Tanner v The Minister for Education and Training

Tanner v The Minister for Education and Training - [2002] NSWLEC 40 - NSWLEC 2001 case summary — Zoe

[17]

The following facts are contained in the Statement of Agreed Facts (Exhibit 1): 1. The Applicant is, and has been since on, or about, 17 August, 1998, the registered proprietor of Lot 108 in Deposited Plan 875575, being the land situated at and known as 28 Gallimore Avenue, Balmain ( Premises ). 2. Located on the Premises is a residential dwelling (Residence). 3. The Applicant remains at the date hereof the owner of the Premises and the Residence. 4. The Premises adjoins land referred to in Folio Identifier Lot 12 in Deposited Plan 879298 (Adjoining Land). 5. The Residence is oriented and designed so that persons entering and leaving the Premises may (although they need not as access is available from Gallimore Avenue through the garage) do so by way of an external front door and pathway leading to a part of the Adjoining Land. 6. Access to, and from, the external front door and pathway of the Premises and the Residence is only available by access over part of the Adjoining Land. 7. Since the Applicant has become the owner of the Premises and Residence, he has and, his servants, agents and invitees have, walked upon part of the Adjoining Land to enter, and exit from, the Premises. 8. The location of gas, electricity and water meters servicing the Premises and the Residence is on the Premises adjacent to the Adjoining Land 9. Access to the gas, electricity and water meters on the Premises by the Applicant and others can only be obtained by walking upon part of the Adjoining Land. 10. The Adjoining Land runs between Gallimore Avenue and Nicholson Street, Balmain. 11. On, or about, 16 January 1999, the Minister for Education and Training (Minister) declared that the Adjoining Land had been acquired by compulsory process (Compulsory Acquisition) under the provisions of the Land Acquisition (Just Terms Compensation) Act, 1991 (the Act) for the purposes of the Education Reform Act, 1990. 12. The Applicant, from 17 August 1998 until the date of Compulsory Acquisition, was entitled to use the Adjoining Land to enter, and exit from, the Premises. 13. On 22 January 1999, there appeared, in the New South Wales Government Gazette, Notice of Compulsory Acquisition of Land for Public School. 14. A Compensation Notice dated 28 January 1999 was served by the Respondent on the Council. 15. The Council executed an Acceptance of Offer of Compensation on 10 February 1999. 16. Under cover of letter dated 11 February 1999, the Council sent the Acceptance of Offer of Compensation to the Respondent. 17. The Respondent paid compensation to the Council under the Act. 18. The Respondent did not give any notice or compensation to the Applicant under the Act. 19. By letter dated 12 September 2000, the Applicant lodged a claim for compensation under section 39 of the Act with the Respondent's solicitors (Claim for Compensation). 20. On, or about, 13 November 2000, there was a deemed rejection by the Respondent of the Claim for Compensation under section 46(3) of the Act. 21. No agreement has been reached, between the Applicant and the Respondent, as to satisfying the Applicant's claim. 22. On 8 February 2001, the Applicant filed a Class 3 Application in the Land and Environment Court appealing against the deemed rejection of the Claim for Compensation.
The Court has jurisdiction to hear and determine the nature of the estate or interest of the Applicant in the Adjoining Land.

[73]

The Indenture declared that all of the parties thereto and the owners and occupiers of the said lots 1 to 15 and also of the said reserve are "with and without carts, horses etc" to have and enjoy a free and unrestricted right of way over the said lanes. (v) By conveyance dated 7 June 1875, No 769 Book 160, the land contained in the aforesaid lots 1 to 15 was conveyed to John Bennett, together with free and uninterrupted right of way or passage "in common with other persons having similar rights through and over a certain lane, fifteen feet wide on the boundary of the land hereto conveyed…."; (vi) By conveyance dated 7 July 1876, No 812 Book 160, the said land that had been conveyed to John Bennett was conveyed to the Council of Education incorporated by Act 30 Victoria XXII, together with all rights of way parcels passages….easements and appurtenances; (vii) Except for Real Property Act Primary Application 19038 involving land (including that which has become the Applicant's land) situate to south of School Street, there is no known dealing with the land comprising either the lanes or the one foot wide reserve created in 1875. Primary Application 19038 concerned a parcel of land having an area of one rood 37 1/2 parches situate in School Street and Little's Avenue (now known as Brett Avenue). The Supervising Surveyor's Report on the Primary Application included the following relevant paragraphs - School Street Applicant's deeds prior to deed registered Book 986, No. 629 not entitle her to a frontage to School Street . The site of such street comprises part of the 1 acre o rd. 2 perches W. Burnicle's land on the North comprised in deed registered Book R. No. 192. It was formerly known as Smith's Lane and is shown on the Reference Map of Balmain, D.S.20 (Balmain) and Application Plans in the vicinity. 1 foot Reserve By the Subdivision of the 1 acre 0 rd 2 perches Burnicle's land on the North West of subject land a new lane 15 feet wide and a 1 foot reserve along the South Eastern boundary of such lane is provided. Such new lane is apparently now School Street shewn on plan herein, but it is not clear that the site of the reserve referred to is absorbed in School Street or by subject land. The Surveyor is, however, being asked to state if the fence along the North Western boundary of subject land is in his opinion identical with the fence along the South Eastern boundary of Burnicle's land referred to in deed registered Book R. No. 192. In order to settle this question, it is suggested to the Examiners that it appears necessary that evidence as to whether this fence has been removed should be supplied.

[93]

(i) The Conveyancing Act , s 178 operates to protect the interest of the Crown in its lands. In the present case, the lands comprising School Street were not owned by the Crown, the only interest in the lanes being that of the owner of the dominant tenement (lots 1 to 15) to which was appurtenant the right of way over the lanes. It is user of the lands owned by the Crown, and not the interference with an interest in the lands by virtue of a right-of-way existing over that land that may enliven the relevant presumption. Accordingly, the section simply does not apply to the present case. (ii) If, contrary to what I have held, s 178 is capable of applying to the facts of the present case, and assuming the Respondent is correct in saying that it prevails, because it is the later statute, over any inconsistent operation of the Police Towns Act, it does not exclude the entire operation of that Act which deems land to be dedicated to the public, not only when "it is left open and used as a carriageway or footway" but additionally "when land is formed into a street within any of the said towns at the public expense". In particular, s 178 does not override the operation of the earlier Act in respect of the second mentioned circumstance. Accordingly, even assuming (in favour of the Respondent's argument) that the Conveyancing Act, s 178 operates in the present case to preclude the application of the presumption of dedication by virtue of the user of the road by the public, it does not operate to exclude the deemed dedication prescribed by s 47 of the Police Towns Act 1838 by virtue of School Street "being formed into a street at the public expense". The documentary evidence adduced by the Applicant satisfies me on the balance of probabilities that the assumption of responsibility for School Street by the Balmain Council involved the Council in the formation of the road at public expense: see the Municipalities Act 1867, s 117 and the Municipalities Act 1897, s 175 vesting in local councils the care, construction and management of public roads in their areas.

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