Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59

High Court of Australia Gaudron, McHugh, Gummow, Hayne and Callinan JJ Bathurst City Council v PWC Properties Pty Ltd (S141/1997) [1998] HCA 59

ORDER Appeal dismissed with costs

Cur adv vult

The Court delivered the following written judgment: —

30 September 1998 Gaudron, McHugh, Gummow, Hayne and Callinan JJ

1. The essential issue in this appeal is whether certain land which at the commencement of the Local Government Act 1993 NSW (the Act) was vested in the appellant, Bathurst City Council (the Council), and which was used for a car park was "land subject to a trust for a public purpose" within the meaning of cl 6(2)(b) of Sch 7 of the Act. If the land answered this description, then the Council dealt with it in a fashion beyond its powers. Clause 6(3) of Sch 7 empowered a council by resolution, within one year after the commencement of the Act on 1 July 1993, to classify as community land or operational land any public land vested in it or under its control which was not classified by cl 6(2). By resolution dated 18 May 1994, the Council classified land which included the car park as operational land. However, if the subject land comprised "land subject to a trust for a public purpose" under cl 6(2), it was not open to the Council to reclassify it in exercise of the power conferred by cl 6(3). Reclassification of community land as operational land could be achieved only by a local environmental plan, pursuant to s 27(1) of the Act.

2. The litigation was commenced by the respondent, PWC Properties Pty Ltd (PWC), in the Land and Environment Court which is constituted by the Land and Environment Court Act 1979 NSW (the LEC Act). It is convenient first to indicate the source of the jurisdiction exercised by that Court in the present case.

The legislation

3. Section 16 of the LEC Act divides the jurisdiction of the Court into six classes [1] , one of which is Class 4. This is detailed in s 20, which is headed "environmental planning and protection and development contract civil enforcement". Paragraph (d) of s 20(1) provides that the Court has jurisdiction to hear and dispose of proceedings under s 674 of the Act. Section 674(1) of the Act states: