COUNCIL OF THE MUNICIPALITY OF KOGARAH v SOUTHERN SYDNEY AREA HEALTH SERVICE [1992] NSWCA 47

COUNCIL OF THE MUNICIPALITY OF KOGARAH v SOUTHERN SYDNEY AREA HEALTH SERVICE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 28 August 1992, 9 October 1992 [1992] NSWCA 47

RESUMPTION — road vested in Council in fee simple resumed for benefit of Area Health Service — compensation — whether Council entitled to market value or reduced compensation because resumption by Crown. CROWN — statutory corporation subject to Ministerial control — statute provides that it does not represent the Crown — whether corporation is nevertheless Crown but not entitled to Crown immunity. A road vested in the Council was resumed by the Governor under the Public Works Act for the Southern Sydney Area Health Service. The Council claimed compensation based on market value. The authority claimed that under s233(5) of the Local Government Act the compensation was reduced because the road had been resumed by the Crown. The Area Health Services Act provided that an area health board was subject to Ministerial control, but also provided that an area health service did not represent the Crown. The Land and Environment Court held that the Council was not entitled to market value. On appeal — Held: dismissing the appeal

1. The land had been resumed by the Crown for the purposes of s233(5). 2. The land had also been resumed by the Crown because the resumption was effected by the Governor under the Public Works Act, and the fee simple became vested in the health service in trust for the Crown. 3. Semble (per Clarke and Handley JJA) the Health Service being subject to Ministerial control was the Crown although not entitled to the immunities of the Crown.

Clarke and Handley JJA Chapel Street, Kogarah, was until August 1989 a public road within the meaning of Pt9 of the Local Government Act 1919 ("the Act") which ran through the grounds of St George Hospital. The respondent desired to have the road resumed in order to incorporate it into the St George Hospital complex. In due course the resumption was effected by a notification in the Government Gazette on 16 August 1989. That notification read: