Reported Decision : [2000] 10 BPR 18,469 [2000] 111 LGERA 459 New South Wales Supreme Court CITATION : Eurobodalla Shire Council v Registrar General & Ors [2000] NSWSC 1196 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3029 of 2000 HEARING DATE(S) : 22 November 2000 JUDGMENT DATE : 15 December 2000 Eurobodalla Shire Council (Plaintiff) PARTIES : Registrar-General (First Defendant) State of New South Wales (Second Defendant) Mogo Local Aboriginal Land Council (Third Defendant) JUDGMENT OF : Windeyer J at 1 Mr J Waters (Plaintiff) COUNSEL : submitting appearance (First Defendant) Dr J.G. Renwick (Second Defendant) Mr M Ashhurst with him Mr M Wright (Third Defendant) Kennedy & Cooke (Plaintiff) K.C. Hall (First Defendant) SOLICITORS : I V Knight (Second Defendant) R Wall (Third Defendant) CATCHWORDS : REAL PROPERTY - Torrens Title land subject to notification under s25A of Crown Lands Consolidation Act 1913 - whether ceases to be land under Real Property Act 1900 and becomes Crown Land - title remains vested in the owner of the property before notification Aboriginal Land Rights Act 1983 s36(1) Crown Lands Act 1989 s138 LEGISLATION CITED : Crown Lands Consolidation Act 1913 s5(1), s25A, s28(2) Local Government Act 1919 s340D Real Property Act 1900 s13H(1) CASES CITED : Durham Holdings Pty Ltd v State of New South Wales (1999) 47 NSWLR 340 Gandangara Aboriginal Council v The Minister (1997) 41 NSWLR 459 DECISION : See paragraph 23 1 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J FRIDAY 15 DECEMBER 2000 3029/00 EUROBODALLA SHIRE COUNCIL v REGISTRAR GENERAL AND ORS JUDGMENT Facts 1 This case concerns land previously the land in Certificate of Title Volume 14114 Folio 35 and Lot 8 in Deposited Plan 258299 (the land). The land was resumed by the Council of the Shire of Eurobodalla (the council) by notice of resumption published in the Government Gazette on 29 June 1971. According to an affidavit of Mr R B Addison, the assistant property manager of the council, the land at the time was under Old System Title. It is part of Portion 6 and 12 of the Parish of Tomaga. The Certificate of Title was presumably issued or applied for on application of the council on registration of the deposited plan and included in the description of the land on the title deed were the words: "Land for which no Crown Grant had issued". 2 The land is in a locality known as Broulee. It is a long narrow irregular block bounded on the south east by the South Pacific Ocean. The area is 56.68 hectares. 3 Upon resumption the council had prepared and Registered a plan of subdivision DP 258299, which included the resumed land. The plan included a notation that "it is intended to create lot 8 as public reserve" and lot 8 was identified in the plan by the words "public reserve". The plan was Registered on 18 December 1979. It is impossible to read on the copy of the certificate of title in evidence when that title deed was issued. 4 On 10 July 1981 a notification under s25A of the Crown Lands Consolidation Act 1913 (CLC Act) in respect of the land was published in the Government Gazette. Section 25A of the CLC Act at that time was as follows: Certain lands may be disposed of as Crown lands 25A (1) Notwithstanding the provisions of any other Act it shall be lawful for the Minister in respect of any land that before or after the commencement of the Crown Lands and Other Acts (Reserves) Amendment Act, 1974, was or is - (a) appropriated or resumed for any public purpose and vested in a Minister of the Crown on behalf of Her Majesty by or under the authority of any Statute or acquired by or on behalf of the Crown by gift or otherwise; or (b) appropriated or resumed and vested in a public authority, or otherwise acquired by or vested in a public authority, by or under the authority of any Statute, by notification published in the Gazette to declare that the land may be dealt with as if it had been acquired under the Closer Settlement Act or as Crown land within the meaning of this Act, and upon the publication of the notification in the Gazette the land may be so dealt with. (2) The area of land described in a notification under subsection (1) may be limited to the surface only of the land, or to the surface thereof and to such depth below the surface as the Minister may specify therein. (3) A declaration shall not be made under subsection (1) in respect of land vested in or acquired by or on behalf of a public authority without the consent of that public authority. (4) In this section, "public authority" means - (a) the Water Resources Commission; (b) a council as defined in section 4 of the Local Government Act, 1919; (c) a pastures protection board constituted or continued by or under the Pastures Protection Act, 1934; or (d) any other public body declared by the Minister, by order published in the Gazette after the commencement of the Crown Lands and Other Acts (Reserves) Amendment Act, 1974, to be a public authority for the purposes of this section. 5 The notification was as follows: Sydney, 10th July, 1981 DECLARATION UNDER SECTION 25A, CROWN LANDS CONSOLIDATION ACT, 1913, IN RESPECT OF LANDS IN pursuance of the provisions of section 25A, Crown Lands Consolidation Act, 1913, I declare that the lands particularized hereunder may be dealt with as if they had been acquired under the Closer Settlement Acts or as Crown land within the meaning of the Crown Lands Consolidation Act, 1913. A.R.L. GORDON, Minister for Lands. … Land Vested in the Council of the Shire of Eurobodalla Land District - Moruya; Shire - Eurobodalla Parish Tomaga, County St Vincent, 56.68 hectares, being lot 8, D.P.O. 258299, and comprising the whole of the land in Certificate of Title, volume 14114, folio 35. NA81 H 920 6 Section 28(2) of the CLC Act, at the relevant time, was as follows. Reserves from sale for public purposes 28. … (2) The Minister may by notification in the Gazette declare that any Crown lands or closer settlement lands shall be added to any lands reserved temporarily or otherwise from sale for any public purpose or for commonage. Upon such notification being published in the Gazette the lands to which such notification relates shall be so added, shall form part of the reserve, shall be subject to the like reservation and trusts as the reserve, any rules and regulations or by-laws, applicable to the reserve shall be applicable to such lands and any trustees of the reserve shall be deemed to be appointed trustees of the lands so added under the provisions of the Act whereby they were appointed trustees of the reserve. 7 In the Gazette previously referred to, namely 10 July 1981, was published a declaration in respect of the land as follows: Sydney, 10th July, 1981 ADDITIONS TO RESERVES FROM SALES IN pursuance of the provisions of section 28, Crown Lands Consolidation Act, 1913, I declare that the Crown lands described hereunder shall be added to the lands within the reserves specified in parentheses hereunder and such lands are added accordingly. A.R.L. GORDON Minister for Lands … FOR PUBLIC RECREATION AND CAMPING Land District - Moruya; Shire - Eurobodalla Parish Tomaga, County St. Vincent, 56.68 hectares at Broulee, being lot 8, D.P. 258299. (R. 86623, notified 9th February, 1968). NA81 H 920 8 The land which is referred to as reserve number 86623 was reserved from sale for public recreation and camping by notification published in the Government Gazette on 9 February 1968 and it is to the land in that reserve that the land is said to have been added. Those previously reserved lands are shown as MS 5079 GBN on the deposited plan and abut lot 8. 9 On 29 July 1981 the following alterations were made in the first schedule of the certificate of title which contains the name of the Registered proprietor. The name of the Registered proprietor was deleted and the following notation was made: By virtue of notification in Government Gazette dated 10th July 1981, Folio 3754 the whole of the land within described has become Crown Land within the meaning of the Crown Lands Act. Under the heading "Registered" the date of 29th July 1981 appears, together with a signature below the heading "Signature of Registrar General". The certificate of title has been marked "cancelled", so that it would appear the land is no longer on the Torrens Register. 10 The land is subject to a claim by the third defendant under s36(1) of the Aboriginal Land Rights Act 1983. The Minister for Land and Water Conservation has refused the claim on the basis that the land was not claimable Crown land within the meaning of that Act. So far as the land in question here is concerned, it seems the reason for refusal was that the land: was lawfully used and occupied by Eurobodalla Shire Council and the general public for purposes of the covering reserve 86623 for public recreation and camping. 11 The third defendant has made an application to the Land and Environment Court which is in essence an appeal from the refusal of the land claim. The council is said to have no standing in those proceedings and it is for that reason this application is brought in this Court. Claim 12 The council seeks declarations that the land was not vested in Her Majesty on 8 December 1989; that it was vested in an estate in fee simple of the land on that date and has remained so vested. It also seeks an order that its interest be recorded in the Register kept under the Real Property Act 1900. Parties 13 The council is the plaintiff. The Registrar General, being the first defendant has filed a submitting appearance. While the court can hardly require a defendant to appear, it is I think extraordinary that the party responsible for expunging the plaintiff's interest has not appeared to argue the correctness of its action, which on its face was unilateral. I have said before that the court is entitled to proper argument from the authority responsible for land titles in this State, in whom expertise is said to lie. The State of New South Wales is second defendant and has appeared and in fact supports the claims of the plaintiff. As I understand it, the State was joined because Crown land can now be brought under the Real Property Act with titles issuing in the name of the State of New South Wales. The Mogo Local Aboriginal Land Council is the real contradictor. Its claim was made on 8 December 1989, which explains the date at which the declaration is sought. Legislative History 14 Section 25A was inserted in the CLC Act in 1917. In its original form it was as follows: Certain lands may be disposed of as Crown lands 25A. It shall be lawful to reserve from sale or lease generally any land appropriated or resumed for any public purpose and vested in a Minister of the Crown on behalf of His Majesty under the authority of any Statute or acquired by or on behalf of the Crown by gift or otherwise, and upon revocation of any such reservation, the land may be dealt with as if it had been acquired under the Closer Settlement Acts or as Crown land within the meaning of this Act. 15 It was the subject of amendment in 1923, 1957, 1974 and 1976 before taking the terms I have set out by amendment in 1977. The words "as if it had been acquired under the Closer Settlement Acts or" were first inserted in 1923. 16 The Crown Lands Act 1989 repealed the CLC Act. Section 138 of the Crown Lands Act is the section most closely corresponding with s25A. Whereas s25A was headed "Certain lands may be disposed of as Crown lands", s138 is headed "Certain lands may be declared to be Crown land". In fact the section as originally enacted provided that where land has been resumed and vested in a public authority the Minister may by notification declare that the land may be dealt with "as if it were Crown land" which probably would only add further doubt to the position. Section 138 was however amended in 1991 so that it now provides in respect of land resumed and vested in a public authority that "the Minister may, by notification in the Gazette, declare the land to be Crown land". It can be assumed the legislation was enacted to bring about a change. 17 Section 5(1) of the CLC Act is the definition section. It provides: "Crown Lands" means lands vested in His Majesty and not permanently dedicated to any public purpose or lawfully contracted to be sold under the Crown Lands Acts. Section 340D of the Local Government Act 1919 which was in force at the date of registration of deposited plan 258299 was as follows: 340D. (1) On registration in the office of the Registrar-General of a plan - (a) referred to in section three hundred and twenty-seven of this Act; (b) approved by the council after the commencement of the Local Government and Conveyancing (Amendment) Act, 1964; and (c) on which any land is marked with the words "public reserve", such land shall be dedicated as a public reserve and shall without any further assurance vest in the council for an estate in fee-simple by virtue of such registration and of this Act. (2) Where the land so dedicated is under the provisions of the Real Property Act, 1900, the Registrar-General shall, on registration of such plan, issue to the council a certificate of title for the land so dedicated and shall, by a reference to this section or otherwise, indicate thereon that such land is held as a public reserve. It would seem that the requirements of s340D(2) have not been complied with although it may be that the land was brought under the Act after the plan was Registered. All this could have probably been made clear if the Registrar General were here to help. Question 18 The question for decision is whether the Gazette notices under s25A and s28 of the CLC Act in respect of the land had the effect of determining the interest of the council in the land and perhaps whether those lands reverted to Crown Lands as the Registrar General assumed. 19 Section 25A does not provide that upon proclamation the lands affected are restored to "His Majesty". Upon grant the lands were no longer vested in the Crown. Proclamation does not reverse this. Thus they are not Crown Lands within the meaning of the CLC Act. In any event it would seem that, at the time of the proclamation, pursuant to s340D of the Local Government Act, the land had become permanently dedicated for a public purpose which would also take it outside the definition of Crown Lands. As the land is not Crown land it remains land under the Real Property Act. There was thus no authority to cancel the Certificate of Title and the land from the Register. As the land is not vested in the Crown it remains vested in the Council. 20 The s25A notification gave authority for the s28 declaration adding the land to the land reserved from sale for the public purpose of public recreation and camping and known as reserve number 86623. That, however, did not alter ownership of the land and in fact would not, I consider, have changed the fact that it was dedicated as a public reserve, dedication being separate from reservation. There is no evidence which would enable me to determine whether land, subject to the original reserve 86623, has become subject to dedication, or whether trustees have been appointed to such reserve. 21 I should add that when the certificate of title was cancelled the Registrar General was not acting under s13H(1) of the Real Property Act as that section did not come into force until 1 October 1981. However it should be understood that section seems to envisage that land can become Crown Land and s13H(1) would have been useful in any event for action after revocation of reservation or dedication pursuant to s25 of the CLC Act which provides that land, subject to such revocation, shall be vested in "His Majesty his heirs and successors and shall become Crown Lands within the meaning of the CLC Act". 22 A great deal of argument before me was devoted to the question of statutory fictions to a large degree based on the assumption that the relevant words were "as if it were Crown Land" rather than "as Crown Land". That, however, is really beside the point. It is, I think, clear that the relevant minister after s25A proclamation has power to deal with the land as Crown Land could be dealt with. Thus the land could be added to a reserve and could in certain circumstances, be made available for sale or lease, but probably in this case not before s25 action were taken. But proprietary interests in land are not to be taken away without clear words: Durham Holdings Pty Ltd v State of New South Wales (1999) 47 NSWLR 340 at 352 et seq. Where there is some doubt then the proprietary interest ought to be maintained so far as is possible. The land is not Crown Land. It remains vested in the council but subject to the proclamations and rights conferred thereby. I consider what I have determined as to s25A is supported by the decision of Beazley JA in Gandangara Aboriginal Council v The Minister (1997) 41 NSWLR 459. 23 It follows from this that the plaintiff is entitled to declarations generally in the form claimed in the summons. Thus the plaintiff is entitled to a declaration that the land was not vested in Her Majesty on 8 December 1989 and appropriate declarations as to the estate in the land to which the plaintiff is entitled. I would need to have further argument about that because it may be that an appropriate notification should be entered upon the relevant folio in the Register once this is re-created giving notice of the rights under s25A of the Crown Lands Consolidation Act 1913. The plaintiff is entitled to an appropriate order for a folio in the Register to be created showing it as the Registered proprietor of the land. I will hear further argument about the form of orders and the question of costs. It will be necessary for the Registrar General to take some part in any argument as to costs as there may be a basis for making an order for costs against the Registrar-General. ********** Last Modified: 12/19/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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