Reported Decision : [2000] 10 BPR 18,495 [2001] NSW ConvR 55-961 New South Wales Court of Appeal CITATION : M J Davis Industrial Pty Limited v Fairfield City Council & Anor [2000] NSWCA 287 FILE NUMBER(S) : CA 40701/99 HEARING DATE(S) : 14 September 2000 JUDGMENT DATE : 20 October 2000 M J Davis Industrial Pty Limited (ACN 000 350 827) (Appellant) PARTIES : Fairfield City Council (First Respondent) Registrar General (Second Respondent) JUDGMENT OF : Powell JA at 1; Stein JA at 2; Fitzgerald JA at 31 LOWER COURT JURISDICTION : Supreme Court LOWER COURT AL 30068/98 FILE NUMBER(S) : LOWER COURT Bell J JUDICIAL OFFICER : H R Sorensen (Appellant) COUNSEL : A J J Thompson (First Respondent) Submitting Appearance (Second Respondent) Roy P Ringrose (Appellant) SOLICITORS : Kencalo & Ritchie (First Respondent) Kenneth Charles Hall (Second Respondent) CATCHWORDS : PROPERTY - error in the plan - power of Registrar General to amend plan - conditional subdivision approval - public reserve condition - whether subdivision plan 'substantially in accordance' with deposited plan - ND LEGISLATION CITED : Conveyancing Act 1919; s 195H Local Government Act 1919; s 327(1)(d) Baiada Pty Limited v The Registrar General (1994) 6 BPR 13, 704 CASES CITED: Dobbie v Davidson (1991) 23 NSWLR 625 Quach v Marrickville Municipal Council (Nos 1 & 2) (1990) 22 NSWLR 55 DECISION : Appeal dismissed with costs IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40701/99 AL 30068/98 POWELL JA STEIN JA FITZGERALD JA Friday, 20 October, 2000 M J DAVIS INDUSTRIAL PTY LIMITED v FAIRFIELD CITY COUNCIL & Anor Background This is an appeal from a judgment delivered by Bell J dismissing a summons seeking relief under s 195H Conveyancing Act 1919. In 1972 Jumal Industries Pty Ltd (Jumal) lodged a subdivision application together with a proposed plan of subdivision with the first respondent, Fairfield City Council (the Council). The plan was prepared in conformity with IDO 7 and Lot 30, about 4.4 acres as then configured, was to be dedicated as public open space. The Council granted approval to the subdivision subject to conditions including condition 2 which required 5 acres of public reserve to be dedicated. The appellant claims that the Council's chief planner made it clear that the Council would not issue the s 327(1)(d) Local Government Act 1919 certificate, required for registration of the deposited plan, unless the linen plan was drawn so that the boundary between Lots 29 and 30 complied with the then imminent IDO 10 and so that condition 2 was met. Subsequently the linen plan was drawn to comply with the chief planner's request and was certified by the Council clerk. Jumal uplifted the plan from the Council and lodged it for registration. Before the trial judge MJ Davis Industrial Pty Ltd (the appellant) brought a summons applying for a declaration that the disconformity between the deposited plan and the subdivision plan in terms of the common boundary, and in terms of the 'public reserve' written on Lot 30, constitutes an error in the plan pursuant to s 195H. The appellant sought an order that the Registrar-General reconsider the application to have these errors amended. The appellant seeks the same relief on appeal. The appeal is brought by MJ Davis Industrial Pty Ltd, MJ and J Davis being the beneficial owners of the shares in Jumal on its winding up and of the shares in the appellant. The appeal The appellant submits that the error in the plan, which invokes s 195H, is constituted by the Council giving the s 327(1)(d) certificate to the linen plan which was not 'substantially in accordance'(as required by Ordinance 32, made under Local Government Act 1919) with the subdivision plan approved by the Council. The appellant further submits that there was an error because the deposited plan did not properly comply with condition 2. Condition 2 required the public reserve to include only land zoned 6(b) Open Space Proposed Recreation but in fact the whole of Lot 30 on the linen plan was land zoned 5(b) Special Uses-Roads as specified under IDO 10. Held (Stein JA, Powell and Fitzgerald JJA agreeing) The plan which the Council approved was not, as the appellant maintains, the plan lodged with the subdivision application. The plan approved was the lodged plan but subject to specified conditions, including condition 2 which required dedication of 5 acres of open space. Further, by the time the appellant requested that the linen plan be certified the land zoning had changed to IDO 10. The open space component remained in the linen plan regardless of the zoning change. There is no error for the purposes of s 195H. Appeal dismissed with costs. OoO IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40701/99 AL 30068/98 POWELL JA STEIN JA FITZGERALD JA Friday, 20 October, 2000 M J DAVIS INDUSTRIAL PTY LIMITED v FAIRFIELD CITY COUNCIL & Anor JUDGMENT 1 POWELL JA: I agree with Stein JA. 2 STEIN JA: Introduction 3 This is an appeal from a judgment delivered by Bell J in the Supreme Court on 20 August 1999. Her Honour dismissed a summons by M J Davis Industrial Pty Ltd (the appellant) concerning an application under s 195H of the Conveyancing Act 1919. 4 The relief sought on appeal is set out in paragraphs 6, 8 and 11A of the Further Amended Summons. The appellant seeks a declaration that the extent of the disconformity between the Deposited Plan and the subdivision plan in relation to the common boundary constitutes an 'error' in the Deposited Plan within s 195H (para 6). Also, a declaration that the extent of the disconformity between the Deposited Plan and the subdivision plan as affected by the approval, namely the words 'Public Reserve' written on the Deposited Plan across the area marked as Lot 30, constitutes an 'error' in the Deposited Plan (para 8). In addition, the appellant seeks an order that the Registrar-General further consider the application by the appellant to amend Deposited Plan 249417 on the basis that the matters in paragraphs 6 and 8 are errors in that plan (para 11A). 5 Section 195H relevantly provides: (1) The Registrar-General may, on the application of any person with an interest in any land to which a plan registered or recorded under this Division relates, or without any such application, and on such evidence and after such notices (if any) as appear to the Registrar-General to be necessary, amend the plan for the purpose of correcting any error in or supplying any omission from the plan. 6 On 28 January 1998 the appellant lodged with the Registrar-General a request to amend errors in the plan pursuant to the section. This was rejected by letter dated 16 March 1998 and by notice dated 9 April 1998. Subsequently a summons seeking an order that the Registrar-General reconsider the application was dismissed by Bell J and it is against this decision that the appellant appeals. 7 In this Court the appellant maintains its claim that there is an error in the Deposited Plan and that the Registrar-General should be required to reconsider the exercise of his powers to amend the plan under s 195H. The Registrar-General is the second respondent and has filed a submitting appearance. The facts 8 Notwithstanding that the relevant events occurred many years ago, the facts seem to have been elicited in a fashion which assists in understanding what occurred. Jumal Industries Pty Ltd (Jumal) acquired a tract of land in Wetherill Park in the 1960s. On 28 March 1972 Jumal lodged a subdivision application, together with a proposed plan of subdivision, with the first respondent, Fairfield City Council (the Council). The subdivision plan showed 31 allotments and was prepared in conformity with Interim Development Order 7 (IDO 7), the planning instrument then in force. The plan specified that Lot 30 (as then configured, about 4.4 acres) was to be dedicated as 'public gardens and recreation space'. 9 The Council granted approval (no 72/46) to the subdivision on 8 May 1972, subject to conditions, including condition 2. Condition 2 required: The dedication as Public Reserve of 5 acres of the land shown as 6(b) Open Space Proposed Recreation on the Interim Development Control Map. The land dedicated shall be cleared, levelled and drained and shall not include land shown as 5(b) Special Uses-Roads. The land zoned 5(b) and the remainder zoned 6(b) may be left in separate allotments or consolidated with adjoining allotments. 10 It is clear from this condition that the Council was not granting approval to the subdivision contained in the plan which accompanied the application. To comply with the condition, in order to provide 5 acres of open space, it was necessary that the boundaries of at least two lots be reconfigured. The Council was granting approval for subdivision subject to its specified conditions. It was a conditional approval. 11 Around 27 March 1974, Mr Harry Davis, a project manager responsible for real estate developments for Jumal, attended a meeting with the Council's chief planner, Mr Kenneth Riding. Mr Davis was accompanied by his surveyor, Mr Barry Curtis. 12 In an affidavit sworn 26 October 1998, Mr Davis recalled that at the meeting Mr Riding made it clear that the linen plan of subdivision needed to be drawn to comply with proposed Interim Development Order 10 (IDO 10). That is, that the common boundary between lots 29 and 30 needed to be altered to take into account a proposed roadway development. According to Mr Davis, Mr Riding indicated that unless the change was made, the s 327(1)(d) Local Government Act 1919 certificate, a requirement for registration, would not be issued by the Council Clerk. 13 In his affidavit, sworn 17 November 1998, Mr Riding agreed that it is likely that he advised on boundary changes to comply with the proposed IDO 10. Mr Riding also recalled requesting a change to comply with condition 2 requiring the dedication of 5 acres of public reserve. 14 Following the meeting with Mr Riding, Mr Davis instructed his surveyor to prepare the linen plan in accordance with Mr Riding's request. On the linen plan, the new boundary between lots 29 and 30 corresponded with IDO 10, and 'public reserve' was written across Lot 30. It also provided 5 acres, or thereabouts, in redrawn Lot 30. 15 Her Honour did not accept that any protest was made on behalf of Jumal at the time of or after the boundary change requested by Mr Riding. In particular, she rejected the proposition put by Mr Malcolm Davis in oral evidence, but not in his affidavit, that he had protested to Mr Riding about the requested change. 16 Bell J found that it was open to the Council to negotiate compliance with the conditions of subdivisional approval with Jumal, but that ultimately Jumal agreed to the Council's request and submitted a linen plan to the Council in conformity with it. Bell J attributed Jumal's acquiescence to an attempt by it to avoid delay in registration of the Deposited Plan under pressure from lenders. 17 Mr Robert Hussey, the Council's subdivision engineer, checked that the linen plan satisfied the Council's requirements and that of other relevant authorities. Notes on the Council 'Endorsement of Final Plan of Subdivision' indicate that he was satisfied that the plan provided an 'area of land for dedication as public reserve'. He approved the plan and, on 14 February 1975, the Council Clerk issued the s 327(1)(d) certificate. 18 Jumal uplifted the plan from the Council and lodged it with the Land Titles Office for registration. It was registered by the Registrar-General on 3 March 1975 as Deposited Plan 249417. The whole of Lot 30 was then zoned 5(b) Special Uses-Roads and no part of it was zoned 6(b) Open Space Proposed Recreation. The effect of the registration was to vest Lot 30, marked 'public reserve', in the Council. 19 Although the applicant for subdivision was Jumal, the appeal is brought by M J Davis Industrial Pty Ltd. Jumal was wound up in approximately 1976 and the ultimate beneficial owners of all issued shares in both Jumal and the appellant is Mr Malcolm Davis and his wife Judith. The appellant is the registered proprietor of Lot 29. Lot 30 is vested in the Respondent Council. The appeal 20 Counsel for the appellant, Dr Sorensen, submits that the error which invokes s 195H occurred in the processing of the matter: the Council gave the s 327(1)(d) certificate contrary to Ordinance 32, made under the Local Government Act 1919. Clause 3(a)(i) of the Ordinance required the Council to be satisfied that 'the separate parcels are substantially in accordance with the plan of subdivision previously approved'. 21 The gravaman of the appellant's case appears to be that the Council was in error in giving the s 327(1)(d) certificate to the linen plan because that plan was not 'substantially in accordance' with the plan approved. This submission must be rejected because the plan which the Council approved was not, as the appellant maintains, the plan lodged with the subdivision application. The plan approved was that lodged plan but subject to the specified conditions. Condition 2 plainly indicates that the Council did not approve the plan as lodged because Lot 30 did not provide sufficient public open space to comply with the condition. 22 It was apparent to both sides, particularly the appellant, that another plan had to be drawn in order to comply with condition 2. 23 Looked at another way, the approved plan of subdivision was not that which was lodged (because of the conditions) and can only be that which was incorporated into the linen plan. It must follow that there is no error in the Deposited Plan, because the Deposited Plan was the same as the plan which the Council approved. It cannot be said that the Council, in giving the certificate, constituted an error in the plan. Baiada Pty Limited v The Registrar General (1994) 6 BPR 13,704 and Dobbie v Davidson (1991) 23 NSWLR 625 are relevant authorities which although not directly in point, assist in construing the provision. Also, Quach v Marrickville Municipal Council (Nos 1 & 2) (1990) 22 NSWLR 55 assists in understanding the meaning of the word 'error'. 24 The appellant further submits that there was an error in the plan because it did not properly comply with condition 2. Condition 2 required the public reserve to include only land zoned 6(b) Open Space Proposed Recreation. In fact the whole of Lot 30 on the linen plan was land zoned 5(b) Special Uses-Roads as specified under IDO 10 since the zoning had changed in the meantime. 25 Again, I cannot see how it can be said that this represents an error in the plan for the purposes of s 195H. By the time the appellant requested that the linen plan be certified in order to get it registered, the land zoning had changed to IDO 10. The open space component remained in the linen plan regardless of the zoning change. In any event, the provision in s 342U(9) of the Local Government Act is relevant and assists the case put on behalf of the Council. 26 There was in fact a number of possible solutions to the problem the appellant now seeks to raise some 25 years on. The merit of condition 2 could have been appealed. Alternatively, the developer could have sought to amend or modify the approval and condition. Alternatively, judicial review could have tested the lawfulness of the condition or the linen plan. None of these options were taken. The appellant did employ the option of negotiating with the Council about how to amend the rejected plan in order to comply with condition 2. Ultimately however the appellant accepted the Council suggestions and subsequently took the appropriate executive steps to give effect to them. The appellant instructed its surveyor to draw the linen plan, asked for and obtained Council certification and registered the plan with the Land Titles Office. 27 Even assuming an error could be found, which I do not accept, the question arises whether or not the court should grant the relief sought, which is discretionary. It is important to note the significant delay that attends these proceedings, albeit that Bell J found that the application was not subject to the Limitation Act 1969. 28 The utility of granting the relief sought is questionable. The relief will not alter the title to Lot 30, which would remain vested in the Council. Lot 29 no longer belongs to the company that was the subdivision applicant. It would be mischievous for the Court to grant the orders sought, forcing the Registrar-General to consider the alteration of land boundaries for no identified practical purpose. 29 In any event, the appellant is requesting the Registrar-General to effect a change which is contrary to the previous Council approval. Under the Local Government Act and Conveyancing Act the Registrar-General must be satisfied of compliance with Council approval including the conditions of approval. In effect, the appellant wants the Registrar-General to amend the Deposited Plan to match the subdivision plan lodged with the subdivision application. As I have mentioned, such a change would be inconsistent with condition 2. It is not appropriate to replace one alleged departure from the conditionally approved plan with another. Orders 30 Accordingly, the appeal should be dismissed with costs. 31 FITZGERALD JA: I agree with Stein JA. 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