To what extent does the categorisation of land as community land stymie development? In what circumstances can works be carried out on community land for the purposes of development on an adjoining property? What happens in circumstances where a Council fails to properly categorise land?
These questions were covered in the recent decision of Watpac Construction (NSW) Pty Ltd v Council of the City of Sydney. In this decision, the Land and Environment Court recently granted a ‘neighbouring land access order’ allowing Watpac Construction (Watpac) to access Regimental Square on George Street, Sydney, for the purpose of carrying out demolition and construction works.
Regimental Square, owned by the City of Sydney, is classified as ‘community land’ under the Local Government Act 1993 (LG Act). It is zoned for public recreation under the relevant Local Environmental Plan and is used as a pedestrian thoroughfare.
Watpac’s access application
Watpac made the application under the Access to Neighbouring Land Act 2000 (NSW) (Access Act). As the name suggests, this Act allows a person to apply to the Court for an order authorising access to adjoining or adjacent land, for the purpose of carrying out work. In deciding this case, Biscoe J confirmed the practical objectives and wide ranging operation of the Access Act.
The issue in the proceedings was whether an access order was barred by section 5(1)(b) and (2) of the Access Act, because the access sought was prohibited under section 44 of the LG Act (or sections 46(1)(b) and 47D(1)).
The key sections
Section 5 of the Access Act prevents access being granted under the LG Act if the access/activity sought is prohibited by another Act. Section 44 of the LG Act prohibits the nature and use of community land being changed pending the adoption of a plan of management. Section 46(1)(b) of the LG Act sets out the purposes for which a lease, licence or other estate in respect of community land may be granted in accordance with the plan of management, and section 47D(1) prohibits, relevantly, the exclusive occupation or exclusive use by any person of community land otherwise than in accordance with a lease, licence or estate to which section 47 or 47A applies.
Plan of Management application
Given the above legislative regime, the first relevant question related to whether Council had adopted the Generic Plan of Management (Plan) for Regimental Square. This question arose due to some errors in Council’s drafting of the Plan, which Council submitted meant that the Plan does not apply to Regimental Square. In the Plan, Regimental Square was misdescribed as Crown land, and was not categorised in accordance with section 36(4) of the LG Act. Section 36(4) provides for the preparation of plans of management for community land and requires that community land be categorised as a natural area, a sportsground, a park, an area of cultural significance, or general community use.
Justice Biscoe held that Council’s misdescription of, and failure to categorise, Regimental Square in the Plan were merely ‘clerical errors or slips’, and that the Plan manifested an intention to cover all community land (not covered by another specific plan of management) and to appropriately categorise all community land. His Honour held that as Regimental Square was listed in an Appendix to the Plan as community land, was in fact community land, and the only section 36(4) category it could be was ‘general community use’, and accordingly the Plan was held to apply to Regimental Square, and the section 44 prohibition against a change in nature or use was inapplicable.
Community land statutory power
Relevantly, in dealing with sections 46 and 47D of the LG Act, Biscoe J held that section 46 does not limit the statutory power of the Court. His Honour cited Marshall v Wollongong City Council  by analogy, in which Bryson J said, in the context of section 88K of the Conveyancing Act 1919:
Sections 45 and 46 operate by prescribing and limiting the powers of Councils in dealing with Community land; they do not limit or deal with other means by which easements may come into existence, and they do not limit or affect the Court’s powers under s88K by implication. The powers of the Court are not usually limited or altered by legislative implication, and in any event, there is no basis in the scheme of these provisions for that implication.
In this regard, section 46 limits how Councils deal with community land, however, what Biscoe J appears to be saying is that these sections do not limit the statutory power of the Court to grant an access order. The decision is likely to aid development adjoining community land. It highlights to facilitative nature of the Access Act to enabling development to proceed in circumstances where there is no exclusive use proposed.
Todd Neal and Elizabeth Sivell