Land and Environment Court of New South Wales CITATION : The Public Trustee v Blacktown City Council [1988] NSWLEC 110 APPLICANT Executor of the Estate of Sylvia McIlroy the Public Trustee PARTIES : RESPONDANT Blacktown City Council FILE NUMBER(S) : 40168 of 1988 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Local Government Act 1919 Environmental Planning and Assessment Act. Loneragans of Sydney v. Hornsby Shire Council (Unreported 22 October 1984) ; Smith Family v. Willoughby Municipal Council ((1981); CASES CITED: Dickinson v. Perrignon ((1973) ; Barham v. Stevenson ((1975) ; Cantarella v. Egg Marketing Board ((1973) DATES OF HEARING: 14/08/1987,04/03/1988 DATE OF JUDGMENT: 03/04/1988 APPLICANT Mr. Whittle LEGAL REPRESENTATIVES: RESPONDENT Mr. Ayling JUDGMENT: JUDGMENT HIS HONOUR: As Executor of the Estate of Sylvia McIlroy the Public Trustee seeks the following relief against the respondent Blacktown City Council:- "(l) A declaration that the respondent is bound to acquire from the applicant so much of the land contained in Lots 6-l7 inclusive and 28-39 inclusive of Section 29 of Deposited Plan 1100, Laura & Cambridge Street, Mount Druitt, as is reserved pursuant to Part II, Division 2 of the Blacktown Planning Scheme Ordinance, 1968 (as amended). (2) An order that the respondent, after complying without delay with the provisions of the Local Government Act, 1919, and Ordinances thereunder, thereupon make application to His Excellency the Governor, pursuant to the Act and those Ordinances for approval to resume land being so much of Lots 6-l7 inclusive and 28-39 inclusive of Section 29 of Deposited Plan 1100, Laura & Cambridge Streets, Mount Druitt, as is reserved pursuant to Part II Division 2 of the Blacktown Planning Scheme Ordinance, 1968 (as amended), and if that approval is granted forthwith resume the said land." The subject land at Mount Druitt is reserved for open space (recreation and drainage) under clause 9 of the Blacktown Planning Scheme Ordinance, a deemed environmental planning instrument under the Environmental Planning and Assessment Act. Clause 18 of the Ordinance provides for acquisition by the Council of reserved land and is in the following terms:- "(l) 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 altering of any work of a permanent character or the making or altering 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 subclause (2) of clause 10, subclause (2) of clause 13 or clause 17 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 applicant maintains that it has required the Council to acquire the land but the Council has not so acquired it. Accordingly, it asks for the declaration and mandatory order set out in the amended application. Council does not dispute that it is legally obliged to acquire the land but, for reasons I will explain later, it opposes the relief sought. On 18 July 1984 the solicitors for the estate wrote to the Town Clerk stating:- "We are instructed that the value of the land is $210,000 and it is proposed that the council acquire the property for that sum." By letter dated ll October 1984 they wrote again to Council:- "We are instructed to require the council to acquire the subject property for the sum of $210,000.00." On 5 December 1984 Council resolved to offer $108,000 for the land. This offer was rejected and a counter-offer made of $170,000. Council sought a fresh valuation and in July l985, in accordance with the valuation obtained, it offered the sum of $130,000. By letter dated 14 January 1987 the applicant's solicitors rejected this offer and stated:- "Our instructions remain to require the Council to acquire the blocks of land in question for the current market price which, in the opinion of our client's experts is $175,000.00. Accordingly unless agreement is reached with Council within twenty eight days of the date of this letter for the purchase of the property for that current market value our client would ask that Council thereafter take all necessary steps without delay to make application to His Excellency the Governor for approval to resume the land. We would further ask that you keep us informed of all such steps. In default of such approval being sought at the end of the said 28 days without delay, we are instructed to institute Class 4 proceedings in the Land & Environment Court of New South Wales for a mandatory order requiring the taking of all necessary steps to seek approval to acquire the subject land." Council obtained another up-to-date valuation as at 19 March 1987 of $140,000 and a recommendation was made to Council that an offer be made in this sum. It is not clear whether this occurred. However, on 30 March 1987 the Town Clerk wrote to the Applicant's solicitors advising of the fresh valuation and mentioning the recommendation to be placed before Council. This letter, after referring to the recommendation to Council, stated:- "This action is proposed as it would appear, with respect, that agreement cannot be reached regarding purchase price." (my emphasis) The next matter to note is the filing of the application in the Court on 14 August 1987 seeking the relief set out earlier in these reasons for Judgment. The Council's opposition to the relief sought may be summarised as follows:- 1. The true description of the relief sought is an order in the nature of mandamus rather than an equitable injunction. It is a prerequisite to mandamus that there be a direct refusal by the respondent to do what is being sought to be compelled. 2. Mr. Ayling for the Council submits that there have been constant, although fruitless, negotiations as to the acquisition price and this cannot amount to a refusal or the equivalent of a refusal. 3. Alternatively, the Court has no power to order the means of acquisition that the Council should follow in order to acquire the land. The Council has a discretion as to the mode of acquisition, viz., by purchase or resumption, and the Court cannot order Council's discretion to be exercised in a particular fashion. 4. The order should not be made because it will not necessarily be effective in attaining the end desired by the applicant, i.e., the acquisition of the land. For example, it is said that the Minister may not agree to the resumption. Making the order may therefore have no utility. 5. The order should be refused because the motivation behind the application is an indirect one and seeks to avoid the legal consequences of a legislative lacuna whereby no mechanism is provided to an owner to settle a dispute as to price. In effect Mr. Ayling is saying that the Council has a specific statutory duty to acquire the land on request but there is no legal means by which it can be ordered to carry out that duty. In response Mr. Whittle, on behalf of the applicant, notes that the Court has made declarations and orders on previous occasions in the same terms as sought e.g., Loneragans of Sydney v. Hornsby Shire Council (Unreported 22 October 1984) and Smith Family v. Willoughby Municipal Council ((1981) 46 LGRA 380). Mr. Whittle further submits that there is power in the Court under section 20(2) of the Land and Environment Court Act. While not conceding that section 65 of the Supreme Court Act is co-extensive with section 69 of that Act, he is happy to accept that the applicant needs to show that the Council has, in effect, refused to acquire the land. He submits that the facts establish that it has refused. According to the submission, the fact that the parties may seek to continue to negotiate, even now, does not mean that there has not been the equivalent of a refusal to acquire. Mr. Whittle relies on the circumstance that some 3-1/2 years have elapsed since the negotiations commenced and there has been no resolution of the dispute as to price. In his submission the Court will have no difficulty in concluding that there has been a refusal by the respondent to acquire the land. The duty or obligation which the applicant is seeking to enforce is said to be that arising under Clause 18 of the Blacktown Planning Scheme Ordinance and not under section 532 of the Local Government Act. If the price is not agreed by private treaty, (as Mr. Whittle says it demonstrably has not been agreed), then sections 532 and 536 provide the mechanism for acquisition by way of resumption. Clause 18 of the Ordinance permits of no discretion as to whether to acquire or not. Once the preconditions in the clause are satisfied then the Council has a "duty" to acquire and the applicant has a "right" to have its land acquired by the Council. It is argued that this right is enforceable in the Land and Environment Court by the making of an order in the nature of mandamus. The remedy is appropriate precisely because there is no specific statutory mechanism or remedy prescribed by the legislation. If there was such a mechanism then an order of the kind now sought would be inappropriate. Mr. Whittle also submits that there is no indirect motive or purpose in the litigation and certainly no such indirect purpose as may be seen in the authorities relied on by the respondent. In his submission it cannot be said that the purpose of the litigation is to set in motion compensation proceedings in the Court. Rather the purpose is to have the acquisition proceed by way of resumption. That does not mean that the parties are prevented from reaching agreement on price by way of private treaty during the resumption process prior to notification of the resumption and without resort to further litigation. Lastly, Mr. Whittle submits that there is utility in making the order because the resumption process will be put in train and, if it is perfected by a notification of resumption by the Governor,the applicant will have the means of having the price fixed by way of compensation. In his submission the order will have practical value even if it may not finally settle the dispute. In my opinion it is unnecessary for me to chose between the competing constructions of section 65 of the Supreme Court Act (see Dickinson v. Perrignon ((1973) 1 NSWLR 72 at 79 and 83), Barham v. Stevenson ((1975) 1 NSWLR 3l at 37 and 45) and Cantarella v. Egg Marketing Board ((1973) 2 NSWLR 366 at 381-2). It is unnecessary to determine whether section 65 modifies the old substantive law relating to the prerogative writ of mandamus because the facts are abundantly clear that there has been a refusal by the Council to acquire the land. In particular the Town Clerk's letter of 30 March 1987 that "agreement cannot be reached regarding purchase price" is plain. That letter was clearly a response to the demand made by letter of 14 January 1987. Apart from the applicant carrying out the threat in the last paragraph of its letter by the institution of these proceedings, nothing has occurred to change the situation which patently amounts to a refusal to acquire the land. That the applicant, even now, may be willing to negotiate in the vain hope that agreement may be reached, does not detract from the obligation of the Council to acquire the land as requested by the applicant. In any event the failure of the parties to agree on the price for acquisition for more than 3-l/2 years is sufficient to constitute a constructive refusal to acquire. I have no doubt that the Court has jurisdiction under section 20(2)(a) and (b) of the Land and Environment Court Act to make the order and, under subsection 2(c) to make the declaration of right. The respondent has an obligation and duty to acquire the land which arises under the deemed Environmental Planning Instrument which obligation and duty is imposed by a "planning and environment law". It is irrelevant that section 532 of the Local Government Act is not a planning and environmental law under section 20(2). The right, obligation or duty sought to be enforced arises directly from the planning instrument and not from Part XXV of the Local Government Act. The order does not seek to instruct the Council in the exercise of its discretion. Council's only discretion is to acquire by way of purchase or resumption. It has no discretion not to acquire. Making the order sought does not deprive the Council of seeking to acquire by private treaty if it chooses to do so. It does, however, require that the Council commence and carry through the resumption process in so far as it is able. Up until the gazettal of a resumption the Council is free to acquire the land by purchase, see Cripps J. in Loneragans at page 9. The Council's discretion is not removed by the order of the Court. I reject the argument based on utility. In my opinion an order such as sought may be made in the exercise of the Court's discretion notwithstanding that it may not finally dispose of the dispute. What is clear is that it will go a considerable distance towards that end. To my mind there is practical value in making the declaration and order. Indeed, if the Court does not make the order the applicant is left with a right but no remedy. It is exactly because there is a lacuna in the legislation, in that it provides no mechanism for an owner to have a dispute as to price arbitrated, that it is appropriate that a mandamus be made. If there was an alternative mechanism then mandamus would be inappropriate and the remedy would be elsewhere. I accept Mr. Whittle's submission that no indirect motive or purpose is involved. In my opinion the declaration and order ought be made. The formal orders I make are as follows:- 1. A declaration that the respondent is bound to acquire from the applicant so much of the land contained in Lots 6-17 inclusive and 28-39 inclusive of Section 29 of Deposited Plan 1100, Laura and Cambridge Streets, Mount Druitt, as is reserved pursuant to Part II, Division 2 of the Blacktown Planning Scheme Ordinance, 1968 (as amended). 2.An order that the respondent, after complying without delay with the provisions of the Local Government Act, 1919, and Ordinances thereunder, thereupon make application to His Excellency the Governor, pursuant to the Act and those Ordinances for approval to resume land being so much of Lots 6-17 inclusive and 28-39 inclusive of Section 29 of Deposited Plan 1100, Laura and Cambridge Streets, Mount Druitt, as is reserved pursuant to Part II Division 2 of the Blacktown Planning Scheme Ordinance, 1968 (as amended), and if that approval is granted forthwith resume the said land. I order the respondent to pay the applicant's costs. 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