Aquilina v Blacktown City Council [2009] NSWSC 140

New South Wales Supreme Court

CITATION : Aquilina v Blacktown City Council [2009] NSWSC 140

HEARING DATE(S) : 27 February 2009

JUDGMENT DATE : 18 March 2009

JUDGMENT OF : Schmidt AJ

CATCHWORDS : ADMINISTRATIVE LAW - declaratory relief - roads - whether lands are public roads - whether plaintiff had claimed interest in the roads - whether Council failed to notify plaintiff in accordance with s 224(3) of the Local Government Act 1919 - effect of section 45A of the Real Property Act 1900 - no title in roads established by plaintiff - effect of registration of Council's interest - orders sought declined

LEGISLATION CITED : Real Property Act 1900 Local Government Act 1919

CATEGORY : Principal judgment

Weber v Ankin [2008] NSWSC 106 Logue v Shoalhaven Shire Council (1979)1 NSWLR 537 CASES CITED : City of Canada Bay Council v F& D Bonaccorso Pty Ltd [2007] NSWCA 351 Breskvar v Wall (1971) 126 CLR 376 Mittagong Shire Council v Wood and Others (1978) 38 LGRA 160

PARTIES : Plaintiff - Frank Aquilina Defendant - Blacktown City Council

FILE NUMBER(S) : SC 30099/08

COUNSEL : Plaintiff - Mr S Aquilina (plaintiff's son) Defendant - Mr P Kelso

SOLICITORS : Defendant - Bartier Perry

- 12 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

SCHMIDT AJ

Wednesday, 18 March 2009

30099/08 FRANK AQUILINA v BLACKTOWN CITY COUNCIL

JUDGMENT 1 HER HONOUR: By summons of 8 August 2008 the plaintiff seeks orders revoking the gazettal of certain land as dedicated public roads. The orders are directed to two parcels of land, one designated as Wolseley Ave and the other, merely as an unnamed lane 20 feet wide. The orders sought are directed to the land in Certificate of Title DP 1007 Vol 732 Folio 246. 2 It was not in issue that the land in that Certificate of Title, of which Mr Aquilina was the registered proprietor in 1985, did not incorporate the road and lane in question. It was common ground that the road and lane were always part of the land in Certificate of Title Vol 630 Folio 92. Mr Aquilina has never been the registered proprietor of that land. 3 Mr Aquilina's claim to title in the road and lane came to rest on the provisions of s 45A of the Real Property Act 1900. In 1967, Mr Aquilina acquired the land abutting the road and lane and he continued to own that land in 1985, when the Council took steps to gazette the road and lane as public roads, in accordance with the provisions of the Local Government Act 1919. 4 The application for declaratory relief came to be made because in May 2008, Mr Aquilina was notified by the Council that the road and lane were dedicated public roads. It was common ground that they have never been used by the public as roads. After he made enquiries, in July 2008 Mr Aquilina was advised by Council that the road and lane had been gazetted as public roads in January 1986. It was common ground that the Council did not notify him of its intention to gazette the road and lane as public roads, prior to the gazettal. It was also common ground that at the time of the gazettal, Mr Aquilina was the owner of the land which abutted the road and the lane. 5 Mr Aquilina claimed that in accordance with the applicable provisions of the Local Government Act, the Council ought to have notified him of its intention to gazette the road and lane as public roads, because of his ownership of the road and lane, by virtue of the operation of s 45A of the Real Property Act. The result of the Council's failure was that the gazettal process was not executed according to law; it was ineffective and the declaratory relief sought should be granted. 6 By cross summons of 22 December 2008, the Council sought a declaration that the lands in question are public roads. 7 By a defence of 15 January 2009, Mr Aquilina claimed that the road and lane had never been used as public roads, nor had they been maintained as such by the Council. The 1985 gazettal notice nominated James Henderson Wood and Lawrence MacBriar as proprietors of the land. They were each then deceased. The Gazettal notice stated that they had been served with notice of Council's intention to gazette the land. At the time of the Gazettal notice Mr Aquilina claimed that he was the proprietor of the land and that the Council had failed to notify him of its intentions to Gazette the land, causing him to be excluded from the appeal process established by s 224(3) of the Local Government Act. Accordingly, Mr Aquilina pressed a declaration that the Gazettal was ineffective and that title to the land revert.