MINISTER ADMINISTERING THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 y LLOYD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, HANDLEY and CRIPPS JJA 6 May 1993, 6 August 1993 [1993] NSWCA 182 Land owned by the respondent was zoned county open space, which under the Illawarra Planning Scheme Ordinance prohibited the respondent from building on the land without consent. The respondent sought an order requiring the Minister to resume the land. The right to have the land resumed depended upon CL18 of the Ordinance which provided: "(1) The owner of the land reserved under Division 2 or 3 of this Part upon which the erection of any building or the carrying out or alteration of any work of a permanent character or the making or alteration of any permanent excavation is prohibited except for or incidental to a purpose for which the land is so reserved or the owner of any land so reserved in respect of which the responsible authority has refused its consent pursuant to subCL(2) of CL10 or pursuant to subCL(2) of CL10 or pursuant to subCL(2) of CL13 of this Ordinance may, by notice in writing, require the responsible authority to acquire such land." A further issue was whether CL18 was restricted in its application due to the effect of CL10(2) which allows the responsible authority to consent to development on land where it appears to the responsible authority that the purpose for which the land has been reserved cannot be carried into effect within a reasonable time after the appointed day. Held: Per Mahoney JA (Handley JA concurring): The reserved use as open space is achieved in a practical sense merely by the land being open space. The Minister's argument (to bring the case within CL10(2)) that the reserved use can only be achieved by the land being vested in the Minister depends upon an interpretation of CL10(2) other than a literal interpretation. A literal interpretation requires the responsible authority to consider objective facts and give to the phrase "cannot be carried into effect" a meaning involving possibility rather than expediency or the like. In any case, CL10(2) on a literal interpretation cannot be called to the aid of the Minister as it has not granted "consent" to the respondent. Per Cripps JA (Handley JA concurring): Where there is a dispute about whether the purpose can be carried into effect within the statutory period and the owner wishes the reserved land to be acquired contrary to the wishes of the responsible authority, the responsible authority has the onus of establishing an exception to the prohibition. On the facts the responsible authority could not reasonably have held the opinion that the purpose for which the subject land was reserved could not be carried into effect within a reasonable time after the appointed day. In determining whether the purpose can be achieved time runs from the appointed day, that is, the day upon which the Ordinance commenced. A request by the respondent to acquire the land is not limited to being by way of a development application. In relation to the Minister's argument that the purpose can only be achieved by public ownership of the land, unless he was able to demonstrate that he was of the opinion that the land could not have been brought into public ownership during the last 25 years, he was bound to acquire it if asked by the owner to do so. Environmental Planning and Assessment Act 1979 Illawarra Planning Scheme Ordinance - CL18, CL10 Local Government Act 1919 - s342C; Act No 205 of 1979 s4 and Schedule 2 UNREPORTED JUDGMENTS Royal Sydney Golf Club v Federal Commissioner of Taxation (1957) 97 CLRNorth Sydney Municipal Council v PD Mayoh Pty Ltd (1988) 14 NSWLR 740 Bingham v Cumberland County Council (1955 to 1956) 20 LGR 1 Baker v Cumberland County Council (1956) 1 LGRA 321 Linley Investments Pty Ltd v Lane Cove Municipal Council (1970 to 1971) 22 LGRA 21 Aterini v Warringah Shire Council (1972 to 1975) 30 LGRA 150 Cleaver v Byron Shire Council (1972 to 1975) 31 LGRA 31 Multi Development Corp Pty Ltd v Coffs Harbour Shire Council (1974 to 1976) 33 LGRA 419 Chapman v Minister for Lands (1966) 84 WN (Pt1) (NSW) 417 Clydug Pty Ltd v Wyong Shire Council (1971 to 1973) 27 LGRA 254 Mahoney JA Mr Lloyd owns land along the escarpment between Helensburgh and Bulli. The land has for many years been zoned under the Local Planning Scheme as County Open Space. Because of that zoning, there are substantial restrictions upon the use to which the land can be put: if Mr Lloyd desires to use it for any purpose inconsistent with open space, he may do so only with permission of the responsible authority and it may be a condition of that permission that he have no compensation for what is built if subsequently the land is taken by Government. Mr Lloyd has asked the Minister to resume the land. The Minister has refused to do so. Pearlman J, Chief Judge of the Land and Environment Court, has declared that the Minister is obliged to resume the land. The Minister has appealed to this Court against her Honour's decision. Mr Lloyd's right to have the land resumed depends upon the Illawarra Planning Scheme Ordinance and in particular upon CL18 of that Ordinance. The Minister has submitted that the Ordinance, properly construed, does not require that the land be resumed. I shall, initially, consider the Ordinance according to its literal terms and I shall then consider whether, as the Minister contends, it is to be construed otherwise than literally. Prima facie, Mr Lloyd is entitled to have the responsible authority acquire his land. CL18 of the Ordinance provides: "18. (1) The owner of the land reserved under Division 2 or 3 of this Part upon which the erection of any building or the carrying out or alteration of any work of a permanent character or the making or alteration of any permanent excavation is prohibited except for or incidental to a purpose for which the land is so reserved or the owner of any land so reserved in respect of which the responsible authority has refused its consent pursuant to subCL(2) of CL10 or pursuant to subCL(2) of CL13 of this Ordinance may, by notice in writing, require the responsible authority to acquire such land. (2) Upon receipt of any such notice the responsible authority shall acquire the land to which the notice relates." Prima facie, Mr Lloyd's land falls within the terms of CL18(1). It is land which is reserved under Division 2: the purpose for which it is reserved is "County Open Space". Counsel are agreed that that term is not defined in the legislation. But CL10 places restrictions upon the use of land so reserved which prima facie bring the land within CL18(1). As far as is here relevant, CL10 provides: "10. (1) Except as provided in subCL(2) of this clause a person shall not on land reserved under this Division erect a building, or carry out or alter a work of a permanent character or make or alter a permanent excavation other than a WRMISTER ADMINISTERING THE ENVIRONMENTAL PLANNING AND ASSESSMEN3 ACT 1979 v LLOYD (Mahoney JA) building or a permanent work or a permanent excavation required for or incidental to the purpose for which the land is so reserved. (2) Where it appears to the responsible authority that the purpose for which the land is reserved under this Part cannot be carried into effect within a reasonable time after the appointed day the owner of such land may notwithstanding the provisions of subCL(1) of this clause with the consent of the responsible authority erect a building, or carry out or alter a work of a permanent character or make or alter a permanent excavation. (3) Any such consent shall be subject to such conditions with respect to the removal or alteration of the building, work or excavation or any such alteration of a work or excavation, or the reinstatement of the land or the removal of any waste material or refuse, with or without payment of compensation, as the responsible authority thinks fit. (4)... " If CL10(1) stood alone, the restriction imposed by it upon the use of the land would satisfy the opening words of CL18(1): the words of CL10(1) are, I think, seen by the draftsman as mirroring the terms of CL18(1). Accordingly, CL18(1), the right to have the land acquired, would be satisfied. However, the Minister submits that the provisions of CL18(1) are not satisfied because of the right which CL10(2) gives to Mr Lloyd in respect of the use of the land. The Minister's submission is to the effect that Mr Lloyd may presently use the land in the manner set forth in CL10(2) and that consequently the use of the land is not restricted in such a manner as would bring CL18(1) into operation. It is necessary therefore to consider the present effect of CL10(2). CL10(2) authorises the owner of land to use it for a building, work or excavation as there provided only if two things appear: first, that "it appears to the responsible authority that the purpose for which the land is reserved under this Part cannot be carried into effect within a reasonable time after the appointed day"; and, second, that the owner has "the consent of the responsible authority" to what is proposed to be done. Unless those conditions are satisfied, Mr Lloyd may not do what CL10(2) envisages and accordingly his use of the land is restricted as provided by CL10(1) in such a way that CL18(1) operates. It is therefore necessary to consider whether the conditions of CL10(2) are satisfied. As to the first of these, it was submitted by the Minister that it has not been shown that "it appears to" the authority that the purposes for which the land is reserved "cannot be carried into effect within a reasonable time...". (There was discussion as to whether the Minister or the Council is, for this purpose, the responsible authority. It is, I think, not necessary to pursue that matter). In a practical sense the purpose of the reservation of the land, viz, "County Open Space", is carried into effect merely by the land being "Open Space". Neither party has been able to suggest to the court what functionally the addition of the term "County" to "Open Space" adds in this regard. I incline to the view that the practical purpose of the reservation of the land is the maintenance of it as, to the relevant extent, open space. On that basis, prima facie the maintenance of it as open space, in the undeveloped state in which it now is, is the carrying into effect of the purpose for which the land was resumed. However the Minister has submitted that this is too literal a construction of the terms of CL10(1). His submission is to the effect that, in order that the land be and be used as County Open Space, it is necessary that it be vested in the responsible authority or other relevant authority under the legislation. The submission suggests that land which is open space is not "County" open space 4 UNREPORTED JUDGMENTS unless and until it is vested in the relevant public authority. The argument suggests further that, in determining whether that vesting and use "cannot be carried into effect", the Minister is required or entitled to take into account whether, eg, sufficient money is available to the responsible authority to pay for the acquisition of the land for that purpose. The submission suggests that if it "appears to" the responsible authority that it does not have moneys available to pay for the acquisition of the land for such a purpose, then that purpose "cannot be carried into effect" within the terms of CL10(2). The Minister's submission in this regard requires, I think, further development. It could not, I think, be suggested that the Minister or the Council or other the "responsible authority" did not have or would not have within a reasonable time money aggregating the amount required to pay for the land on its acquisition. No doubt the amount of money under the control of the Minister or other the responsible authority would, considered as such, be sufficient for the purpose. The submission must, I think, go to the extent of suggesting, in effect, that it is for the responsible authority to determine the priorities for the spending of the moneys which are available to it and that, if it determines its priorities to be such that the moneys available to it are spent on other matters and none remains to pay for the acquisition of the land, then it may be concluded by the responsible authority and appear to it that the purpose for which the land is reserved "cannot be carried into effect". This, as the Minister's argument recognises, places substantial weight upon "cannot". But the argument must, I think, extend to a contention generally of this kind. It was pointed out for Mr Lloyd that, unless CL10(2) operates, CL18(1) stands unqualified and that accordingly the right to have the land acquired arises. It was said that there was no evidence that the Minister or other the responsible authority did not have money, or money available, for the acquisition of the land or that it had "appeared" to such that the purpose of the zoning could not be achieved as CL10(2) contemplates. On this basis, the evidence did not establish that CL10(2) operated and accordingly CL18(1) was satisfied. This, it was suggested, was a significant answer to the Minister's arguments. If it was to be claimed that it "appeared" that the purpose of the zoning could not be achieved, it was for the relevant authority to say so formally and, if it did not do so, then CL10(2) could not be invoked. Alternatively, the Minister's argument suggested, I think, that "appears" should be read as granting a discretion to the responsible authority of the nature which would be given if "appears to" were equivalent to "is determined by". The argument suggested, I think, that it was intended that the responsible authority have a form of discretion and that "appears to" is not to be determined by the objective facts appearing to the authority but by what is seen by it to be expedient or appropriate. Construed literally according to its terms, CL10(2) does not, in my opinion, have the effect contended for by the Minister. It assumes that the responsible authority will, in determining what "appears to" it, consider the objective facts and will give to "cannot be carried into effect" a meaning involving possibility rather than expediency or the like. It was then put for the Minister that the time for the satisfaction of this portion of CL10(2) had not arisen and that accordingly Mr Lloyd should not succeed. It was suggested, for example, that the point when it is to "appear" to the responsible authority whether the purpose can be carried into effect is not at the date when the proceedings are commenced but some later date, eg, the date when WRMISTER ADMINISTERING THE ENVIRONMENTAL PLANNING AND ASSESSMENS ACT 1979 v LLOYD (Mahoney JA) the decision in the proceedings is to be given or when a demand has been made upon the responsible authority to consider the matter. It was suggested that no such demand has been made. Reference was made to the construction of similar or analogous provisions in other town planning legislation. I do not think that assistance is to be gained from the construction of other legislation. The matter should, in my opinion, be determined by the terms and the context of the present Ordinance. The Ordinance envisages that, insofar as CL10(2) is relevant to the operation of CL18(1), the relevant matter must "appear to" the responsible authority prior to or when the notice for acquisition is given under CL18(1). That notice was given in the present case prior to the proceeding being commenced. But however this first requirement be construed, it does not appear that the second has been satisfied. The right to use the land as provided in CL10(2) arises only if what is done is done with "the consent of the responsible authority": until that consent is given, the right to use the land as in CL10(2) does not arise and accordingly the use of the land is restricted as in CL18(1). Accordingly, the Ordinance, construed according to its terms, authorises Mr Lloyd to require acquisition of his land under CL18(1). But it was submitted for the Minister that the Ordinance should not be construed literally in this way. The Minister's argument suggested, inter alia, two things. First, it suggested that the terms of CL18(1) show the legislative intention to be that, where the operation of CL10(2) comes into question, the right to require acquisition of the land does not arise unless and until the owner of the land has applied to the responsible authority for consent to do what CL10(2) authorises and the responsible authority "has refused its consent pursuant to subCL(2) of CL10...". This argument, I think, if properly developed, involves that CL18(1) does not operate where the use of the land is permissible under CL10(2); and that, where the question of use under CL10(2) arises, the possibility of such use is not excluded unless and until the application for consent is made and refused. That argument assumes that it will have been shown to have already appeared to the responsible authority that the purpose for which the land was reserved cannot be carried into effect within CL10(2). The construction of these provisions is by no means clear. But what is suggested is not what the terms of the Ordinance, construed according to their ordinary meaning, require. The "middle" provision of CL18(1) is, I think, intended to provide for a case where it has already appeared to the responsible authority that the purpose for which the land was reserved cannot be carried into effect timeously: the provision envisages that in that case, if refusal of consent "freezes" the land, that is enough to bring CL18(1) into operation. Where the land is "frozen" because the relevant fact does not appear to the responsible authority, that is enough, without the further stipulation of the refusal of consent, to bring CL18(1) into operation. And, as the Minister has contended, that is the present case. It was then suggested by the Minister's submission that the court should avoid the construction of the Ordinance requiring that, in effect, all reserved land must be acquired on demand. It was submitted that this would place a heavy burden upon the financial structure of the town planning legislation. I appreciate the force of such a submission. But such a submission must be considered in its context. The zoning of Mr Lloyd's land as County Open Space was no doubt seen to be in the interests of the community generally. It was not in Mr Lloyd's interest: at least it may well not have been. The land has, since 1965 at least, been "frozen". He has had no compensation for the fact that, in the interest of the 6 UNREPORTED JUDGMENTS community, his land has been dealt with in this way. The zoning of land commenced definitively with the County of Cumberland Planning Scheme Ordinance legislation: see Act No 18 of 1951. It was generally in contemplation at the time that legislation was enacted that the legislation would, by zoning land, increase the value of some land and decrease the value of other land. It was, I think, the contemplation that compensation (for "injurious affection" or the like) would be provided, either by those who benefited from the scheme to those who suffered because of it, or from Government. However that be, any general expectation of compensation that may have existed has not been fulfilled: see the Local Government Act 1919, s342AC; Act No 205 of 1979, s4 and the Schedule; and see generally Bingham v Cumberland County Council (1955 to 1956) 20 LGR 1; Baker v Cumberland County Council (1956) 1 LGRA 321; Linley Investments Pty Ltd v Lane Cove Municipal Council (1970 to 1971) 22 LGRA 21; Aterini v Warringah Shire Council (1972 to 1975) 30 LGRA 150; Cleaver v Byron, Shire Council (1972 to 1975) 31 LGRA 31; Multi Development Corporation Pty Ltd v Coffs Harbour Shire Council (1974 to 1976) 33 LGRA 419; compare Chapman v Minister for Lands (1966) 84 WN (Ptl) (NSW) 417; Clydug Pty Ltd v Wyong Shire Council (1971 to 1973) 27 LGRA 254. It is not my purpose to consider definitively whether there was an expectation of compensation or the merits of any such expectation. But, in considering the force of a submission that acquisition of land so "frozen" should await the determination of public expediency by government, it is proper to have in mind the effect of such construction generally upon the position of the land owner affected. In my opinion, it is proper to construe the present Ordinance according to its terms. The opening provisions of CL18(1) are satisfied. CL10(2) does not presently authorise Mr Lloyd to build, work or excavate his land as provided by CL10(2) and accordingly that provision does not prevent CL18(1) operating to authorise a requirement for acquisition of the land. Accordingly, the conclusion of Pearlman J was correct. In my opinion, the appeal should be dismissed with costs. Handley JA I agree generally with the reasons of the other members of the Court and I agree therefore that this appeal fails and should be dismissed with costs. Cripps JA This is an appeal from a declaration of Pearlman J, Chief Judge of the Land and Environment Court, that the Minister Administering the Environmental Planning and Assessment Act 1979 (the appellant) is required to acquire from the owners, Elizabeth and Timothy Lloyd (the respondents) certain land on that part of the Illawarra Escarpment known as Maddens Plains. The subject land is included in the Illawarra Planning Scheme Ordinance (a deemed local environmental planning instrument - EPI) which was made on 19 January 1968. CL9 of Division 2 of Pt2 identifies land on the Scheme map and nominates purposes for which the land is reserved such as roads, railway and other special uses. The subject land is reserved "County Open Space". CL1O0 of the instrument provides: "(1) Except as provided in subCL(2) of this clause a person shall not on land reserved under this Division erect a building, or carry out or alter a work of a permanent character or make or alter a permanent excavation other than a WRYISTER ADMINISTERING THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 v LLOYD (Cripps JA) building or a permanent work or a permanent excavation required for or incidental to the purpose for which the land is so reserved. (2) Where it appears to the responsible authority that the purpose for which the land is reserved under this Part cannot be carried into effect within a reasonable time after the appointed day the owner of such land may notwithstanding the provisions of subCL(1) of this clause with the consent of the responsible authority erect a building, or carry out or alter a work of a permanent character or make or alter a permanent excavation. (3) Any such consent shall be subject to such conditions with respect to the removal or alteration of the building work or excavation or any such alteration of a work or excavation, or the reinstatement of the land or the removal of any waste material or refuse, with or without payment of compensation, as the responsible authority thinks fit. (4) Nothing in this clause shall operate to prohibit the erection of a fence on any land reserved under this Division." CL17 provides: "A person shall not, without the consent of the responsible authority, use land reserved under Division 2 or 3 of this Part or any building, work or excavation thereon for any purpose other than for the purpose of its existing use." CL18 provides: "(1) The owner of any land reserved under Division 2 or 3 of this Part upon which the erection of any building or the carrying out or alteration of any work of a permanent character or the making or alteration of any permanent excavation is prohibited except for or incidental to a purpose for which the land is so reserved, or the owner of any land so reserved in respect of which the responsible authority has refused its consent pursuant to subCL(2) of CL10 or pursuant to subCL(2) of CL13 of this Ordinance may, by notice in writing, require the responsible authority to acquire such land. (2) Upon receipt of any such notice the responsible authority shall acquire the land to which the notice relates." The appellant is the "responsible authority". The scheme of similar legislation was discussed by Kitto J in Royal Sydney Golf Club v Federal Commissioner of Taxation (1957) 97 CLR 379. When dealing with CL11 and CL17 of the County of Cumberland Planning Scheme Ordinance which are relevantly similar to CL10 and CL18 of the EPI he said at 384: "Presumably the first limb of the first paragraph refers to the case where the prohibition of CL11(1) is absolute, in the sense that the facts are not such that an approval under CL11(2) or CL12 could be given, while the second limb refers to the case where an approval under one of those provisions could be given and has been applied for but has been refused." Under the subject instrument the owner can require the responsible authority to acquire the land if permanent development is absolutely prohibited. The owner can also require the responsible authority to acquire land where development is not absolutely prohibited but development consent has been refused. Development of reserved land is absolutely prohibited unless the responsible authority holds the opinion that the purpose for which the land was reserved cannot be carried into effect within a reasonable time after 19 January 1968 (the appointed day). In such a case permanent development is permissible with the 8 UNREPORTED JUDGMENTS consent of the responsible authority, the consent is, however, to be subject to such conditions with respect to the removal of works and the reinstatement of the land as may be imposed. In my opinion, where there is dispute about whether the purpose can be carried into effect within the statutory period and the owner wishes the reserved land to be acquired contrary to the wishes of the responsible authority, the responsible authority has the onus of establishing the exception to the prohibition. Furthermore, as it would seem to me, if an owner of reserved land wishes to develop it but the responsible authority wishes to maintain that the reserved purpose can be carried out within the statutory period thus denying the owner the right to develop even conditionally, the onus is on the responsible authority to establish that the development is not permissible. On the facts in the present case, I am of the opinion that the responsible authority could not reasonably have held the opinion that the purpose for which the subject land was reserved could not be carried into effect within a reasonable time after 19 January 1968. Prior to January 1968 the subject land was vacant and undeveloped. It would seem to me that on the making of the planning instrument, the purpose was carried into effect. Before Pearlman J the case was conducted upon the basis that the purpose of open space could not be carried into effect until the land passed into public ownership. I do not think that had to be established. It may be that there are other purposes set out in the Table to CL9 which, viewed as a matter of practicality, could not be carried into effect unless the reserved land passed into public ownership - for example, land reserved for arterial roads and some railways - although private railways are not unknown in New South Wales. However, not all purposes fall into this category. For example, many "special uses" include "schools" and "hospitals. These purposes can be and are carried into effect without land being publicly owned. There are tracts of land designated and reserved County Open Space which are being used as farms etc. The open space purpose can be carried into effect without the land being publicly owned. "Open space" is not defined but "vacant land" is. Vacant land" means land upon which immediately before the appointed day there were no buildings or upon which the only buildings were "fences, green houses, conservatories, garages, summer houses, private boat houses, fuel sheds, tool houses, cycle sheds, aviaries, milking bales, hay sheds, stables, fowl houses, pig sties, barns or the like". If this view of the relevant clauses be correct, that is an end of the matter and Pearlman J correctly declared that the Minister is obliged to acquire the subject land. However, dealing with the matter on the same basis as it was dealt with before Pearlman J, I am of the opinion that her decision was correct. Her Honour held on the evidence that the responsible authority could not have held the opinion that the purpose for which the land was reserved could not be carried into effect within a reasonable time after January 1968. That is, she formed the view that the purpose could have been carried into effect (if that meant the land coming into public ownership) within the stated period and that the authority could not, acting reasonably, have held a contrary opinion. Mr Craig QC has submitted, however, that the appellant cannot be required to acquire the subject land until after he has actually formed the opinion that the open space purpose cannot be carried into effect within a reasonable time after 19 January 1968 and that his obligation did not arise because the respondents have not asked him to do so. The submission assumes that the only way such a request can be made is by application for development consent. I do not think that WRYISTER ADMINISTERING THE ENVIRONMENTAL PLANNING AND ASSESSMEN9 ACT 1979 v LLOYD (Cripps JA) submission should be accepted. In the present case the appellant was written to well before the commencement of the proceedings and was asked to acquire the subject land. Mr Craig has referred to the decision of this Court in North Sydney Municipal Council v PD Mayoh Pty Ltd (1988) 14 NSWLR 740. In Mayoh the court was dealing with provisions of the North Sydney Planning Scheme Ordinance with respect to land reserved for purposes of "parks and recreation areas and foreshore reservations". The owner wanted to develop the land. The Council asserted that development was absolutely prohibited because the purpose could be carried into effect within the period stated in the planning instrument. The owner claimed it could not. The question before the court was whether the reasonable period referred to in the instrument was measured from the date when the instrument came into effect (as held by Stein J in the Land and Environment Court) or whether it was to be measured from some later time to give the responsible authority the opportunity to form an opinion that at some time in the future the purpose could be carried into effect. The relevant clause in Mayoh was "Where it appears to the responsible authority that the purpose for which the land is reserved cannot be carried into effect within a reasonable period the responsible authority may approve.... " McHugh JA said at 742: "Upon its face, CL10(2) gives a power of approval to the responsible authority subject to a condition. That condition is expressed by the words, 'Where it appears etc'. The condition must exist before the power can be exercised. That is to say, it must appear to the responsible authority when it exercises the power that the relevant purpose 'cannot be carried into effect within a reasonable period'. As a matter of ordinary construction, therefore, the condition requires a Council, at the time when it is asked to approve an application, to look to the future and determine whether or not the purpose for which the land is reserved can be carried into effect within a reasonable period from that time." The clause in the North Sydney Planning Scheme Ordinance is significantly different from the clause in the EPI. The EPI speaks of a reasonable time after the appointed day. In Mayoh, McHugh JA pointed out that originally in the County of Cumberland Planning Scheme Ordinance the words were "cannot be carried into effect immediately after the appointed day". He said at 744: 'The omission of the words 'immediately after the appointed day' and the substitution of the general words 'within a reasonable period' indicate that the reasonable period was not to be determined by reference to the date upon which the scheme commenced. If the legislature had intended that the reasonable period should run from the appointed day, it would have deleted the word 'immediately' and substituted 'a reasonable period'. Instead it deleted the words 'immediately after the appointed day'. In the present case, at the time of hearing before Pearlman J, the subject land had been reserved and had remained vacant for nearly twenty five years. It is true that during that period of time, on two occasions at least, planning authorities, when considering the planning future of the general area, set aside the subject land for further consideration. The case was conducted on the basis that the relevant opinion as to whether the purpose could be carried into effect within the stated period was the opinion of the local council. However, as the provision of the EPI makes clear, it is the opinion of the appellant or his predecessor that is relevant. Because that is the way the matter was dealt with before Pearlman J, I will assume an identity between the local council and the appellant. In my 10 UNREPORTED JUDGMENTS opinion, the evidence goes nowhere near establishing that the appellant could hold the opinion that the open space purpose could not be carried into effect within a reasonable time after 19 January 1968 if what was required was to bring the land into public ownership. I am assuming in favour of the appellant that the word "cannot" means "is for practical reasons unable" and it does not mean "is legally not entitled". At its highest, the evidence shows no more than that the appellant has not made up his mind to acquire the land. Unless he was able to demonstrate that he was of the opinion that the land could not have been brought into public ownership during the last twenty five years, he was bound to acquire it if asked by the owner to do so. I would dismiss the appeal and order the appellant pay the respondents' costs. Appeal dismissed, appellant to pay the respondent's costs. Counsel for the Appellant: MG Craig QC/JB Maston Instructed by: Legal Branch, Department of Planning Counsel for the Respondent: TF Robertson Instructed by: Goddard Dean and Co