Municipal Council of Sydney v Registrar-General (NSW) [1945] HCA 19

71 C.L.R.] OF AUSTRALIA. ; 125

(HIGH COURT OF AUSTRALIA.]

THE MUNICIPAL COUNCIL OF SYDNEY . APPELLANT ;

APPLICANT,

THE REGISTRAR-GENERAL OF NEW R cy SOUTH WALES : : j : ESPONDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Highway—Public road—Dedication to public—Closure—Sale—Power of council— ¥. ©, or A, Memorandum of transfer—Registration—Refusal by Registrar-General except 1945, subject to notification—Sydney Corporation Act 1932-1942 (N.S.W.) (No. 58 = of 1932—No. 11 of 1942), 8s, 75, 76, 762 (1), 82 (1), 254—Real Property Act SYDNEY, 1900 (N.S.W.) (No. 25 of 1900—No. 45 of 1940), 8. 121. Aug. 2, 29.

Section 75 of the Sydney Corporation Act 1932-1942 (N.S.W.) provides that all public ways in the City of Sydney shall be vested in and under the control, } management and direction of the counéil, who shall have full power to alter, widen, level, divert, extend, construct, improve, maintain, repair and order

Williams JJ.

such public ways; and that no public way shall be opened, altered, widened, diverted or extended without the approval of the Governor. Section 76 (1)

provides :— " For the purpose of opening, altering, widening, diverting, extend- ing, or closing any public way or portion of a public way in the city, the council may . . . sell any land forming part of a way which is not required for

any such purpose" &c. Section 768 (1) provides that the soil of public ways shall be vested in fee simple in the council; that such vesting shall confer on the council the same estate and rights in the publie way as a private person would have if he were entitled to the site as private land held in fee simple with full rights both as to the soil below and as to the air above; but that "(c) unless otherwise expressly provided nothing in this subsection shall be deemed . . . (iv) to authorise the council to grant, demise, dispose of, or alienate the public way or the soil or materials thereof."