Plaintiff v Defendants

Introduction and overview: the Fishing Village and the Council

**1 On the northern bank of the Kororoit Creek in Altona is an area known as the Kororoit Creek Fishing Village. The Fishing Village was established during the nineteen-twenties when the land was privately owned by a Mr Knowles. Various rudimentary structures described as fishing huts or boatsheds formed part of the Village. Mr Knowles made them available for use for a modest annual fee.

2 Pursuant to a resolution made in 1946 Williamstown Council, the predecessor of the plaintiff, compulsorily acquired the Fishing Village area, as part of a larger parcel of land, in 1947. The land as a whole was acquired for a place of public resort and recreation.[1] However the Fishing Village remained and the existing arrangements for the use of the structures continued, save that the annual fees were thereafter paid to the Council, which maintained records of the identities of the users of the respective structures and of any changes in that regard. Rates were also imposed from the time of the acquisition.[2]

3 By the early 1960s the structures in the Fishing Village had deteriorated badly. In about 1963 or 1964 the Council decided that they should all be demolished or removed and that anyone who wished to retain or take over a site should construct a new building on it within a limited time, to the Council's engineer's requirements, but at their own expense. The entire Village was rebuilt accordingly between about 1965 and 1967. Two angling clubs built substantial brick clubhouses. The other buildings erected at that time (and afterwards) have usually been referred to in the evidence as boatsheds, but sometimes as fishing huts. For ease of reference I will hereafter refer to them as boatsheds although, controversially, some of them have been fitted out and used for temporary or permanent human occupation from time to time.

4 In about 1966 water was supplied to the Village for the first time, under arrangements with the Council that involved some expense for the holders of some of the boatsheds. Since then repairs and improvements have been made to various boatsheds at the expense of the relevant boatshed holders.

5 In June 1994 Williamstown Council went out of existence and was succeeded by the plaintiff, Hobsons Bay City Council.

6 The Fishing Village is notionally divided into numbered sites. The sites were rearranged, reduced in number and renumbered as part of the arrangements for the rebuilding of the Village. Two of the sites are still occupied by the clubhouses of the angling clubs. There are boatsheds on most of the other sites. The land has not been subdivided. Until recently, transfers of boatshed sites occurred informally, sometimes for monetary consideration, and the Council was merely notified of each transfer after the event. There were no written leases or formal licence agreements. Numerous transfers have occurred since the rebuilding of the Village in 1965-67.

7 The boatshed sites are in a Public Conservation and Resource Zone under the Hobsons Bay Planning Scheme.

8 In about 2006 the plaintiff Council resolved to introduce a more formal licensing system. It took the position that the existing boatshed holders had no more than a bare annual revocable licence. It proffered to each of the existing boatshed holders a 3 year written licence agreement containing various other terms. The proposal met with stiff resistance from many of the boatshed holders, although about half of the boatshed holders have since signed up. The resisters banded together under the banner of the Kororoit Creek Historical Fishing Village site holders and users group.[3]

9 The Council demanded that those who would not sign should in due course depart. Twelve boatshed holders refused to sign and refused to go. They said that they were legally entitled to remain permanently. Eventually, in September 2008, the Council brought this proceeding against them, seeking declarations that the twelve were trespassers, and mandatory injunctions requiring them to vacate the sites and to remove their improvements and property from the sites.

10 During the hearing of this case two defendants (Robert Eagles and James White) have dropped out of the dispute after transfers of their boatsheds to others, and have been removed as parties. The ten remaining defendants ("the defendants") were given leave during the hearing to file an amended defence and to add, for the first time, a counterclaim. They assert that they have an irrevocable licence or irrevocable licences over the land in question, on equitable principles. They rely in particular on the principles of proprietary estoppel.[4] They say that they are entitled to remain in occupation of their sites indefinitely, subject to payment of reasonable licence fees and Council rates, and to transfer their rights to others as they see fit. Alternatively, they seek equitable compensation or equitable damages. Their claims have significant common features, and to a large extent they make common cause. It seems that they are now associated together under the name of the Kororoit Creek Progress Association, which is an unincorporated, unregistered association that presently exists mainly for the purpose of conducting this case,[5] but which may be the same as, or a successor to, an organisation of the same name that for decades had represented persons associated with the Village.[6]

11 Nine of the ten defendants claim to be, in effect, successors in title to persons who took boatshed sites in 1965-67. It seems that the other defendant, Mr Ray Baker, took a boatshed site himself at that time and still has it. The defendants' equitable claims are principally based on the events of 1965-67, taken in their historical and general context. That context included the history of the Village, the levying of rates on the boatshed holders, and the practice of each Council of acknowledging direct transfers of boatsheds after they happened. Further or alternatively the defendants rely on events and circumstances occurring after 1965-67, including the continued levying of rates; the continued practice of acknowledging direct transfers; the making of improvements to the boatsheds, in some cases with Council approval; and, again, the historical or heritage features of the Village, as recently recognised in a Council heritage study. Although the details are not pleaded, various defendants also rely on what they have paid individually for a boatshed or what they have done individually by way of improvements or repairs, and they seek to fix the plaintiff with acquiescence to such steps. However some of the defendants, with little or no explanation, have not been called to give evidence.

12 The plaintiff Council joins issue with the defendants' allegations generally. It contends that the defendants merely had revocable licences which had all come to an end before the commencement of this proceeding. Further, it contends that any estoppels that might otherwise have arisen have been prevented from arising by statutory provisions relating to local government in force in Victoria from time to time during the periods in question. On the other hand, during the hearing of this case, the plaintiff Council made an open offer of settlement to the defendants under which, subject to the defendants paying the Council's costs of the proceeding, each claimant would be granted a fresh licence with a term of 5 years, which is now the standard term applicable to the other boatshed holders at the Village. The offer was not accepted.

13 Even apart from statutory considerations, I am not satisfied that any of the defendants has, at this time, any continuing equity in or in relation to the land. The statutory provisions reinforce that conclusion and, in any event, they rule out any irrevocable or permanent licence. In all the circumstances it would not be appropriate to make any award of equitable compensation or equitable damages. The defendants' defence and counterclaim fails and the plaintiff Council is entitled to relief against them. However, for reasons I will explain, my provisional view is that there should be at least some allowance in the defendant's favour in relation to costs.**

14 The defendants accept that from April 1948 until June 1994 the subject land was vested in the Williamstown Council as registered proprietor and that the plaintiff Council has been the registered proprietor, and the beneficial owner, of the land since June 1994 in succession to the Williamstown Council.

**15 The defendants expressly concede that, because they (and their predecessors) have been required to pay "annual site rental", their (claimed) equity falls short of a right to a conveyance of the land.[7] However they submit that their equity is capable of being satisfied on the basis that their right to occupy the land is perpetual and that they be able to transfer their interests. They would accept that they and their successors should continue to be required to pay rates and "reasonable annual site fees".[8]

16 In their counterclaim the defendants express the relief they seek as follows:**

"A. A declaration that the defendants occupy the said land according to an irrevocable licence on the following terms and conditions:

(a) the defendants to pay rates levied from time to time by the plaintiff;

(b) the defendants to pay a reasonable annual licence for the occupation of the sites;

(c) the licence is perpetual;

(c)[sic]the licence be capable of being assigned by the licensee on terms determined by the licensee.

1. In the alternative a declaration that the defendants occupy the said land according to an irrevocable licence according to such terms and conditions as this Honourable Court deems appropriate;

1. A permanent injunction restraining the plaintiff its servants and officers from removing the defendants from the said land;

1. Alternatively compensation for loss of expection [scil expectation] in the event that the plaintiff succeeds in obtaining possession of the said land;
2. Costs.
3. Such further or other order as this Honourable Court deems appropriate."

17 The defendants' claims have an "all or nothing" character. Both the primary claim and the alternative claim depend on establishing a right to remain permanently. Neither in their pleadings nor in their submissions have they ever expressly included a claim in the further alternative for a right to remain for a limited period or for equitable compensation or damages assessed by reference to something less than the loss of a right to remain on the land permanently (on the terms claimed). Indeed they made no claim for equitable compensation or damages at all until after the trial began, and then only after vacillating about it.[9] Nevertheless, out of caution, I have considered whether any such lesser relief might be appropriate in all the circumstances. However, as indicated above, I have arrived at the conclusion that it would not be appropriate to grant any relief at all to the defendants, save (provisionally) as to costs.

18 The defendants accept that the legal burden of proof in respect of the facts necessary to support their equitable claims lies on them in all respects, and that unless they discharge that burden the plaintiff Council is entitled, in substance, to the relief it seeks.[10] That concession is properly made.[11] Indeed in Svenson v Payne[12] the High Court approved observations made in earlier cases to the effect that a person is not to be deprived of his legal rights by estoppel "unless he [sic] has acted in such a way as to make it fraudulent in the equitable sense for him to set up those rights" and that "the party setting up the estoppel must prove the case by strong and cogent evidence".[13]

19 The defendants effectively concede that no equity arose in this matter until, at the earliest, the rebuilding of the Village in 1965-67.[14] That concession, also, is correctly made, because in the period leading up to the rebuilding of the Village everyone must have accepted that the Council was within its rights in requiring the demolition of the previous structures and in requiring site holders either to walk away or rebuild at their own expense. Hence, as the defendants' counsel acknowledged, at that stage what the site holders had was probably "just a bare licence".[15] Further, as mentioned above, none of the defendants was involved with the Village in 1965-67 except (as I would hold) Mr Ray Baker. Apart from Mr Baker, none of them built on the Council's land. Rather, they took transfers from third parties at later times. I turn next to the evidence about Mr Baker's position.

The particular position of the defendant Ray Baker

**20 Mr Baker did not give evidence in this proceeding. He occupies a site which is currently designated as site 17 in the Council's records. He is known to Ms Kimberley McAdam who, although not a defendant herself, was the Secretary of the Kororoit Creek Historical Fishing Village site holders and users group and who appears now to be the principal of the Kororoit Creek Progress Association. She has had connections with the Village since about 1987. She gave evidence about Mr Baker. She said that she believed that Mr Baker had been at the Village since the early 1960s. She described him as a hermit. She said that he gets up at about 4 am each day; goes down to the local train station; spends the day riding the trains; goes back to the "sheds" after dark; and is rarely seen.[16] I accept that evidence. Ms McAdam also said that Mr Baker paid 250 pounds for "his" shed in 1963 and that she knew this because she had seen the document.[17] Unfortunately the document referred to was not produced nor further identified. It is the defendants' own case that all of the existing boatsheds were required to be demolished in 1965-67 and the plaintiff has not contradicted this. On that basis, if Ms McAdam's recollection is correct, Mr Baker must have had to erect a new boatshed in 1965-67 despite having paid 250 pounds for the old one only two or three years earlier.

21 There are two express references to the current site 17 in the documentary evidence. A handwritten site-holder list of unknown authorship dated 13 March 1990 (discovered by the plaintiff) records the holder of site 17 as R Baker (of a specified address in Newport).[18] A heritage study done on behalf of the Council in 2004 noted that "R. Baker's hut 17 had beds, sink and a TV with a clothes line full of washing at the back".[19] Other evidence indicates that the layout and numbering of the sites in the Village was changed significantly as part of the arrangements made for the rebuilding of the Village in 1965-67. A Senior Health Inspector's report of 5 October 1962 had stated that a fisherman's hut, then designated as no 28, was "for sale", and the then owner was named.[20] A handwritten amendment to that 1962 report indicates that the owner of no 28 had become R.L. Baker (of a specified address in Newport, though different from the address in Newport given for R. Baker in 1990 as indicated above). This broadly tallies with Ms McAdam's evidence. A witness called by the Council, Mr Davison, recollected Mr Baker having had a fishing boat at the Village in about 1973.[21]

22 I am prepared to assume in Mr Baker's favour that he paid for an existing shed in 1962 or 1963, that it was required to be demolished in 1965-67, and that he also paid for the erection of a replacement shed at that time. The documentary evidence indicates that the approximate cost in 1965-67 of erecting a boatshed in accordance with the Council's requirements was between 150 and 200 pounds. I am prepared to assume that Mr Baker paid something broadly reflective of that level of cost for the construction of his boatshed.

23 Thus I find that Mr Baker himself caused the boatshed currently on site 17 to be built (on the Council's land) between 1965 and 1967, whereas all of the other defendants acquired their boatsheds later from third parties. As will be seen, that distinction may mean that the principles of proprietary estoppel would operate a little differently as between Mr Baker and the other defendants, but in the end the outcome is the same in this case.**

**24 As mentioned above, the defendants rely on proprietary estoppel. In his leading work on estoppel by conduct and election published in 2006 Mr Justice Handley states that proprietary estoppels comprise estoppels by standing by and estoppels by encouragement; that they are of long standing in the law; and that they differ from other estoppels, except promissory estoppel, because they give rise to equitable causes of action which prevent the unconscionable enforcement of the other party's legal rights and confer proprietary rights on the claimant.[22]

25 Mr Justice Handley summarises estoppel by standing by as follows:**

"If B infringes A's proprietary rights in the belief that his actions are lawful and A, aware of his rights and of B's acts and mistaken belief, fails to assert them and B acts to his prejudice, A will be estopped from asserting his rights against B".[23]

26 The learned author quotes the following passage from the speech of Lord Cranworth LC in Ramsden v Dyson[24] as stating the principles:

"If a stranger begins to build on my land, supposing it to be his own, and I, perceiving his mistake, abstain from setting him right ... a Court of Equity will not allow me afterwards to assert my title to the land on which he had expended money. It considers that when I saw the mistake ... it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain wholly impassive on such an occasion, in order afterwards to profit by the mistake which I might have prevented. But ... to raise such an equity two things are required, first, that the person expending his money supposes himself to be building on his own land; and secondly that the real owner ... knows that the land belongs to him and not to the person expending the money. For if a stranger builds on my land, knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights. It follows ... that if my tenant builds on land which he holds under me, he does not thereby, in the absence of special circumstances, acquire any right to prevent me taking possession of the lands and buildings when the tenancy had determined."

27 As to estoppel by encouragement, Mr Justice Handley states (omitting footnotes):

"Where a person has been encouraged to construct permanent improvements on the land of another or otherwise alter his position in the expectation of obtaining a proprietary interest equity may require the owner to give effect to the expectation he has created or encouraged. Lord Eldon LC said in Dann v Spurrier that the Court of Chancery 'will not permit a man knowingly ... to encourage another to lay out money under an erroneous opinion of title'. Lord Kingsdown stated the principles in his dissenting speech in Ramsden v Dyson:

'If a man, under a verbal agreement with a landlord for a certain interest in land, or what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of such landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation'.

This statement of principle was followed in Plimmer where Sir Arthur Hobhouse said:

' ... the landowner has, for his own purposes, requested the tenant to make the improvements ... Their Lordships consider that this case falls within the principle stated by Lord Kingsdown as to expectations created or encouraged by the landlord, with the addition that in this case the landlord did more than encourage the expenditure, for he took the initiative in requesting it'.

Later cases established that other detriments can support this form of estoppel, which need not be financial, but must be substantial, and the test is that stated by Dixon J in Grundt. The party bound induces 'an assumption as to the future acquisition of ownership' but a voluntary promise or statement of intention without more is not enough. The High Court of Australia has said that 'The critical element is the conduct of the defendant after the [promise] in encouraging the plaintiff to act upon it', and it approved this statement of McPherson J in Riches v Hogben:

' ... what attracts the principle is not the promise itself but the expectation it creates. It is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting on the expectation to which it gives rise'."[25]

28 Comparing estoppels by encouragement with estoppels by standing by, Mr Justice Handley makes the following pertinent observations:

"Most of the proprietary estoppel cases decided since World War II involved estoppels by encouragement, which became important in cases arising from domestic or family relationships. Estoppels by standing by are rare. The simplification of the land law in 1925, the spread of registered land, the intensification of land use, and the imposition of planning controls have made it unlikely that anyone will now improve land under a mistaken view of their title although it can still happen. It was never easy to establish this form of estoppel but the principles, stated by Fry J in Willmott v Barber, were well settled:

(1) The person infringing the rights of the owner must be mistaken about his rights;

(2) The owner must know his rights are being infringed;

(3) He must know that the infringer is mistaken;

(4) The owner must fail to warn the infringer or assert his rights;

(5) The owner's silence must induce the infringer to continue in his mistaken belief;

(6) The infringer must have altered his position on the faith of his mistaken belief by spending money or doing work on the property.

In Willmott v Barber a subtenant claimed an estoppel by standing by against the owner. He had been allowed into possession of part, without the consent of the owner as required by the head lease, under an agreement with the tenant which gave him an option but the owner refused his consent to the assignment. He knew the subtenant was in possession and spending money on improvements but had forgotten that his consent was necessary, did not know that the subtenant believed that consent was not required, and had not encouraged that belief. The subtenant failed. As Oliver J said in Taylors Fashions:

'This was a pure acquiescence case where what was relied on was a waiver of the landlord's rights by standing by without protest. It was a case of mere silence where what had to be established by the plaintiff was some duty on the landlord to speak'.

The landlord's ignorance would not have protected him from an estoppel by encouragement. There is no estoppel by standing by where the owner notified the other party of his objection which he is not bound to repeat."[26]

29 Another succinct and helpful summary of the principles of proprietary estoppel is contained in the judgment of Brereton J in Greek Macedonian Club Ltd v Pan Macedonian Greek Brotherhood NSW Ltd[27], as follows:

"49 The basis in equity of the Club's claim is properly to be seen as falling in the rubric of equitable proprietary estoppel. Equity comes to the relief of a plaintiff who has acted to its detriment on the basis of a fundamental assumption in the adoption of which the defendant has played such a part that it would be unfair or unjust if the defendant were left free to ignore it; equity intervening on the footing that it would be unconscionable for the defendant to deny the assumption [Grundt v Great Boulder Gold Mines Limited [1937] HCA 58; (1937) 59 CLR 641, 675; Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507, 547; Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; (1988) 164 CLR 387, 404 (Mason CJ and Wilson J)]. It is essential to an equitable estoppel that the defendant knows or intends that the party who adopts the assumption will act or abstain from acting in reliance on it [see Crabb v Arun District Council [1976] Ch 179, 188; Waltons v Maher, 423 (Brennan J)]. Such knowledge or intention may easily be inferred where the adoption of the assumption or expectation is induced by the making of a promise, though it may also be found where the defendant encourages a plaintiff to adhere to an assumption or expectation already formed, or acquiesces in an assumption or expectation when in conscience, objection ought to be stated [Waltons v Maher, 423 (Brennan J)]. The unconscionability which attracts the intervention of equity is the defendant's failure, having induced or acquiesced in the adoption of the assumption or expectation, with knowledge that it would be relied on, to fulfil the assumption or expectation or otherwise to avoid the detriment which that failure would occasion [Waltons v Maher, 423 (Brennan J)].

1. Generally speaking, the matters that a plaintiff must establish to found such an equitable estoppel may be characterised as including certain conduct of the plaintiff, certain conduct of the defendant, and certain qualities of the subject matter which may be sufficiently summarised as follows [cf Young v Lalic [2006] NSWSC 18, [74]; O'Neill v Williams [2006] NSWSC 707, [40]]. First, as to the conduct of the plaintiff, that the plaintiff acted, or abstained from acting, in reliance upon an assumption or expectation that a particular relationship existed, or would exist, between the plaintiff and the defendant, or that the plaintiff had or would acquire some interest in the defendant's property. Secondly, as to the conduct of the defendant, that the defendant induced the plaintiff to adopt the assumption or expectation and encouraged the reliant activity of the plaintiff, or at least failed to deny the assumption or expectation with knowledge that the plaintiff was relying on it to the plaintiff's potential detriment and that the expectation could be fulfilled only by transfer of the defendant's property, a diminution of the defendant's rights, or an increase in the defendant's obligations. Thirdly, as to the subject matter, that the assumption or expectation in respect of it was one that the defendant could lawfully satisfy [see generally Waltons v Maher, 428-429 (Brennan J); Meagher, Gummow & Lehane, Equity: Doctrines & Remedies, 4th ed, [17-105]]."

The matter last mentioned by Brereton J - the requirement that the assumption or expectation be one that the party said to be estopped could lawfully satisfy - is a further significant hurdle for the defendants in this case. However, for the sake of convenience and ease of reference I will defer consideration of the statutory provisions and the principles and authorities relevant to their application until after I have finished dealing with the general estoppel principles and the facts.

30 So far as the grant of any relief in an estoppel by encouragement case is concerned, the general principles are comprehensively dealt with in the following passage from the joint judgment of Handley AJA (with whom Allsop P[28] and Giles AJA agreed) in what I believe to be the most recent Australian appellate decision in this area, namely Delaforce v Simpson-Cook[29]:

"54 In Sullivan v Sullivan [2006] NSWCA 312 I considered the principles which govern the grant of relief in an estoppel by encouragement case. What follows is based on paras [11]-[32] in that judgment.

1. A proprietary estoppel by encouragement may be established where the conduct of the party estopped did not define the expectation: Plimmer v Mayor of Wellington (1884) 9 App Cas 699, 713; Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712 CA, 738-9, 742, 743; Gillett v Holt [2001] Ch 210 CA, 226 per Robert Walker LJ. '[T]he quality of the assurances which give rise to the claimant's expectations' is an important factor: Jennings v Rice [2003] 1 P & CR 100, 112, 114 per Robert Walker LJ repeating what he said in Gillett v Holt [2001] Ch 210, 225: 'the quality of the relevant assurances may influence the issue of reliance [and] reliance and detriment are often intertwined', which was approved by the Privy Council in Henry v Henry [2010] UKPC 3; [2010] 1 All ER 988 PC, 995, 1000.
2. Although there are statements in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7, 164 CLR 387 and Commonwealth v Verwayen [1990] HCA 39, 170 CLR 394 that relief in these cases must be limited to removing or reversing the detriment suffered by the party entitled to the estoppel, the joint judgment in Giumelli [1999] HCA 10, 196 CLR 101, 120, 125 established that there is no such restriction. The detrimental reliance that supports the estoppel need not constitute, in any sense, a consideration moving to the party bound. It is a unilateral element of the estoppel and not the price paid for it.
3. Relief depends very much on the facts and, as the Privy Council said in Plimmer (1884) 9 App Cas 699, 714:

'... the court must look at the circumstances in each case to decide in what way the equity can be satisfied'.

1. This statement has frequently been approved: Chalmers v Pardoe [1963] 1 WLR 677 PC, 682; Crabb v Arun DC [1976] Ch 179 CA, 188, 193; Giumelli (above) at 113, 125. The Court does not exercise an unfettered discretion but adopts a principled approach: Giumelli (above) at 123-4, 125; Gillett v Holt [2001] Ch 210 CA, 225 and Jennings v Rice [2003] 1 P & CR 100 CA, 112.
2. It has been said that the Court should frame the relief to enforce 'the minimum equity to do justice to the plaintiff': Crabb v Arun DC [1976] Ch 179 CA, 198 per Scarman LJ. This principle has frequently been applied in England: Yaxley v Gotts [2000] Ch 162 CA, 175; Gillett v Holt [2001] Ch 210 CA, 235, 237; and Jennings v Rice [2003] 1 P & CR 100 CA, 110, 113; however, as Robert Walker LJ said there it 'does not require the Court to be constitutionally parsimonious, but ... recognise[s] that [it] must also do justice to the defendant'. The minimum equity principle was applied in Verwayen [1990] HCA 7, 170 CLR 394 by Mason CJ at 441, and Brennan J at 429, 430, but since Giumelli is probably not the law in this country. It was only mentioned once, and then only in passing in the speeches in Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776. This was to the statement of issues in the Court of Appeal: ibid at 792.
3. Relief may be moulded to recognise practical considerations such as the need for a clean break: Pascoe v Turner [1978] EWCA Civ 2; [1979] 1 WLR 431 CA, 438-9; Giumelli (above) at 113-4, 125; Gillett v Holt [2001] Ch 210 CA, 237; Jennings v Rice [2003] 1 P & CR 100 CA, 115. The Court must also take into account the impact of its orders on third parties and any hardship or injustice they would suffer: Giumelli (above) at 113-4, 125; Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712 CA, 749, 750.
4. Relief may be refused or reduced if the plaintiff's equity has been diminished by later events. In Sledmore v Dalby [1996] EWCA Civ 1305; (1996) 72 P & CR 196 CA the Court held that the plaintiff's equity based on his improvements had been fully amortized over 18 years of rent free occupation. Subsequent events may also enlarge the plaintiff's equity as in Crabb v Arun DC [1976] Ch 179 CA where the defendant's repudiation of the expectation had landlocked the plaintiff's land for five years: ibid at 189, 199.
5. Relief may also be limited where the enforcement of the plaintiff's expectation would be out of all proportion to the detriment: Jennings v Rice [2003] 1 P & CR 100 CA, 104, 111, 115. This is particularly so where the expectation was not defined and the Court has a broader discretion: ibid at 114. A gardener had looked after an elderly widow and been promised that 'he would be alright' and 'this will all be yours one day'. He was awarded £200,000, and the Court of Appeal rejected his claim to the house and contents worth £435,000.
6. The Court should, prima facie, enforce a reasonable expectation which the party bound created or encouraged: Meagher Gummow & Lehane 'Equity Doctrine and Remedies' 4th ed 2002, pp 567-8. In Ramsden v Dyson (1866) LR 1 HL 129, 170 Lord Kingsdown said: 'If a man ... under an expectation created or encouraged by the landlord that he shall have a certain interest [acts to his detriment] upon the faith of such expectation ... a Court of equity will compel the landlord to give effect to such ... expectation' (Lord Kingsdown's principle). In Chalmers v Pardoe [1963] 1 WLR 677 PC, 681-2, the Privy Council said that if such an estoppel is established 'a court of equity will prima facie require the owner ... to fulfil his obligation'. In Attorney General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd [1987] AC 114, 121 Lord Templeman said:

'The authorities expound and illustrate the principle upon which a litigant who is led to believe that he will be granted an interest in land and who acts to his detriment in that belief is enabled to obtain that interest'.

1. In Giumelli (above) the joint judgment at 123 quoted with approval this statement of Deane J in Verwayen [1990] HCA 39, 170 CLR at 443:

'Prima facie, the operation of an estoppel by conduct is to preclude departure from the assumed state of affairs. It is only where relief framed on the basis of that assumed state of affairs would be inequitably harsh, that some lesser form of relief should be awarded'.

'The prima facie entitlement to which his Honour had referred would be qualified if that relief 'would exceed what could be justified by the requirements of conscientious conduct and would be unjust to the estopped party'.

1. See also Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712 CA, 749.
2. In Sledmore v Dalby [1996] EWCA Civ 1305; (1996) 72 P & CR 196 CA, 203 Roch LJ, delivering the principal judgment, approved the statement in Snell's Equity 29th ed p 576 derived from Griffiths v Williams (1978) 248 EG 947, 949 per Reginald Goff LJ, and In re Basham [1986] 1 WLR 1498, 1510 per Nugee QC:

'The extent of the equity is to have made good, so far as may fairly be done between the parties, the expectations of A which O has encouraged'.

1. Sledmore v Dalby was followed in Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1998) 81 FCR 475, 517-8.
2. In Jennings v Rice [2003] 1 P & CR 100 CA, 114 Robert Walker LJ said:

' ... there is a category of case in which the benefactor and the claimant have reached a mutual understanding which is in reasonably clear terms but does not amount to a contract. ... In such a case the Court's natural response is to fulfil the claimant's expectations. But if a claimant's expectations are uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered, the Court can and should recognise that the claimant's equity should be satisfied in another (and generally more limited) way' (emphasis supplied).

1. I was in the minority in Sullivan v Sullivan (above) but my summary of the principles was not challenged and was approved in Donis v Donis [2007] VSCA 89 at [19] footnote 12, [39], [40]; per Nettle JA; Fifteenth Eestin Nominees Pty Ltd v Rosenberg [2009] VSCA 112 at [269] footnote 239; Barnes v Alderton [2008] NSWSC 107 at [43] per Young CJ in Eq; Weeks v Hrubala [2008] NSWSC 162 at [40] per Young CJ in Eq, and in Dable v Peisley [2009] NSWSC 772 at [200] per Ward J. Special leave was refused in Donis v Donis [2007] HCA Trans 609.
2. The House of Lords has since considered estoppel by encouragement in Cobbe v Yoeman's Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752 (Cobbe), and Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776, as did the Privy Council in Henry v Henry [2010] UKPC 3; [2010] 1 All ER 988.
3. In Cobbe, where the parties were in a commercial relationship, Lord Scott with whom Lord Hoffmann, Lord Brown and Lord Mance agreed, referred (at pp 1763-4) to Lord Kingsdown's principle (above [59]) and approved its reformulation by Oliver J in Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133, 144:

' ... if A under an expectation created and encouraged by B that A shall have a certain interest in land, thereafter, on the faith of such expectation and with the knowledge of B and without objection by him, acts to his detriment in connection with such land, a court of equity will compel B to give effect to such expectation'.

1. Lord Scott emphasised that there was no lack of certainty in the case before Oliver J.
2. In Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 the parties were in a family relationship, and the claimant had worked on the deceased's farm without wages for many years . The House of Lords upheld an estoppel by encouragement based on promises by the deceased that he would leave the farm to the claimant on his death. Lord Scott referred at p 784 to cases where the promisee has been promised an immediate interest where the 'representor is estopped from denying that the representee has the proprietary interest ... promised'.
3. Lord Walker, with whom Lord Hoffmann, Lord Rodger, and Lord Neuberger agreed, referred at p 796 to the approval of Lord Kingsdown's principle by Lord Scott in Cobbe's case [2008] UKHL 55; [2008] 1 WLR 1752, 1763 noted above [66].
4. In Henry the Privy Council upheld a proprietary estoppel by encouragement based on an informal promise to leave the promisor's share in a property to the promisee. Sir Jonathan Parker, who delivered the judgment of the Board, said at p 1002:

'Proportionality lies at the heart of the doctrine of proprietary estoppel and permeates its every application'.

1. The Board did not enforce the expectation but awarded a half share in the deceased's interest as 'the minimum equity required to do justice to' the claimant, without otherwise explaining why the expectation was not enforced. In my opinion, and with respect there is no positive requirement for a plaintiff to prove that the relief sought is proportionate. The principle, a negative one, is that enforcement of the expectation must not be disproportionate.
2. Proportionality was not mentioned in the speeches in Thorner v Major (above). With respect the Board in Henry did not explain why statements not made expressly but by 'implication and inference from indirect statements and conduct' and 'in oblique and allusive terms' by the promisor in Thorner v Major (at 778, 779) established a proprietary estoppel for the interest promised, but similar statements in Henry established a proprietary estoppel for only half that promised."

31 As finally presented, the defendants' case relies on a range of circumstances and events, both individually and cumulatively. However the arrangements made for the rebuilding of the Village and the supply of water in 1965-67 are relied on the most heavily, presumably because they are said to have involved actual encouragement and because, as Mr Justice Handley points out, estoppel by encouragement is more likely to be successfully pleaded these days than estoppel by standing by. Ironically, the events that occurred in 1965-67 were not referred to in the defendants' pleadings until the amended defence and counterclaim was filed by leave during the trial. Counsel for the defendants frankly acknowledged that until the plaintiff Council gave discovery of documents in this matter none of the defendants had even been aware of those events,[30] although, as indicated above, I now think that Mr Baker himself was probably involved in the rebuilding of the Village. Presumably Mr Baker had forgotten about the matter or, being a hermit, had not been asked about it. Nevertheless, the defendants now say that there is a close parallel between this case (especially in relation to the events of 1965-67) and Plimmer v Mayor of Wellington,[31] which counsel for the defendants treats as his best case. It is desirable therefore to consider the judgment of the Judicial Committee of the Privy Council in Plimmer, which was delivered by Sir Arthur Hobhouse, in some detail.

**32 The question for decision in Plimmer was whether the appellants had any estate or interest which would entitle them to compensation under certain legislation of New Zealand in respect of the vesting in the respondents of the land in question under the provisions of certain other legislation of New Zealand. The appellants' predecessor in title, Mr John Plimmer, had in 1848 erected a wharf and store on the shores of Wellington Harbour, with the permission of the Crown. In 1855, after an earthquake had raised the ground level of the harbour and so reduced the depth of the water, Mr Plimmer, in order to carry on his business as a wharfinger, erected a jetty extending to a considerable distance from the shore. It was about 190 feet in length. No permission was obtained for this work.

33 At all relevant times the harbour, including the land occupied by Plimmer, was, under one form or another, continuously vested in Government for public purposes. The use made of it by Plimmer was consistent with those purposes; and, in comparing Plimmer with the present case, it is important to note the Privy Council's statement that "Plimmer might by contract with the Government have acquired a perpetual interest in it for such purposes".[32]

34 By June 1856 John Plimmer, at the instance of the Provincial Government, had extended his jetty about 112 feet further into the harbour. He also reclaimed some land and, at the suggestion of the provincial authorities, built thereon a warehouse or shed for the accommodation of immigrants, and charges were paid to him by the Government and others for such use.

35 In 1857 the Government sought and obtained the permission of Plimmer to cut away part of his jetty. Plimmer made adjustments accordingly and, subject thereto, his jetty or wharf was continually used as a landing place for passengers and goods from 1848 until the assumption of possession by the respondents pursuant to statute in about 1880. And in the year 1872 the Government, acting under statutory provisions, declared it to be a legal quay or landing-place.

36 In 1872 the appellants became yearly tenants of John Plimmer. In 1875 John Plimmer sold to Jacob Joseph his interest in the jetty, then described as a certain freehold wharf which had been duly legalised as a landing-place, subject to the yearly tenancy of the appellants. Mr Joseph subsequently granted to the appellants a lease for the term of twenty-one years, commencing from the first day of January 1879 at an annual rental of 75 pounds.

37 The statute under which compensation was claimable enabled every person who had "any estate or interest in, to or out of" the lands concerned to make a claim, and it provided that the Compensation Court should not be bound to regard strict legal rights only, but might award compensation in respect of any claim which it may consider reasonable and just, having regard to all the circumstances.

38 Their Lordships held that by the transactions of 1856 Mr Plimmer's licence had ceased to be revocable at the will of the Government.

39 Their Lordships took the law to be as stated by Lord Kingsdown in a now famous passage from his dissenting judgment in Ramsden v Dyson part of which is set out above as extracted by Mr Justice Handley in his learned work. (See also the several references to "Lord Kingsdown's principle" in the above quotation from his Honour's judgment (as Handley AJA) in Delaforce v Simpson-Cook).

40 Their Lordships' judgment highlights the distinction, referred to in Mr Justice Handley's book, between mere standing by and positive encouragement. The judgment shows by reference to that distinction that there had been no disagreement among the judges in Ramsden v Dyson as to the relevant principles of law. Their Lordships emphasised that the appellants' equity was not claimed because the landowner had stood by in silence while his tenant had spent money on the land. Rather, Plimmer was a case in which the landowner had, for its own purposes, requested the tenant to make the improvements. The Government had been engaged in the important work of introducing immigrants into the country, and had applied to John Plimmer to make his landing-place more commodious by a substantial extension of his jetty and the erection of a warehouse for baggage. In those circumstances their Lordships asked rhetorically:**

"Is it to be said that, when he had incurred the expense of doing the work asked for, the Government could turn around and revoke his licence at their will? Could they in July, 1856, have deprived him summarily of the use of the jetty. It would be in a high degree unjust that they should do so, and that the parties should have intended such a result is, in the absence of evidence, incredible."[33]

**41 Their Lordships were also of the view that the dealings between John Plimmer and the Government during the period of about 22 years after June 1856 were explicable only on the basis that the Government acknowledged that Plimmer had attained a right of permanent occupation.

42 As to the appropriate remedy, Sir Arthur Hobhouse said:**

"In this case their Lordships feel no great difficulty. In their view, the licence given by the Government to John Plimmer, which was indefinite in point of duration but was revocable at will, became irrevocable by the transactions of 1856, because those transactions were sufficient to create in his mind a reasonable expectation that his occupation would not be disturbed; and because they and the subsequent dealings of the parties cannot be reasonably explained on any other supposition. Nothing was done to limit the use of the jetty in point of duration. The consequence is that Plimmer acquired an indefinite, that is practically a perpetual, right to the jetty for the purposes of the original licence, and if the ground was afterwards wanted for public purposes, it could only be taken from him by the legislature."[34]

Applying Plimmer's case and the associated principles to the events of 1965-67: evidentiary difficulties and points of distinction

**43 Plimmer's case does assist the defendants to a certain extent. It affirms Lord Kingsdown's principle as stated in Ramsden v Dyson. It indicates that Lord Kingsdown's principle can apply as against the Crown and other public bodies. It affirms that the notion of an irrevocable licence over land is a notion known to the law, or at least to equity, and that, at least in certain circumstances, an irrevocable licence can amount to an interest in land and be assignable accordingly.[35]

44 On the other hand, Lord Kingsdown's principle itself includes the following qualification:**

"If, on the other hand, a tenant being in possession of land, and knowing the nature and extent of his interest, lays out money upon it in the hope or expectation of an extended term or an allowance for expenditure, then, if such hope or expectation has not been created or encouraged by the landlord, the tenant has no claim which any Court of Law or Equity can enforce."[36]

The same qualification is also contained in the speech of Lord Cranworth LC, speaking for the majority, in Ramsden v Dyson.[37]

**45 In determining how the relevant principles might apply in a particular case, questions of fact will frequently arise. In the present case the arrangements for the rebuilding of the Village and the supply of water to it will not have generated an equity unless (among other things) it be proper to hold that there had been conduct on the part of the Williamstown Council which in fact encouraged the persons concerned to form an expectation of permanent tenure or at least lengthy tenure.[38] Further, the Court might not enforce the expectation unless it were a reasonable one.[39]

46 The defendants face significant evidentiary hurdles. The events in question happened more than 44 years ago. There is no direct evidence of the subjective beliefs or expectations of any of the persons who built a boatshed or commissioned the building of a boatshed at that time. Putting aside Mr Baker, none of the other defendants had any involvement with the Village at the time. Mr Baker has given no evidence. The relevant documentary evidence is of little assistance. It is not possible even to identify many of the people who took part in the rebuilding of the Village. Nor is it easy at this distance in time to assess objectively what they might reasonably have expected. It is not suggested that the Council made any express promise to them of permanent or lengthy tenure.

47 Nevertheless the defendants invite the Court to make the necessary findings of fact by inference. In effect, that is what the Privy Council did in Plimmer, some 29 years after the happening of the principal events. However their Lordships had the benefit of a carefully prepared statement of facts contained in a special case reserved for the opinion of the Court, albeit not including any express statement as to the subjective beliefs or expectations of the persons concerned.

48 The present case was set down for hearing on the basis of an assurance by the parties that an agreed statement of facts would be filed in advance of the hearing. But that was not done. As a somewhat unsatisfactory substitute, the parties agreed that the Court should treat every document in the original 3 volume Court Book (apart from the pleadings and other court documents) as evidence of the truth of its contents. More documents were added to the Court Book, on the same basis, as the hearing progressed. A document prepared on behalf of the plaintiff entitled Amended Summary of Facts/Chronology was handed up by consent on the final day of the hearing, but it was little more than a long list of documents in chronological order. In addition a large, unpaginated, unindexed folder of archival material assembled by the plaintiff was handed up by consent on the last day of the hearing, again on the basis that it was to be treated as evidence for all purposes. For the most part it consists of an incomplete set of copies of faded, barely legible or illegible, microfiche records of Council meetings held between 1945 and 1970. After long and tedious examination of it in chambers, it appears that the bulk of it is irrelevant. Needless to say, it has not been an easy task to endeavour to make sense of the evidentiary material in this case since the close of the oral hearing. Nor would it be profitable to seek to encapsulate or summarise it all in these reasons.

49 The defendants submit that the necessary inferences as to encouragement and (reasonable) expectation in relation to the 1965-67 period should be drawn mainly from the following undisputed facts: that the Fishing Village had existed since the 1920s; that rates were charged from about 1947 on; that from the beginning the Council had permitted direct transfers and sales of boatshed sites whereby a market for the same had developed; that in 1965-67 the Williamstown Council had not merely encouraged but had required any person who wished to continue as, or to become, a site holder to demolish any existing structure on the relevant site and to erect a new structure at his or her own expense to the satisfaction of the Council's engineers; that in letters to three existing or potential site holders on 22 October 1965 the Council made offers to allocate sites at an annual site rental of 5 pounds per year without saying anything about duration;[40] that the Council agreed to the supply of water to some of the boatsheds in the Village in 1966; that the Kororoit Creek Progress Association supplied labour for the extension of the water supply and agreed to the Council's requirement that the costs incurred by the Council for the necessary materials would be amortised in site fees; and that the extension of the water supply was also intended to benefit, and did benefit, the nearby recreational grounds owned and operated by the Council.

50 I am not persuaded by these points to the requisite degree. Even apart from the statutory background (to which I will come), I am not satisfied, on the limited relevant evidence now available, that all or any of the boatshed "builders" of 1965-67 had an expectation of obtaining a permanent interest in the land, much less that any such expectation would have been reasonable. Nor am I satisfied that any such expectation was created or encouraged by conduct of the Council.

51 I will consider the matters relied on more or less in chronological order.

52 The prior history of the Village is of limited significance because by 1965-67 the buildings in the Village had deteriorated very badly and all needed to come down.

53 Nor is the levying of rates on the boatsheds of great importance. There is no evidence about the amount that was being levied in rates prior to 1965-67. It may be accepted that at all times each boatshed holder had paid rates in respect of the land itself, being the whole of the land comprising the relevant site, not merely in respect of the shed. However the levying of rates signifies principally that the Council was of the view, and that the boatshed holders apparently agreed, that the boatshed holders were liable for rates under the relevant statutory provisions as in force from time to time. The land being municipal land, such liability depended, generally speaking, upon occupation of the premises.[41] In Mayor of Port Melbourne v Loach[42] Madden CJ said that the word "occupy" is equivocal, and can encompass the occupation of a street for an instant by walking along it, but that such momentary occupation is not occupation in the sense intended by the statute. Rather, his Honour said, the statute fastened on occupation "which is to some extent permanent and exclusive".[43] However, Madden CJ was using the word "permanent" in contrast to the word "momentary". His Honour was not intending to convey that liability for rates under the relevant provisions fell only upon those with a right to remain in occupation forever or indefinitely. The rest of his Honour's judgment makes that very clear.

54 There is scant evidence about transfers or sales of boatsheds prior to 1965-67. Admittedly, the abovementioned Senior Health Inspector's report of 5 October 1962 refers to a particular fisherman's hut being "for sale" at that time.[44] In addition, on 25 November 1963, the Council resolved (abortively) to specify a 3 year term of occupancy once the Village was redeveloped and to insert a clause "restricting the sale or transfer of boat sheds without the prior consent of Council", thus implying that the Council may have been of the view that at least some sales or transfers had taken place without its consent. However, there is no evidence as to the frequency of transfers nor as to the prices at which any transfers had taken place prior to 1965-67. They might well have been very low.

55 It would not be surprising if any transfers prior to 1965-67 had occurred for little or no consideration. Views had been expressed over the years that the Village was or might become a slum. Further, it had been officially stated from time to time by or on behalf of the Council that boatsheds could only be occupied "during Council's pleasure". Statements to that effect are recorded in Council minutes dated 18 April 1950, 26 June 1951 and 4 February 1957. The entry for 26 June 1951 indicates that Council had resolved that the City Inspector interview three named people living in the fishing huts and "inform them that they can only occupy them during Council's pleasure and they must endeavour to seek other accommodation as the Council does not approve of the buildings concerned being occupied as permanent residences".[45] The plaintiff's counsel asserted before me that, generally speaking, Council meetings in Victoria have always been open to the public and the minutes have always been public documents, and the defendants' counsel did not contradict him.[46]

56 Further, the evidence indicates that for decades a close community has existed at the Fishing Village and that the Progress Association has had close and regular links with the Council.[47] The Progress Association was in existence well before 1965-67 and was involved in the arrangements for the rebuilding of the Village.[48] It is unlikely that Council's policies from time to time relating to the Fishing Village would not have been known to all or most of the members of the Village, especially those closely connected to the Progress Association. Sometimes the affairs of the Village even reached the local newspaper. There was a report in the Williamstown Chronicle of 7 December 1956 entitled "Boatsheds at Kororoit Creek" reporting that a Councillor had moved that a certain individual's application for permission to erect a boat shed be given "at Council's pleasure" and that "Council's pleasure means that Council could rescind the permit at any time they wished".

57 As the defendants really concede (as mentioned above), the very fact that the Council was able successfully to insist that all of the old structures be demolished or removed is antithetical to any suggestion that existing site holders had any more than a bare licence prior to the rebuilding of the Village in 1965-67. In effect, the Village was to be razed to the ground. The approach then adopted by the Council in relation to the rebuilding of the Village did not truly indicate a radical change in the Council's position or suggest a radical change in the site holders' entitlements. The sites were reduced in number and reconfigured. The Council adopted what it considered to be a reasonable and equitable allocation policy, under which anyone who wished to remain, or to come in, was obliged to build within a strictly limited period, and in accordance with the Council's engineer's requirements. A permit had to be obtained for each building. Apart from the clubhouses, each proposed building was designated as a "boatshed", not a fishing hut or anything else, in the relevant permit application, so far as the evidence shows. The only drawings of the proposed boatsheds attached to the applications are extremely simple and basic. None appears to have been professionally prepared. None shows with any clarity what was proposed (if anything) by way of flooring or foundations. It may well have been envisaged that the new boatsheds would be readily removable after they were erected. It seems that many of the boatsheds built in 1965-67 have since been altered or replaced. However one of the defendants, Mr Bill Iggleden, referred to his boatshed, on site 23, as being in substantially original condition apart from the addition of an awning, and he described it as being a Myers-style kit form garage "with double opening doors at one end a couple of windows and maybe another single door on the side". He said that it "was just like a galvanized iron garage that was built in the 60's".[49] Counsel for the defendants made no attempt to establish that Mr Iggleden's boatshed was not typical of the kinds of boatsheds that were approved and built in 1965-67. The boatsheds were all smaller than the sites on which they were placed. The sites were not individually fenced. The areas around the boatsheds were open to the public.

58 As mentioned above the typical anticipated cost in 1965 for the erection of a boatshed was between 150 and 200 pounds.[50] Neither party led evidence of the equivalent present day dollar value of that cost range. However I indicated to the parties, twice, that I was interested in that matter,[51] and I said that I presumed that they would agree on it or authorise me to make my own inquiries.[52] They did not notify me of any agreement, but they did not say I should not make my own inquiries. Proof is not required about knowledge that is not reasonably open to question and is capable of verification by reference to a document the authority of which cannot reasonably be questioned.[53] According to the Reserve Bank of Australia's published Pre-Decimal Inflation Calculator, 150-200 pounds in 1965 was the equivalent, in terms of purchasing power, of approximately $3,440-$4,587 in 2010.[54] Whether or not it is appropriate for me to have regard to that information, and even if those dollar figures should be doubled or trebled, the defendants have not satisfied me that there is any real comparison between the level of expenditure involved in the erection of the boatsheds and the level of expenditure (and general commitment) made by Mr John Plimmer which is referred to and relied upon in Plimmer's case, although I accept that the level of expenditure on the boatsheds was not insignificant.

59 Plimmer's case is distinguishable on another ground too. Contrary to submissions made by Mr Sowden on behalf of the defendants,[55] there is no indication in the law report that Mr Plimmer paid site rental on an annual basis, or any fee at all, to the Government. Quite the opposite. The judgment records that from the year 1856 to the year 1863 Mr Plimmer's jetty and warehouse were largely used by the immigrants "and charges were paid to him by the Government and others for such use".[56] It is true that in Ramsden v Dyson the claimants had paid annual ground rent to the landowner, and that Lord Kingsdown would nevertheless have upheld their claims for perpetually renewable 60 year leaseholds or full compensation, but his Lordship was in dissent, and the very fact that the claimants had chosen to pay relatively low annual ground rents rather than enter into binding leases at higher rentals was one of the features which, in the eyes of the majority of the House of Lords, told against them.[57]

60 So also here, in my opinion. No copies of actual contemporaneous correspondence between the Council and existing or potential site holders, apart from the abovementioned three letters of 22 October 1965, are contained in the evidence. However, treating those letters as typical, the Council was requiring an "annual site rental" of 5 pounds per annum. The letters made no provision for adjustment of the "annual site rental" in accordance with inflation or as may be reasonable or in any other way. Although the letters said nothing about duration apart from the use of the word "annual", it is difficult to accept that any reader of such a letter could reasonably draw from it the inference that the Council was intending to restrict its own rights in respect of the land for any greater period than one year, much less forever. After decimalization in 1966 the site fee became $10 per year and it remained at that level until 1990 (ie, for 24 years). It was then raised to $100 per year and remained at that level until about 2005 (ie, for some 15 years).

61 Further, in the minutes of the ordinary meeting of Williamstown Council of 26 June 1967, which incorporated Report No 8 of the Reserves, Foreshores and Properties Committee 1966-67, it was recorded that the Council resolved to grant "permissive occupancy" of sites 10, 21 and 23 (each of which was then vacant and unimproved) to specified persons "subject to the usual conditions laid down by Council." Sites 10, 21 and 23 are included in the present dispute. The expression "permissive occupancy" has long been used in relation to dealings with Crown lands in New South Wales.[58] Thousands of "permissive occupancies" have been granted in that State.[59] The relevant legislation in New South Wales provided that permissions granted to occupy Crown lands "shall be terminable at will by the Minister".[60] The expression "permissive occupancy" is not used in any extant Victorian legislation and as far as I am aware has never been used in Victorian legislation.[61] However it has been used in agreements that have been the subject of discussion in a few Victorian cases, including Leahy v City of Camberwell,[62] State of Victoria v Bradto Pty Ltd[63] and Bradto Pty Ltd v State of Victoria.[64] In the last mentioned case, by a written agreement made in 1927 the St Kilda Foreshore Committee granted to a certain person "permissive occupancy" of a part of the St Kilda foreshore reserve for the purpose of building and occupying what became the Palais Theatre. The specified period of occupancy was 21 years. Having examined the terms of the agreement, Harper J held that it "doubtless gave the occupier an interest in the fabric of the Palais Theatre ... " but that "if it gave the occupier any interest in the land at all, that interest was at most that of a lessee".[65] So it seems that the expression "permissive occupancy" may cover anything between an occupancy terminable at will and the equivalent of a lease for 21 years. However the sense in which it is used in the Council minutes of 26 June 1967 seems to be closer to the former than to the latter. The Council might be expected to have written to the successful applicants for sites 10, 21 and 23 to convey its decision, although no copy of any such correspondence has been produced. Any such correspondence might well have included the expression "permissive occupancy" or a like expression.[66] In any event, the decision was apparently made in a public forum and recorded in a public document. This has implications not only for the defendants presently occupying sites 10, 21 and 23 but also for the other defendants.

62 I would place little weight on the arrangements for the supply of water.[67] It is true that they involved a benefit to the Council's sporting grounds, but they also benefited those site holders who received the water. It is not clear that the arrangements involved much expense overall. The Council itself agreed to incur the initial cost of the pipes and fittings which amounted to only $300 in total. That sum was to be recovered by the payment of a $20 fee by each of the 15 or so proposed subscribers plus one dollar per year increased rental to meet the cost of water used. The Progress Association was to supply all labour, under the supervision of a licensed plumber. However, the evidence does not indicate whether the scheme was actually implemented in the exact way proposed, or, if it was, the amount or value of the labour involved.

63 I acknowledge that site holders who had erected a boatshed at a cost of between 150 and 200 pounds in 1965-67 and who had been involved in the arrangements for the supply of water might possibly have been surprised and disappointed if the Council had decided to require them to leave at the end of their first year of occupancy. However it is quite possible that any such surprise or disappointment would have arisen entirely from misplaced confidence in the intentions of the Council or in the potency of the relationship between the Progress Association and the Council. If so, no equitable claim would have arisen at all.[68] If not, then, subject to the statutory considerations to which I will come, the site holders might have been able, at or shortly after that time, to persuade a court of equity to grant them some relief under the principles of proprietary estoppel. But at this distance in time I am far from satisfied that the court would have declared, or that this Court should now find, that the site holders of 1965-67 had gained irrevocable or perpetual licences to occupy their respective sites, a fortiori at such a low annual site rental as five pounds per annum (or the decimal currency equivalent). There is every likelihood that such a declaration would have been considered disproportionate to the detriment involved.[69] After all, any encouragement was only to build simple boatsheds, not family homes[70] or places of business;[71] and the land in question was sensitive riverside land which had been acquired by the Council with ratepayers' funds as a place of public resort and recreation.[72] Although the Council gained some benefit from the supply of water, and may have gained some benefit from the building of new boatsheds on its land in accordance with its requirements (at least insofar as the "historical" Fishing Village was thus revived and the prospect of the recurrence of a slum was reduced), the Council did not propose to charge, and did not charge, commercial rentals or fees, and the main beneficiaries of the building of the new boatsheds and of the supply of water, as time went on, were the site holders themselves.[73] At best, in my view, the court would have fixed a term of some 3-7 years, a term that, whether or not it was assignable, would have expired by the early 1970s at the latest.

64 It follows that, even apart from statutory considerations, I am not satisfied that the history of events up to and including 1965-67, without more, generated a permanent equity for Mr Baker, or any equity for the other site holders of 1965-67 that would have lasted long enough to be assigned as property to any of the other defendants in this proceeding all of whom came along very much later.**

The additional matters relied on by the defendants generally: circumstances and events after 1965-67

**65 This Court's conclusion that the history of events up to and including 1965-67 is not a source, without more, of any continuing, current equity does not mean that that history becomes irrelevant. As the defendants submit, it remains part of the general circumstances of the case upon which they may rely.

66 In addition, as mentioned above, the defendants as a group rely on the continued levying of rates on the boatsheds; the fact that for a further 40 years or so the Council continued to acknowledge direct transfers of boatsheds after the event; the fact that improvements have been made to the boatsheds over the years, some with Council approval; and the further entrenchment, and recent recognition, of the historical or heritage values of the Village. Further, some of the defendants as individuals rely on their own spending or work or both.

67 In my view the continued levying of rates is of little assistance to the defendants. The matters set out above in relation to the levying of rates before 1965-67 are also applicable to the current situation. In any case, the rates paid by the defendants are substantially less than normal residential rates.[74] The Council's longstanding valuer, Mr Robinson, gave evidence that for the purposes of levying rates, the boatshed sites are valued at around 20% of the value of surrounding industrial land.[75] The valuations of the sites are greatly discounted to take account of the restricted permitted uses and the fact that people are not allowed to live on the sites.[76] This has resulted in the defendants having been charged only $213.15 to $267.75 per annum in rates in 2008/09.[77]

68 As to the continued acknowledgment of transfers, it is true that the Councils' practice of acknowledging and implementing transfers after the event continued until 2005 or 2006. As indicated above, the significance of this, according to the defendants, is that the Councils thereby signalled to siteholders that they, not the Councils, could determine who would occupy the sites and in that way the Councils encouraged, or at least permitted, the continuation or the development of a market in rights to occupy the boatsheds; and that this in turn, in combination with other matters, encouraged people, including themselves, to spend money on the acquisition and/or improvement of boatsheds.

69 Counsel for the plaintiff, Mr Appudurai, accepted that this might be a matter of very considerable significance if substantial prices had generally been paid for the transfers and if the Council had routinely been notified of the prices being paid.[78] However he did not accept that there was any or any sufficient evidence to establish either of those points.

70 The bulk of the evidence before the Court about the prices paid for boatsheds is the evidence given about the particular transactions entered into by the individual defendants. I regard that evidence as generally reliable, and I will return to it in more detail below, but at this stage it may be noted that, at least in more recent years, the boatsheds varied in size, shape, condition and fitting out, and that the prices paid varied from effectively nothing (Mr Iggleden, site 23, purchased in 1989 or 1990) to $75,000 (Ms Boxshall, site 19 with major encroachment onto site 20, purchased between 2000 and 2002).

71 There is little or nothing by way of documentary evidence to show that the Councils maintained records of, or were even informed of, the prices paid for boatsheds, whether before or after 1965-67. Nothing of that kind was included in the documents discovered by the plaintiff Council. However one of the defendants, Ms Allison Wellington, gave evidence that she bought her boatshed together with the appurtenant jetty for a total price of $10,000 in September 2002; that she contacted the Council at that time "about doing the transfer"; that she was told to obtain from her solicitor, and fill in, a form bearing a specified number; that she relayed this to her solicitor who gave her an unnumbered form, designed for use in connection with the Land Tax Act 1958, entitled "Notice of acquisition of an interest in land"; that she got confirmation from the Council and from her solicitor that it was the correct form even though it was unnumbered; that it included provision for the "Total sale price" to be inserted; that she and the vendor duly filled out and signed the form; that they specified $10,000 as the total sale price; and that the Council accepted the form.[79] A copy of the completed form was tendered by the defendants and became part of the evidence without objection.[80] Although no such document was included in the plaintiff Council's discovery I accept Ms Wellington's evidence in this regard. However no other witness contended that they or anyone else had ever completed, or given to the Council, any comparable document.

72 The Council's valuer, Mr Robinson, was asked by Mr Appudurai whether he was aware that the sites or the boatsheds had been bought and sold by people at the Fishing Village. He replied:**

"I'm aware there are changes over the years. We are never informed of any change of tenant or leasee [sic]. Information is not required by law. We simply don't get access to that type of information."[81]

Upon further questioning he said that the Council was never actually informed of a sale or transfer, but only of the change of name, and for rate purposes only. He was unaware of any occasion on which the Council had refused to accept a transfer, but this was not a matter within his duties.[82] He said that generally speaking information about the sale of licences was not available to the Council. The Council would be notified in writing of the change of name but would never get any form of notice as to the sale price. For that reason, he said, those sales and transfers had no status in relation to valuations of the premises for rating purposes. If Council personnel did ever hear of the sale price, "it would be hearsay evidence from perhaps real estate agents or someone in the street, and that could be one, two, three years after the event".[83] Such verbal information lacked reliability, he said.[84] Rather, the boatshed sites were valued by reference to evidence concerning the values of nearby industrial land.[85] In cross-examination, Mr Robinson acknowledged that information about incoming owners of the boatsheds would go to the rates office of the Council, not to him. Otherwise, Mr Sowden did not challenge Mr Robinson's evidence that the Council received no official or reliable information about prices paid for boatshed sites.

**73 I accept Mr Robinson's evidence in these respects. Accordingly, I regard the form lodged by Ms Wellington as an aberration. I accept that the effect of the evidence overall is that the Councils were generally not aware of the details of the sales. Nevertheless, Mr Robinson did not suggest that the Councils had been unaware that boatshed sites were sometimes sold. Indeed Mr Appudurai conceded that the Councils had been generally aware of that fact.[86]

74 Even though the Councils were not usually informed of the details of the sales, the Councils' approach to transfers and sales did carry the risk that siteholders and potential siteholders might be induced to believe that in practice, they, rather than the Councils, would control who would occupy the boatsheds; and this in turn surely had some part to play in the continuation and development of the confined but real market in boatsheds that did exist, at least in recent decades. The Councils knew that people were paying money for direct transfers of boatsheds. Transfers happened reasonably often. The Councils accepted every transfer without question. They never refused to treat the purchaser/transferee as the incoming licensee. Until 2006 they never tried, or even threatened, to evict anyone notwithstanding concerns they felt from time to time about misuse of the boatsheds and sanitary problems.

75 Indeed, in the period between 1968 and 2005, the Councils did little or nothing to disabuse people of the idea that paying money to a boatshed holder for a boatshed site was worthwhile. Neither Council wrote to the Progress Association to warn that licensees had nothing to sell. Nor did either Council issue any public notice or advertisement to that effect. As far as the documentary evidence shows, after 1967 and prior to 2006 there were only two further written references to the boatshed sites being held merely at Council's pleasure (or the equivalent). First, the minutes of the meeting of Williamstown Council on 16 February 1987 record a resolution that an application by Mr A Turner for a "fishing hut site" be approved on conditions including that "the occupancy shall continue only at Council's pleasure".[87] However that instance is not fully comparable because there were also conditions that the site be used only for the parking of a boat or trailer and that no structure be built on the site. Second, a letter dated 30 October 2005 from a Ms Joan Wilson to Hobson's Bay City Council advised that Ms Wilson did thereby "transfer all of my interest and all ownership rights to SHED 15, Williamstown fishing Village, including contents, chattels and lease (permissible occupancy) to [a specified person]". Site 15 is not in dispute in this proceeding, and neither Ms Wilson nor the transferee gave evidence. So it is difficult to know what led to Ms Wilson's reference to "lease (permissible occupancy)". However, noting that endless puzzles have been thrown up by this case, I cannot refrain from quoting the following extract from the report of the plaintiff Council's Manager, Parks and Recreation, which was endorsed by the Council and incorporated in the minutes of its meeting of 15 November 2005:**

"Site holders do not have leases or any other form of written agreement for their use of the sites and sites are currently occupied under a 'permissive occupancy'. The exact legal rights and responsibilities of Council and the site holders needs to be clarified in the event of failure to comply with relevant representations and requests from Council."[88]

**76 Although the Councils could have done more to halt the development and continuation of the market in boatsheds, the fact is, of course, that none of the "purchase" money went to the Councils or the ratepayers. The defendants' claims against the plaintiff Council must all be viewed in that light.

77 Turning to the question of improvements, once again the clear examples are few and the relevant documentary evidence is sparse. In the particulars under paragraph 10(d) of the defendants' amended defence and counterclaim, it is alleged that the Councils "issued permits (including permit nos 1284, 1117, 4040 and 1331) in respect of the maintenance and redevelopment of the boatsheds." However I was not taken to any permits bearing any of those numbers during the hearing and I have not since been able to find any such permits in the evidence. Paragraph 10 of Mr Sowden's written outline of submissions asserts that "Council records show applications for permits to renovate, extend or improve the boatsheds" and the outline includes a table purporting to give three examples. The first item in the table seems to be included in error. It describes a permit granted on 8 September 1981 for an extension of the boatshed on site 1, and gives a reference of Court Book 71. Neither document 71 nor any other document in the Court Book answers that description. I cannot find any permit of any date in relation to site 1. Document 71 is a record of a decision made by Williamstown Council on 24 October 1977 to grant to a Mr Cockrell a permit to extend the boatshed on site 11. However this relates to the second item in Mr Sowden's table, namely the permit ultimately issued to Mr Cockrell on 9 March 1978,[89] being document 72.[90] The Council was wearing two hats in relation to applications for permits to extend or improve the boatsheds, being both the land owner and the responsible authority. There was no evidence concerning the extent to which the Council was actually consulted in its capacity as landowner in any such instances, but I would assume, in the absence of evidence to the contrary, that such consultation did take place. The third and final item in Mr Sowden's table concerns a successful application by one of the defendants, Ms Allison Wellington (formerly McAdam), for a permit to extend the jetty at site 10. This item is of no help to the defendants because the application was not made until 31 October 2006, a date well after the plaintiff's new, stricter approach to licensing had begun, and because the subject of the application was the jetty, which was on Crown land, not Council land. The present claims do not cover the jetties on Kororoit Creek.

78 Otherwise the only significant material concerning improvements is the material to which I will come in dealing with the evidence of the individual defendants.

79 As to the defendants' further reliance on the historical or heritage status of the Fishing Village, it is true that in 2006, albeit for reasons not elucidated in the evidence, the Council carried out a heritage study in relation to the Fishing Village. The result was a short document (of about 7 pages) which appears to be accessible both on the Council's website and on the website of Heritage Victoria,[91] but which was not otherwise the subject of any evidence as to its status, save that in a heritage adviser's technical report which was produced later the same year, it is indicated that the area is not protected by the heritage overlay in the Hobsons Bay Planning Scheme.[92] The heritage study asserts that the Fishing Village heritage precinct is of "local and aesthetic significance to Williamstown", for the following reasons (my emphasis):**

"Historically, the precinct is significant as a setting for recreational activity in the form of anglers clubs who have been on the site over a long period. The grouping of structures is unusual in terms of its informal tenure, evolution and relatively remote waterside location for the metropolitan area. The former farm house, which is one of the major structures in the group, and [sic] is locally significant for its representation of an early farm house surviving within a rural setting relatively close to the city centre. (AHC criterion A4 and B2).

Aesthetically, the two Canary Island palms are significant for providing a Mature introduced landscape, which complements the setting of the cottages (AHC criterion E1)."

There follows a recitation of the history of the Fishing Village precinct.

80 As mentioned above, it might possibly be thought that the revival of the "historical" Fishing Village and the inhibition of the recurrence of a slum by the building of new boatsheds (and other buildings) in accordance with the Council's requirements in 1965-67 had been of some benefit to the Council. However, on my findings thus far, the effects thereof were spent long ago so far as any contribution to a proprietary estoppel claim may be concerned. The defendants' counsel did not explain how the historical or heritage aspects of the Fishing Village might otherwise enhance his clients' claims to an irrevocable licence or licences over the boatsheds. He cited no authority in that regard. In any event, the author of the heritage study seemed to be more impressed by other features of the Village than by the boatsheds themselves.[93] At best, the history of the Village might have contributed, in more recent times, to a belief on the part of an existing or potential boatshed holder that the Council would be unlikely to take steps to terminate the existence, or radically alter the general appearance, of the Village. But it would not have been reasonable to rely on the historical or heritage features of the Village to form the view that the Council, notwithstanding its ownership of the land and its regulatory responsibilities, would never seek to impose an orderly licensing or leasing system on the Village.

Additional evidence and findings relating to the individual sites, the individual defendants and the beliefs and expectations of site holders generally

**81 Against the background of all of the facts and circumstances to which I have so far referred, I turn to the additional evidence relating to the individual sites in question, the individual defendants and the beliefs and expectations that may have been abroad at the Village generally. That evidence includes not only the evidence of the defendants themselves and their proxies (including Kimberley McAdam), but also that of Gary Davison, a site holder who, as mentioned above, was called by the plaintiff Council. He has signed a licence agreement, and he says that he did so in the belief that the site holders had little or no security of tenure without a signed licence agreement; and he says that this belief, in turn, was based in part on discussions with other site holders (see further below).

82 As foreshadowed above, even without taking into account the relevant statutory provisions, I am not satisfied that any of the individual defendants has "acted to [his or her] detriment on the basis of a fundamental assumption in the adoption of which [the plaintiff Council or its predecessor] has played such a part that it would be unfair or unjust if the [plaintiff] were left free to ignore it. ...", to use the language of Brereton J in Greek Macedonian Club Ltd v Pan Macedonian Greek Brotherhood NSW Ltd.[94] In arriving at those conclusions I have proceeded on the principle (favourable to the defendants) that neither the conduct of the landowner in issue nor the expectation of the claimant is required to be clear, although the reasonableness of the claimant's' expectation is a relevant consideration.[95]

83 I will deal now with each relevant site and each defendant separately, but the conclusion reached in each case takes into account the evidence given about each other relevant site and each other defendant, as well as all the other evidentiary material of general application.**

**84 The first defendant, Mr Andrew Gibbon, is the holder of site 1A. He did not give evidence. The only evidence about his position was that given by his mother, Coral Gibbon, the second defendant. In this regard she said only that he was in Conargo, New South Wales at the time of the hearing; that she thought he had paid $50,000 for his boatshed; and that he had purchased it in the year 2000. I accept this evidence; and I accept that Mr Andrew Gibbon did in fact pay $50,000 for his boatshed. He can also rely on all of the other material that favours the defendants generally. However, I agree with Mr Appudurai that, as far as Mr Andrew Gibbon's own position is concerned, I can and should take into account against him that he was not called to give evidence. There was no suggestion that he could not have come from Conargo to give evidence. No other explanation for his absence was given. Hence, in accordance with O'Donnell v Reichard[96] and Jones v Dunkel[97], I may infer that Mr Gibbon's evidence would not have helped his case and I may take that inference into account in deciding whether or not to draw inferences of fact which are open on the evidence which has been given, in relation to matters in respect of which Mr Gibbon could have spoken. I note again that the burden of proof in relation to detriment, assumption and encouragement was on the defendants, including Mr Gibbon.

85 I am not satisfied that in deciding to take a transfer of site 1A in the year 2000 and to pay out $50,000 to the previous site holder for it, Mr Gibbon formed any particular expectation as to the length of tenure to which he would be entitled. Nor am I satisfied that he relied on any conduct of the plaintiff or its predecessor in forming any such expectation. In arriving at those views I have thought it proper to infer, and to take into account, that Mr Gibbon's evidence as to any expectation he may have had, and as to the source of any such expectation, would not have helped him.

86 There is no evidence that Mr Gibbon has made any improvements to the boatshed on site 1A.

87 In relation to Mr Gibbon's case generally, I note that he has had the benefit of some 11 years of available use of site 1A at an annual licence fee of between $100 and $400.[98]

88 Even apart from statutory considerations, the plaintiff succeeds against Mr Gibbon and Mr Gibbon's counterclaim fails.**

**89 Mrs Coral Gibbon is the second defendant. She holds site 3.

90 On 30 May 1983, about 10 years before Mrs Gibbon took over site 3, the Council considered an application for the installation of a septic tank at sites 1 and 3. The Council adopted a recommendation from a committee of the Council that the Port Phillip Authority (the responsible authority at the time) be advised that "the Council is opposed to permanent residency in the area and therefore is opposed to the installation of a septic tank".[99]

91 Mrs Gibbon gave evidence in this case. Generally speaking, I accept what she said. Taking into account her oral evidence, her letter dated 4 January 2007 to the Council[100] and her open letter dated 12 April 2007,[101] I find the following additional facts.

92 Mrs Gibbon is a retired widow. In 1993 she and her late husband paid $25,000 to the prior holder of site 3, Mrs Thompson, for a transfer. Mrs Thompson was herself a widow at that time. She and her husband had been living there for many years "with the Council's permission or ignorance". Mr Thompson had been a fisherman. The two husbands had known each other. The price of $25,000 accorded with the Council valuation of site 3 at the time. In 1993 the "boatshed" had had a couple of bedrooms, a lounge, kitchen area, shower, toilet, hand basin and sink, ie facilities that had enabled the Thompsons to live there. It had running water and electricity. Its condition was "pretty ordinary". There was no boat in it. The Gibbons intended to use it mainly as a weekender and as a place to be with their children and grandchildren. They made no inquiries of the Council before they acquired it. The parties informed the Council shortly afterwards that there had been a "change of ownership" and requested that all rates, levies and taxes be thereafter charged to Mr and Mrs Gibbon. The charges were then duly paid until the outbreak of the recent dispute. As far as Mrs Gibbon knows, despite contact between the Gibbons and the Council from time to time over the years, nothing was said to either of them by the Council about the terms of their occupation until the recent dispute broke out. When the Gibbons acquired the place Mrs Gibbon did not think that there was any limit on how long they could stay there. However Mrs Gibbon could not give a reason why she thought that they could retain the place indefinitely. "I just - I presumed I suppose inadvertently apparently".[102]

93 Turning to Mrs Gibbon's belief that the place could be lived in or occupied overnight, she said, and I do not doubt, that the basis of her belief was "[j]ust the general consensus of the people that you spoke to down there that council allowed you to be there and council were letting people to live there, or to stay occasionally overnight ... ".[103] On the other hand, I note her reference to the Thompsons having previously lived there with the Council's permission "or ignorance". The Gibbons used the place as they intended to do, especially for entertaining family. For a period one of their sons lived there after a family break-up.

94 The Gibbons did not make any improvements to the property until after February 2005. In that month there was a freakish storm. The front section collapsed and the "house" was inundated. Mrs Gibbon believed that she had a duty of care to the Council "as my landlord" to look after the property.[104] (She has always viewed the Council as her landlord).[105] So she repaired it, using the best materials she could but without altering the shape. She did not believe she needed a Council permit and did not apply in advance for one. She replaced rotting wooden windows with aluminium windows and cement sheeting with green Colorbond. By May 2005 she had completed all of the intended work except replacing the shower and the hand basin. However in that month she was told by the Council in writing to cease the work on the ground that under the Hobsons Bay Planning Scheme she was obliged to obtain a planning permit.[106] She ceased the work accordingly. To that stage she had spent about $30,000 on the repairs/improvements. She claims that she then applied for a permit and that she is still waiting for a response, but I think that the present dispute may have overtaken that process. In March 2006 the Council required the Brunswick City Angling Club to disconnect Mrs Gibbon's toilet from the Club's septic tank (to which, despite the abovementioned events of March 1983, it had somehow become connected). So, since then, the building on site 3 has had no operative toilet and no replacement shower or hand basin.

95 Mrs Gibbon needed to move to New South Wales on business in July 2005. She stayed in New South Wales for three years, returning to Victoria only on brief occasions during that time. No-one has lived in the boatshed since 18 July 2005. The boatshed is locked and the Gibbons have always held the only key. The Council has never had a key to it. Indeed the Council has never held a key to any of the boatsheds in question.

96 It seems from Mrs Gibbon's oral evidence and, especially, from her letters of 4 January 2007 and 12 April 2007 that her principal grievance (like, I suspect, that of several of the other defendants) is not that the Council has purported to resile from some implied representation that she would have permanent tenure of the site and could bequeath it or assign it for a price as she saw fit,[107] but rather that under the new licensing regime she would be required to agree that the only permitted use of the site would be for the storage, construction and maintenance of boats, and that overnight accommodation would not be allowed.[108] I think this explains her repeated complaints in the letters about the disconnection of the toilet, the unavailability of hot and cold water and the like. She asserted in her letters that prohibiting overnight stays would be a radical change to past practices and understandings at the Village. However I note that no such point is expressly included in the pleadings or in the submissions made on her behalf and on behalf of the other defendants in this case. Indeed, neither Mrs Gibbon nor any of the other defendants can legitimately be heard to say that they were entitled to rely on the Council turning a blind eye, or continuing to turn a blind eye, to the use of the boatsheds for overnight accommodation, given the Council's official policy to the contrary as declared from time to time.[109]

97 In any event, I am not satisfied that in paying, with her husband, $25,000 to Mrs Thompson in 1993 for the transfer of the site or in paying $30,000 or so in 2005 for the repairs and improvements to the building or in any other relevant way, Mrs Gibbon has acted (to her detriment) on the basis of an assumption in the adoption of which either the plaintiff Council or its predecessor has played such a part that it would be unfair or unjust if the plaintiff were left free to ignore it. As mentioned above, when asked in court why she thought in 1993 that she and her late husband could remain permanently on site 3, she said that she just presumed it: "I suppose inadvertently apparently". She did not know about the rebuilding of the Village in 1965-67. Nor did she say anything in her evidence about having been aware of, much less influenced by, prior sales of boatsheds. As to her spending on the repairs/improvements in 2005, she did not say that she did this because she thought that she was effectively the owner of the site. Indeed, she says that she has always regarded the Council as her landlord. Strangely, however, she did not consult the Council, nor inquire about whether a permit was required, before commencing the work.

98 Even if one should look past what Mrs Gibbon said and did not say about her own thinking, still the evidence overall does not establish with sufficient cogency that the abovementioned conduct and omissions of the Councils played such a part in the formation of any assumptions as to tenure or assignability that Mr and Mrs Gibbon may have made that it would now be unjust or unfair if the plaintiff were not compelled to fulfil those assumptions or to compensate Mrs Gibbon. To a large extent, at least, her estoppel claim rests on standing by rather than encouragement, and in that light it fails all the more clearly. The Council was not even aware of what the Gibbons (in particular) were contemplating or doing until after the event on each occasion. Although, as I have said, the Councils bear some responsibility for the development of the market in boatshed sites, persons who were contemplating large expenditures on the boatsheds had a responsibility themselves to make their own inquiries, including inquiries of the Councils, as a matter of basic prudence.

99 In all the circumstances it is not reasonable for Mrs Gibbon to expect to remain forever on the Councils' land on the terms suggested on her behalf. Even if it should be found that an equity was generated in favour of Mrs Gibbon by the expenditures of 1993 and 2005 or otherwise, I would regard the recognition of an irrevocable licence in her favour on the terms sought as a disproportionate form of relief. The period she has already enjoyed is sufficient to satisfy any equity she may have had; and all the more so if one adds the fact that the Council was prepared to allow her to stay under the terms of the standard licence. As the Council's open offer suggests, the Council may still be prepared to grant Mrs Gibbon a licence.

100 Accordingly, even apart from the statutory considerations, I would not uphold Mrs Gibbon's defence or her counterclaim.**

**101 It will be recalled that site 10 was one of the three vacant sites dealt with in the abovementioned Council resolution of 26 June 1967. Council resolved to grant "permissive occupancy" of site 10 to L Stewart. In 1990 the site holder was recorded as R Schrum.[110] In 2002 the site was transferred to Alison Wellington (formerly McAdam). I have already referred to Mrs Wellington's evidence about the associated documentation[111] that was lodged with the Council.

102 Taking into account Mrs Wellington's evidence as a whole, I make the additional findings of fact set out in the next paragraph.

103 Mrs Wellington is a qualified merchant seaman. She has three young children. At the time of the hearing she was engaged in home duties. Mrs Wellington's father was a professional fisherman who fished out of the boatsheds for 45 years. So she has a long history of going down to the Village. She knew Ron Schruhm, who occupied shed 10 until 2002. The shed Mrs Wellington acquired from him was basically a bare shed. It had been used for storing Mr Schruhm's vessel, fishing gear and other equipment. The floor consisted of timber floorboards over sand. Mrs Wellington "purchased" the shed and the associated jetty and took over the fishing gear and other equipment left behind by Mr Schruhm. The agreed total price was $10,000. When Mr Schruhm decided to sell his shed he wanted it to go to somebody that he knew. He had been offered a lot more for it than what Mrs Wellington paid, but she made her offer (of $10,000) and he accepted it because he wanted the shed kept within "the people who own sheds down there". She made her arrangement with Mr Schruhm before going to the Council to have the transfer registered. She did not ask the Council about what her entitlements would be as the new site holder. When Mrs Wellington was shown the blank transfer of land form by her solicitor she questioned it because "to my knowledge I was purchasing the building and the jetty not the land. I knew that the land was the council's land, because of my history of ... growing up down there". Mrs Wellington was away at sea for most of the two year period following her acquisition of site 10. In late 2005 she observed that the shed had significant rust and she formed an intention to replace it with a new one. Without first consulting the Council, she purchased a flat-packed shed kit for $10,000.[112] She stored it inside the existing shed and then applied to the Council for a permit for the project. At about the same time she began work to replace the concrete footings around the edges of the existing shed. Council officers directed her to stop that work because she had no permit for it. So she stopped the work and applied for a permit for that too. Both permit applications remain unresolved, presumably because of the present dispute. The shed kit remains stored in the existing shed. As already mentioned, Mrs Wellington also applied for permission to repair the jetty, including both the landward part and the part standing in the creek. She got written approval for that. She commenced the (quite cheap) landward repairs but went no further when this dispute arose. Mrs Wellington and her family have made regular visits to the shed. They use it to store recreational equipment and they go fishing from there. The children play there and swim in the creek. The shed has not been used for overnight accommodation.

104 Asked by her counsel what, in 2002, Mrs Wellington thought she was purchasing, she replied:**

"My belief of the boatsheds down there that everyone had a 99 year lease, that's what I had grown up believing, and had been told by previous shed owners and the current shed owners down there, and that ... I purchased the structure and it was mine for as long as I wanted to keep it or ... bequeath it to my children ... ."[113]

I then asked when did she think the 99 year period had started. She replied: "I would assume from when the Council became the owners of the land, which was in the ...". Mr Sowden then interjected with "1947" and Mrs Wellington adopted that. (Such a lease would expire in the year 2046).

**105 In my assessment, when Mrs Wellington paid $10,000 to Mr Schruhn for site 10, although she was confident that site holders could remain indefinitely, she had no clear idea about a 99 year lease. Lay people sometimes speak of a 99 year lease (or a 999 year lease) when they mean to refer to a right to remain indefinitely or perpetually. Mr Gook (site 18), Mr Boxshall (site 19) and Mr Iggleden (site 23) also claim to have believed that they had a 99 year lease (see further below). On the other hand, Mr Davison said that in 2005 or 2006 he attended several meetings at the Village called to discuss the Council's new stance;[114] and that he heard a whole variety of views expressed by site holders as to what tenure they had, if any, including that they had none at all; that they should say they had squatters' rights; and that they had a 99 year lease.[115] Mr Davison said he could not get any information from anyone to support the notion that they had a 99 year lease, and that it was "just mentioned as an aside".[116] I accept Mr Davison's evidence in these respects. It is clear that there never was any actual 99 year lease. Nor is there any evidence that anyone connected with either Council ever indicated, expressly or impliedly, that there was a 99 year lease. Indeed, no such allegation has been pleaded or advanced in submissions on behalf of the defendants.

106 Apropos of the confidence of Mrs Wellington and certain other defendants that site holders could remain indefinitely, I note that Mr Davison also gave evidence that his father had built a new boatshed on site 13 at the Village (with some help from Mr Davison) in 1972-73; that his father had remained involved in the Village until he transferred the boatshed to Mr Davison, without consideration, in about 2002; and that his father had always believed, and had told Mr Davison at the time of the transfer, that the site holders had never had any right to remain and could be evicted at any time without notice.[117] Mr Davison said that he was initially surprised and sceptical about his father's melancholy attitude, but ultimately came to share it. I accept Mr Davison's account of these matters. On the other hand, I remain of the view that when Mrs Wellington took a transfer of shed 10 in 2002 she truly believed that site holders at the Village could remain indefinitely; and I consider that her confidence was due in part to the prior acts and omissions of the Council. Indeed her confidence may have been increased by the failure of the plaintiff Council to advise her to try to retrieve her $10,000 after she lodged the "notice of acquisition of an interest in land" which specified the figure of $10,000.

107 However, Mrs Wellington admits that she knew she was not purchasing the land, and that it was the Councils' land. She paid out only $10,000, considerably less than the Gibbons had paid for shed 3. Nor did she incur as much expense as the Gibbons did on repairs or improvements. She still has the flat-packed kit shed and may yet be able to put it to use or sell it.

108 Like the claim by Mrs Gibbon, Mrs Wellington's estoppel claim rests principally on standing by rather than encouragement, and it is all the more difficult to sustain for that reason. Her purchase of the new shed and her commencing of the concreting works were certainly not authorised or approved by the Council.

109 Again, in all the circumstances, I do not think that Mrs Wellington can reasonably expect to remain on site 10 forever or for as long as she desires on her own terms. The enforcement of any such expectation would be disproportionate. Further, even if she had some kind of equity in or shortly after 2002, having regard to the modest level of her expenditure and the fact that the boatshed has been available to her for some 9 years now, I do not think that she could any longer have a good claim for equitable compensation or damages.

110 Accordingly, even apart from the relevant statutory provisions, the Council is entitled to succeed against Mrs Wellington, and her counterclaim must be dismissed.**

**111 Mr David Waters is the holder of site 11. His evidence weakens rather than strengthens his particular equitable claim.[118]

112 Until about October 2006 Mr Waters had had no connection with the Village. At about that time a friend told him that a boatshed was for sale at the Village. It was Mr Ken Kilby's boatshed on site 11. Mr Waters made contact with Mr Kilby. He was shown the boatshed. It had been divided into numerous rooms, with sleeping accommodation for up to 10 people. The back area was on a concrete slab. The shed was in very bad shape. It was messy, smelly and damp and the electrical wiring was dangerous. Mr Kilby told Mr Waters that there was a "permissive lease". Mr Waters understood that to mean that there was a "[k]ind of verbal arrangement of a year to year thing"[119]. He thought he would be able to stay "indefinitely really" because, from what Mr Kilby told him, it "had always been like that". Mr Waters rang the Council and said he was thinking of buying it. He was asked what he was going to use it for. He replied that he intended to use it mainly to restore a boat. He was told that he was not allowed to live there or run a business from there. So Mr Waters agreed with Mr Kilby that he would pay him $40,000 for the boatshed. He paid that sum in three instalments. Mr Kilby then left for New South Wales. He notified the Council by letter dated 1 November 2006 that the boatshed had been transferred to Mr Waters.[120]

113 It now seems that Mr Kilby was not fully frank and open with Mr Waters. After Mr Waters took over the boatshed he found in it a copy of the Council's proposed form of licence that had been sent to Mr Kilby months earlier. (At least one draft of the proposed licence had been sent to all site holders by August 2006.) Mr Waters says that Mr Kilby did not mention this to him at any time. If that is so, then Mr Kilby's reference to a "permissive lease" and to the history of the Village were misleading and deceptive. Mr Waters also claims that nothing had been said to him about the proposed licence when he initially rang the Council in October 2006, but Mr Waters' evidence tended to be vague in parts, and in giving his evidence in chief he did not identify the name or position of the person to whom he had spoken at the Council. Other evidence[121] suggests that the person may indeed have been the appropriate officer, namely Mr John Thomas from the Council's Property and Services Department, who has produced an affidavit of documents in this proceeding but who was not called to give evidence for the Council. It would be odd if Mr Thomas had not mentioned the proposed licensing system, which was then a hot topic. However it is not entirely clear that the conversation in October 2006 was such that the Council representative (whoever it was) ought to have mentioned it.

114 In any event, it seems that if Mr Waters has any cause for complaint, his complaint should be directed principally, if not exclusively, to Mr Kilby. On Mr Waters' own evidence, he knew nothing of the history of the Village except what Mr Kilby told him, and Mr Kilby must have known that any potential entrant who became aware of the Council's licensing proposal before taking a transfer could not rely on that history and could not seek to remain except on the Council's terms.

115 Shortly after paying out the $40,000 and taking over shed 11 Mr Waters consulted an unidentified lawyer friend who drafted for him a letter dated 14 November 2006 which Mr Waters sent to Mr John Thomas of the Council. The letter asserts that Mr Kilby had already surrendered possession but had given Mr Waters insufficient documentation. The letter asked Mr Thomas to provide a copy of the current or previous lease agreement, and a disclosure statement about outgoings and other payments. Mr Thomas responded by a letter dated 15 December 2006 enclosing a copy of the proposed licence agreement. There is no evidence that Mr Waters replied with a complaint about any failure on the part of Mr Thomas to mention the licensing system earlier.

116 Mr Waters apparently chose not to pursue Mr Kilby. Rather, he set about doing major repairs and renovations to the boatshed without reference to the Council. Over a period of about two years he stripped it back to the frame on the inside, poured a slab (because the floor would have been toxic), insulated the shed and lined it and had the electrical wiring redone safely. The rooms were reduced to two, a workshop at the back and a front room for reading and relaxing. It has furniture and electricity, but no water. No boat is kept in it. The cost of these repairs and renovations was not specified. That matters not however, because, in my view, Mr Waters did this work with his eyes open. He cannot rely on it to advance his claim of proprietary estoppel against the Council. Nor is any such claim maintainable in relation to Mr Waters' payment to Mr Kilby.

117 Therefore, even apart from statutory considerations, the Councils' claim against Mr Waters must succeed and his counterclaim must fail.**

**118 Andrew J Turner became the holder of the boatshed on site 12 in 1987. He retained it until he died by his own hand in that very boatshed in 2006. Mark Turner, his brother, is the administrator of his estate.[122] Andrew Turner's mother, Margaret McAdam, is the beneficiary of the estate.[123]

119 The evidence about the late Mr Andrew Turner and site 12 comes mainly from his sister, Allison Wellington.[124] To a lesser extent it comes from Kimberley McAdam, who was his sister-in-law and who is the sister-in-law of Allison Wellington.[125] There is also a small amount of relevant documentation. Neither the administrator (Mark Turner) nor the beneficiary (Margaret McAdam) was called.

120 Mr Andrew Turner was involved with two sites at the Village. He was the person mentioned above to whom on 16 February 1987 the Williamstown Council resolved to allocate a then vacant site - site 14 - for the parking of a boat or trailer on conditions including that "the occupancy shall continue only at Council's pleasure". Although this was a different site and the conditions included a condition that no structure be built on it, and Mr Turner relinquished it after some 6 years, still the express imposition of the requirement that the occupancy was to continue only at Council's pleasure represents a difficulty now for Mr Turner's estate. Presumably the requirement came to Mr Turner's attention. It was imposed during the same year that Mr Turner took over site 12. There is some evidence that this was the Councils' declared policy in relation to all sites at the time (including "purchased" sites) and that this policy was made known to Mr Turner. In the very unfortunate circumstances of Mr Turner's case, the defendants have not been able to call any direct evidence to the contrary.

121 Mr Turner paid $15,000 for site 12 in 1987.[126] It was then a bare, run down tin shed. Mr Turner was a fisherman but he was also a craftsman with timber. He installed polished timber bench tops, timber book shelves and a gabled timber ceiling, and he lined the walls with timber beams. He did this work "[o]ver the whole duration that he lived there", bit by bit.[127] He also installed a new, wide window or door at the front which can be opened to allow access for a boat and which can be held up on struts so as to serve as a veranda. The floor consists of carpet over a concrete slab. Mr Turner also had plans to extend the shed towards the north (or road) end of the site. However in the last years of his life he was a diabetic and contracted Ross River Fever and then chronic fatigue syndrome and was bedridden for a number of years before taking his own life in 2006. So there was little work done in the last years of his life.

122 There is a dispute between the parties as to whether and to what extent Mr Turner obtained Council permission for works done at site 12. Mrs Wellington claims that it was all the subject of stamped permits from Williamstown Council that she has seen with her own eyes.[128] However Mrs Wellington also said that her brother burnt a lot of his documents the night before he committed suicide.[129] In cross-examination she was shown copies of letters that the plaintiff Council wrote to the solicitors for the estate in 2006 and 2007 asserting that there were a number of non-compliance issues at site 12, including unauthorised building works, illegal discharge of wastewater and encroachment onto an adjoining site.[130] Mrs Wellington disputes the suggestion of unauthorised building works.[131] However no evidence on those matters has been given by the administrator of the estate, Mr Mark Turner, or by the solicitors handling the estate. Some documents relating to permits for work done on the site were later obtained by Mr Sowden and handed up.[132] They relate to the year 1991 only. They are incomplete and rather vague, but Mr Appudurai ultimately accepted that there must have been a planning permit and a building permit of some kind in 1991. Nevertheless Mr Appudurai contended that the works performed had not complied with the permits. I cannot resolve that debate finally on the material before me. At best from the defendants' point of view, it may be accepted that in 1991 the Williamstown Council was prepared to authorise works on site 12 of a kind that apparently needed both a planning permit and a building permit.

123 There is no evidence as to the financial cost to the late Mr Turner of the works carried out to the shed on site 12. The shed is presently used by Mr Turner's mother, Margaret McAdam, and her family.

124 In my view the evidence in this case is insufficient to establish that either Council played such a part in the adoption by Andrew Turner of any assumption he may have made about his tenure of site 12 that it would have been unfair or unjust if, immediately before his death, the plaintiff Council had been free to ignore any such assumption. He had paid only $15,000 to his predecessor. He may well have been aware from the outset of the Councils' professed policy that sites were only to be held at the Councils' pleasure. His improvements to the shed were no doubt valuable and impressive, but to an extent they represented a personal indulgence, and it is not clear that they were all fully authorised by, or even known to, the Council. The Council had no key to the boatshed. In any event Mr Turner had the benefit of the site at low municipal rates and at a non-commercial site fee for about 19 years. In all the circumstances, to have granted him an irrevocable licence, or any further rights, over the site would have been disproportionate to any expectation Mr Turner could reasonably have had. He did not in truth have an interest in the land capable of passing to his estate.

125 Accordingly, even apart from the statutory restrictions, the Council should succeed against Mark Turner (on behalf of the estate of Andrew Turner) and the corresponding counterclaim should be dismissed.**

**126 All of the evidence relating to site 17 and Ray Baker has already been mentioned in one way or another.

127 I have already concluded that the events of 1965-67 did not generate a permanent equity for Mr Baker. Since then Mr Baker has presumably paid the modest annual rates and the modest annual licence fees. However it is not suggested that those payments themselves have given him any equitable claim and there is no evidence that he has made any other relevant payment or carried out any repairs or improvements to the boatshed on site 17 since 1967.

128 Accordingly, even apart from statutory considerations, the plaintiff must succeed against Mr Baker and his counterclaim must be dismissed.**

**129 The defendant Mr Peter Gook actually works for the plaintiff Council as a gardener. He has worked on and off for the local council and other employers in the area for 35 years and claims to have a fair knowledge of the boatshed area. In about the year 2000 he was offered the boatshed on site 18 by the then holder, Mr O'Keefe. The boatshed was in disrepair and smelly. Mr O'Keefe was an elderly man and had been unable to maintain it.

130 Mr Gook and Mr O'Keefe agreed on a price of $11,000. Mr Gook paid a deposit and agreed to pay the balance upon the registration by the Council of the transfer. He and Mr O'Keefe went down to the office of the Council and spoke to the abovementioned Mr John Thomas. Mr Thomas told Mr Gook that he was not to live there. Mr Thomas mentioned that he was aware that people had been living at the Village but stated that it was not permissible to do so or to conduct a business from a boatshed. There was no mention of a lease or anything of that kind, but on the transferring of the site fee Mr Gook assumed the site fee to be "his evidence of a lease or whatever".[133]

131 Asked what he thought he was purchasing, Mr Gook said:**

"Well I believed as Johnny [O'Keefe] believed that we were on a 99 year lease and that was my understanding on buying it off him and again once I'd had the site fee transferred, I was confident that that was the case."[134]

Mr Gook went on to explain that he had thought that there was an existing (99 year) lease "probably from the 40's"; and he said that a lot of elderly people down at the Village had thought that at the time. Under cross-examination on this point, Mr Gook confirmed that when he went to the Council he simply organised the transfer and that nothing was said by anyone about a 99 year lease on that occasion. Mr Gook had simply assumed (based on what he had been told at the Village) that the site fee was associated with the 99 year lease. Mr Gook then said that he and others believed that nearby land now occupied by the Mobil Oil company had previously been part of the land acquired compulsorily by the Council for recreational purposes in 1947; and that the Mobil land was now held on a 99 year lease; and that the Villagers had been "given the same right".

**132 I accept that Mr Gook and some others did actually believe that a 99 year lease applied to the Village. However that particular belief was not reasonable and was not properly attributable to anything said or done by either of the Councils. It would have been easy to check the story officially. A simple inquiry of the Council would have revealed that it was not true.

133 In the period of about 18 months after the transfer Mr Gook cleaned and gutted the shed and relined it with new wall panelling. He replaced the roof and put about two inches of concrete on the floor. All of the work was internal. He did not seek or obtain any planning or building permit from the Council. He has kept the shed in repair since that time. In his evidence he did not put any figure on the cost of his renovations and repairs.

134 The shed has two rooms. Mr Gook uses it for storage of goods and for recreational purposes. He sometimes stays in it overnight as a "weekender". The Council has requested him to remove sinks and internal water supply. He must now obtain water from the tap outside. He has no boat. There is no jetty attached to the boatshed.

135 Even apart from statute, having regard to Mr Gook's evidence and all the other circumstances of this case I am not satisfied that Mr Gook is entitled to any equitable relief. His outlays have been modest. He has had the use of the shed for about 11 years at low rates and at a low fee. He had no reasonable basis for his belief that there was a 99 year lease. He has disobeyed the restriction on overnight stays of which he was told before he paid the balance of the price to Mr O'Keefe. The very fact that the Council purported to impose that restriction should have been a clear signal to him that the Council, not the site holders, had legal control of the land. As in the case of Mrs Gibbon and others, I suspect that Mr Gook's principal concern about the new licences is not that they represent a departure from any assumption for which the Council can properly be held responsible, but rather that they would preclude further use of the boatsheds as residences. It is clear that Mr Gook, at least, cannot be heard to complain about that.

136 The Council is entitled to succeed against Mr Gook and his counterclaim must be dismissed.**

**137 The boatshed on site 19 is a particularly big one and it encroaches to a large extent onto the otherwise vacant area designated as site 20. However the Council has only ever charged rates and licence fees on it as though it were confined to a single site, being site 19.

138 The site holder is recorded as Sharon Boxshall. She did not give evidence, but her husband, David Boxshall, did.[135] He mentioned that the boatshed had been put in his wife's name, but otherwise spoke as though the boatshed was his. He did not say anything about his wife's own beliefs or expectations as to what her entitlements were.

139 Mr Boxshall is the managing director of a building and garden supplies company. He has had other businesses as well over a considerable period and he says that his business activities "are very, very prominent in the Western suburbs", although a business of his has gone into administration.[136] From his business activities he is familiar with real estate transactions, leasing arrangements and other finance arrangements. He has bought many other properties. He normally has lawyers check out such arrangements before entering into them. However he did not have any lawyers check out the acquisition of this boatshed.

140 Mr Boxshall said that the shed is a "great shed" and that they have "all the facilities there". He purchased it with his wife for $75,000 "between 8 and 10 years ago" from "three gentlemen" whose names he could not remember. It already covered both sites at that time. The purchase included all the chattels. The shed was in good condition. It had and still has plaster walls and ceilings, a small kitchen with a sink and a refrigerator, a lounge room, a dining room, a storage area for fishing gear and the like, water, electricity, air-conditioning, and a telephone connection. About two years ago the toilet was disconnected at the Council's insistence. The Boxshalls have kept the shed clean and in good repair but they have not made any changes or improvements. Mr and Mrs Boxshall and their three children go there on weekends for family outings and fishing. They keep it locked when they are not there and they have the only keys.

141 Mr Boxshall himself did not talk to the Council at the time of the acquisition, but his wife "would have spoken to them" in order to transfer the name over to herself.

142 Under cross-examination, Mr Boxshall said he believed that he did not have to sign the proposed new licence agreement because he was under an understanding that he had a 99 year lease. He said that this understanding came from "everyone" in the "community" of the Village. He admits that they did not speak to the Council or seek its understanding of the matter before paying out the $75,000, but said that he had in-laws with a shed at the Village and that they had spoken to these in-laws and "everyone was under the same presumption of a 99 year lease". Asked whether he knew it was the Councils' land, he said "We were paying rates to the Council so the presumption was made".[137]

143 The Boxshalls paid more (to third parties) for "their" shed than any of the other defendants, but in other ways their claim for an equitable interest in the land is even weaker than some of the other defendants' claims. Mr Boxshall was very experienced in business and property matters. Yet he virtually went out of his way not to make the usual prudent inquiries before acquiring the boatshed. Having regard to Mr Davison's evidence, and to the fact that almost half of the site holders signed the proposed licence agreement before this proceeding began, I do not accept that "everyone" in the Village thought there was a 99 year lease. The Boxshalls have had the benefit of a very large and comfortable boatshed on two sites for about 10 years at a non-commercial site fee, while paying (modest) rates on only one site. The Boxshalls have made no improvements to the property. The Council has offered them (and all the others) a licence on the new standard terms. Notwithstanding that the Councils stood by while a market in boatsheds developed, in all the circumstances I see no real unfairness or injustice to the Boxshalls in permitting the plaintiff Council to exercise its full rights as the beneficial owner of the land as against them.

144 Accordingly, even apart from statute, the Council's claim against the Boxshalls should succeed and the corresponding counterclaim should be dismissed.**

**145 Site 21 is held by Mr John Duffin. He did not give evidence. Kimberley McAdam said that he had been at the Village since about 1992; that he had bought his shed for roughly $4,500; and that it was new when he bought it. I accept that evidence.

146 Ms McAdam said that Mr Duffin is "a bit of a hermit". She acknowledged that efforts had been made to bring him along to give evidence, but said: "He's got back problems ... he doesn't get around very well at all". On the other hand, Ms McAdam said that, unlike Mr Baker, Mr Duffin does mix with people.

147 As in the case of Mr Andrew Gibbon, I think it proper to infer that Mr Duffin's evidence would not have helped him. In any event, it seems that he paid only $4,500 for the shed on site 21 and there is no evidence that he has made any improvements. He has had the use of the shed for about 19 years at low Council rates and for a non-commercial licence fee. Even apart from statute, he has no equitable claim.

148 The Council is entitled to relief against Mr Duffin and his counterclaim must be dismissed.**

**149 William Iggleden now holds site 23. As mentioned above, the Council granted "permissive occupancy" of the then vacant site 23 to an applicant on 26 June 1967. The applicant was one J Goodman. It seems that he erected the abovementioned simple Myer gabled garage-type shed which has come down to Mr Iggleden largely unaltered.[138]

150 Mr Iggleden is a TPI war veteran. He acquired the shed in about 1990 from the widow of a friend with whom he used to fish. The families as a whole had been friends. In the initial part of his evidence Mr Iggleden said that he paid the widow a couple of thousand dollars for the shed, although "there was a boat involved". Later he clarified this. The widow had said that her late husband had only wanted the shed to go to Mr Iggleden. Because of the family connections, the widow was content to take a total of $6,000 for the shed and a new boat which, on its own, was worth about $8,000. So, in a sense, Mr Iggleden got the shed for nothing.

151 He uses it as a refuge. He suffers from post-traumatic stress disorder. He lies down on a bed in the shed and rests.

152 Mr Iggleden put up an awning "with Board of Works approval". Inside he did a small amount of lining with masonite. He rebuilt the jetty and fenced it off. Otherwise he has made no changes or improvements. The shed has water and electricity. There is boating equipment, a cupboard and a kitchen sink. His boat is not kept inside. It is moored in the river. When he acquired the shed the Council did not tell Mr Iggleden what the conditions were. He simply took it over on the same terms as before. Asked what he had thought those terms were he said:**

"... like a 99 year lease ... like a long term lease but we had to pay a lease annually for [sic] was $10 and it went up one year to $100. So there was - there was no - no document to my knowledge saying whether it was a one year lease or was like a 99 year lease, it was just everyone the same, that the sheds had been there for so long and they go - they go along. ... I'd expect one of my sons to take it over when I die ... ."[139]

**153 Under cross-examination, Mr Iggleden conceded that he did not check with the Council whether there was a 99 year lease. He said that he just assumed he would be able to stay there as long as he was alive.

154 Even apart from statute, Mr Iggleden does not have a strong personal claim for an equity. He did not make proper inquiries as to tenure. There was in truth no 99 year lease. He paid effectively nothing for the shed. He has had the use of it for over 20 years at a non-commercial licence fee and modest Council rates. He has not made any substantial improvements.

155 The Council's claim against Mr Iggleden must succeed and his counterclaim must be dismissed.**

The statutory limitations on the Council's powers to deal with land

**156 At all relevant times the Local Government Act 1958 and its successor, the Local Government Act 1989, have contained provisions relevant to the capacity of Victorian municipalities to deal with land lawfully. In my view those provisions tell further against the defendants having any equity in the land at all at this stage, and they completely preclude a determination that the defendants are entitled to an irrevocable licence or licences in respect of the land in question. I do not accept the defendants' arguments to the contrary.

157 As discussed above, the defendants' principal argument is based on the interactions between the Williamstown Council and the builders of boatsheds at the Fishing Village in about 1965-67. Accordingly I will shortly refer to the relevant provisions of the Local Government Act 1958 as in force during those years. However, it will also be necessary in due course to refer briefly to subsequent versions of the relevant or corresponding provisions, because the defendants make alternative claims based in part on subsequent events and circumstances.

158 During the years 1965-67 the Local Government Act 1958 covered the City of Williamstown: s4. The inhabitants of the City were a body corporate, and thus a municipality, capable of doing all such things as bodies corporate may by law do, including purchasing, holding and alienating land: ss 3(2), 8. Part VIII of the Act was entitled "PART VIII - LANDS AND PROPERTY OF MUNICIPALITIES OR OF WHICH COUNCILLORS ARE TRUSTEES". It consisted of sections 234 to 242 (inclusive).

"236(1) Any municipality may with the consent of the Governor in Council sell and convey in fee simple or for any lesser estate any lands purchased for value and acquired by such municipality from Her Majesty or any other person which are not in the opinion of the Council required for the purposes of any undertaking for which the same was purchased or acquired and are not otherwise subject to any trust."

"237 Any municipality may let on lease for any term not exceeding seven years and subject to any exceptions reservations covenants and conditions any lands vested in such municipality."

**161 By s 238(1) it was provided, relevantly, that "any municipality may from time to time with the consent of the Governor in Council demise all or any part of the lands vested in such municipality...for any term not less than seven years and not exceeding twenty-one years...at the best yearly rents that can reasonably be obtained by auction or tender...; or upon building and improving leases for any term of years not exceeding thirty years (unless the Governor in Council gives a special authority to make a demise for a longer term not exceeding in all seventy-five years)...at the best rent which can be reasonably obtained by auction or tender...".

162 Subsection 238(2) empowered any municipality to use, or license any person to use, its town hall or like building for the purpose of providing entertainment or holding meetings or functions therein.[140] That subsection was to be read in aid of and not in derogation from any other power of a municipality with respect to land vested in it: s238(3).

163 Under s 239(1) every municipality had unrestricted power to let on lease to Her Majesty or to the Board of Land and Works any land vested in the municipality.

164 By s 239(2) every municipality might "grant, convey or transfer in fee simple or for any less estate, and either with or without a money or other valuable consideration, unto Her Majesty or to the Board of Land and Works or to the Minister of Education, any land building or tenement ...".

165 Under s 239(3) the council of any municipality was empowered to arrange for the construction of, or to purchase, dwelling-houses for the use of its officers or other employees; and it was provided that "notwithstanding anything in this Part" the council might let any such dwelling-house to any of its officers or employees upon such terms as were agreed upon.

166 By virtue of s 240A, where land had been acquired by a council for a particular purpose, the council had power to use it for a different purpose, but only with the consent of the Governor in Council and only after prescribed public advertising.

167 The Act did not contain any provisions empowering municipalities to mortgage their lands. Indeed, it was necessarily implied by Part XV of the Act, and especially by s 413A(2) thereof, that municipalities had no such power.[141]

168 Mr Sowden submits that the interest claimed in equity by his clients is merely a licence, albeit an irrevocable one; that when a statute is silent in relation to a particular equitable interest in land, it will not prevent a party from asserting such an interest unless the statute comprises an exhaustive code for dealing in land; that the Local Government Act 1958 was silent on the question whether a municipality might license the use of council land; that there were no words or phrases in the Act that would indicate that the legislature intended the Act to constitute a code for dealing in land; that the provisions relied upon by the plaintiff were cast in discretionary rather than mandatory language (eg "Any municipality may from time to time..."); and that those provisions presuppose that common law rights such as the right to assign or mortgage remain on foot.[142]

169 Mr Sowden cited various authorities in which, he said, it had been held that either the provisions in question in the particular case constituted a code or that they did not.[143] However, on my reading of them, none of those cases stands for the proposition that the statute must constitute a code before it will prevent a party from asserting an equitable interest not mentioned in the statute. The nearest may be Wood v Browne.[144] However even in Wood v Browne no such sweeping principle was laid down. Macrossan J did refer to a need to identify a "comprehensive and exclusive code", but "in the sense that there is disclosed an intention to displace the general body of common law and equitable principles". Indeed His Honour went on to acknowledge that an implication could be relied upon, at least where the equitable doctrines would "work, in some way, as an impediment to the statutory system...". Correspondingly, the Court of Appeal of this State has recently held that the question whether an estoppel lies in the face of a statute depends upon "the nature of the statutory provision, its purposes and the social policy behind it".[145]

170 The nature, purpose and policy of the relevant provisions of Part VIII of the Local Government Act 1958 are plain. The provisions were all designed to promote integrity and transparency in significant dealings in municipally-owned land.[146] Thus a municipality could not "sell and convey in fee simple or for any lesser estate" any land it had previously purchased or acquired unless it formed the opinion (which ought to have been expressed in a resolution of the Council)[147] that the land was no longer required for its original purpose, and the municipality had obtained the consent of the Governor in Council. Except where the lessee was to be a public authority, a municipality could generally not lease land for more than seven years without the approval of the Governor in Council, and then only after testing the rental market properly. A special exception was made in relation to houses for a Council's own staff. Contrary to an assumption of Mr Sowden's argument, and in contradistinction to American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd,[148] the provisions so far referred to did not presuppose that "common law rights such as the right to assign or mortgage" remained on foot. Indeed, merely to alter the use of land needed approval and advertising.

171 It would make a mockery of those provisions if proprietary estoppel could be relied upon to create an assignable and transmissible right of permanent, exclusive occupancy of municipal land. The defendants' claim is for just such a right.[149] It matters not that the claimed right can be called an irrevocable licence.[150] It is tantamount to a perpetual lease, a familiar creature in Australian statutes, if not known to the common law.[151] Only the siteholder would have a key to the boatshed and only the siteholder could determine who would be admitted within the boatshed. Even representatives of the Council would be excluded.[152] The salutary checks imposed by the Local Government Act 1958 cannot be bypassed so easily. This case is closely comparable to State of Victoria v Rossignoli[153] where a similar view was taken by the Full Court of this Court in relation to comparable legislation.

172 It is common ground that no consent of the Governor in Council was sought or obtained for the grant of any interest in the land to the siteholders of 1965-67, and that the steps prescribed for the obtaining of proper rents were not followed. In Bycon v Moira Shire Council[154] it was held by Vincent J that the corresponding (public notice and expert valuation) provisions of s 189 of the Local Government Act 1989 were mandatory. In the language of Project Blue Sky Inc v Australian Broadcasting Authority,[155] it was clearly a purpose of the legislation that acts done in breach of the provisions in question should be invalid. The principles of equity cannot be deployed inconsistently with this statutory purpose.[156]

173 On the final day of the hearing Mr Appudurai handed up a useful spreadsheet showing the amendments made over the years to most of the provisions to which I have referred, as well as the corresponding provisions in the Local Government Act 1989. It is unnecessary for me to set out any of the amendments or any of the current provisions. Suffice to say that from 1 March 1984 the requirement for Governor in Council consent to sales of land was replaced by detailed advertising requirements; that from 27 May 1990 the maximum rental term permissible without Governor in Council approval was raised from 7 years to 10 years; that a requirement to advertise proposed leases of longer than 3 years' duration was introduced on 1 July 1981; that this was replaced from 1 March 1984 by a requirement for advertising when the rental value of the property was greater than $20,000 per year or the lease was for a period of 10 years or more (up to a 30 year maximum); and that the maximum lease permitted was 50 years from 15 June 1987.

174 Under s 189 of the Local Government Act 1989 a Council may not sell or exchange any land without giving 4 weeks' public notice of its intention to do so and obtaining an up-to-date expert valuation. Any person may make a submission under s 223 of the Act on the proposed sale or exchange. The restrictions on leasing imposed by s190 of the current Act are similar to those that existed immediately before the repeal of the old Act, save that four weeks' public notice must now be given and the public may make submissions under s 223. Exceptions to the sale and leasing restrictions still apply with respect to disposals in favour of public bodies: s191. Under s 192, alterations to the use of land are now subject to the public's right to make a submission under s 223.

175 None of the amended or new requirements has been observed by the Councils in relation to the land at the Fishing Village. So the more recent events cannot serve to entitle the defendants to irrevocable licences. The current provisions would also stand in the way of the grant of any lesser period of occupancy, or any grant of equitable compensation or damages,[157] at least in relation to those defendants who have now occupied their boatsheds for 10 or more years.**

176 For these reasons the plaintiff Council is entitled to relief, substantially in the form it seeks, against all of the defendants and the defendants' counterclaims must be dismissed. I will hear counsel as to the appropriate form of orders to give effect to these conclusions.

177 In view of the fact that the plaintiff did not plead or rely upon the statutory answers to the defendants' estoppel claims until after the Court raised the matter on the first day of the hearing, whereby delay and extra cost were encountered; and in view of the additional time, trouble and expense to which the parties and the Court have been put as a result of non-compliance with the pre-trial direction for an agreed statement of facts and as a result of the case not being properly prepared for hearing on either side, for all of which the plaintiff Council appears to be partly responsible, I am provisionally inclined to make considerable allowance in favour of the defendants in relation to costs. I will hear counsel on that issue as well.

[1] See Minutes of ordinary meetings of Council of 20 August 1946 and 15 October 1946; Victoria Gazette, October 30, 1946, p 3469; Victoria Gazette, February 26, 1947, p 1533.

[2] This was ultimately common ground: transcript pp 101, 458-459.

[3] See letter of 20 November 2006: Court Book (CB) document 127.

[4] As exemplified in cases such as Ramsden v Dyson (1866) LR 1 HL 129 and Plimmer v Mayor of Wellington (1884) 9 App Cas 699.

[5] See the evidence of Kimberley McAdam at transcript pp 230-231.

[6] The Kororoit Creek Progress Association is referred to in numerous old documents included in the Court Book. Any relationship between the Association and the abovementioned Kororoit Creek Historical Fishing Village site holders and users group was not explored in the evidence, although it seems that they may now have merged.

[7] Defendants' undated written outline of submissions, para 31. See also transcript p 127.

[11] Ramsden v Dyson(1866) LR 1 HL 129 at 151; Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507 at 545 (Dixon CJ); Commonwealth v Verwayen (1990) 170 CLR 394 at 416; Pacific National (ACT) Limited v Queensland Rail [2006] FCA 91 (Jacobson J) at 668(9).

[12] [1945] HCA 43; (1945) 71 CLR 531.

[13] At 542-543, referring to Wilmott v Barber (1880) 15 Ch D 96 at 105-106 and Dann v Spurrier [1802] EngR 233; (1802) 7 Ves. Jun. 231 [32 ER 94]. See also Roy v Lagona [2010] VSC 250 (Hansen J) at [306]-[309].

[22] The Honourable Mr Justice K.R Handley, Estoppel by Conduct and Election, 2006, para [11-001].

[26] Handley, op cit paras [11-006]-[11-007]. Footnotes omitted.

[27] [2007] NSWSC 92 at [49]- [50]: appeal dismissed [2008] NSWCA 7. This statement of the principles by Brereton J is summarised and treated as correct by Young, Croft and Smith, On Equity, 2009 at [12.180].

[28] Alsop P delivered short concurring reasons which are also enlightening for present purposes.

[29] [2010] NSWCA 84.

[31] (1884) 9 App Cas 699.

[32] (1884) 9 App Cas 699 at 706. See further below.

[35] See also Hill v AWJ Moore & Co Pty Ltd (1990) 5 BPR 11,359; Hamilton v Geraghty (1901) 1 SR(NSW) Eq 81.

[36] Ramsden v Dyson (1866) LRI HL 129 at 170; Plimmer v Mayor of Wellington (1884) 9 App Cas 699 at 711. See also Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd [1925] HCA 15; (1925) 36 CLR 230 at 292-293 (Higgins J dissenting in part).

[38] Compare Rogers v Moonta Town Corporation (1981) 37 ALR 49 (HC).

[39] See Delaforce v Simpson-Cook [2010] NSWCA 84 at [63] (set out above).

[41] See for example s 251(3) of the Local Government Act 1958 (as first enacted); compare now s 156(3) of the Local Government Act 1989.

[42] [1900] VicLawRp 115; (1900) 25 VLR 619.

[44] The report is mentioned above in relation to Mr Ray Baker's position.

[45] Contained in the additional volume of archived material.

[46] And see eg, Local Government Act 1958, s 183(4) (All ordinary meetings to be held with open doors); Local Government Act 1989, s 89 (Meetings to be open to the public); Local Government (General) Regulations 2004 reg 11(f) (Minutes of Council meetings to be available to the public).

[47] See, eg, the evidence of Peter John Gook at transcript p 166 lines 8-12, p 167 lines 17-31.

[48] See, eg, CB document 59, Minutes of Meeting of Reserves Foreshores and Properties Committee, 15 September 1966, recording receipt of a detailed report from the Secretary of the Progress Association as to progress made in the redevelopment of the "fishing hut area". See also CB document 60, letter from Council to Progress Association dated 20 October 1966 re arrangements for water supply.

[49] Transcript p 149. See also at pp 150, 153, 156.

[53] Evidence Act 2008 (Vic) s 144(1). See also s 144(4). In my view both parties were given a sufficient opportunity to make submissions, and to refer to relevant information, for the purposes of s 144(4).

[54] Reserve Bank of Australia website, accessed on 4 April 2011.

[56] (1884) 9 App Cas 699 at 706.

[58] See Broadcast Australia Pty Ltd v Minister Assisting the Minister for Natural Resources (Lands) [2004] HCA 4; (2004) 221 CLR 178 at 181-182 [2]- [3]. See also Peter Butt, Land Law, 6th Edition, 925-926.

[60] [2004] HCA 4; (2004) 221 CLR 178 at 182 [4].

[61] But see City of South Melbourne v State Electricity Commission of Victoria [1968] VicRp 90; [1968] VR 684 at 700.

[62] [1973] VicRp 57; [1973] VR 589 at 590.

[63] [2006] VCAT 2299.

[64] [2007] VSC 140 (Harper J).

[65] [2007] VSC 140 at [15].

[66] There was also a reference to "permissive occupancy" in an undated report of the Williamstown City Engineer which appears to have been written in the early 1960s: CB document 17.

[67] See Council resolution of 19 September 1966: CB 59 and letter from Williamstown Council to Progress Association dated 20 October 1966: CB 60.

[68] Ramsden v Dyson (1865) 1 HL 129; Plimmer v Mayor of Wellington (1884) 9 App Cas 699 at 711-712; Rodgers v Moonta Town Corporation (1981) 37 ALR 49 at 52-53.

[69] See and compare Sledmore v Dalby [1996] EWCA Civ 1305; (1996) 72 P+CR 196 (CA); Fisher v Brooker [2009] UKHL 41 at [11] (Lord Walker); Delaforce v Simpson-Cook [2010] NSWCA 84 esp at [61], [77] (see above).

[70] Compare Ramsden v Dyson (1865) 1 HL 129.

[71] Compare Plimmer v Mayor of Wellington (1884) 9 App Cas 699.

[72] See CB document 71. See also and compare Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd [1925] HCA 15; (1925) 36 CLR 230 at 272, 276 (Isaacs J); RANSA Sydney Squadron Ltd v Rushcutters Bay Maritime Reserve Trust [1999] NSWSC 569; Hawley v Rangitikei District Council [2007] NZHC 1343 at [20]- [31].

[73] See and compare Mazzuchelli v Mazzuchelli [2006] WASC 124 (Hasluck J) at [70], [88].

[86] Transcript p 388-389, 404-405. And see the letter dated 16 September 1997 from B. McCarthy, the previous siteholder advising the Council that site 9 (which is no longer in dispute) had been "sold" to named individuals on 10 August 1987: CB 96.

[87] CB document 83. Other evidence establishes that the site in question was site 14. That site is not itself in issue in this proceeding, but Mark Turner, on behalf of the estate of Mr A Turner, is a defendant as the holder of site 12.

[90] Site 11 is now occupied by the defendant David Waters.

[91] CB document 18 and (differently formatted) CB document 111.

[93] See also the subsequent report at CB 118.

[94] [2007] NSWSC 92 at [49]. See above.

[95] Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712 at 738-9, 742, 743; Delaforce v Simpson-Cook [2010] NSWCA 84 at [55], [63] (see above); cf Mazzuchelli v Mazzuchelli [2006] WASC 124 at [55].

[96] [1975] VicRp 89; [1975] VR 916.

[97] [1959] HCA 8; [1959] 101 CLR 298.

[98] Compare Sledmore v Dalby, supra; Fisher v Brooker, supra, at [11]; Delaforce v Simpson-Cook, supra, at [61], [77].

[107] Although she does mention such things in her open letter of 12 April 2007.

[108] See the draft licence at CB document 129.

[109] Examples range from the abovementioned Council resolution of 26 June 1951 to the effect that certain persons at the Village be advised that "the Council does not approve of the buildings concerned being occupied as private residences" to the just mentioned Council resolution of 30 May 1983 expressing its opposition to permanent residency in the area and its opposition to the installation of a septic tank at site 3 itself.

[112] The price happened to coincide with the sum she had paid to Mr Schruhm.

[122] Transcript p 246, cf transcript p 233.

[132] Transcript pp 249, 293, 411-412.

[138] In the heritage study it is described as "Gabled Myer garage type crimped metal clad shed": CB document 101.

[140] The predecessor of this provision was enacted in 1941 to overcome Attorney-General v Shire of Dandenong [1942] VicLawRp 9; [1942] VLR 33. See Morrison v Shire of Morwell [1948] VicLawRp 18; [1948] VLR 73 at 76.

[141] Generally speaking, the law has remained the same ever since: see now s 148 of the Local Government Act 1989.

[142] Written submissions handed up on 31 March 2010, esp. paragraphs 1-9. However Mr Sowden could not and did not submit that his clients could have acquired a perpetual interest in the land by contract without compliance with the requirements of the relevant statutory provisions. By contrast, in Plimmer there were apparently no statutory provisions that might have inhibited a contractual acquisition: see para 33 above.

[143] State of Victoria v Rossignoli [1983] VicRp 73; [1983] 2 VR 1; Chalmers v Pardoe [1963] 1 WLR 677; New South Wales v Scharer [2003] NSWCA 328; (2003) 131 LGERA 208; State of Victoria v Bradto Pty Ltd [2006] VCAT 2299; and by contrast American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd [1981] HCA 65; (1981) 147 CLR 677; Wood v Browne (1984) 2 Qd R 593.

[144] (1984) 2 Qd R 593.

[145] Equuscorp Pty Ltd v Antonopoulos [2008] VSCA 179 at [28]. See also Caltex Oil (Aust) Pty Ltd v Best [1990] HCA 53; (1990) 170 CLR 516 at 522.

[146] Compare State of Victoria v Bradto Pty Ltd [2006] VCAT 2299 at [130], [132].

[147] Compare Richmond City Council v Attorney-General of Victoria (1992) 76 LGRA 220 at 224.

[148] [1981] HCA 65; (1981) 147 CLR 677.

[149] In their further and better particulars dated 23 December 2008 the defendants claim that the rights they presently enjoy include: "(a) Quiet enjoyment of the boatsheds/ability to exclude others; (b) possession/occupy; (c) Use and manage; (d) Ability to alienate their interest in the boatsheds;

(e) Ability to transmit". There are many references in the Council documents to "leases" and "rental" in relation to the boatsheds, as Mr Sowden himself pointed out: transcript pp 117-120.

[150] Compare Tower Hamlets London Borough Council v Miah [1992] 1 QB 623 at 629, 630.

[151] Alternatively, it could arguably amount to a determinable or defeasible fee simple. See Peter Butt, Land Law 6th Ed, 2010, 134. See also Wilson v Anderson (2002) 213 CLR 401 at 443-452 [88]-[119].

[152] See and compare Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209; Lewis v Bell (1985) 1 NSWLR 731; Georgeski v Owners Corporation Sp 49833 [2004] NSWSC 1096 at [5], [38]-[49].

[153] [1983] VicRp 73; [1983] 2 VR 1 esp at 6-7, 10-11, 13-14.

[154] [1998] VSC 25 at [50].

[155] [1998] HCA 28; (1998) 194 CLR 355 at 390. See also New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Kinchela claim) [2009] NSWLEC 46 at [68]- [78].

[156] Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd [1925] HCA 15; (1925) 36 CLR 230 at 274, 278 (Isaacs J); State of Victoria v Rossignoli [1983] 2 VLR 1 at 13; Czipo-Barna v Council of the City of Orange [1999] NSWSC 323 at [6]- [9]; State of Victoria v Bradto Pty Ltd [2006] VCAT 2299 at [144]; St Alder v Waverley Local Council [2010] NSWCA 22; (2010) 172 LGERA 147 at 154 [43]- [44]; Northey v Bega Valley Shire Council [2010] NSWSC 527 at [32]- [42]; cf Campbell v Turner [2008] QCA 126 at [32]- [52].

[157] See Norton v Angus [1926] HCA 35; (1926) 38 CLR 523 at 534 (Isaacs J).