The resolution of the issues on the appeal
50 In my opinion it is Order 6 rather than Order 5 to which the Council's submissions on the question of indefeasibility of title should be directed. It is that order that purports to mandate that Blakehurst secure a transfer of Lot 2 to the Council. Order 5 only requires the Council to do all such things necessary to secure that transfer
"pursuant to the Deed between [the Council] and [Blakehurst] dated 15 February 2002 and s 88 of the Conveyancing Act 1919."
51 In other words, Order 5 (at least on one view of it) requires the Council to request Blakehurst to retransfer Lot 2 pursuant to clause 2 of the deed. However, I do not understand that order to require the Council to act otherwise than in accordance with the terms of the deed in which event, given its resolution of 9 December 2002, the making of any such request would constitute a breach of clause 3 of the deed. Accordingly, for the reasons referred to in [37] above, Order 5 is ineffective and was so at the time it was made. In other words, it was based upon a false premise or, at the very least, a misunderstanding of the provisions of clauses 2 and 3 of the deed. Accordingly, it cannot stand in the terms in which it is currently expressed.
52 It is Order 6 that in my opinion is the relevantly operative order. The title to Lot 2 being vested in Blakehurst, it is only Blakehurst that can execute a transfer of that land to the Council. Possibly the only value of Order 5 is that it may mandate that the Council accept any such transfer and lodge it for registration so that it becomes the registered proprietor of Lot 2.
53 Nevertheless, there is a real issue which the primary judge has not addressed as to whether he had jurisdiction to make Order 6 against Blakehurst given that it was neither pleaded, argued nor decided that Blakehurst was in breach of s 45(1) of the LG Act. Accordingly it was submitted by the Council in its written submissions in reply that the effect of the majority decision of the High Court in Hillpalm was that there was no power in the Land and Environment Court pursuant to s 676(1) of the LG Act to make any order against Blakehurst where it was not in breach of s 45(1).
54 In this Court in Hillpalm, Hodgson JA, although agreeing with the leading judgment of Meagher JA, added additional reasons of his own in which he said (at 449 [19]):
"If the development in question is a use of land, then any person who makes that use of the land pursuant to the consent without complying with the condition will be in breach of [the EP&A Act] and can plainly be ordered to rectify that breach, irrespective of what appears on the title to the land. If the development in question is a subdivision, then a later owner of the subdivided land or of the subdivided part of it may not be guilty of any breach of the act, but nevertheless, so long as the land remains subdivided in accordance with the development consent without a condition of that consent being fulfilled, there is objectively speaking a continuing contravention of the condition ; and s 123 of the Act then gives power to the Land and Environment Court to order the rectification of that contravention by such person as is able to do so, again irrespective of what appears on the title of the land." (emphasis added)
55 As I have already mentioned, it is s 124 of the EP&A Act that empowers the Land and Environment Court to make orders to remedy or restrain a breach of that Act, not s 123 which is the standing provision authorising any person to institute proceedings for any such order.
56 In Hillpalm in the High Court, after citing the above passage from the judgment of Hodgson JA, the majority said this (at 291 [46]):
"The reference to there being ' objectively speaking ' a continuing contravention of the condition obscures an important question about the proper construction of s 123. In particular, it assumes that s 123 empowers the making of orders to remedy or restrain a breach of [the EP&A Act] even if the person to whom the order is directed has not committed any breach of the Act and would not commit a breach of the Act."
57 After noting that s 123, as a provision conferring powers on a court, should be read giving the words of the provision full amplitude (cf Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at 529-530 [32]-[33] and fn 30), the majority judgment continued (at 291):
"47. Nonetheless, s 123 of the [EP&A Act] is not to be read as conferring power on the Land and Environment Court to make orders to remedy or restrain breaches of the Act against persons who are not themselves in breach of the Act or who, unless restrained, would be in breach of the Act.
48. So much follows from the description of the kind of order which may be made under s 123, namely, 'an order to remedy or restrain a breach of this Act'. An order directed to a person who is not actually in breach of the Act, and not threatening to act in breach, would neither remedy nor restrain any breach."
58 Although the observations of the joint judgment in Hillpalm related to s 123 of the EP&A Act (and must equally apply to s 124), it was not really suggested that their Honours' observations were not equally applicable to s 676(1) of the LG Act. Accordingly, it would follow that, there being no suggestion before the primary judge that Blakehurst was in breach of s 45(1) of the LG Act, the Land and Environment Court had no power to make any order against Blakehurst requiring it to remedy a breach of the LG Act for which it was not legally responsible.
59 The Corporation sought to meet this difficulty by asserting before this Court for the first time that Blakehurst had contravened s 45(1) of the LG Act in that, contrary to that provision, it was the purchaser of Lot 2 which the Council had no power to sell. Furthermore, it was submitted that as Lot 2 was at the time of transfer, and continued to be, community land, it was being used by Blakehurst for private purposes rather than community purposes in breach of s 45(1). Finally, the Corporation submitted that the precise point the subject of the present case was not considered in Hillpalm and, although only formally, that the decision of the majority of the High Court in that case was wrong and should not be followed.
60 In further elaboration of these submissions which, with respect to senior counsel for the Corporation, were made somewhat "on the run", the Corporation with the Court's leave, filed supplementary written submissions in which it contended that there was a distinction between a void instrument which, in accordance with Breskvar, was nevertheless effective once registered and the present case which involved the registration of a transfer by a transferor who had no power to sell the relevant land. The fact that the Council had no power to sell Lot 2 by virtue of s 45(1) of the LG Act resulted in the transfer which it executed being ineffective in law. It could no doubt be regarded as either a nullity or void, assuming there is any difference between the two, which in my view there is not. It is arguable that once registered, it was that registration and not the antecedent transfer that vested title to Lot 2 in Blakehurst. It could be said that that is the very point of the decision in Breskvar.
61 However, since writing this judgment I have had the benefit of reading in draft the judgment of Basten JA, particularly with respect to the Corporation's submission to which I have referred in the preceding paragraph. I agree with his Honour that that submission was not fully developed in the course of the appeal and that it would be inappropriate to come to a final conclusion with respect to it. This notwithstanding, I acknowledge the force of the observations of Basten JA with respect to the apparent conflict between s 42 of the RP Act and s 45(1) of the LG Act and the issue of statutory construction to which that conflict gives rise.
62 The Corporation's supplementary written submissions then contended that Blakehurst was using Lot 2 in breach of ss 35 and 47D of the LG Act. The former provided that community land was required to be used and managed in accordance with, inter alia, the plan of management applying to it. Succeeding provisions required a council to prepare a plan of management for community land. No such plan had been prepared in the present case. Accordingly, it was submitted that Lot 2 was being used otherwise than in accordance with a plan of management applying to it.
63 Section 47D prohibits the exclusive occupation or exclusive use of community land by any person otherwise than in accordance with certain exceptions not presently applicable. It was therefore contended that Blakehurst was exclusively occupying and/or using Lot 2 otherwise than in accordance with that provision. As that use was prohibited, its continuation was in breach of the section and should be restrained. Of course, any restraint of the exclusive use or occupation of that land by Blakehurst would not require, let alone mandate, that Lot 2 be transferred by Blakehurst to the Council.
64 The answer to these submissions, as contended by the Council, was that ss 35 and 47D of the LG Act only applied so long as the land to which they referred was "community land". As "community land" was "public land" (for it was only "public land" that needed to be classified as either "community land" or "operational land"), and as "public land" was defined in the Dictionary to the LG Act to mean "any land … vested in or under the control of the Council", it followed that for land to be "community land" it needed to be so vested in or under the Council's control. Once the transfer of Lot 2 from the Council to Blakehurst had been registered, that land was incapable of meeting that description: in other words, as and from the date of registration, Lot 2 was neither vested in nor under the Council's control.
65 Although the Corporation was granted leave to provide supplementary written submissions in response to the Council's argument, the submissions which it filed and to which I have referred above did not seek or purport to respond to the Council's contentions. In my opinion, those contentions are correct. Once Lot 2 ceased to be vested in or under the control of the Council, it ceased to be "public land" and, therefore, ceased to be "community land". It follows that ss 35 and 47D of the LG Act had no application thereto once registration of the transfer was effected. Accordingly, in my opinion, the Land and Environment Court had no power to grant Order 6 requiring Blakehurst to do all such things necessary to secure the transfer of Lot 2 from itself to the Council.