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North Cronulla Precinct Committee Incorporated v Sutherland Shire Council [1999] NSWCA 438 (3 December 1999)

Last Updated: 3 December 1999

NEW SOUTH WALES COURT OF APPEAL

CITATION: North Cronulla Precinct Committee Incorporated v Sutherland Shire Council  [1999] NSWCA 438 

FILE NUMBER(S):

40210/98

HEARING DATE(S): 26/03/99

JUDGMENT DATE: 03/12/1999

PARTIES:

North Cronulla Precinct Committee Incorporated

Sutherland Shire Council

JUDGMENT OF: Sheller JA Beazley JA Giles JA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S):

40098/97

LOWER COURT JUICIAL OFFICER: Pearlman J

COUNSEL:

Appellant: T F Robertson

Respondent: C W McElwen

SOLICITORS:

Appellants: Brock Partners, Sydney

Respondent: Steven Berveling, Sutherland

CATCHWORDS:

Local Government Act

Land vested in council

Classification of land as 'public park' or 'public reserve'

required actions

ACTS CITED:

 Local Government Act 1993  ( NSW )

Local Government Act 1919 ( NSW )

 Suitors Fund Act 1951  ( NSW )

DECISION:

Appeal Allowed

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40210/98

LEC 40098/97

SHELLER JA

BEAZLEY JA

GILES JA

Friday, 3 December 1999

FACTS

The land subject of the determination in this matter (the land) was vested in the Sutherland Shire Council (the council) and thereby classified as public land under the  Local Government Act 1993  (the 1993 Act) which came into force on 1 July 1993 (the commencement date). Under the 1993 Act public land is classified as either `community land' or `operational land'. There are restrictions on the manner in which a council can deal with community land which do not apply if land is operational land. If land vested in a council was not classified as community land under Sch 7 Pt 2 cl 6(2), a council could, within one year of the commencement date, resolve to classify the land as either community or operational land. A public reserve is classified as community land under Sch 7 Pt 2 cl 6(2). A public reserve was defined to mean, inter alia, a `public park'.

In May 1994 the council resolved to classify the land as operational land. The appellant challenged the validity of the resolution on the basis that the land was a public park and therefore was classified by the 1993 Act as community land.

At first instance, Pearlman CJ LEC held that the land was not a public park as some form of dedication or reservation of the land for the purpose of a public park or a council resolution to that effect was necessary and there was none here.

HELD

The land was a public park and therefore land comprising a public reserve within Sch 7 Pt 2 cl 6(2)(a) of the 1993 Act. Accordingly, it was classified as community land under that Act.

Per Sheller JA: For the appellant to succeed the respondent must be shown to have intended, by laying out the park and permitting the public to use it, to provide a public park or dedicate the land as a public park.

The respondent had decided to landscape and maintain the land in a way said to be no different from the way it provided and maintained other parks in the area. The use persisted for between eight and nine years prior to the resolution in 1994. Members of the public, with the knowledge and acquiescence of the respondent, came and went on the land in a way which could only suggest they believed that they had a right to use the land as a park. The respondent did not use the land for any other purpose, nor did it indicate that such use was temporary. On the evidence, the Court should find that when the park was laid out the respondent intended to dedicate the land so used as a public park.

Per Beazley JA: Formal dedication, reservation or resolution is not necessary for land to be a public park under the 1993 Act. The council had laid out the land in the same manner as it laid out dedicated public parks in the area and had maintained it and permitted use of the land by the public as a park for over a decade. That was sufficient in the present case for the land to be a public park and therefore land comprising a public reserve within Sch 7 Pt 2 cl 6(2)(a) of the 1993 Act.

Per Giles JA: In order that a park be a public park it is necessary at the least that those who use the area for recreation are members of the public or that the council's use of the area involves that the council makes it available for use by members of the public.

The evidence of the use of the land shows that prior to and at 1 July 1993, those who used the land for recreation were members of the public, and those for whose use the land was made available were members of the public.

Dedication of land to a public use by a formal act is not necessary. The members of the public, in using the park, must have been acting in the belief that they were entitled to use the park, and, more importantly, it must have been apparent to the council that they were acting in this belief. It was not a situation of mere tolerance of public use by the council. It should be inferred that, prior to 1 July 1993, the council intended that the park should be dedicated to public use, so that it was a public park as at that date.

If the council intended that public use of an area as a park be conditional or temporary, it could make that apparent, and dedication to a public use would not be found.

ORDERS

(i) Appeal allowed.

(ii) The decision of the trial judge set aside.

(iii) The parties to file short minutes of declarations and orders in accordance with these reasons.

(iv) The respondent is to pay the appellant's costs of the appeal and in the court below, but is to have, if qualified, a certificate under the  Suitor's Fund Act 1951  ( NSW ).

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40210/98

LEC 40098/97

SHELLER JA

BEAZLEY JA

GILES JA

Friday, 3 December 1999

1 SHELLER JA: I have had the benefit of reading in draft the judgment prepared by Beazley JA. In my opinion, much depends in this appeal on the use members of the public made of the land that is vested in or under the control of the respondent and claimed by the appellant to comprise a public reserve within cl 6 (2) (a) of Schedule 7 of the  Local Government Act 1993  (the 1993 Act). In the dictionary at the end of the Act "public reserve" is defined to mean, inter alia, "a public park". The appellant's claim that the land was subject to a trust for a public purpose within the meaning of cl 6 (2) (b) of Schedule 7 was not pursued on the appeal; compare Bathurst City Council v P W C Properties Pty Limited [1998] HCA 59; (1998) 72 ALJR 1470 particularly at 1483.

2 At the heart of the decision appealed from was the acceptance of the respondent's submission that some formal act of the Council was required to constitute the land as a "public park". Mere use of the land by the public as a park was not alone sufficient. The respondent submitted that there must be some dedication or reservation of the land for the purpose of a public park, a submission Pearlman CJ accepted as correct.

3 Her Honour referred to Windeyer J's judgment in Randwick Municipal Council v Rutledge [1959] HCA 63; (1959) 102 CLR 54. At 88 his Honour, when considering whether land was used for a public reserve and therefore by definition a public park, said that the land must be, in the relevant sense, open to the public generally "as of right" which it might be despite various regulatory limitations on public access. The Chief Judge said:

"In this case, the land is not open to the public generally as of right, despite the fact that the public use it for recreational activities. The land was acquired, pursuant to s321 of the 1919 Act, for the purpose of `the improvement and embellishment of the area'. If, however the land was not required for that purpose, the council was empowered by s347 to use the land `for the purposes of' Pt XIII, which dealt with public recreation. Under s348, which appeared in Pt XIII, the council was empowered to provide grounds for public recreation or other public purpose, including `parks'. In Shepperd v The Council of the Municipality of Ryde (1952) 85 CLR 1, the High Court said, at p12, that `[w]hat formal steps are necessary before it can properly be said that the Council has `provided' a park within s348 may not be very clear, but it would seem enough for the Council to adopt a resolution appropriating specific land of the Council'.

Here, the council did not resolve to appropriate the land as a park. Nor did it take any other formal step for that purpose."

4 In the context of the acquisition of rights of way by use, the expression "as of right" has been employed to denote a use of land without force or stealth or licence (nec per vim, nec clam, nec precario). The claimants used the land as though they had a right to do so and in ways that to a reasonable landowner would indicate that they believed they were exercising such a right. Such use could be evidence either of an intention by the owner to dedicate the land to that use or that there had in fact been such a dedication. The transposition of the expression to the context of "public" reserves or parks brings the application of similar principles to any consideration of whether land should, as the result of public user, be so regarded.

5 In Mann v Brodie [1885] 10 App Cas 378 a Scottish case, Lord Blackburn, after stating that in both Scotland and England a right of public way might be acquired by prescription and referring to the means by which the period for prescription relating to the acquisition of private rights had in England been practically cut down to shorter definite periods by legal fictions and legislation, said at 386:

"But this has never been done in the case of a public right of way. And it has not been required, though in the way in which the evil of the period of prescription being too long has been avoided, an opposite evil of establishing public rights of way on a very short usurpation has sometimes been incurred.

In Poole v Huskisson [1843] EngR 39; (1843) 11 M & W 830; 152 ER 1039 Baron Parke says: `In order to constitute a valid dedication to the public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate - there must be an animus dedicandi, of which the user by the public is evidence and no more; and a single act of interruption by the owner is of much more weight upon a question of intention, than many acts of enjoyment.'

But it has also been held that where there has been evidence of a user by the public so long and in such a manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find the fact may find that there was a dedication by the owner whoever he was. It is therefore, I may say, in England never practically necessary to rely on prescription to establish a public way."

And see Owen v O'Connor  (1963) SR (NSW) 1051  at 1053.

6 In R v Oxfordshire County Council; ex parte Sunningwell Parish Council [1999] UKHL 28; [1999] 3 WLR 160 at 168 Lord Hoffmann, with whose speech the other members of the House of Lords agreed, referring to Mann v Brodie, said at 168:

"My Lords, I pause to observe that Lord Blackburn does not say that there must have been evidence that individual members of the public using the way believed there had been a dedication. He is concerning himself, as the English theory required, with how the matter would have appeared to the owner of the land. The user by the public must have been, as Parke B said in relation to private rights of way in Bright v Walker, (1834) I C M & R 211 at 219 ; [1834] EngR 32; 149 ER 1057 at 1060, `openly and in the manner that a person rightfully entitled would have used it ....'. The presumption arises, as Fry J said of prescription generally in Dalton v Angus, (1881) 6 App Cas 740, 773, from acquiescence.

The difficulty in the case of public rights of way was that, despite evidence of user as of right, the jury were free to infer that this was not because there had been a dedication but because the landowner had merely tolerated such use: see Folkestone Corporation v Brockman [1914] AC 338. On this point the law on public rights of way differed not only from Scottish law but also from that applicable to private easements."

7 In Shepperd v The Council of the Municipality of Ryde (1952) 85 CLR 1 the High Court referred to s348 (1) of the Local Government Act 1919 (the 1919 Act), to which the Chief Judge adverted, and the power given thereby to a council to provide parks. At 11 in a joint judgment Dixon, McTiernan, Fullagar and Kitto JJ said: "It is assumed that a park provided under this power becomes a public park." In that context is found that part of the joint judgment which the Chief Judge quoted in the passage which I have set out above. The High Court in Shepperd had in mind the need for a formal step but, absent form, other actions by the Council may show that it intended to take that step.

8 In the present case no formal step was taken by the respondent to provide a park under s348 (1) of the 1919 Act nor was there any formal act of dedication unless, in either case, the laying out of the park itself was enough. It seems to me that for the appellant to succeed the respondent must be shown to have intended, by laying out the park and thereafter permitting the public to use it "as of right", to provide a public park or dedicate the land as a public park.

9 In Turner v Walsh (1881) 6 App Cas 636 at 639-40 Sir Montague Smith, speaking for the Privy Council on an appeal from this Court, said of the main road between Enabalong [sic Euabalong] and Condobolin which crossed the plaintiff's land:

"The mail coaches travelled that road; teamsters conveying the produce of the country, especially wool, used it; and, in fact, it had been used by the public for all purposes, during this period, [40 years before the commencement of the action] continuously and without interruption. Upon such evidence the Judge would be right, unless some positive restriction on the power of the Crown appeared, in directing the jury that they might presume a dedication of the road by the Crown to the public. The presumption of dedication may be made where the land belongs to the Crown, as it may be where the land belongs to a private person. From long-continued user of a way by the public, whether the land belongs to the Crown or to a private owner, dedication from the Crown or the private owner, as the case may be, in the absence of anything to rebut the presumption, may and indeed ought to be presumed."

10 But in Newington v Windeyer (1985) 3 NSWLR 555 at 559 McHugh JA, as his Honour then was, pointed out that care must be taken to distinguish evidence of user, from which dedication can properly be inferred, from mere evidence of continual use even for a very long period. "At common law, continual trespassing could not create a public road. The evidence must raise the inference that, at some point of time, the owner dedicated the road to the public."

11 In Folkestone Corporation v Brockman at 366 Lord Atkinson said in reference to Turner v Walsh:

"But the judgment of that very learned judge in that case is no authority whatever for the proposition that if the user by the public be proved to be ever so open, lengthy, and continuous, and the presumption of dedication arising therefrom be not rebutted, the jury is at law bound to infer a dedication, or that the judge presiding at the trial is entitled to direct them so to do."

12 Rather if the justices were not satisfied that the landowner intended to dedicate, they were bound to find against dedication (367-8). At 369 Lord Atkinson said:

"Heath J said in the case of Steel v Houghton [1788] EngR 37; (1788) 1 H Bl 51 at 60; [1788] EngR 37; 126 ER 32 at 37, in reference to a claim by the poor of the right to glean in cornfields: `It is the wise policy of the law not to construe acts of charity, though continued and repeated for never so many years, in such a manner as to make them the foundation of legal obligation.' The same thought, substituting the word `kindliness' or `good nature' for the word `charity,' is expressed by Bowen LJ, as he then was, in Blount v Layard [1891] 2 Ch 681 at 690 (a case about fishery), in the well-known passage of his judgment quoted with approval by Lord Macnaghten in Simpson v Attorney-General [1904] AC 476 at 493. It ran thus: `If the case is retried, the jury ought to be most carefully warned (as they were) not to do injustice under the idea that they are vindicating a public right. I think they ought to be solemnly told (as they no doubt will be) that nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners, under the fear that their good nature may be misunderstood'."

13 As I have said the Chief Judge decided this case on the basis that there was no formal act whereby the respondent dedicated or provided a public park. But, ultimately, in this appeal, the question is whether on the evidence the appellant has shown that the respondent acted in a way which indicated that it intended to dedicate the land in question for use as a public park.

14 In her judgment Beazley JA points out that by 1985 the respondent had decided to landscape and maintain the land in a way said to be no different from the way it provided and maintained other coastal parks in the area. That use was authorised by s347 and 348 of the 1919 Act. The use persisted for between 8 and 9 years until a 1994 resolution purporting to characterise the land as operational land. During that period members of the public, with the knowledge and acquiescence of the respondent, came and went on the land in a way which could only suggest that they believed that they had the right to use the land as a park. The respondent did not use the land for any other purpose nor did it indicate that such use was merely temporary. In my opinion, on the evidence the Court should find that when the park was laid out the respondent intended to dedicate the land so used as a public park.

15 BEAZLEY JA: The issue on this appeal is whether certain land within the local government area of the respondent (the council) was a public reserve within the meaning of Schedule 7 Part 2 cl 6(2) of the  Local Government Act 1993  ( NSW ) (The 1993 Act), as at the commencement of that Act. If it was a public reserve, it became community land within the meaning of the 1993 Act: cl 6(2). If it was not, the council was empowered to classify the land as operational land under Sch 7 Pt 2 cl 6(3), as it purported to do by resolution dated 16 May 1994.

Introduction

16 The land in question is situated at Mitchell Road, Cronulla. At the time of the instigation of proceedings, 7 lots were in issue - Lot 103 DP 565838 (formerly lots 1 and 4 and part of lots 2 and 3 to DP 19915); Lots 5 and 6 DP 19915 and Lot 297 DP 8565. In her judgment, Pearlman CJ LEC noted that part of the land had been dedicated as open space in 1996. Thus, the only land subject of the determination in the matter comprises part of Lot 103 DP 565838 and Lots 5 and 6 DP 19915 (the land).

17 Under the 1993 Act, which came into force on 1 July 1993, public land, which is defined as being land vested in a local council other than certain listed exceptions such as public roads, is classified as "community land" or "operational land": see Ch 6 Pt 2 s 26. Schedule 7 contains transitional provisions relating to public land as at the date of the commencement of Chapter 6 Part 2, which is the same date as the commencement of the 1993 Act (the commencement date). As the land was vested in council as at the commencement date, it is public land within the meaning of the 1993 Act.

18 Schedule 7 Pt 2 cl 6(2)(a) provides that, as at the commencement date, certain public land including "land comprising a public reserve" is taken to be community land. Subclause 6(3) provides that within 1 year after the commencement date, a council may resolve to classify land as community or operational land which was vested in it or under its control but which was not classified by subcl 2.

19 On 16 May 1994, the council purported to act under subcl 6(3) and resolved to classify the land as operational land.

20 The appellant is a local precinct committee in the respondent council area and challenged the validity of this resolution in Class 4 proceedings in the Land and Environment Court on a number of grounds. The Land and Environment Court dismissed the application. The only issue on appeal is whether the land fell within the provisions of subcl 6 (2)(a) and was thus taken to have been community land as at the commencement date.

21 Pearlman J held that as the land was used by the public for recreational purposes and was not bushland, it was properly categorised as a "park" for the purposes of the 1993 Act. Her Honour held, however, that it was not a "public park" and accordingly was not a "public reserve" for the purposes of subcl 6(2)(a). In coming to this conclusion, her Honour considered that some form of dedication or reservation of the land for the purpose of a public park, or, at the least, a council resolution to that effect, was necessary before land vested in council was classified within the provisions of the 1993 Act as a public park and therefore a public reserve: see Randwick Muncipal Council v Rutledge [1959] HCA 63; (1959) 102 CLR 54 at 88; Shepperd v The Council of the Municipality of Ryde (Ryde Corporation) (1952) 85 CLR 1 at 12.

22 There was no such resolution of council here. It followed on her Honour's reasoning that, on the issue on the appeal, the application must fail.

23 The issue on appeal therefore is whether some formal step by council is required for land to be a public reserve and if not, what acts of council are sufficient to constitute land a public reserve within the meaning of the 1993 Act.

The 1993 Act

24 It is necessary at this point to consider the relevant provisions of the 1993 Act.

25 Chapter 6 Pt 2 regulates "public land". "Public land" means "any land (including a public reserve) vested in or under the control of council" but excludes certain land such as public roads.

26 Public reserve is defined to mean:

"(a) a public park, or

(b) any land conveyed or transferred to the council under section 340A of the Local Government 1919, or

(c) any land dedicated or taken to be dedicated as a public reserve under section 340C or 340D of the Local Government Act 1919,

any land dedicated or taken to be dedicated under section 49 or 50, or

(e) any land vested in the council, and declared to be a public reserve, under section 37AAA of the Crown Lands Consolidation Act 1913, or

(f) any land vested in the council, and declared to be a public reserve, under  section 76  of the  Crown Lands Act 1989 , or

(g) a Crown reserve that is dedicated or reserved:

(i) for public recreation, or

(ii) for a purpose that is declared to be a purpose that falls within the scope of this definition by means of an order published in the Gazette by the Minister administering the  Crown Lands Act 1989 ,

being a Crown reserve in respect of which a council has been appointed as manager of a reserve trust for the reserve or for which no reserve trust has been established, or

(h) land declared to be a public reserve and placed under the control of a council under section 52 of the State Roads Act 1986, or

(i) land dedicated as a public reserve and placed under the control of a council under  section 159  of the  Roads Act 1993 ,

and includes a public reserve of which a council has the control under section 344 of the Local Government Act 1919 or section 48, but does not include a common."

27 Public park is not defined. A park is defined as "an open area of space used for recreation, - not being bushland".

28 Section 25 provides that all public land must be classified in accordance with Pt 2 of Ch 6.

29 Section 26 provides for "two classifications for public land - `community' and `operational'", with the transitional provisions in Sch 7 Pt 2 cl 6 specifying the classification of land as at the commencement date.

30 Schedule 7 Pt 2 cl 6 provides:

"(1) This clause applies to all public land within a council's area as at the commencement of Part 2 of Chapter 6 (the relevant commencement).

(2) On the relevant commencement, the following land that is vested in or under the control of a council is taken to have been classified as community land:

(a) land comprising a public reserve,

(b) land subject to a trust for a public purpose,

(c) land dedicated as a condition of a development consent under  section 94  of the  Environmental Planning and Assessment Act 1979 ,

(d) land reserved, zoned or otherwise designated for use under an environmental planning instrument as open space,

(e) land controlled by a council that is vested in the corporation constituted by  section 8(1)  of the  Environmental Planning and Assessment Act 1979 

(3) Within 1 year after the relevant commencement, a council may, by resolution, classify, as community land or operational land, any public land that is vested in it or under its control and that is not classified by subclause (2).

...

(6) The classification of public land by resolution under subclause (3) may be changed only by a local environment plan or, in the case of land that has been classified as operational land, by a resolution under section 33."

31 I have earlier identified the "relevant commencement" in cl 6 as the commencement date (see para 3).

32 If land is taken to be community land under cl 6(2)(a), it may only be reclassified as operational land by a local environmental plan with the attendant procedures of notification and objection required under the 1993 Act for the making of such a plan. The use and management of community land is to be regulated by a plan of management. Until a plan of management is adopted, the nature and use of the land must not change.

1919 Act

33 As Sch 7 Pt 2 cl 6 is concerned with the proper categorisation of land as at the commencement date, it is necessary to understand the powers of council in relation to the acquisition and use of land under the 1919 Act.

A local authority had various powers under the 1919 to acquire land for the purposes of the Act. The general power of land acquisition was contained in s 532, whereby a council could acquire land for the purposes of the Act. The section was amended from time to time, but not in a way relevant to the issues on the appeal. Under s 321, a council could acquire land for the specified purposes of undertaking the planning of new roads and subdivisions, the rearrangement of existing roads, the demolition rearrangement and reconstruction of buildings and works and the improvement and embellishment of the area. Section 347 provided that "any land acquired by the council for any purpose under this Act, and not required for that purpose, may be used for the purposes of [Part XIII]". Part XIII provided for "Public Recreation". Section 348 fell within Part XIII. It provided:

"(1) The council may provide, control and manage grounds for public health, recreation, convenience, enjoyment, or other public purpose of the like nature, including--

(a) parks;

(b) children's playgrounds, drill-grounds, sports grounds;

(c) gardens.

(2) Such children's playgrounds, drill-grounds, sports grounds and gardens may be provided either in public reserves or on other lands of the council."

34 Section 518 provided that a council could sell any land vested in it but that power did not authorise the sale of "any public reserve": s 518(2).

Precinct Committee's Submissions

35 Counsel for the precinct committee submitted that her Honour erred in finding that there had to be some formal council resolution or dedication before a park could be a "public park" within the meaning of the 1993 Act. He drew attention to the distinction between para (a) of the definition of "public reserve" which referred simply to a "public park" and paras (b) to (i) which related to land that was a public reserve because of dedication, conveyance or declaration. He submitted this difference in legislative drafting was deliberate and that the reference to "public park" was a reference to a de facto situation and was intended to catch those parks which function as public parks, where the public come and go as they please, which are owned by public authorities but have not been reserved or dedicated or otherwise created in some formal way. He submitted that had Parliament intended the classification "public park" to require formal dedication, it would have been unnecessary to add it as a category to the subcategories in the definition. It was further submitted that the word `public' in para (a) only added the notion of public ownership as distinct from private ownership and did not indicate any requirement of public dedication or formal resolution. It followed, on this submission, that the acts of the Council in physically laying out a park were sufficient to create the land as a public park within the meaning of cl 6(2)(a).

36 Counsel for the precinct committee submitted that this construction of cl 6(2) was supported by Rutledge. He also relied upon the note to Part 2 of Chapter 6, which states relevantly:

"This part requires all land vested in a council (except a road or land to which the  Crown Lands Act 1989  applies) to be classified as either `community' or `operational'.

...

The purpose of classification is to identify clearly that land which should be kept for use by the general public (community) and that land which need not (operational). The major consequence of classification is that it determines the ease or difficulty with which land may be alienated by sale, leasing or some other means.

...

Community land would ordinarily comprise land such as a public park. Operational land would ordinarily comprise land held as a temporary asset or as an investment, land which facilitates the carrying out by a council of its functions or land which may not be open to the general public, such as a works depot or a council garage."

Council's Submissions

37 Counsel for the council submitted that some formal step by council recognising the land as a public park was necessary for land to fall within para (a), that the specification of `public park' was a question of status, not usage: Wotton v Wingecarribee Shire Council (1989) 68 LGRA 38. It was submitted that to be public, the public must be entitled to use the land as of right, and such an entitlement could only be conferred by formal act: Rutledge; Shepperd. In further support of its submission that a public park was a question of status not use, counsel for the council argued that the categorisation of land as "community land" under Sch 7 indicated that the status of the land rather than its use was the relevant criteria under the 1993 Act. This was to be contrasted with the temporary use of land as a public park which was permitted by s 347. It was submitted that absent a formal act, the council should not be constrained as to the use it could make of the land, including a change of use. In particular, the council contended that Parliament could not have intended that the temporary use of land as a park would constitute that land a "public park" and therefore a public reserve, and thus quarantine it from sale by the operation of s 518 of the 1919 Act.

38 It was further submitted that a comparison with the terms "public road" and "public wharf" indicated that the difference between a public and private facility. A public facility which conferred an entitlement to the public to use it was derived from a formal act of dedication or reservation. Finally, it was submitted that if the construction for which the precinct committee contended was correct, then to avoid the restrictive consequences of classification as a public reserve, a council would have to prevent public use of land for recreation as a temporary measure while it held land for future development. This would have the unfortunate consequence of preventing or restricting interim beneficial use of dormant land.

Randwick Municipal Council v Rutledge

39 Both parties relied upon the statements of Windeyer J in Rutledge it is convenient to turn to that case now.

40 The issue in Rutledge was whether Randwick Race Course, which was owned by Randwick Council, was used as a public reserve within the meaning of s 132 of the 1919 Act. "Public reserve" was defined in relevantly identical terms as under the 1993 Act. The determination of that question involved two issues: (i) was land a public reserve ; and (ii) was it "used" as such. In determining whether it was used as a public reserve within the meaning s s132 Windeyer J stated at 70:

"[t]he term `public reserve' - and the word `reserve' alone, when not controlled by a definition or a context indicative of a different sense - have come to be used in common parlance in Australia in an imprecise way to describe an unoccupied area of land preserved as an open space or park for public enjoyment, to which the public ordinarily have access as of right."

41 His Honour added at 88:

"The land must be, in the relevant sense, open to the public generally as of right; and it must not be a source of private profit. ... When the Act speaks of land used for a public reserve it is referring to the actual use to which the land is put by the persons who in law control it for the time being".

42 The need for a formal act or resolution was not referred to in Rutledge. Nor was such a requirement part of the reasoning in the cases which have applied Rutledge: see Canobolas Shire Council v Orange City Council (1969) 20 LGRA 147 at 158-159 ; Wotton. The same question arose in those cases as in Rutledge, namely whether land vested in the council was "used as a public reserve" within the meaning of s 132 of the 1919 Act so as to be exempt from rates.

43 In Canobolas Shire Council O'Brien J observed at 157:

"the relevant question... is whether the city council uses [the land] for a public reserve and not whether the public uses [the land] for a public reserve.... This is not to say that the two questions are not closely related."

44 In Wotton Hemmings J found, at 47, that public park meant "land used for public health, recreation, enjoyment or other public purpose of a like nature". Whether particular activities or facilities fall within the meaning of "park", was, he said, a question of fact.

45 There is nothing in Rutledge, Canobolas Shire Council or Wotton which imports a requirement that there be a formal resolution of council. Rather, in those cases, the Court looked at actual use by the council. The reference to such a requirement is found in the earlier decision of Shepperd upon which Pearlman J relied in coming to her conclusion.

46 In Shepperd the respondent council had prepared a housing scheme under the provisions of the Local Government Act 1919 ( NSW ) for the erection of a large number of homes in its area. As part of the promotion of the housing scheme, the respondent corporation publicised the project as including various public facilities including parks. It was assumed in the case that those facilities were "provided" by Ryde Corporation under s 348. The appellant entered into a contract to purchase a lot in the estate. Ryde Corporation subsequently amended the proposal and replanned portion of the estate which had been designated as parkland. The appellant sought an interlocutory injunction to restrain Ryde Corporation from using the designated parkland for any other purpose. Interlocutory relief was refused at first instance and on appeal to this Court. On further appeal to the High Court, Dixon, McTiernan Fullagar and Kitto JJ assumed that a park provided under s 348 became a public park. Their Honours then averted to the question of what was necessary for the council to provide a park under s 348 (and therefore a public park), stating at 11-12:

"It is quite clear that it is competent for the Council as part of its [housing] scheme to appropriate areas of land to form parks and so to constitute them public reserves. What formal steps are necessary before it can be said that the Council has "provided" a park within s 348 may not be very clear, but it would seem enough for the Council to adopt a resolution appropriating specific land of the Council. The land may be acquired for the purpose or it may be land not required for some other purpose".

47 The council relies upon this statement to support its submission that for the purposes of Schedule 7, the reference to public park was a reference to status and not to use and that for a park to have the status of a public park, then a then at the least, a formal resolution of council was necessary. However, the statement relied upon in Shepperd was obiter. Secondly, their Honours did not specify that a formal resolution of council was the minimum requirement for council to create a park. Rather, it found that a council resolution was sufficient for the purposes of s 348 of the 1919 Act.

48 What then is required for land to fall within Sch 7 cl 6(2)?

49 The first answer to that question is, in my view, provided by the Act itself. The definition of public reserve (under both the 1919 Act and the 1993 Act) itself draws a distinction between land which is dedicated or held on trust, and land which is a public park. It was not disputed before us that for land, such as a public park, to be a public reserve within the meaning of the 1993 Act, it must be open for use by the public: Rutledge; Canobolas Shire Council; Wotton. This does not mean to say that merely because land has been used or is being used by the public, that it thereby becomes a public park within the meaning of either the 1919 or 1993 Act. To lend such a construction to the meaning of the phrase and the consequent operation of the Act could nullify or unintentionally qualify the proper planning controls to which local government legislation is directed. It is therefore correct to say, as O'Brien J did in Canobolas Shire Council, that the relevant use is use by the council, although there may be little distinction in fact between use by council and use by the public. That case was, as I have already pointed out, concerned with whether land was "used as a public reserve" in s 132 of the 1919 Act. However, I am of the opinion that the same concept applies in relation to the categorisation of any land as "public reserve". My view is reinforced by the words of para (a) itself. The paragraph does not refer to any formal requirement. Rather, the category is land vested in council which "comprises a public park". The word "comprises" carries with it the notion of use rather than a notion of formality, such as a council resolution.

50 It is therefore sufficient, in my opinion, for land to be categorised as a public park within Sch 7 cl 6(2)(a), for the council to have taken sufficient steps to use or to permit the use of the land as a public park. Her Honour did not determine that question in the present case.

History and Purpose of Acquisition

51 According to council's records, the history of the acquisition of the land commenced in about 1962. At that time the subject land as well as other land in the vicinity was subject to sand drift. Council decided at that time to seek to remedy the problem and also to provide a source of sand fill for the hard fill waste depot at Wanda and resolved to acquire some of the land in the area affected by the problem. The history of council's resolution, negotiation and acquisition commenced in the first half of 1962. Before turning to the individual acquisitions, reference should be made to another `plan' within council at about the same time, as it may explain some of council's later memoranda.

52 The council minutes of 2 October 1962 refer to "Acquisition p- North Cronulla Area - Redevelopment and contains the following entry:

"The Council desires to acquire the 17 blocks detailed on the plan attached. The Valuer-General's valuation for the land is 45,400.

The Council has an ambitious scheme in mind, the final details of which cannot be worked out until the exact area which the Council is able to acquire becomes known.

Suffice to say at this stage (additional confidential information can be given verbally to the Bank Manager) that there are major types of redevelopment practicable which would enable the Council to sell the land for a very high figure. Road construction costs in Mitchell Avenue would have to be allowed for along with beach stabilisation expenditure.

It is contemplated that an outlay of 100,00 could be involved in this proposal up to the point where property realisation would yield a considerable return."(emphasis added).

53 There was no other direct evidence in relation to this proposal. Nor was the power of council to engage in or adopt such a plan explored.

54 The first acquisition was of Lot 6. Council opened negotiations with the owner of Lot 6 in May 1962, when it advised the owner that Lot 6 and other land in the area was subject to sand drift. It sought advice as to whether the owner was prepared to sell and advised:

"Once the council has title to all of the land involved, it will give consideration to an overall plan of improvement for the area"

55 In June 1962 council gave the owner of Lot 6 notice of proposed resumption, advising that the purpose of acquisition was "for the improvement and embellishment of the area". A negotiated sale eventuated and the land was acquired in November 1962.

56 In June 1962 the council also resolved that lots 1 to 4 (now lot 103) and lot 5 be resumed for the same purpose.

57 On 3 August 1965 the council's Building Safety and Housing Committee recommended that the question of the acquisition of Lot 5 "be referred to the Finance Committee with the recommendation that the council resume it for addition to the Open Space Land already acquired in the region". It obtained a valuation from the Valuer-General on the basis that the land was to be acquired as additional open space. At about the same time, Mr Jones, the owner of Lot 5 lodged a building application with council for the erection of a home on the site. The application came before council at its meeting on 6 September 1965. At that time the council had before it a memo from the shire clerk stating:

"Council has purchased land in this vicinity from the Land Project Bank A/c for purposes of replanning and resale, not for additions to public space. If resumption is to proceed suggest that the purpose be for replanning and resale not for additions to open space."

58 It is possible that this memo referred to the scheme referred to in the October 1962 Minute, although there was no direct evidence linking the two.

59 The council's actual recommendation in respect of the acquisition of lot 5 was that:

"Mr Jones be approached to sell Lot 5 to the Council at the current Valuer General's valuation, for redevelopment purposes."

60 However, in a letter two weeks later to Mr Jones, who owned the land with Mrs Jones, it was reported that the Council meeting decided to acquire the land as additional open space land, suggesting that the shire clerk's recommendation had not been adopted.

61 Then, on 8 February 1966, the shire clerk wrote to Mr Jones stating:

"As you are no doubt aware, the Council cannot approve of a building application on the allotment as it is an unstable area due to the shifting sands.

The Council is, however, interested in acquiring this land for public purposes ..."

62 In the course of negotiating for the purchase of the land, the shire clerk wrote to Mr Jones's solicitor on 3 May 1966 stating:

"The Council considers that this land is necessary for public purposes and in view of its low lying nature no building application can be approved."

63 Agreement was eventually reached and the purchase of Lot 5 settled on 11 December 1969.

64 In June 1967 Lot 2 was acquired for the "general redevelopment of the area" on "the basis of a redevelopment scheme".

65 Mrs N G Gilhan owned Lot 297. The council purchased this Lot in April 1969. The evidence did not reveal the purpose of acquisition, nor is that matter now relevant as Lot 293 is not subject of the Court's determination.

66 Lot 3 was owned by Mr and Mrs W E Manns at the time of the initial offer by the council to purchase the land in May 1962. On 30 May 1962 the council wrote to the Manns seeking to purchase Lot 3 "for general redevelopment purposes". Lot 3 was acquired in December 1969. No specific purpose was stated at the time of purchase.

67 In May 1962 Lot 1 was owned by Mr S B Perry and Lot 4 was owned by Mr K E Downing. On 30 May 1967 the council wrote to both Mr Perry and Mr Downing asking if they were willing to sell their property "for general redevelopment of the area". Mr Parry subsequently acquired Lot 4. Negotiations were entered into for the sale to the council of both Lots in exchange for part of Lots 2 and 3. In February 1974 all four lots were re-subdivided. Lots 1 and 4 and the remaining parts of Lots 2 and 3 became Lot 103 in DP 565838.

Post Acquisition Dealing with the Land

(a) Representation Made as to Use

68 The council has made numerous representations in relation to the land.

In 1972, a local family, the Gittoes, who were building on an adjacent block and were concerned as to whether their view would be built out, approached the Council in relation to the land. The shire clerk made a representation to the effect that the land would be maintained as open space.

69 In February 1972 Mr Shyling, the prior owner of Lot 6, wrote to the council requesting that they allow him to repurchase the land, as he became aware it was still zoned residential. The council refused, stating that although it was zoned residential, the council was not precluded from "using the land for open space purposes and this is Council's intention at the present time". The council informed Mr Shyling that should it decide to dispose of the land, he would be given first opportunity to repurchase the land.

70 On 26 April 1979 Mrs J Liddlelow, owner of Lot 166 Mitchell Road, Cronulla, wrote to the council requesting an exchange of her land for Lot 6. The council responded in a letter dated 22 June 1979, stating that it required Lot 6 to be "maintained as Open Space and therefore, lot 6 is not available to [her] or anyone else, for building purposes". The Liddlelows again sought to purchase Lot 6 in March 1984. The council refused, stating in a letter dated 19 March 1984, that it "wished to retain lot 6 as Open Space, and this remains the intention at this time".

71 The name "J W Rayner Shire Clerk" was typed on the letter, but as her Honour observed, Mr Rayner expressly disclaimed any recollection of the letter or personal knowledge of Lot 6. The trial judge, therefore, gave the letter no weight. However, her Honour erred in this finding.

(b) Development of the Land as a Park

72 In 1982, a local resident, Mrs Dracos, requested the construction of a park on the land, a request which counsel for the precinct committee said "precipitated the action which culminated in the laying out of the park on the land by 12 April 1985". In her letter of request, Mrs Dracos wrote that "it would be ideal if this land was developed into a park with benches and shady trees, swings and perhaps a bike track ...". The shire clerk replied that:

"arrangements have been made to have this area levelled, topsoiled, where necessary seeded to grass and planted with suitable trees. This work is scheduled for the near future. Consideration will be given to further development of the area after the establishment of the present proposal".

73 Another resident, Mr Mansfield made a similar request in 1984 and work began in 1985. Internal memoranda of the Council at about this date reveal that Commonwealth Employment Programme funding was used to construct a reserve on the land. Mr Nacken, who was responsible for the land, noted that he "landscaped the land in a similar manner to the other coastal parks in the Cronulla area".

Use of the Land

74 The land remains landscaped and is well grassed with some bushy vegetation and has some planted flower beds. It is surrounded by low wooden log fencing to prevent vehicular access. For many years the land has been used by locals and visitors for recreational purposes such as picnicking, playing ball games, exercising dogs and flying kites. There are taps on two of the lots, used for various purposes. For example, beach-goers use the taps to wash sand from their feet and beach gear.

75 The history of the acquisition and subsequent dealing with the land thus reveals the following. The original intention in acquiring the land was to deal with a sand drift problem in the area and to use land so acquired "for the improvement and embellishment of the area" a permitted purpose of acquisition under s 318 of the 1919 Act. Lot 6 appears to have been acquired for that purpose; lot 5 for "public purposes"; and lots 1, 2, 3 and 4 for "general redevelopment of the area ... on the basis of a redevelopment scheme". It was unclear what the redevelopment scheme was although it may have been related to the "ambitious scheme" referred to in council minute of 2 October 1962. Whether acquisition for the purposes contemplated in that minute was lawful under the 1919 Act is unclear and was not a matter before us for determination. However, it is worth noting that the council had not proposed or implemented any "development" of the land in the 32 years between the date of the resolution and the commencement date of the 1993 Act.

76 Subsequently, council represented that lot 6 was to be used as open space although qualified its position by stating that that was the intention "at the present time".

77 Later again in time, the council decided to landscape and maintain the land as has been described. The manner in which it did so was said to be no different from the way it provided and maintained other coastal parks in the area. The council's use of the land in this way was authorised by ss 347 and 348 of the 1919 Act. That use had persisted for 8 -9 years prior to its 1994 resolution to characterise the land as operational land.

78 In my opinion, as at the commencement date, the council had used this land for the purpose of a park for nearly a decade. It had not used the land for any other purpose. Its actions in relation to the land had been of a public nature. In publicly dealing with the land in this way, it did not at any time indicate that its intentions were temporary, unlike the case with its earlier representations in relation to the land. To the extent that there was any equivocation as to the use it proposed to make of the land, it was uncertain as to whether the use a as park would be upgraded, rather than changed. In all the circumstances, I am of the opinion that the land was a public park as at the commencement date.

79 I propose therefore that the appeal be allowed and that declarations and orders be made as sought in the Notice of Grounds of Appeal, subject to the following qualification. Pearlman J stated in her judgement that certain parts of the land were no longer relevant to the proceedings. I have referred to that in para 2 of these reasons. As neither counsel alluded to that in their submissions, and as the orders sought in the Notice of Grounds of Appeal include the land which according to her Honour was no longer relevant, the parties should have the opportunity to consider the land to which the declarations and orders should be made and bring in appropriate short minutes of declarations and orders within seven days of today's date. I would also order the council to pay the precinct committee's costs of the appeal and in the court below, but that the council have a certificate under the  Suitors' Fund Act 1951  ( NSW ), if so entitled.

80 The formal orders I would propose at this stage therefore are:

(i) Appeal allowed.

(ii) The decision of the trial judge to be set aside.

(iii) The parties to file short minutes of declarations and orders in accordance with the reasons of the Court

The respondent to pay the appellant's costs of the appeal and in the court below, but to have a certificate under the  Suitors' Fund Act 1951  ( NSW ), if so entitled.

81 GILES JA: I gratefully draw upon the judgment of Beazley JA, and in these reasons assume familiarity with what is there set out.

82 The question is whether or not, as at 1 July 1993, the land was "public land" because "land comprising a public reserve" within Sch 7  Pt 2  cl 6(2)(a) of the 1993 Act. The only paragraph of the definition of "public reserve" within which the land could fall was para (a), "a public park", so the question becomes whether the land was "a public park".

83 The meaning must be the meaning of "a public park" used in the 1993 Act, specifically in the definition of "public reserve" and through that definition in the definition of "public land". "Public park" is not defined, but "park" is defined. It is to be noted that the definition of "public land" does not involve any notion of use of land: it is sufficient that the land is vested in or under the control of council. Nor is the definition of "public reserve" in terms of use of land. The use of land comes into the definitions only via the definition of "park".

84 "Park" is defined to mean "an open area of space used for recreation, not being bushland". The evidence of use of the land to which Beazley JA refers shows that as at 1 July 1993 the land was a park, being generally open space laid out and landscaped so as not, or no longer, to be bushland and used for recreation. Whether the use be regarded as use by those who resorted to the land for the purposes of recreation or as use by the council - as O'Brien J said in Canobolas Shire Council v Orange City Council (1969) 20 LGRA 147 at 157, two closely related questions - the answer is the same. It may be that the definition of "park" so far as it refers to use for recreation calls for a different approach from the approach to phrases such as "used as a public reserve" (see Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54 at 88; Canobolas Shire Council v Orange City Council at 157), because looking to activity rather than status. I do not think it matters in this case.

85 From the additional word "public", a public park is something more than a park. An area will be a park if it meets the physical description, including as to use, in the definition of "park", but an area of private or non public land may meet that physical description.

86 The 1993 Act uses the adjective "public" in a number of other phrases. One is the defined term "public reserve". A public car park is premises used to accommodate cars of members of the public. Public entertainment is entertainment to which admission may ordinarily be gained by members of the public for a fee. A public meeting is an assembly held for a public purpose to which admission may ordinarily be gained by members of the public. A public place includes a public baths or public swimming pool, and a public road, public bridge, public wharf, or public road-ferry. These are distillations of the defined meanings, and not exhaustive of the use of the adjective. "Public road" is itself defined to mean a road which the public are entitled to use, and "public wharf" is defined to mean a wharf, boat ramp, jetty or other structure that is situated in, or or over water and that the public are entitled to use. The basic notion seems to be use or participation by members of the public. Sometimes the member of the public must have a general right (eg use of a road), sometimes the member of the public must obtain a right (eg participation in entertainment), sometimes the member of the public is simply permitted (eg participation in a meeting), and sometimes there is no indication whether more than use or participation in fact is contemplated.

87 In order that a park be a public park it is necessary at the least that those who use the area for recreation are members of the public (if the relevant use is use by those who resort to the area for the purposes of recreation), or that a council's use of the area involves that the council makes it available for use by members of the public for recreation (if the relevant use is use by the council).

88 The evidence of use of the land to which Beazley JA refers also shows that, prior to and as at 1 July 1993, those who used the land for recreation were members of the public and those for whose use the land was made available by the council were members of the public. The users of the land were not a class or group of users having some common characteristic or qualification other than as members of the public, and it seems that anyone who wanted to use the land for recreation could do so and did so: cf Australian Softwood Forests Pty Ltd v Attorney General for New South Wales [1981] HCA 49; (1981) 148 CLR 121 at 135-6 per Mason J; 143-4 per Wilson J.

89 Is more required in order that a park be a public park? The council submitted that it is: that it is necessary that the members of the public be entitled to use the area as of right, and that a formal act of dedication, reservation or resolution is necessary in order that the use be as of right. It relied on the judgment of Windeyer J in Council of the Municipality of Randwick v Rutledge, relevantly concurred in by Dixon CJ and Fullagar and Kitto JJ.

90 The question in Council of the Municipality of Randwick v Rutledge was whether Randwick Racecourse was exempt from rates because used as a public reserve. Windeyer J held that the effect of the grant of an area to trustees for the purpose of a racecourse had been to dedicate the area for that purpose, but that the purpose was not such as to make the area a public reserve within the definition in the 1919 Act and the area was not used as a public reserve.

91 Early in the judgment his Honour observed (at 70) that the term "public reserve" and the word "reserve" when not otherwise indicated had come to be used in common parlance in Australia in an imprecise way to describe an unoccupied area of land preserved as an open space or park for public enjoyment, to which the public ordinarily have access as of right. His Honour later said (at 88) -

"In principle for land to be used for public recreation and enjoyment, so as to be in some sense akin to a public park - which is what the Act contemplates (see, in addition to the definition, ss 344-355) - and to be on that account exempt from rating, two conditions must be fulfilled. The land must be, in the relevant sense, open to the public generally as of right; and it must not be a source of private profit."

92 In that case the dedication of the area for the purpose of a racecourse did not mean that the public had access to the racecourse as of right, and in the manner the racecourse was conducted the public did not have access to it as of right. Although it was not necessary that all members of the public have free access to all parts of the area at all times, and there could be appropriate restrictions on access or use, the special privileges extended to members of the Australian Jockey Club meant that the general public did not have access to the area as of right.

93 So, the council submitted, although there may have been use of the land by members of the public, unless it was shown that the use was as of right pursuant to a formal act creating the right, the use did not make the park a public park.

94 The council relied also on Shepperd v Council of the Municipality of Ryde (1952) 85 CLR 1. A council was engaged in a housing scheme, and had designated an area as a park. It proposed to subdivide and build on that area, which it could not do if it was a public reserve. A question identified early in the joint judgment of Dixon, McTiernan, Kitto and Fullagar JJ was whether the council had "provided" a park under the power conferred by s 348 of the 1919 Act, I being said (at 11) that it was assumed that a park provided under the power became a public park (and hence within the definition of a public reserve).

95 The passage on which the council relied (at 11-12) was -

"It is quite clear that it was competent to the Council as part of the scheme to appropriate areas of land to form parks and so to constitute them public reserves. What formal steps are necessary before it can properly be said that the Council has provided a park within s 348 may not be very clear, but it would seem enough for the Council to adopt a resolution appropriating specific land of the Council."

96 This was obiter, because it was then said that whether the council had adopted the housing scheme by resolution definitively appropriating the land to the uses shown on the plans did not appear, and the case was decided on other grounds.

97 I do not think that Shepperd v Council of the Municipality of Ryde assists the council. Whether providing a park required a formal step was not decided, and the council resolution was regarded as a sufficient step rather than a necessary formal step. In any event, in the present case the question is not whether the council had provided a park. The 1993 Act relevantly looks to whether, as at 1 July 1993, the land meets the physical description, including as to use, in the definition of "park". It does not look to how the land came to meet that description.

98 Nor do I think that the council's reliance on Council of the Municipality of Randwick v Rutledge is justified. Underlying the council's submissions was that use as of right could only come from a formal act. I do not think that is correct, or that his Honour meant that the public access as of right had to be pursuant to a formal act.

99 Dedication of land to a public use may be by a formal act of some kind, as the discussion by Windeyer J in Council of the Municipality of Randwick v Rutledge at 73-7 shows. His Honour suggested that "dedicate" had come to be used in New South Wales to indicate (in the context of Crown land) "something binding the Crown and creating some right in members of the public or of a section of the public" (see at 74). There was in that case a dedication of the area by the grant to trustees, although not to a public use. A case to which his Honour later referred, Municipal Council of Sydney v Attorney General for New South Wales (1894) AC 444, illustrates dedication by a formal act to a public use. The Privy Council held that the dedication of Moore Park as "permanent common" by notice of dedication by the Governor published in the Government Gazette meant that the area was to "go forever for the common or public enjoyment", in which may be seen that the are was to be open to the public generally as of right.

100 But dedication by a formal act is not necessary. In Council of the Muncipality of Randwick v Rutledge Windeyer J said (at 74) that at common law the only way in which land can properly be said to be dedicated to a public use is when it is dedicated as a highway, while recognising (as earlier noted) that the word had probably come to be used in a sense not so limited. Dedication of land as a highway may be found in the absence of a formal act, in permitted use by the public from which an intention to dedicate the land as a public road and acceptance by the public is inferred. So it was said in Newington v Windeyer (1985) 3 NSWLR 555 at 558-9 by McHugh JA, with whom Kirby P and Hope JA relevantly agreed -

"At common law the making of a public road required the fulfilment of two conditions: an intention to dedicate the land as a public road and an acceptance by the public of the proffered dedication: Permanent Trustee Co of New South Wales Ltd v Campbeltown Municipal Council [1960] HCA 62; (1960) 105 CLR 401 at 420; Pratt and McKenzie, Law of Highways, 21st ed (1967) at 16. The dedication could be made expressly or be inferred from the conduct of the owner. The lodging of a plan of subdivision in a Land Titles Office, showing a road as an open street and giving access to subdivided lots, is evidence from which an inference of dedication as a public road can be drawn: Attorney General v City Bank of Sydney  [1920] NSWStRp 9 ;  (1920) 20 SR (NSW) 216  at 221; 37 WN 51 at 53; Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (at 412, 415, 422). When a road is left in a subdivision and runs into a public road system, the inference usually to be drawn is that it was dedicated as a public road unless access to the road is prevented by fencing or other action: Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (at 415) per Menzies J. In an appropriate case, the contents of leases, plans of subdivision, and maps although not public documents, may, nevertheless, allow an inference of dedication to be drawn. Dedication to the public may also be presumed from uninterrupted user of the road by the public: Turner v Walsh (1881) 6 App Cas 636 at 639, 641; Folkestone Corporation v Brockman (1914) AC 338 at 352, 362. But care must be taken to distinguish evidence of user, from which dedication can properly be inferred, from mere evidence of continual use even for a very long period. At common law, continual trespassing could not create a public road. The evidence must raise the inference that, at some point of time, the owner dedicated the road to the public."

101 In Folkestone Corporation v Brockman (1914) AC 338, to which McHugh JA referred, the area had been used by the public as a road for many years, but (amongst other things) tolls had been charged for horse and wheeled traffic and notice boards at the toll gates proclaimed it a private road. The question was whether on the facts there had been a dedication of the road.

102 Lord Kinnear said (at 352) -

"The nature of user, and consequently the weight to be given to it, varies indefinitely in different cases, and whether it will import a presumption of grant or dedication must depend upon the circumstances of the particular case. The law is stated more exactly by Lord Blackburn in Mann v Brodie [10 App Cas 378 at 386]. He begins by citing the doctrine laid down by Parke B in Poole v Huskinson [(1983) [1843] EngR 39; 11 M & W 827 at 830]: `In order to constitute a valid dedication to the public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate - there must be an animus dedicandi, of which the user by the public is evidence and no more.' And then he adds more particularly with reference to the effect of user, that `where there has been evidence of a user by the public so long and in such a manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find that fact may find that there was a dedication by the owner, whoever he was.

The points to be noted are, first, that the think to be proved is intention to dedicate, and secondly, that while public user may be evidence tending to instruct dedication, it will be good for that purpose only when it is exercised under such conditions as to imply the assertion of a right, within the knowledge and with the acquiescence of the owner of the fee."

103 Lord Atkinson (at 362) cited from the same passages in Poole v Huskinson [1843] EngR 39; (1843) 11 M & W 827 at 830; [1843] EngR 39; (1843) 152 ER 1039 and Mann v Brodie (1885) 10 App Cas 378 at 386. It was held that justices were entitled to find that there had not been dedication as a highway for foot passengers or otherwise, in the words of Lord Atkinson (at 367) "the crucial matter being the existence in the mind of the owner of an intention to dedicate".

104 Dedication of land to a public use in this way means that, in the language of Windeyer J, it is open to the public generally as of right: that is, use as of right does not need a formal act. As McHugh JA points out, the public user must not be trespassory, because an inference that the owner intended to dedicate land to public use can hardly come from trespassory user. But public user with the members of the public acting openly and as if there was an entitlement to use the land, and with the landowner appearing to acknowledge the entitlement, will readily enough permit the inference.

105 It is not necessary to decide whether in the 1993 Act the use of the adjective "public" in the phrase "public park" means more than use in fact by members of the public. The other paragraphs in the definition of "public reserve" take up a number of ways in which land can become public land, by dedication, reservation, or being nominated as public land (see s 340A of the 1919 Act), but para (a) does not call for any particular way in which a park becomes a public park? If more than use in fact by members of the public is required, something equivalent to dedication will suffice, to adapt the words of Windeyer J something binding the council and creating a right in members of the public. It is convenient to continue to use the word "dedicate", and a park will be a public park if there was public use and an intention in the council to dedicate the park to public use is found. A formal act is not required.

106 The council acquired the land for mixed and sometimes unclear purposes, but generally for purposes which did not exclude development or use otherwise than as a park. In its representations prior to the 1980's it left open that the land might not in the future be treated as open space. But in the first half of the 1980's it developed the land expressly as a park, and "in a similar manner to the other coastal parks in the Cronulla area". It did this in response to suggestion that the land be developed into a park, and while there was no evidence of a council resolution for the development of the land as a park it was implicitly adopted in minutes of the council's Works and Traffic Committee. There was then public use as a park, to the knowledge of the council and in accordance with its intention, without limitation on access by the public or some kind of stipulation for non-public status of the land; nor did the council indicate that the public use was to be conditional or temporary.

107 The use of the park by members of the public was not trespassory. The members of the public must have been acting in the belief that they were entitled to use the park, and more importantly it must have been apparent to the council that they were acting in that belief. It was not a situation of mere tolerance of public use by the council, that is, permitted but conditional or temporary use by members of the public. In my view it should be inferred that, prior to 1 July 1993, the council intended that the park should be dedicated to public use, so that it was a public park as at that date.

108 What I have said meets, it seems to me, the council's argument to the effect that temporary public use of land as a park, as permitted by s 347 of the 1919 Act, should not have made the land a public park and, by force of s 518, precluded its sale. If a council intended that public use of an area as a park be conditional or temporary, it could make that apparent, and dedication to a public use would not be found. But if the council so acted that the intention that the area was not just a park, but a public park, was to be inferred, why should sale not have been precluded?.

109 I agree with the orders proposed by Beazley JA.

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LAST UPDATED: 03/12/1999