M.J. Davis Industrial Pty Ltd v Fairfield City Council & Anor.

M.J. Davis Industrial Pty Ltd v Fairfield City Council & Anor. - [1999] NSWSC 829 - NSWSC 1999 case summary — Zoe

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1 HER HONOUR: By Further Amended Summons the plaintiff seeks a number of declarations concerning the regularity of Deposited Plan 249417 ("the Plan") together with an order that the Registrar General (the second defendant) further consider the plaintiff's application to amend the Plan upon the basis that it contains errors within the meaning of S 195H of the Conveyancing Act 1919. 2 The plaintiff is a property developer. Malcolm Davis is the Managing Director of the plaintiff. He was previously the Managing Director of Jumal Industries Pty Ltd ("Jumal"). Jumal was wound up around 1976. The ultimate beneficial owner of all the issued shares in both Jumal and the plaintiff is Mr Davis and his wife, Judith. Some time in the 1960's Jumal acquired a substantial tract of rural land in Wetherill Park comprising Lot 1 Deposited Plan 228936 ("the land"). 3 In June 1968 Jumal obtained approval for a rural subdivision of the land following an appeal to the Board of Subdivision Appeals. That approval was the subject of conditions imposed by the first defendant ("the Council"). The conditions included a condition that public reserve space be dedicated to the extent of five acres from Lot 1 of the proposed subdivision. The land so dedicated was to be cleared, levelled and drained to the reasonable satisfaction of the Council and the balance of Lot 1 not so dedicated was to be added to Lot 32. Lot 1 was located on the north-eastern boundary of the proposed plan of subdivision. 4 Jumal applied to extend the time during which the approval for the subdivision remained valid. This was refused by the Council by letter dated 10 February 1972. On 3 September 1971 interim development order number 7 ("IDO 7") was published in the Government Gazette. IDO 7 included the land and made provision for it to be the subject of industrial development. The Council advised that it would be necessary for the plaintiff to amend its proposed plan of subdivision to incorporate the requirements of IDO 7. 5 Harry Davis was employed by Jumal as a Project Manager responsible for its real estate developments. He prepared an application for subdivision of the land which was lodged with the Council on 28 March 1972 together with a plan of subdivision ("the subdivision plan", Ex C) drawn by G.W. Toft & Partners. This plan showed 31 allotments and was prepared in conformity with IDO 7. 6 On 8 May 1972 the Council approved the application. That approval was subject to conditions. Condition 2 was in these terms: "The dedication as public reserve of five acres of the land shown as 6(b) Open Space Proposed Recreation on the Interim Development Control Map. The land dedicated shall be cleared, levelled and drained and shall not include land shown as 5(b) Special Uses-Roads. The land zoned 5(b) and the remainder zoned 6(b) may be left in separate allotments or consolidated with adjoining allotments. 7 The subdivision plan showed Lot 30 on the north-east boundary of the subdivision corresponding generally to the position of Lot 1 on the 1968 plan of subdivision. The common boundary between Lot 29 and Lot 30 on the subdivision plan was roughly perpendicular and created two broadly rectangular lots. 8 Around 27 March 1974 Harry Davis attended a meeting with Kenneth Riding, the Council's chief planner. Mr Davis was accompanied by Barry Curtis, a surveyor employed by Peter Lean & Lakenby, registered surveyors. Mr Curtis was to produce the linen plan which in due course would be lodged with the Registrar General for registration. At that meeting Mr Riding showed Mr Davis and Mr Curtis a copy of a control map which related to proposed interim development order 10 ("IDO 10"). IDO 10 was published in the Government Gazette in May 1974. IDO 10 covered the same lands in the Fairfield Municipality as IDO 7 however it did not purport to revoke IDO 7. At the time of the gazettal of IDO 10 it appears that the Government was giving consideration to a major arterial roadway development and IDO 10 made provision for that development. At the meeting on 27 March Harry Davis recalled Mr Riding saying words to the following effect: "The linen plan must be drawn to comply with the proposed IDO 10. So it must be drawn so that the common boundary between lots 29 and 30 coincide with the western boundary line of the proposed interchange. Lots 2, 1 and 31 will become lots 2 and 1 with the common boundary coinciding with the western boundary line of the proposed interchange. If these changes are not made to the Linen Plan, then the certificate to be signed by the Council's clerk will not be issued." 9 The reference to the certificate is a reference to a certificate issued under s 327(1)(d) of the Local Government Act 1919 ("the LGA"). Land was not be subdivided save in accordance with the provisions of the LGA . Prior to registration of a plan of subdivision it was necessary for the Council clerk to certify compliance with the provisions of the LGA ; s.327(1)(d). 10 Harry Davis was cross-examined but there was no challenge to his account as to the contents of his discussions with Mr Riding at that meeting. 11 The Council relied on the affidavit of Kenneth Riding sworn on 17 November 1998. In paragraph 4 of that affidavit Mr Riding said this: "[I]t is likely that I advised on the alignment of the boundaries to comply with the requirements of draft IDO 10 which was then imminent. I also recall asking for the boundary to be altered in order to comply with Condition 2 of the approval dated 8 May, 1972 to provide 5 acres of public reserve."

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12 Following the March 27 meeting, Harry Davis instructed Barry Curtis to prepare the linen plan in accordance with the request made to him by Mr Riding. That plan ("the Plan", Ex 3) showed an irregular "dog's leg" boundary between Lots 29 and 30. That boundary corresponded with IDO 10 in that it conformed to the proposed roadway development. The words "public reserve" were written across Lot 30 on the plan. 13 The effect of the inclusion of the words "public reserve" across Lot 30 was, on registration of the linen plan, such as to vest that lot in the council; s 340D(1) of the LGA. 14 The plan was registered by the Registrar General on 3 March 1975 as Deposited Plan 249417. As at that date, having regard to the provisions of IDO 10, the whole of Lot 30 was zoned 5(b) Special Uses-Roads and no part of it was zoned 6(b) Open Space Proposed Recreation. 15 Robert Hussey was the Council's subdivision engineer in the relevant period. He was responsible for the supervision of all subdivision engineering works and for ensuring that they were carried out in accordance with Council's conditions of approval and requirements. Mr Hussey had the delegated authority from the Council to make final recommendations to the Town Clerk with respect to the issue of subdivision approvals, i.e. the issue of the s 327(1)(d) certificate. Prior to the release of the final plan of subdivision it was Mr Hussey's responsibility to check that the requirements of Council and other relevant authorities had been satisfied. Once he was satisfied of these matters he would approve the plan and submit it for the affixing of the Council clerk's certificate. Mr Hussey checked the plan relating to the land. His notes, an annexure to his affidavit sworn on 25 November 1998, show that he satisfied himself that the plan provided "area of land for dedication as public reserve". 16 On 14 February 1975 the Council clerk issued the s 327(1)(d) certificate. 17 Mr Hussey agreed in evidence that the subdivision plan had been approved under IDO 7. This was not in issue. It was the plaintiff's submission that it was entitled to have the linen plan drawn in conformity with the subdivision plan and approved subject to the provisions of IDO 7. In this respect it relies on the terms of s 342U(9) LGA as it then stood: "Where an interim development order is altered or rescinded, or ceases to have effect by reason of the prescribing of a planning scheme - (a) any development permitted by or under the authority of the interim development order may, subject to the provisions of the interim development order, be continued and completed as if the alteration or rescission had not been made, or the interim development order had not ceased to have effect; and (b) such alteration or rescission, or ceasing to have effect, shall not affect any right, liability, obligation, penalty or legal proceedings accrued, incurred or instituted by virtue of or in relation to or under the interim development order." 18 As things turned out the proposed roadway development did not proceed. 19 It was the plaintiff's contention that Mr Riding's request that the boundary between Lots 29 and 30 be re-drawn was unlawful or improper. 20 Section 195H of the Conveyancing Act provides: "(1) The Registrar General may, on the application of any person with an interest in any land to which a plan registered or recorded under this Division relates, or without any such application, and on such evidence and after such notices (if any) as appear to the Registrar General to be necessary, amend the plan for the purpose of correcting any error in or supplying any omission from the plan. (2) … (3) Except as provided by sub-section (4), an amendment shall take effect as if the error corrected or omission supplied had not been made. (4) An amendment made under the authority of this Section does not affect the construction of any instrument made or entered into before the amendment so as to prejudice any person claiming under that instrument."

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26 The steps upon which the plaintiff relies to arrive at the conclusion contained in the declaration sought in paragraph 6 are set out in paragraphs 3 - 5 of the Summons. They may be summarised thus: (i) the Council's officer, Mr Riding, required that the linen plan be drawn with a boundary between Lots 29 and 30 substantially different to the common boundary appearing in the subdivision plan; (ii) this requirement was in the circumstances unlawful; (iii) the common boundary between Lots 29 and 30 recorded in the deposited plan 249417 does not substantially conform with the plan of subdivision approved by the Council. 27 The significance of conformity as between the plan of subdivision as approved by Council and the plan as registered arises from Cl 3(a)(i) of Ordinance 32 made under the LGA. This provided that, upon completion of the roads and drainage works, the subdivider was to submit to the Council for approval the plan to be lodged at the Registrar General's Office showing the dimensions and areas of each separate parcel and the dimensions of each drainage reserve, public garden and recreation space and the position of permanent survey marks. The Council was to determine that the roads and drainage works had been constructed in accordance with approved plans and specifications (or in accord with any amendments thereto approved by the Council) and that "the separate parcels are substantially in accordance with the plan of subdivision previously approved". In the event Council was so satisfied the plan was to be returned to the applicant with the approval of the Council noted thereon accompanied by the s 327(1)(d) certificate. 28 The plaintiff referred me to the decision of Cohen J in Baiada Pty Limited v The Registrar-General (1994) 6 BPR 97500 in which his Honour considered the scope of s 195H of the Conveyancing Act 1919. In that case a surveyor preparing the linen plan for registration left out portions of lots in the belief that road widenings were imminent. He drew the plan showing the eastern boundary of his client's land as the proposed western boundary of the roadway. The realignment did not take place. The plaintiff applied to the Registrar General pursuant to s 195H to amend the plan. The Registrar General declined to do so contending that the section's reference to omission extended only to those things left out by inadvertence. Cohen J determined that "omission" for the purposes of s 195H should be given the same meaning as the Court gave it in Dobbie v Davidson (1991) 23 NSWLR 625 for the purposes of s 42(1)(b) of the Real Property Act 1900 namely "not there" or "left out". It was not necessary to establish any breach of obligation by the Registrar General. At p.13,708 his Honour said this: "In my opinion omission in s 195H should not be given a different meaning than was given to it in the section dealt with in Dobbie's case, save that it should be noted that it is necessary to see first whether what was left out was something which should not have been left out. Obviously it is not intended that a plan should be amended where something is left out which should never have been included."

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His Honour went on to consider the decision of Trieste Investments Pty Limited v Watson (1963) 64 SR(NSW) 98, a case in which the Full Court discussed the meaning of "omission" for the purposes of s 127(1) of the Real Property Act 1900. He accepted Trieste as authority for the proposition that "it is necessary to consider what should have been in the plan in order to see whether it has been omitted." The question in Baiada thus became whether the realignment portions should have been included in the plan. His Honour considered that although the omission of part of the land was deliberate it had been done for incorrect reasons and those portions of land which had not vested in the Department of Main Roads should have been included in the plan. This constituted an omission within the meaning of s 195H of the Conveyancing Act 1919. 29 The facts of the present case are relevantly dissimilar to Baiada. Here the plan prepared by Mr Curtis, the surveyor, was drafted in accordance with the instructions given to him by the plaintiff. It incorporated the irregular "dog's leg" common boundary between Lots 29 and 30 in order to meet the request so to do made by the Council. Lot 30 was shown as public reserve land. The preparation of the plan in accordance with these instructions satisfied the Council that the terms of its approval had been met, and a s 327(1)(d) certificate was issued by the Council clerk and the plan was duly registered. Harry Davis uplifted the plan from the Council on 14 February 1975. He was cross-examined concerning this occasion: "Q. When you uplifted that plan there was no doubt in your mind that that plan accurately represented what the company wished to have approved? Do you agree with that? A. I would have to agree with that" (t'cpt 2/6/99 p.63). 30 The Registrar General registered the plan which the plaintiff submitted and which was drawn to its instructions and which bore the necessary approvals as evidenced by the s 327(1)(d) certificate. The plaintiff invites the Court to go behind the s 327(1)(d) certificate and conclude that the Council ought not to have issued the certificate having regard to Cl 3(a)(i) of Ordinance 32 and the suggested want of substantial conformity between the subdivision plan and the plan as registered. Cl 3(a)(i) is addressed to the matters which the Council is to take into account prior to the issue of the Council clerk's certificate. 31 From the evidence it appears that the Council was satisfied that the separate parcels shown on the linen plan submitted by the plaintiff were substantially in accord with the subdivision plan. Robert Hussey recommended the issue of the s 327(1)(d) certificate in respect of this subdivision. He observed: "This is part of the released area where there were broad acre subdivisions and quite often boundary adjustments were made and as I said earlier, the requirement was the final plan is substantially in accordance with the approved plan. Sometimes in order to match up with other plans adjustments were made. Plans were shown where an adjustment in the final plan were agreed to by the council and by the plan" (t'cpt 1/6/99 p.34).

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32 Harry Davis was shown Ex C, the plan of subdivision, and he agreed that Lot 30 as depicted on that plan was not capable of complying with the requirement of providing five acres of public reserve (t'cpt 2/6/99 p.59). He was asked whether there would have had to be another boundary drawn or some other land provided. To this he said "I would agree. The council would be in a position to make certain requests or demands, yes" (t'cpt 2/6/99 p.59). Mr Davis also said "I knew at that time (May 1972) the corner block shown between Widermere Road, and the western boundary was going to be dedicated for reserve. There is always some room for moving in the final dimension…" (t'cpt p.60). 33 It was Dr Sorensen's submission that the Court might by looking at Ex C, the plan of subdivision, and Ex 3, the plan as registered, find that the latter did not, with respect to the separate parcels comprising Lots 29 & 30, substantially accord with the former. Mr Thompson, who appeared for the Council, drew my attention to a number of authorities dealing with the construction of s 102 (1) of the Environmental Planning and Assessment Act 1979 which provides that a consent authority which has granted development consent may modify the details of the consent where, inter alia, it is satisfied that the development to which the consent as modified relates is "substantially the same development"; John Bruce & Partners Pty Ltd v North Sydney Municipal Council (1984) 55 LGRA 238 at 242-243; Vacik Pty Limited v Penrith City Council (unreported, Land and Environment Court of NSW, Stein J, 24 February 1992); North Sydney Council v Michael Standley & Assoc. Pty Ltd (1998) 97 LGERA 433 at 438-440. For the purposes of s 102 (1) of the Environmental Planning and Assessment Act 1979 regard is had to the development as a whole in determining whether the development as modified is substantially the same as that proposed initially. Dr Sorensen submits these authorities are of no assistance in the interpretation of Cl 3(a)(i) of Ordinance 32. He notes that the Environmental and Planning Assessment Act provision looks to the "development" while Ordinance 32 is concerned with "separate parcels". Cl 3(a)(i) of Ordinance 32 speaks of Council's determination that "the separate parcels are substantially in accordance with the plan of subdivision previously approved". The two provisions are caste in different terms however this is not to say that no assistance is to be obtained from the approach taken in John Bruce & Partners. In determining whether the separate parcels in the linen plan substantially accorded with those in the plan of subdivision I consider that it was open to the Council to have regard to the subdivision as a whole. The subdivision plan provided for 31 Lots. The plan as registered contained 30 Lots. These changes produced a number of variations in the configuration of the lots. I am not persuaded that the plaintiff has established that, having regard to the subdivision as a whole, the separate parcels were not substantially in accord with the subdivision plan. 34 I do not accept that the request made by Mr Riding that the plaintiff redraw the common boundary between Lots 29 and 30 was unlawful. The plaintiff placed considerable reliance on the following passage in the evidence of Mr Hussey: "Q. Isn't it the case that notwithstanding IDO10 which was gazetted in 1974, isn't it the case that the subdivider was entitled to complete the subdivision in accordance with IDO7? A. Yes, I expect so." (p.34) "A. If the linen plan had come in as it was with Exhibit C and the boundary had been there and the request for the linen plan made and all the other authorities complied with, I think there would have been some difficulty not to release that plan but that was not the situation. That was not the plan I got."

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Inexplicably, Malcolm Davis, who swore an affidavit in these proceedings on 26 October 1998 and a further affidavit on 4 December 1998 (correcting a minor error in the first) did not give an account of this conversation in either. In the first affidavit he said this: "On or about 27 March 1974 Davis informed me of all the matters deposed to in paragraph 10 of the Davis affidavit. I decided that we should not oppose Mr Riding's direction regarding the Linen Plan referred to in that paragraph 10 ('the Linen Plan') because to my mind contesting it would likely cause further delays in completing the project" (paragraph 12). 38 In cross-examination the contents of a number of letters written to the Council on behalf of the plaintiff were put to Malcolm Davis with a view to establishing that no protest had been made concerning the request that the common boundary between Lots 29 and 30 be re-drawn. Mr Davis would not concede that to be the case. I do not read any of the letters as protesting against the request that the boundary be re-drawn. Malcolm Davis impressed me as a confident and assertive individual. He had considerable experience in the business of property development. I do not accept that any protest was made on behalf of the plaintiff at the time or in the aftermath of the request made by Kenneth Riding concerning the boundary between Lots 29 and 30. Harry Davis, who was then the plaintiff's project manager responsible for its real estate developments, appears to have had no knowledge of any protest made to Mr Riding on the plaintiff's behalf following the meeting on 27th March 1974. 39 I find that no protest was made but rather, consistently with the account contained in Malcolm Davis' affidavit, a decision was made by the plaintiff to proceed in accordance with the request made by Mr Riding in order to avoid delay and because the plaintiff was under pressure from its lenders to obtain registration of the linen plan at the earliest opportunity. The plaintiff agreed to make the changes as requested and receive the benefit of the release of the linen plan. In these circumstances I accept there is force to the Council's submission that the plaintiff ought not now to be heard to complain that the request was in some way improper or its acceptance of it not voluntary: Bayview Gardens Pty Ltd v Mulgrave Shire Council (1987) 65 LGRA 122 at 127 and Pioneer Homes Pty Ltd v Liverpool City Council (1992) 77 LGRA 237. Even if the plaintiff were able to establish that the common boundary between Lots 29 & 30 appearing on the plan was an "error" within the meaning of s 195H of the Conveyancing Act 1919 I would not consider this an appropriate case in which to grant the discretionary relief it seeks. 40 Paragraphs 7 and 8 of the Amended Summons are in these terms: 7. A declaration that the plan does not substantially conform with the plan of subdivision as affected by the Approval in that the words "Public Reserve" are written across the area marked as Lot 30. 8. A declaration that to the extent of the disconformity between the Plan and the Subdivision Plan as affected by the Approval, namely the words "Public Reserve" written across the area marked as Lot 30, constitutes an "error" in the Plan within the meaning of that term as used in s.195H of the Conveyancing Act 1919.

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41 It is contended that Lot 30 on the plan as registered was not capable of fulfilling the terms of condition 2 of the approval in that it could not provide five acres of land shown as 6(b) Open Space Proposed Recreation on the Interim Development Control Map. It is further noted that the approval specifically provided that the land should not include land shown as 5(b) Special Uses-Roads. The plaintiff submits that since Lot 30 was not capable of fulfilling the requirements of the approval the designation of it as "public reserve" constitutes an error in the plan. 42 I do not accept the plaintiff has established that the inclusion of the words "public reserve" on Lot 30 of the plan constitutes an error for the purposes of s 195H of the Conveyancing Act . The plan was submitted by the plaintiff bearing the words of reservation on Lot 30. The Council accepted that the reservation satisfied condition 2 of its May 1972 approval. Its satisfaction in this regard is signified by the issue of the s 327(1)(d) certificate. It was Dr Sorensen's submission that the terms of the May 1972 approval should be read strictly. It was not open to the Council to accept other than the reservation of five acres of land shown as 6(b) Open Space Proposed Recreation on the Interim Development Order control map. 43 The Council was entitled to insist that the linen plan be drawn so as to dedicate five acres of land shown as 6(b) Open Space Proposed Recreation. Harry Davis agreed that Ex C, the plan of subdivision, did not make provision in lot 30 (which bore the notation "public gardens and recreation space") for the dedication of five acres of land. In the event the Council accepted the reservation of Lot 30 on Ex 3 as satisfying the condition imposed by the May 1972 approval. I am not persuaded that the suggested disconformity between the plan as registered and the subdivision plan "as affected by the Approval" constitutes an "error" for the purpose of s 195H of the Conveyancing Act 1919. 44 In any event, I do not consider that it would be appropriate in the exercise of my discretion to go behind the s 327(1)(d) certificate and upon the application of the plaintiff declare that the plan contained an error in that the reservation of Lot 30 as public reserve did not meet the terms of the Council's approval. There is no issue but that the Council was entitled to impose as a condition of approval of the subdivision that an area of five acres be dedicated as public reserve. The plaintiff submitted the plan which made provision for the dedication of Lot 30 as public reserve. The Council accepted that dedication and approved the subdivision releasing the linen plan for registration. The plaintiff accepted the benefit of the approval and now some twenty-four years later invites the Court to declare that the reservation constituted an error for the reason that it included land not zoned Open Space Proposed Recreation. In this respect I have regard to the observations of Bignold J in Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236 at 241/2.

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46 The Council pleaded that the plaintiff's action was barred by ss 14 and 27(2) of the Limitation Act 1969. This was pressed faintly, if at all, in the course of oral submissions. The proceedings are not a cause of action within the meaning of s 14 of the Limitation Act nor are they an action on a cause of action to recover land within the meaning of s 27 of that Act. Apart from the declarations set out above the only other relief sought by the plaintiff is an order that the Registrar General further consider an application to amend the deposited plan pursuant to s 195H of the Conveyancing Act 1919. I do not consider that the relief sought by these proceedings is caught by the Act. 47 I consider the delay in bringing these proceedings is relevant to the exercise of my discretion as to whether, in the event that error was disclosed, relief of the nature sought by the plaintiff should be granted. The proposed amendment to the deposited plan which is the object of these proceedings is said to impact in an undefined way on the Council's ability to give good title to Lot 30. Proceedings for the recovery of land would be barred after twelve years. 48 The plaintiff sought to explain the twenty-four year delay in commencing these proceedings by pointing to a history of negotiations between it and the Council in the years following the registration of the plan. It is clear that over the years the plaintiff has proposed, and the Council has given consideration to, a number of schemes affecting the north eastern portion of the subdivision including Lots 29 & 30. In 1977 the Council approved a plan of sub division relating to Lots 1, 2, 29 & 30. The plaintiff did not proceed with that approval in the light of uncertainty surrounding the Planning and Environment Commission's proposed road route north to the F4 extension. I do not consider that the history of subsequent negotiations between the plaintiff and the Council satisfactorily explains the plaintiff's failure to bring proceedings challenging the requirement to vary the common boundary between Lot 29 & 30 and the dedication of Lot 30 in a timely fashion.

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