Tricon Services Group Pty Ltd v Manly Council

The 1961 Letter 39The Council contends that it gave notice under s 262(3) of the Local Government Act 1919 on 24 August 1961. It relies on an unsigned letter on its file from its Town Clerk, on which the addressees are not noted, bearing the handwritten date "24/8/61" and the handwritten words "Nth and Sth Steyne realignment file". This is the 1961 Letter referred to at [7] above. The 1961 Letter, which the Council characterises as pro-forma, stated: I refer to previous correspondence that has been sent to you both by this Council and the Department of Lands concerning the realignment of North Steyne. All necessary steps to establish the new alignment have now been taken and the formal notification was published in the government gazette on the 28 th April, 1961. As a result the new alignment of North Steyne is now as shown on the plan of survey sent to you with the letter from the Lands Department. A physical inspection of that portion of your land that lies within the new alignment discloses that it is not free of obstructions. The obstructions on the subject land are detailed the Schedule on page (2) of this letter. Until these obstructions are removed from the subject land the area does not vest in Council. In other words the land remains in your ownership. In explanation of this I would point out that Section 262 of the Local Government Act 1919, under which the realignment has been effected provides that the realignment is effective immediately on gazettal thereof where the affected land is completely free of obstructions. However, where the land is not so free the new alignment becomes effective on the removal of such obstructions. The matter of the payment of compensation for your land now taken into the widened road reserve will stand deferred until such time as the affected part is completely free of the obstructions as above referred to. It is particularly important to note the provisions of Sub-Section 5 of Section 262 of the Local Government Act, 1919, concerning the repairing and rebuilding of structures within the realignment area. This sub-section reads as follows: Where any public road is realigned and where the realignment method is applied the owner of any land or building or work affected by such realignment shall not construct, build, place, reconstruct, rebuild, replace, or repair any building or work or portion of a building or work standing upon the land between the old and the new alignment: Provided that the Council may approve the erection of minor and not substantial repairs and improvements in order to permit of the reasonable preservation and temporary use of any existing building or work but not so as to violate the intention of this Section. Pursuant to the provisions of this Sub-Section Council has directed that all owners of property concerned should be informed that the only maintenance that may take place on affected buildings and other structures within the realignment area is painting. All other repairs must be the subject of prior application to and approval by Council and must be carried out in the same basic materials as at present existing. Legal proceedings will be instituted against any person violating the provisions of the realignment proclamation. Should you feel disposed to take immediate action to set back to the new alignment Council will be happy to discuss with you the matter of compensation for the portion of your land that will be incorporated into the widened road reserve. 40The author of the 1961 Letter seems to have mistakenly thought that realignment by gazettal (step 1) also constituted giving effect to the realignment (step 2). In my view he did not focus sufficiently on the need for the Council to propose to apply the realignment method as distinct from the other prescribed methods to particular lands and to give notice accordingly.

Service 41Has the Council proved that the 1961 Letter was served on the owners of the subject properties? 42The Council did not follow the provisions of the Local Government Act 1919 which facilitated proof of service of notices and proof of entries in minute books even where the events may come to court many years later. First, s 618(1)(c) provided: 618. (1) The production of- ... (c) a copy purporting to be a true copy of any ...notice made by the council and purporting to be certified as such under the hand of the mayor or president or town or shire clerk, shall be prima facie evidence of the due making existence confirmation approval and giving of such ...notice, and of all preliminary steps necessary to give full force and effect to the same, and of the contents thereof. (2) A copy of any ...notice certified as aforesaid shall be delivered to any person who demands the same on payment to the council of a sum not exceeding ten cents. The Council did not retain such a copy. 43The effect of those provisions was explained in Ex parte McDonald; Re Lake Macquarie Shire Council (1961) 61 SR (NSW) 719 at 722: In my opinion, the purpose of s 618(1) and (2) is to enable prima facie evidence to be given of certain council records by producing a copy certified to be a true copy by the responsible officer of the council in whose lawful custody such record is kept. Similar provisions are found in many other statutes. The legislature appears to consider it unnecessary to require a responsible officer of a public body to give oral evidence upon such a matter. He can be relied upon to certify truthfully and without oath that a copy produced by him is a true copy of the original which is in his custody ( Wigmore on Evidence, 3 rd ed (1930), at Vol 5 Ch LVI). 44Secondly, s 619 allowed a servant who caused a notice to be served to endorse upon a true copy a statutory declaration declaring the time, place and manner of service. Again that became prima facie evidence. 45Thirdly, relevantly to the question whether the Council decided to apply the realigned method, proof of entries in the minute book was facilitated by the provisions of s 625. 46Finally, s 628 set out four modes of service of notices and two supplementary modes, as follows: 628. (1) Any notice required by or under this Act to be served upon any rateable person or upon any owner or occupier of any land building or premises may be served as provided in this section. (2) The service may be - (a) personal; or (b) by delivering the notice at or on the premises at which the person to be served lives or carries on business, and leaving the same with any person apparently above the age of fourteen years resident or employed thereat; or (c) by posting the notice by prepaid letter addressed to the last known place of abode or business of the person to be served; or (d) by affixing the notice on any conspicuous part of the land building or premises. (3) In addition to the modes of service prescribed by subsection (2)- (a) in any case where the person to be served is or after inquiry appears to be absent from New South Wales, the service may be upon the agent of such person by any of the modes prescribed in clauses (a) (b) and (c) of subsection (2); (b) in any case where the land building or premises are unoccupied and the owner thereof or his address or place of residence is not known to the council, the service may be by advertisement as prescribed by ordinance... (4) the notice may be addressed by the description of "rateable person" or "owner" or "occupier" of the land building or premises (naming or otherwise sufficiently indicating the same) in respect of which the notice is served, and without further name or description. (5) The notice may be wholly or partly in printing or in writing or in both. (6) Where the notice has been served by any of the modes prescribed by this section , all inquiries requisite under this section shall be deemed to have been made, and the service shall be conclusive evidence thereof . (7) Proof by affidavit or orally that the notice has been posted in accordance with this section shall be conclusive evidence of service . (8) For the purpose of this section a justice of the peace is hereby authorised to take and receive an affidavit, whether any matter to which the affidavit relates is or is not pending in any court (Emphasis added) 47With the exception of personal service, none of these statutory modes of service required the person to be served actually to receive the notice before service may be taken to be effected. Section 628 of the 1919 Act may be compared with its successor, s 710 of the Local Government Act 1993, which provides for more modes of service, of which it was said in Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4, 62 NSWLR 361 at [30]: Section 710(2) sets out seven modes of service. Section 710(4)(b) and (c) add a further two modes. It is important to appreciate, and was properly acknowledged by the respondent, that with the exception of personal service, none of the other eight modes requires the person to be served actually to receive the notice before service may be taken to be effected. By "effected" I mean no more than that service is taken to have occurred in the manner prescribed. Nor, in my opinion, does it necessarily follow that because s 710(2) and (4)(b) and (c) provide for differing modes of service, it is necessary to look outside the section to ascertain when service has been effected in the sense referred to. 48The evidence suggests that the Council was aware that the statutory procedures under the 1919 Act were available, but did not use them in this case. 49Currently located next to the 1961 Letter on the Council file is a list of the owners of properties at South Steyne and North Steyne ( the List ), which appears to be an update of a 1958 Council list of owners of these properties. The List included the owners of the subject properties at that time. Two of them had changed since the 1958 list. 50The Council submits that the inference should be drawn that the 1961 Letter was served on the owners on the List, including the owners of the subject properties, by sending it to them by pre-paid post, in accordance with s 628(2)(c) of the Local Government Act 1919. The Council invites the inference from the following letters on the Council file. First, three letters to the Council dated within a week or two of the date of the 1961 Letter responding to it by or on behalf of persons on the List (not the owners of the subject properties). Secondly, a returned pre-paid posted letter in 1955: see [30] above. Thirdly, a copy letter dated 3 July 1962 from the Council which appears to bear the endorsement (partly obscured on the copy in evidence) that it was "sent to all owners in North Steyne". It states, inter alia, that all owners of land affected by the realignment were advised by Council on 24 August 1961 of the effect of the proclamation of the realignment on their land. 51The applicant submits that there is insufficient evidence to establish that the 1961 Letter was served in that way on the owners of the subject properties. 52The following matters weigh against drawing the inference that the 1961 Letter was served by pre-paid post upon the owners of the subject properties: (a)two circumstances discourage generous inferences in favour of a council which, in this case, has kept incomplete records of such a notice and its service. The first circumstance is that service of such a notice was an essential step in the compulsory acquisition of land. Secondly, the Council did not follow statutory provisions facilitating proof of notice and service: see [42] - [48] above; (b)there is no evidence by affidavit or orally of posting of the 1961 Letter by pre-paid post, which would have provided conclusive evidence of service: s 628(7) Local Government Act 1919; (c)the Council has not provided direct proof of the system by which posting is said to have occurred; (d)there are no addressees noted on the 1961 Letter, in contrast to earlier letters on the Council file; (e)the Council has not provided proof of the method by which the pro forma 1961 Letter passed into a completed letter to each owner; (f)the Council did not keep a completed copy of the actual letter said to have been sent to each owner, which would have enabled it to discharge its statutory obligation to provide a copy to any person who demanded it for no more than ten cents: s 618(2) Local Government Act 1919; (g)there is a shadow of doubt over whether the List now located next to the 1961 Letter on the Council file was located there at the date of that Letter or whether it may have come into existence at some other time and been accidentally relocated; (h)there is a shadow of doubt over whether the copy of the 1961 Letter on the Council file was the final version because it focussed on obstructions on the recipient's land in the area of the realignment. The evidence suggests that some of the properties in North Steyne were free of obstructions in the area of the re-alignment; (i)the evidence upon which the Council relies for the inference is fragmentary. The fact that three persons whose names appear on the List apparently received the 1961 Letter does not necessarily establish that it was posted by prepaid mail to the owners of the subject properties. 53On balance, I am not satisfied that the Council has discharged its burden of proving that the 1961 Letter was served on the owners of the subject properties.

Identification 54The applicant submits that in any event the 1961 Letter was not a valid notice under s 262(3) because it did not clearly identify the land the subject of the realignment method. 55Clear identification of the land the subject of the realignment method was, in my opinion, an essential element of a valid s 262(3) notice because the notice affected valuable property rights. A valid notice vested unobstructed land in a council, and was an essential precondition to the vesting of obstructed land in a council when the obstructions were cleared. In the meantime the land was subject to the prohibition on construction etc in s 262(5). 56There is no description in the 1961 Letter of the part of the land that was the subject of the realignment method. The Schedule referred to in the second paragraph of the 1961 Letter is blank and in any case was only said to describe obstructions. Two of the three letters from owners received by the Council in response to its 1961 Letter sought identification of the exact portion of their properties within the realignment. The third letter indicated that the owner had had an interview with Council staff (which invites the question whether his land affected by the realignment method may have been identified at the interview). Of the two owners' letters which sought identification of their affected land, one stated that the owner did not have a copy of "the plan of survey" referred to in the first paragraph of the 1961 Letter. That paragraph stated that the new alignment was shown on "the plan of survey sent to you with the letter from the Lands Department". The date the plan of survey was supposedly sent was not identified. Possibly this was intended to be a reference to the apparently pro-forma unaddressed letter from the Department of Lands received by the Council in 1959: see [35] above. 57However, there is no evidence that that1959 letter and plan of survey were in fact sent to all owners. Indeed, one of the letters of reply from owners to the 1961 Letter expressly said that that owner did not have the plan of survey. Moreover, the plan of survey is not in evidence. 58I am not satisfied that any of the owners of land in North Steyne received the plan of survey. Ownership of two of the subject properties had changed between 1959 and the 1961 Letter. Consequently even if the new owners had received the 1961 Letter, they certainly did not receive a plan of survey in 1959. 59On the evidence the 1961 Letter failed to clearly identify the parts of the subject properties that were covered by the realignment method. Consequently, in my opinion, notice was not given as required by s 262(3).

Did Council elect to propose to apply the realignment method of acquisition? 60The applicant submits that there is no evidence that the Council in fact elected to propose to apply the realignment method, and therefore s 262(3) is also not satisfied in that respect. The Council submits that it is unnecessary for the Council to decide to make such a proposal. I disagree. The decision to make that proposal is a condition precedent to the service of the notice for which s 262(3) provides: Kevin Snell Pty Ltd v Manly Council [2004] NSWLEC 567 at [16] - [19]. 61The Council then submits that in any event the decision to make that proposal was made by 14 August 1958 as evidenced by a letter its Town Clerk wrote on that date ( the 1958 Letter ): see [33] above. The addressees are noted on the copy in evidence and appear to be owners of properties in North Steyne. 62As stated earlier, from March 1955 to August 1958 the Council was contemplating re-alignment of North Steyne so as to provide a total roadway width of 100 feet. 63By the 1958 Letter the Council notified that it had decided to amend that proposal to 56 feet. The 1958 Letter stated that the Council had already resolved that in the event of the Minister approving its application for the realignment, the Council will acquire the affected property by means of s 262(3) of the Local Government Act 1919. 64This letter is the high point of the Council's contention that it made a decision to propose to apply the realignment method of acquisition. 65The first difficulty is that if there was an earlier resolution, it was referable to a realignment which would provide a total roadway width of 100 feet. But that idea died, as the 1958 Letter recorded. In my view, it was then necessary for the Council to propose to apply the realignment method to realigned land which would provide a total roadway width of 56 feet. 66Whether or not I am correct on that point, there is a further difficulty. There is insufficient evidence that the Council ever passed such a resolution. The applicant gave notice to the Council to produce the resolution. At the hearing the only resolution produced in response to the notice did not support the statement in the letter. It was merely a Council resolution amending its previous decision to realign by 100 feet to 56 feet. 67After the hearing concluded, the Council obtained leave to reopen to tender the following minutes: (a)minutes of a Council planning committee meeting on 28 April 1953. They record the following committee recommendation: " 4. North Steyne Alignment and Re-alignment (P.O.R No 53/152 - 28/4/53). That a letter as per draft submitted, be forwarded to the Department of Lands. That immediately the road has been aligned, the necessary Notices be issued to property owners and a formal application for re-alignment to provide a roadway 100 feet in width, measured from the eastern kerb, be forwarded to the Department of Lands." (b)minutes of a Council meeting on 5 May 1953 recording a resolution that the planning committee's recommendations of 28 April 1953 be adopted. 68These resolutions on their face do not evidence a decision by the Council to apply the realignment method. 69In this state of the evidence, one possible explanation is that the author of the 1958 Letter misunderstood (if he ever turned his mind to it) the effect of the Council's resolution. I am not satisfied on the evidence that there in fact was a Council resolution to the effect of that stated in the letter. 70I conclude that the Council has not discharged its onus of proving that it elected to propose to apply the realignment method. Accordingly, for that reason also the 1961 Letter was not a valid notice under s 262(3).

Indefeasibility 71As the applicant has been successful on the issues of validity and service of the 1961 Letter, it is unnecessary to consider the alternative indefeasibility issue referred to at [28] above.

Orders 72For these reasons, I answer each of the preliminary questions as follows: (1) No notice under s 262(3) of the Local Government Act 1919 (now repealed) had been served on the owner of the land the subject of these proceedings as at the date of the repeal of that Act. (2) No road widening order within the meaning of s 25 of the Roads Act 1993 applies to the land the subject of these proceedings. 73The matter will be re-listed before the Registrar for directions on 27 April 2011. The exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 April 2011