The shire council's initial title
21 It appears that before Windeyer J the shire council's interest in lot 8 until 10 July 1981 was not in question: it held an estate in fee simple, and subject to the LG Act enjoyed the full panoply of rights normally associated with that estate. On appeal the land council submitted that the shire council had only a limited interest, no more than that required for carrying out its statutory functions in relation to a public reserve. The submission did not deny the holding of an estate in fee simple, but attributed to the estate only the limited interest in support of the later submission that the declaration pursuant to s 25A of the CLC Act took away from the shire council all the interest it then had and caused lot 8 to be vested in Her Majesty. The submission was subsidiary, and the part it played was in essence unsophisticated: the less the shire council had, the more readily it could be taken away by force of s 25A.
22 Normally an estate in fee simple is the equivalent of full ownership of the land (Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 at 656; Fejo v Northern Territory of Australia (1998) 195 CLR 96 at 126), and confers "the lawful right to exercise over, upon and in respect to, the land, every act of ownership which can enter into the imagination" (The Commonwealth v New South Wales (1923) 33 CLR 1 at 42; Fejo v Northern Territory of Australia at 126).
23 The land council submitted that the description of an interest in land as an estate in fee simple was not conclusive of the incidents of the estate, and that it depended on the context and purpose of the creation of the interest. It referred to the judgment of Sugerman J in Sydney City Council v The Valuer-General (1956) LGR 229, in which his Honour said (at 233) -
"An estate given to a man and his heirs simply without restriction is an estate in fee simple. It is commonly said to carry with it a freedom of enjoyment and of alienation which make it equivalent, in practical effect, to the absolute ownership of a chattel, although this freedom is limited not only by the common law but also by statute and may vary in degree from place to place and from time to time. The estate remains, in a general sense, an estate in fee simple notwithstanding that to these restrictions imposed by the general law, of which the County of Cumberland Planning Scheme Ordinance provides an illustration, there may be added further restrictions of the class which is now in question. But these general considerations provided no answer to the question of what falls within the description 'fee simple of the land' as it may be used in a particular context and for a particular purpose. There is no ideal standard of a 'fee simple' to which that question may be referred in all the varying circumstances which may occur; the answer is dependent in each case upon the context and the purpose, and it is of no assistance that in themselves the words 'fee simple' serve only to denote the quantity of the estate in point of duration."
24 The land council submitted that, at least following the dedication of lot 8 as a public reserve, the shire council's function was that of care, control and management of the land, and that its position was akin to that of the municipal authorities in which land was vested for roadway or drainage purposes in cases such as Municipal Council of Sydney v Young (1898) AC 457 and Perth Corporation v Halle (1911) 13 CLR 393. In those cases it was said (at 459 and 393) that no property was vested in the municipal authority beyond the surface of the road and such portion as was absolutely necessary incidental to its repairing and proper management. More generally the land council cited, from the advice of the Privy Council in Attorney-General for Quebec v Attorney-General for Canada (1921) 1 AC 401 in which land was vested in a body for the use of Indian tribes, a passage (at 409) taken up in City of Perth v Crystal Park Ltd (1940) 64 CLR 153 at 168 and Yanner v Eaton (1999) 201 CLR 351 at 391-2 -
"It is not unimportant, to notice that the term 'vest' is of elastic import; and a declaration that lands are 'vested' in a public body for public purposes may pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its public functions effectively."
25 For reasons which will appear, I do not think that investigation of the shire council's interest in lot 8 until 10 July 1981 is critical to the effect of the declaration pursuant to s 25A of the CLC Act. But I do not agree that the shire council's interest was limited in the manner suggested.
26 Upon resumption an estate in fee simple in lot 8 was vested in the shire council, as provided in s 536A of the LG Act "for the purposes and subject to the provisions of this Act". But so far as the evidence showed, at the time of resumption there was no specification of use as a public reserve. The copy of the notice of resumption in evidence is not easy to read, but appears to refer to resumption of the land in the schedule "for the purpose of providing a sanitary depot, undertaking the improvement and embellishment of the area, rearranging existing public roads, replanning existing parcels of land, and providing a public road". What became lot 8 was part only of the land in the schedule, which does not distribute the land according to purpose.
27 When Deposited Plan 258299 was registered lot 8 was dedicated as public reserve. The dedication was accompanied by a purported vesting in the shire council of an estate in fee simple, but the shire council already held that estate. The estate was held without limitation of the shire council's interest to that required for carrying out its statutory functions in relation to a public reserve.
28 Thus the foundation of the land council's submissions is flawed. The shire council obtained on resumption an estate in fee simple not confined by statutory functions in relation to a public reserve. The dedication of lot 8 as a public reserve affected how the shire council could deal with lot 8. But it was not a vesting in the shire council of some confined interest - the shire council already held an interest not confined by statutory functions in relation to a public reserve.
29 Even if lot 8 had initially been vested in the shire council as a public reserve, in my opinion it was not thereby in a position akin to that of the municipal authorities earlier mentioned. The right to exercise every imaginable act of ownership may be circumscribed, by common law and by statute, while leaving the landowner's interest an estate in fee simple. But I see no reason to conclude that the vesting in the shire council of an estate in fee simple in lot 8, upon resumption and purportedly again upon the registration of Deposited Plan 258299, passed only powers of control and management and such proprietary interest as was necessary for the shire council's functions.
30 Unlike the cases on which the land council relied, what was vested in the shire council was unequivocally an estate in fee simple. It was not a collection of rights to be found only in, and limited by, a purpose or function. The shire council had the full ownership of lot 8, and could exercise every act of ownership available to it. The acts of ownership available to it were no doubt less than those available to a private individual, because the shire council was a local government body and after 1979 because lot 8 was dedicated as a public reserve. Nonetheless, albeit to some extent circumscribed in the acts of ownership it could exercise, the shire council had an express estate in fee simple and as the holder of that estate had more than such interest as was required for the carrying out of its statutory functions in relation to a public reserve.
31 In ex parte the Registrar General; re the Council of the Municipality of Randwick (1951) 51 SR 220 land provided for a drainage reserve was by statute "vested in the council in fee simple for drainage purposes". One question was whether the council's rights in the land extended only to a depth below and a height above the surface which was necessary for drainage purposes. Speaking for the Full Court, Street CJ said (at 225-6) -
"I think s 398 is clear in its terms and vests the fee simple in the council absolutely, it holding the land, however, as owner in fee simple for the purposes only of drainage. The matter is made more clear by the terms of s 398A, which enables the council to sell and vest the land in the purchaser 'for an estate of inheritance in fee simple in possession free from encumbrances,' I think the council had full rights of ownership subject to the obligation to use the land only for the specified purpose of drainage and, if it sold the land to a purchaser, then such purchaser would acquire the same without any limitation on his rights of ownership, use and disposition."
32 At least prior to 1979 the shire council could sell lot 8, see s 518 of the LG Act. The Court's opinion did not depend upon s 398A, but in keeping with the reference to s 398A it must be remembered that upon resumption the shire council acquired the estate in fee simple of the previous owner: it did not acquire part only of the previous owner's interest in the land. In my view in the present case the shire council also had full rights of ownership, subject to the obligations as to use of the land flowing from its position as a local government body and after 1979 from the dedication as a public reserve.