception in case of fraud : Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded. (None of the exceptions specified in s 42(1) was said to be engaged in the present matter.) [52] As Barwick CJ said in Breskvar v Wall : The Torrens system of registered title ... is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor. It follows that, when the appellant became registered as proprietor of an estate in fee simple in the appellant's land, it obtained the title described in the certificate of title. That title was free from any encumbrance or interest of the kind which the respondent contends it is now entitled to have created. [53] If the consent to the subdivision did create a right in rem, that would be a right or interest in the land not shown on the Computer Folio Certificate. There would then be a real and lively question about how the two statutory schemes (the scheme under the EPAA and the Torrens system for which the Real Property Act provides) were to be reconciled, and questions of implied repeal or amendment might arise. But those questions are not raised by this matter. That is because it was common ground that the appellant's title was not and is not now subject to any interest of the kind which the respondent asserted it was entitled to have the appellant create in its favour. If the respondent has any such right, it is a right to have an interest in land created and that is said to be a right enforceable by personal action against the appellant, not by any action or application to rectify the Register maintained under the Real Property Act . That right, if it exists, is not a right in rem. [54] The availability of rights in personam is entirely consistent with the Torrens system of title. The immediate indefeasibility of a title to land under the Torrens system does not deny the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant ( Frazer v Walker [1967] 1 AC 569 at 585) and those proceedings may have as their terminal point orders binding the registered proprietor to divest himself wholly or partly of the estate or interest vested in him by registration ( Breskvar v Wall (1971) 126 CLR 376 at 385, per Barwick CJ) . If the respondent has a right against the appellant, it is a personal right, not a right in rem, and that personal right must be found, if at all, in the relevant statutory provisions. [55] For the reasons given earlier, however, the respondent has no such right. Section 123 of the EPAA does not provide that right to the respondent in this case, the appellant not being in actual or threatened breach of that Act. No other provision of that Act was identified as founding the right asserted. That being so, the respondent's claim to orders obliging the appellant to create an easement and construct a right of way must fail.

[118]

79 The applicant submitted that the legislature intended ss 44 and 45 of the LG Act to override the indefeasibility provisions of the RP Act and that this Court has power to order rectification of the Register under the RP Act on the following bases. First, the applicant submitted that the words "or otherwise dispose of" in s 45 of the LG Act, include registration of a transfer of community land and arming a purchaser with a registrable transfer; that s 45 nullifies everything to which it refers; and therefore registration of a transfer is nullified. I disagree. In my view, s 45 is directed to specified conduct of a council in relation to community land, not to conduct of a third party such as the Registrar General. Registration of title under the RP Act is an act of the State, not of the transferor or transferee: Quach v Marrickville Municipal Council (1990) 22 NSWLR 55 at 62E. Further, the words "otherwise dispose of" in s 45 do not, in my view, include registration of a transfer. In Attorney General v Ashfield Municipal Council (1951) 18 LGR 123 Hardie AJ addressed the construction of s 8 of the Public Parks Act 1912 which provided that trustees of the public park "shall not be capable of alienating, charging or in any way disposing of the land". His Honour held at 126 "that the words 'alienating or in any way disposing' must receive a wide construction in this section. In other words, they extend to transactions which do not create an estate in land in the ordinary sense". Similarly, in my view, the words "or otherwise dispose of" in s 45 of the LG Act should receive a wide construction and would extend to transactions, which do not create an estate in land in the ordinary sense, as well as to transactions such as gifts of lands but they do not extend to registration of a transfer. Further, although a transaction prohibited by statute may be "lifeless from the beginning" in other contexts (Roach v Bickle (1915) 20 CLR 663 at 671), a breach of s 45 of the LG Act does not make the transaction void but only attracts the civil remedies available under ss 674 and 676 of the LG Act and s 20 of the Court Act: cf F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306 at 327 per McHugh JA.

[152]

108 After the hearing in these proceedings began and before it concluded, the third respondent lodged a development application DA 649/2006 for the demolition of all houses in Chapman Street including the subject houses. In February 2007, the council purported to approve the development application. The applicant has filed a fresh application in this Court challenging the validity of that new consent (proceedings No 40171 of 2007). There is overlap in the grounds of review in those proceedings and the grounds of review in these proceedings. The respondents to whom the orders sought are directed, have entered submitting appearances. The council says it has no interest in and therefore has not defended this part of the case. The application for reinstatement is therefore unopposed. However, in view of the recent development consent and the subsequent court challenge to it, the applicant submits that this demolition issue not be determined at this time and that it should be stood over to be dealt with together with the new proceedings. I accept the submission E. Orders 109 I propose to grant the following relief subject to giving the parties an opportunity to address me as to its form: (1) A declaration that the development consent in respect of development application no 336/2003 for the premises at 2 - 10 and 13 - 21 Chapman Street, Strathfield granted by the first respondent on 1 July 2003, permitting the demolition of existing buildings and the erection of a residential flat building and basement carparking is invalid and of no force or effect. (2) Order that the said development consent be set aside. (3) Declaration that the land known as 17 and 19 Chapman Street Strathfield, and collectively known as Chapman Reserve, is community land within the meaning of the Local Government Act 1993. (4) Order that the Register under the Real Property Act 1900 be rectified to show the council as the registered proprietor of the lots comprising Chapman Reserve. (5) Direct that the Second Further Amended Application insofar as it relates to paragraphs 11 and 12 be heard together with proceedings No 40171 of 2007. (6) Save as aforesaid, the proceedings are dismissed. (7) The exhibits may be returned.

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