The Council of the City of Shoalhaven v. The Director General National Parks & Wildlife Service & Ors [2004] NSWCA 163

New South Wales Court of Appeal

CITATION : The Council of the City of Shoalhaven v. The Director General National Parks & Wildlife Service & Ors [2004] NSWCA 163 HEARING DATE(S) : 20/05/2004 JUDGMENT DATE : 4 June 2004

JUDGMENT OF : Ipp JA at 1; Bryson JA at 2; Cripps AJA at 37 DECISION : [2003] NSW LEC 88 varied; (1) Appeal allowed; (2) Order of Cowdroy J of 18 July 2003 varied by setting aside order 7 and in lieu thereof ordering; A declaration pursuant to s.25 of the Land and Environment Court Act 1979 that the applicant The Council of the City of Shoalhaven has an interest in fee simple in the land shown depicted as roads in deposited plans 8515, 8516 and 8517; (3) Reserve questions of costs in the Land and Environment Court and costs of the appeal. (D)

CATCHWORDS : HIGHWAYS AND BRIDGES - creation of roads - dedication of roads - between Local Government Act 1906 and Local Government Act 1919 - consideration of provisions of Local Government Act 1906 ss.99 to 101 and Real Property Act 1900 s.113 and procedures then in force to register Deposited Plans and obtain Council approval for opening roads - Consideration of requirements of common law and statute for dedication of road - not then necessary to transfer road to Council or to show dedication on Certificate of Title - on the facts, found that roads in Pacific City Estate were opened and dedicated by proprietor and accepted by public before 1 January 1920 and ownership vested in Council under s.232(1) of Local Government Act 1919. Local Government Act 1906 ss.99 – 101 Local Government Act 1919 ss.232(1), 237 LEGISLATION CITED : Roads Act 1993 s.145 Real Property Act 1862 s.100 (26 Victoria No.9) Real Property Act 1900 s.113 Attorney-General v City Bank of Sydney (1920) 20 SR (NSW) 216 Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618 Lake Macquarie City Council v Luka (1999) 106 LGERA 94 CASES CITED : Measures v Shire of Wallarobba (1910) 11 SR (NSW) 10 Newington v. Windeyer (1985) 3 NSWLR 555 Owen v O'Connor (1963) 63 SR (NSW) 1051 Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (1960) 105 CLR 401 Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354 The Council of the City of Shoalhaven - Appellant The Director General National Parks and Wildlife Services - First Respondent The Minister Administering the National Parks and Wildlife Act 1974 - Second Respondent PARTIES : The Estate of Late H L Halloran - Third Respondent Irrayadda Pty Ltd - Fourth Respondent Warren Halloran - Fifth Respondent The Minister administering Environmental Planning and Assessment Act 1979 - Sixth Respondent FILE NUMBER(S) : CA 40696 of 2003 COUNSEL : J. Webster SC and M. Carpenter - Appellant (Submitting Appearance) - Respondents Morton & Harris - Appellant SOLICITORS : Crown Solicitors Office - 1 & 2 Respondents Blake Dawson Waldron - 3, 4 & 5 Respondents General Counsel, Department of Intrastructure Planning & Natural Resources - 6 Respondents