Save Little Manly Beach Foreshore Incorporated v Manly Council (No 2) [2013] NSWLEC 156

Land and Environment Court New South Wales

Medium Neutral Citation: Save Little Manly Beach Foreshore Incorporated v Manly Council (No 2) [2013] NSWLEC 156 Hearing dates: 24-25 September 2013 Decision date: 09 October 2013 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) Declaration that the respondent's land at 34 Stuart Street and 36 Stuart Street, Manly is classified as community land under the Local Government Act 1993. (2) Order that the respondent be restrained from selling, exchanging or otherwise disposing of the said land so long as it is classified as community land under the Local Government Act 1993. (3) Declaration that the respondent's land at 36 Stuart Street, Manly is subject to a trust for a public purpose. (4) The respondent is to pay the applicant's costs. (5) Liberty to apply on three days notice. (6) The exhibits may be returned. Catchwords: JUDICIAL REVIEW - claim to prevent council selling land on basis that under Local Government Act 1993 it is classified as community land, which council has no power to sell - re land vested in council as at 1 July 1993, whether 1994 resolution classifying it as operational land beyond power because deemed to be community land under cl 6(2)(b) Sch 7 - whether presumption rebuttable and rebutted - whether advance public notice of 1994 resolution as required by s 34 - re land acquired by Council after 1 July 1993 by agreement as contemplated by local environmental plan and Land Acquisition (Just Terms compensation) Act 1919, whether 1998 resolution classifying it as operational land beyond power because inconsistent with terms of trust or instrument executed by transferor as provided in s 31(3)(b) - whether advance public notice of 1998 resolution as required by s 34 - whether resolutions invalid under Project Blue Sky principles - whether Council has defence under s 54 on basis of power to issue conclusive certificate as to classification given that s 53 land register records the subject land as operational - whether proceedings barred by time limitation in s 729 - whether relief should be refused in the Court's discretion. Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 s 26(1)(c) Interpretation Act 1987 ss 3, 34(1) Land Acquisition (Just Terms Compensation) Act 1991 ss 3,5, 20(1)(b), 21(1)(b), 23, 24, 25, 30, 36, 55(f), 56 Lands Acquisition Act 1955 (Cth) s 5(1) Local Government Act 1993, Part 2 (ss 25-54B) of Chapter 6, ss 186, 188, 674, 729 cl 6 of Sch 7 Real Property Act 1900 s 42 Manly Local Environmental Plan 1988 Manly Local Environmental Plan 2013 New South Wales Legislative Assembly Parliamentary Debates (Hansard) 27 November 1992 Cases Cited: Azevedo v Secretary, Department of Primary Industries & Energy (1992) 35 FCR 284 Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59, (1998) 195 CLR 566 Broadcast Australia Pty Ltd v Noonan [2011] NSWSC 1524, (2011) 188 LGERA 1 Dominic Wykanak v Rockdale City Council NSWLEC, Pearlman J, 2 July 1998 (unreported) Flaherty v Columbia Nursing Homes Pty Ltd [2007] NSWLEC 148, (2007) 152 LGERA 383 Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355 PWC Properties Pty Ltd v Bathurst City Council [1996] NSWLEC 183, (1996) 91 LGERA 344 R & R Fazzolari Pty Ltd v Parramatta City Council; Mac's Pty Ltd v Parramatta City Council [2009] HCA 12, (2009) 237 CLR 603 Sharples v Minister for Local Government [2010] NSWCA 36, (2010) 174 LGERA 129 Sharples v Minister for Local Government [2008] NSWLEC 328, (2008) 166 LGERA 302 Smith v Wyong Shire Council [2003] NSWCA 322, (2003) 132 LGERA 148 Transport Infrastructure Development Corp v Parramatta City Council [2005] NSWLEC 742, (2005) 143 LGERA 415 Warringah Council v Edmondson [2001] NSWCA 1 Category: Principal judgment Parties: Save Little Manly Beach Foreshore Incorporated (Applicant) Manly Council (Respondent) Representation: COUNSEL: I King, J Doyle and J Longworth (Applicant) C Leggat SC, M Seymour and J McKelvey (Respondent) SOLICITORS: Woolf Associates (Applicant) Marsdens Law Group (Respondent) File Number(s): 40549/13