F & D Bonaccorso Pty Ltd v City of Canada Bay City Council [2007] NSWLEC 159

F & D Bonaccorso Pty Ltd v City of Canada Bay City Council [2007] NSWLEC 159

Chapman Reserve was community land as at 1 July 1993 and the transfer by council was contrary to s 45(1) of the Local Government Act 1993; the Court found that s 45 of that Act overrides the indefeasibility provisions of the Real Property Act 1900 by necessary implication, empowering the Court to order rectification of the Register and restore the council as registered proprietor. The 2003 development consent was invalid due to failure to advertise as required by law.

Parties
Applicant: F & D Bonaccorso Pty Ltd; First Respondent: City of Canada Bay City Council; Second Respondent: Arinson Pty Ltd; Third Respondent: Omaya Holding Pty Ltd; Fourth Respondent: Omaya Investments Pty Ltd; Fifth Respondent: The Registrar General
Jurisdiction
Australia
Judgment Date
30 March 2007
Procedural Posture
Judicial Review / Final Judgment
Outcome
Relief granted in respect of the declarations and orders concerning Chapman Reserve and the 2003 development consent; demolition issue stood over for determination with the related proceedings; remaining claims dismissed.
Legal Topics
Indefeasibility of Title Under Torrens System, Community Land Under the Local Government Act, Discretionary Relief for Breach of Statutory Duty, Invalidity of Development Consent
Administrative Law Property Law Planning and Environment Law Indefeasibility of Title Under Torrens System Community Land Under the Local Government Act Discretionary Relief for Breach of Statutory Duty Invalidity of Development Consent

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Parties

F & D Bonaccorso Pty Ltd

Applicant

City of Canada Bay City Council

First Respondent

Arinson Pty Ltd

Second Respondent

Omaya Holding Pty Ltd

Third Respondent

Omaya Investments Pty Ltd

Fourth Respondent

The Registrar General

Fifth Respondent

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether Chapman Reserve was 'community land' as at 1 July 1993 within the meaning of the Local Government Act 1993
  2. 2 Whether registration of the transfer of Chapman Reserve from the council to the third respondent was void due to contravention of ss 44 and 45 of the Local Government Act 1993
  3. 3 Whether the indefeasibility provisions of the Real Property Act 1900 were overridden by the Local Government Act 1993 in relation to community land

Ratio Decidendi

Chapman Reserve was community land as at 1 July 1993 and the transfer by council was contrary to s 45(1) of the Local Government Act 1993; the Court found that s 45 of that Act overrides the indefeasibility provisions of the Real Property Act 1900 by necessary implication, empowering the Court to order rectification of the Register and restore the council as registered proprietor. The 2003 development consent was invalid due to failure to advertise as required by law.

Court Disposition

Relief granted in respect of the declarations and orders concerning Chapman Reserve and the 2003 development consent; demolition issue stood over for determination with the related proceedings; remaining claims dismissed.

Orders

  • Declaration that the development consent for development application no 336/2003 for 2 – 10 and 13 – 21 Chapman Street, Strathfield is invalid and of no force or effect.
  • Order that the said development consent be set aside.