Council of the Shire of Mulgrave v Red Hills Pty Ltd [1994] QSC 160 (1994) 83 LGERA 323

~-;,~. ~b Sc_ 94( I(, 0 Llfg State Revorting BureauI ~ I ) TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bu:-eau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILLIAMS J No ·1 21 of 1993 COUNCIL OF THE SHIRE OF MULGRAVE and RED HILLS PTY LTD BRISBANE .. DATE 22/06/94 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date&! G:, I Plaintiff Defendant 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 24 -- 220694 mkg (Williams J) HIS HONOUR: Order as per initialled draft. 10 20 30 40 \ 50 60 2 -- 2 of 24 -- S C. '14( I b 0 IN THE SUPREME COURT OF QUEENSLAND CAIRNS DISTRICT REGISTRY No. 121 of 1993 Cairns Before Mr Justice G N Williarns [qouncil of the Shire of Mulgrave v. Red Hills Pl] BETWEEN: AND: COUNCIL OF THE SHIRE OF MULGRAVE (Plaintiff) RED HILLS PTY LTD (A.C.N. 008 104 827) (Defendant) JUDGEMENT - G N WILLIAMS J Judgment delivered 22/06/1994 CATCHWORDS Counsel: Solicitors: LOCAL GOVERNMENT - condition of subdi visional approval that land be transferred to Crown for park purposes - plans sealed, registered without compliance with condition - held that local authority entitled in subsequent proceedings to enforce obligation to transfer land to Crown Keane QC and Arnerena for the plaintiff Lyons QC and Priestly for the defendant MacDonnells for the plaintiff Farrellys for the defendant Hearing dates: 24 and 25 May 1994 -- 3 of 24 -- IN THE SUPREME COURT OF QUEENSLAND 0 0 O.S No. 433 of 1994 IN THE MATTER of the Rules of the Supreme Court -and- IN THE MATIER of the Property Law Act 1974 -and- IN THE MATTER of the Contract of Sale between lAMES MATTHEWS NICHOLSON and REEFTOWN PTY LTD (ACN 063 863 543) JUDGMENT - MACKENZIE 1 judgment Delivered 16 June 1994 This is an application under s. 70 of the Property Law Act seeking the interpretation of a clause in a contract for the sale of residential premises at Mermaid Beach. The contract was entered into on 30 April 1994 with the completion date being on or -~~efore 18 July 1994. The clause in question is cl.5 and is in the following form:- U "This contract is subject to and conditional upon receipt by the purchaser of a satisfactory Building Inspection Report within fourteen (14) days of the date hereof." Declarations are sought:- 1. that the respondent has received a satisfactory Building Inspection Report so as to satisfy cl.5; and 2. that the contract is no longer conditional upon any matter arising out of cl.5. -- 4 of 24 -- 2 There is evidence in the affidavits that for reasons independent of cl.5 Mr Zeljko, a Director of Reeftown Pty Ltd, had sought that the company be released from the contract before the Building Inspection Report was obtained and became the focal point of the dispute. On 6 May 1994 Mr Zeljko requested his solicitor to obtain a building report. She requested her secretary to contact Home Buyers' Guardian to obtain a report. Arrangements were made for a franchisee operating in the Gold Coast area to conduct the inspection. The inspection was carried out on the .morning of 9 May 1994 and a report - 0 written. The franchisee, Mr McLisky, had 22 years involvement in the building trade and it is not suggested that he did not have sufficient expertise to prepare a report of the kind 0requested, although he is resident in the Tweed district and not a registered builder in Queensland. By way of summary, the report referred to a water penetration problem affecting a substantial number of windows. Mr McLisky reported that whether that was due to poor design, detailing, faulty installation or inappropriate materials for weatherproofing woulb have to be investigated by a damp-proofing specialist. He raised the question whether battens between the block work may be affected by timber decay due to water penetration and require replacing. He referred to the lack of ventilation, which was usually built intP such constructions. He referred to the possibility that some skirting might need to be replaced because of water damage. He raised the possibility of moisture penetrating through the block work and noted a problem with significant water penetration, admitted by the owner, through glass brick walls on the first and second storey stair well. The report advised the purchaser to further investigate the moisture penetration problem through a reputable and established specialist. -- 5 of 24 -- 3 Upon Mr Nicholson, the vendor, learning of the report, which he believed to be "pin pricking" his solicitor suggested obtaining an independent report. He commissioned a report from Mr Hancock who operated under the auspices of the Archicentre Architects' Advisory Service, who reported that the house was in good condition for its age generally. He noted evidence of water stains at the corner of some windows and said that they should be checked to ensure that the problem had been rectified. Mr Hancock's report did not address the question of possible timber decay in the dattens fixed between the internal and external blockwork. Mr Nicholson engaged Lenco Pty Ltd, the letterhead of which describes the company as "specialist in joint sealing and 0waterproofing". On 24 May 1994, which was about 10 days after the fourteen (14) day period referred to in the contract for the obtaining of a satisfactory building report, Lenco Pty Ltd under the hand of its Managing Director, reported:- "The windows and window frames mentioned at the above address have been to the best of my knowledge checked and resealed as required." On 3 June 1994, Mr Hancock furnished a follow-up report which was to the effect that Oome previous signs of water penetration were still present but when the skirting board was tested with a moisture meter, the indication was that there was no moisture present despite Qhe fact that rain had fallen recently. It is in that factual context that the question whether there had been "receipt by the purchaser of a satisfactory Building Inspection Report within fourteen (14) days of the date of the contract." On the evidence, both men who inspected the premises were qualified to do so and there is nothing to suggest that they performed the respective inspections other than in good faith and at arms length. Much of the hearing before me was occupied by submissions as to whether the test of whether the purchaser had received a satisfactory building inspection report was a subjective test subject to the opinion being formed honestly -- 6 of 24 -- 4 (c.f. Meehan v. I ones (1982) 149 C.L.R. 571) or whether it was to be looked at objectively. The vendor's position was that the test was an objective one and could be satisfied by the provision of a report by the vendor. The purchaser submitted that the test was purely subjective, and that his lack of satisfaction was honest. On the view I take of the matter, it is unnecessary to finally determine these issues. In my view taking the vendor's case at its highest, at the relevant date there were two reports both of which referred to water penetration. The report supplied by the person engaged by the purchaser raised issues that were not addressed in the report of the persob engaged by the vendor. I was told that Mr Nicholson had, to ensure that the report from Mr Hancock was objective, not told him of the detail of the report from Mr McLisky. TheQ fact of water penetration was referred to by both inspectors. At the relevant time and even after the second inspection by Mr Hancock, the question whether there might be some consequences of water penetration by way of deterioration of timbers which could not be easily inspected remained unresolved. The contract price of the house was $570,000. The resealing of the windows was donQ · at the cost of approximately $100. On any view of the matter that is a small amount in the context of the purchase price. However, at the relevant date, the extent of the probleQ was not known and even at the date when proceedings commenced no investigation had been carried out as to the other possible problem raised by Mr McLisky and it had not been the subject of any definitive answer. In the circumstances, I find that the purchaser was entitled to bring the contract to an end on the basis that he had not obtained a satisfactory Building Inspection Report within fourteen (14) days of the date of the contract. In so deciding I have not overlooked the fact that the purchaser through its director was apparently anxious to avoid having to complete the contract. In such circumstances, -- 7 of 24 -- 5 a stricter scrutiny of the circumstances of the case is prudent. However, when one looks at the state of information at the relevant date, even an objective view of the matter leads to the conclusion that the requirements of c1.5 had not been complied with. Accordingly, I declare that the respondent has not received a satisfactory Building Inspection Report so as to satisfy cl.5 in appendix A of the Contract of Sale. I order that the applicant pay the respondent's costs of the application to be taxed. 0 0 -- 8 of 24 -- \ _) IN THE SUPREME COURT OF QUEENSLAND CAIRNS DISTRICT REGISTRY BETWEEN: AND: COUNCIL OF THE SHIRE OF MULGRAVE (Plaintiff) RED HILLS PTY LTD (A.C.N. 008 104 827) (Defendant) JUDGEMENT - G N WILLIAMS J Judgment delivered 22/06/1994 No. 121 of 1993 ) By this action the plaintiff seeks to obtain an order which would have the effect of compelling the defendant to transfer to the Crown certain land. As will become apparent, alternative ways of obtaining that ultimate relief are advanced. The trial was on affidavit material, and there was no real conflict as to the background relevant facts. However, given the dispute ) between the parties, some findings of fact have to be made. In 1984, Kern Land Pty Ltd ("Kern") was the registered ) proprietor of a parcel of land containing approximately 51.5 hectares to the south-west of the centre of the city of Cairns. Kern made application to the plaintiff on or about 14 September 1984 to have the land rezoned as a preliminary to subdividing it in stages. The plaintiff, in broad terms, approved of that application and, in consequence, a deed was entered into on 28 June 1985 between Kern and the plaintiff recording certain matters agreed upon between them with respect to the rezoning and proposal for subdivision. For present -- 9 of 24 -- 2 purposes, it is sufficient ·to note cl. 5 in the Eighth Schedule which provided: "The Applicant is to transfer to the Crown the land zoned Public Open Space." Kern developed the first four stages of the subdivision which became known as Fairview Estate, and then, on 12 November 1986, the defendant entered into a contract to purchase from Kern its remaining land and interest in the total subdivision. As part of the settlement process, the solicitors then acting for the defendant sought confirmation from the plaintiff that Kern c= had complied with its obligations under the provisions of the Rezoning Deed. In response, the plaintiff forwarded the letter of 28 November 1986 which, so far as is relevant, stated: "I wish to confirm that Kern Land Pty Ltd has complied with its obligations under the provisions of the Rezoning Deed to date. It should be noted that some conditions are outstanding with respect to yet to be completed stages. These obligations would normally be fulfilled at the time of signing and sealing of the respective survey plans. As regards parkland it is Council's understanding that in satisfaction of its statutory obligation to Council to transfer 10 per cent of the gross area of the subdivision being fair average quality land, the Council will accept in lieu thereof the total of the area zoned Public Open Space. Further, it is understoo~ that this arrangement supersedes previous requirements as to park. " ·on 7 January 1988, the defendant applied for approval for Stage 5 (58 lots) of the subdivision, and on 1 March 1988 applied for approval for Stage 6A of the subdivision (6 lots). The latter stage was sometimes referred to as Stage 6. Both areas constituted part of the land described as Lot 1 on RP 743608, and were so described in the application. On each application form c= c= c= -- 10 of 24 -- ) 3 the defendant, by its attorney (its surveyors), stated that it agreed "that if the Council should approve the· application (it would) transfer to the Crown all recreational and other reserves". By separate resolutions and letters, but each bearing date 16 March 1988, th~ plaintiff approved the applications with respect to Stages 5 and 6A. Relevantly for present purposes, the approval with respect to Stage 5 contained the following condition: "23. The applicant is to transfer to the Crown the balance area, excluding Stage 6, as public park and recreation space." The defendant accepted those conditions, and that is evidenced ) by the letter of 19 May 1988 from its surveyors to the plaintiff; so far as is relevant, that letter stated: ) "We refer to the above stages approved by Council on 16/3/88 and wish to advise that our clients have decided to proceed with construction of both·stages concurrently. A plan of the balance area (which is to be designated as Park) will be submitted to Council at the same time as endorsement is sought for Stage 5 and 6a final plans." Thereafter the defendant submitted final plans for Stages 5 and 6A, and on 2 May 1989 those plans were formally sealed by the plaintiff. Subsequently those plans were registered pursuant to the provisions of the Real Property Act. As a result of pressure of work, and probably inexperience on the part of the subdivisional engineer then employed by the plaintiff, compliance with condition 23 was overlooked prior to those plans being sealed and registered. It is clear that there was no Council resolution waiving condition 23. The argument at trial proceeded -- 11 of 24 -- 4 on the assumption that no land had in fact been transferred to the Crown by Kern pursuant to the-Rezoning Deed. The failure of the defendant to comply with the obligation to transfer park land to the Crown was not appreciated by the plaintiff until about 29 October 1992 when the following letter was sent to the defendant, its surveyors, and its then solicitors: "With reference to the above you [are] required to make arrangements for the transfer of the balance of Lot 1 on R. P. 743608 to the Crown as park land to satisfy condition number 23 as set out in Council's approval letter of 16 March 1988. In view of the several intervening years since stage 5 was completed your prompt attention to this matter will be appreciated." There was no reply to that letter. Then in the year 1993, the plaintiff instructed C B Consultants Pty Ltd, Surveyors and Town Planners, to prepare a plan of the balance area of Lot 1 on RP 743608. That company approached its task by regarding the "balance area" as the "area remaining after deducting those areas partially cancelled by the issuing of new titles". PR James of that company, prepared Plan 857724 which showed a balance area of 19.95 hectares. J W Breen, the subdivisional engineer for the plaintiff, has satisfied himself that Plan 857724 accurately portrays the balance area in question; it is the land described in Lot 1 on RP 743608 less the land subdivided in Stages 5 and 6A. On 5 November 1993, Messrs MacDonnells, solicitors for the plaintiff, wrote to the defendant requesting that it transfer the "balance area" to the Crown. That letter included transfer c c c c -- 12 of 24 -- ) ) 5 documentation referring to the transfer of the area of 19.95 hectares shown on Plan 857724. Ultimately, Farrellys, solicitors for the defendant, replied by letter dated 24 January 1994; so far as is relevant that letter stated: "We refer to the above matter and advise we have now obtained Counsel's advice in relation to your client's claim. . . . We would ask that no further steps be taken in relation to the action for a period of three weeks in order to allow negotiations to occur between the parties. We enclose a copy of a letter from the Mulgrave Shire Council dated 28 November, 1986. As a result of this and other documentation it is considered by Counsel that issues of estoppel and waiver arise and, as such, the action is not one whereby it would be appropriate to deal with by way of an application for summary judgment. 11 The proceedings were duly commenced and an order made, as noted above, that the trial be on affidavit. A director of the defendant, Z Ginos, swore an affidavit on its behalf. He ) referred to the background facts outlined above and in addition made the following relevant points: i) In September 1986, the defendant's surveyors inspected the ) Town Plan and ascertained that it was amended in accordance with the Rezoning Deed of 28 June 1985; ii) By Deed dated 8 December 1986 between the defendant and the plaintiff, the former agreed to perform the obligations of Kern contained in the Rezoning Deed dated 28 June 1985 and to provide a bond to secure the performance of such obligations; -- 13 of 24 -- 6 iii) In the process of sealing the plans for Stages 5 and 6A, the plaintiff certified that "all requirements had been complied· with"; iv) In about October 1989, the plaintiff cancelled the bond provided by way of security for performance of the obligations of the defendant pursuant to the Rezoning Deed. At no stage prior to the hearing, which took place on 24 May 1994, did the defendant concede any obligation to transfer any land to the Crown arising from the matters hereinbefore set out. In the cour~e of making his stibmissions, Senior Counsel for th~ defendant referred to the obligation in the Rezoning Deed, and c the correspondence, to transfer the area zoned Public Open Space. ( When the various plans were looked at (for example, drawing number 5941/37 which shows the zonings as at July 1986 over Lot 1 on RP 743608) it became obvious that of the 19.95 hectares shown on Plan 857724, approximately 17.86 hectares was zoned Public Open Space. When I raised with counsel why that land should not be transferred by the defendant to the Crown, the response was made that that was not what the plaintiff was c seeking. Ultimately, the defendant, by its counsel, conceded an c= obligation to do so, and filed an undertaking with the Court that it would "do all such acts and things as may be reasonably necessary to transfer to the plaintiff that part of Lot 1 on RP 743608 zoned Public Open Space". Thereafter the real . dispute between the parties became whether or not the obligation on the defendant to transfer land to the Crown was limited to the approximate 17.86 ·hectares on Lot 1 on RP 743608 zoned Public Open Space, or involved the 19.95 -- 14 of 24 -- 7 hectares shown on Plan 8577~4 (that is, the balance of Lot 1 on RP 743608 after Stages 5 and 6A were subdivided). It should be noted that of the 19.95 hectares shown on Plan 857724 approximately 3. 75 hectares is zoned .Rural C. If the defendant's contention was correct then that approximate area of 3. 75 hectares would remain under its ownership. .The areas 3.75 hectares and 17.86 hectares are approximate (and it would appear not accurate) because there is no subdivisional boundary along the line dividing the Public Open Space area from the Rural C area. Before the defendant could transfer only the land zoned Public Open Space, it would -be necessary to effect a subdivision. ) Breen, in an affidavit, has asserted that he has carefully checked the applications made by Kern in 1984 and the Rezoning Deed of 28 June 1985, and established that the area of approximately 3. 46 hectares "was never part of the land for which rezoning was applied for, and this land which remained zoned Rural Residential "C" was not the subject of the covenants· ) contained in the Rezoning Deed". That statement was not challenged at the trial and I accept it. ) The first submission on behalf of the plaintiff was that there was an agreement between the plaintiff and the defendant evidenced by the applications for subdivisional approval, the approvals of 16 March 1988, and the letter of acceptance of 19 May 1988. Counsel for the defendant contended that such did not give rise to a legally binding contract for a number of reasons. Firstly, he submitted that the acts and conduct. of each party were perform.ed as part of and pursuant. to a statutory scheme· for -- 15 of 24 -- 8 obtaining consent to subdivision, and that in consequence such acts and conduct could not be regarded as creating binding contractual obligations. Secondly, he submitted that neither party · intended its conduct to give rise to binding legal obligations. The second submission can be readily dismissed, in my opinion. One thing is abundantly clear, in my view, and that is that each party intended that the decision of the Council should give rise to binding legal obligations. Unless that decision was appe-aled or validly rescinded for some reason, then the Council was legally obliged to do all that was necessary on its part to permit the subdivision to be carried into effect. Counsel for the defendant relied on certain authorities in support of its broad submission that as a statutory scheme of approval was involved, one could not imply contractual obligations. On careful analysis the authorities relied on do not support the submission. In Doran Developments Pty Ltd v. Newcastle City Council (1984) 13 A.P.A.D. 436, a member of the Land. and Environment Court of New South Wales held that an !~ c c c applicant for development consent and the planning authority are ( not involved in a contractual relationship in relation to the discharge by the planning authority of its statutory duty. What is clear from the critical passage at 447 of the judgment is that the Court was there concerned with the "processing" of a development application and the proper discharge of duties involved in that process. One can .readily accept that there is no contractual relationship ~ at that stage, and it is inappropriate to impose contractual obligations on either party · -- 16 of 24 -- 9 at that stage of the process. But I can find nothing in that decision which supports the view that there can be no contractual relationship between such parties derived from acts and conduct after that process has terminated by the granting an approval for subdivision. Indeed it frequently happens that after approval contractual relationships are formally entered into between the local authority and the developer; the Deed of Rezoning of 28 June 1985 is a perfect example of that. If the local authority and developer can enter into a Deed, why cannot the acts and conduct of those parties after approval create binding contractual obligations. There is nothing in: Doran Developments ) which suggests a contrary conclusion. Nor is there anything in the other authorities relied upon by the defendant which would alter that conclusion. In Coshott v. Woollahra Municipal Council (1988) 14 N.S.W.L.R. 675, Wood J was also concerned with the question of the "process" of the application. The payment of the relevant fee did not give rise ) to any implication that, in return for that payment, the application would be processed promptly and diligently. In my ) view, Lismore City Council v. Stewart (1989) 18 N.S.W.L.R. 718 was dealing with a similar situation. There was no contractual obligation to provide information of any specified type. Here the defendant accepted the terms and conditions imposed by the local authority on its application for subdivision. Thereafter it proceeded with the subdivision and (presumably) made a profit out of the sale of the various· lots. In so acting, in my view, it accepted the obligations imposed on it by the terms of the approval, including the one requiring the transfer -- 17 of 24 -- 10 of land to the,Crown, and binding contractual obligations were thereby created. To- use the language of the High Court in Lloyd v. Robinson (1962). 107 C.L.R. 142 at 154, the quid pro quo for .. the restored right to subdivide the land included the obligation to transfer the "balance area" to the Crown. The defendant has taken the benefits of the approval without complying with all the obligations it accepted as attaching thereto. Since the obligation in question deals with the transfer of land, I am of the.opinion that-specific performance is an appropriate remedy for its breach . of contract. I am therefore of the view that the plaintiff is entitled to succeed on the first basis upon which its claim is made. Alternatively,_ the plaintiff seeks an order directing the transfer of the "balance area" to the Crown on the basis that the defendant is the holder of that land on trust for the Crown. The trust.is said to arise from the conduct of the parties and the pr~visions of s. 34 of the Local Government Act 1936 as it stood at the material time.. There is force in that submission advanced on the plaintiff's behalf .. As the price of obtaining the right to _subdivide the defendant undertook to transfer the "balance area" to the Crown, and thereafter it obtained the benefits of the approval so given. I do not consider it inappropriate to regard the defendant, in those circumstances, as the. trustee of the "balance area.... Clearly, the defendant was under a statutory obligation, if nothing els~, to transfer that land to the Crown. Once _it. proceeded with the subdivision it held the "balance area" on trust ,for the Crown.·. c c c c -- 18 of 24 -- .tl ) ) ) ) 11 I gave leave at the hearing to the plaintiff to add para. 7B to the endorsement on the writ, and if necessary that provides a sufficient basis for granting the plaintiff relief. The next question to be determined is whether or not the "balance area" refers to the 19.95 hectares shown on Plan 857724, or whether it is limited to the area of approximately 17.86 hectares zoned Public Open Space, being part of Lot 1 on RP 743608. The first argument of the defendant in support of the latter contention is that the obligation to transfer land to the Crown is governed by the terms of the Rezoning Deed of 28 June 1985, and the plaintiff had no power to alter that when granting subdivisional approval for Stages 5 ·and 6A in 1988. I do not accept·the defendant's argument. It may well be (I do not have to decide the question) that the defendant had a good argument in 1988 that the plaintiff was limited to enforcing that which was specified in the Rezoning Deed by way of contribution to park land. It may well be that relying on authorities such as Newbury District Council v. Secretary of State for the Environment [1981] A.C. 578, Pyx Granite Co Ltd v. Ministry of Housing and Local Government [1960] A.C. 260 and R. v. Brisbane City Council Ex parte Read [1986] 2 Qd. R. 22, it could have been argued that the local authority was influenced by factors extraneous to planning considerations in reaching- the decision in 1988 to require more land for public park purposes than was provided for in the Rezoning Deed of 28-June 1985. But the defendant then raised no such question; rather it accepted and acted upon the later decision of the plaintiff. As the reasoning in Lloyd v. -- 19 of 24 -- 12 Robinson indicates, a developer may accept such a decision with the consequence that it cannot subsequently be challenged. In the circumstances,· the defendant cannot now raise as an issue the difference between the obligations on it pursuant to the Rezoning Deed of 28 June 1985 and the obligations on it resulting from its acceptance of the conditions attaching to subdivision imposed on 16 March 1988. In my view, the meaning of the phrase "balance area", as used in cl. 23 of the conditions attaching to subdivisional approval of 16 March 1988 with respect to Stage 5 is clear. If the plaintiff then intended to refer to the Public Open Space c land, it could have and would.have said so. Defining the balance ( area in cl. 23 by also referring to the Stage 6 land indicates, in my view, that a reference to Public Open Space land was not sufficient. Further, there is, as noted above, no clearly defined boundary between the Rural C land and the Public Open Space land. It would be necessary for there to be a formal subdivision before it was possible to speak in precise terms of land zoned Public Open Space which could be transferred. The Dictionary definition of "balance", in this context, is "remainder" or "residue", and clearly the 19.95 hectares is the remainder of Lot 1 on RP 743608 after the land involved in Stages 5 and 6A has been removed~ There were two further arguments advanced by counsel for the defendant which must be addressed. -It was submitted that consequent upon s. 34(12A) of the Local Government Act 1936, as it stood at the relevant time, the local authority could only require as a condition of c c -- 20 of 24 -- ) ) ) 13 subdivisional approval that the developer transfer not more than 10 percent of the area of -land to be subdivided. Here it was submitted that the 19.95 hectares w.as more .than 1 0 percent. What weakens the argument is that it would appear that even the approximate 17.86 hectares, zoned Public Open Space, would exceed that 1 0 percent limit. In the Rezoning Deed that area was agreed to be transferred in lieu of the obligation to transfer 10 percent in accordance with the statute. What is important, in my view, is that there was no challenge at that time, nor in 1986, to the imposition of such an obligation. When subs. (12A) is looked at closely, it is clear that there are many factors which may become relevant. At least on one interpretation of the subsection, the 10 percent area of land must be "a fair average of the type of land to be subdivided". If that be a correct interpretation, then there is no problem with the local authority requiring more than 10 percent of the land if it does not meet that description; in other words, if because of the terrain the land to be transferred to the Crown was not subdividable the requirement could be for a transfer of more than 10 percent of the area to be subdivided. Such matters should have been litigated at the time the obligation was imposed if the contention was that the local authority had breached subs. ( 12A). Such issues were not litigated before me. In consequence, I cannot now hold that cl. 23 was beyond power. In any event, the reasoning in Lloyd v. Robinson would suggest that if the condition was accepted and acted upon then it is too late to raise the matter now~ -- 21 of 24 -- 14 ·The other major argument raised by counsel for the defendant was· to the effect that the sealing of the plans amounted to a waiver of any unfulfilled condition with respect to the subdivisional ·approval. Section 34(6) of the Local Government Act provided: "A road shall. not be opened and, in a case where a subdivision provides for the opening of a road, land · shall not be subdivided, until - (d) A plan of the road or of any subdivision containing the road bearing the signatures of all necessary parties, ·and a statement containing such particulars as maybe necessary to identify the title to the land comprised in such plan has been approved by a notation of approval under the seal of the Local Authority, including a certificate that all the requirements of the Local Authority arid of this Act and of any by-law have been complied with ... " One must also remember that s. 34(12A)(a) provides that the "Registrar of Ti ties shall not register the plan unless and until all necessary instruments of transfer surrendering to the Crown c c all land provided in the plan for use as public garden or ( recreation space_ have been lodged in his office and he is satisfied that such instruments are correct for registration". Here on 2 May 1989 (or thereabouts) the plaintiff made the following endorsement on the plans covering the land in Stages 5 and 6A: "Council of the Shire_of Mulgrave certifies that all requirements of this Council,·the Local Government Act of 1936~1987 and all By-laws have been complied with ~nd approves this plan of subdivision subject to . . . " The only matters then specified are various easements. Clearly, the plan~ for Stages 5 and 6A ought not to have been registered without the concurrent registration of the c -- 22 of 24 -- ) ) ) 15 transfer of the "balance area" to the Crown. The question which is relevant for present purpose is whether or not the registration of the plans, without the concurrent fulfi~ment of the condition requiring land to be transferred to the Crown constituted a waiver of the condition. As noted above, there was no express decision by the plaintiff to waive compliance with the condition; what happened occurred through inadvertence. Counsel for the plaintiff argued that cl. 23 was not a "requirement" for purposes of the provisions of the Local Government Act, to which reference has just been made. There may well be some force in that, because those provisions are more directly concerned with requirements relating to matters specified in those plans themselves. This is not a "requirement" bearing upon a road or a lot depicted in the plan being registered. It is an extraneous matter related generally to the subdivisional approval. To that extent it is clearly caught by subs. (12A)(a), but arguably not by subs.(G)(d). But I would prefer not to decide the case on such a ground. It is clear from a consideration of authorities, such as Craine v. The Colonial Mutual Fire Insurance Company Limited (1920) 28 C.L.R. 305 and Sargent v. A.S.L. Developments Limited (1974) 131 C.L.R. 634, that there are at least 'three relevant elements of waiver. Firstly, there must be some unequivocal act constituting a clear election between mutually inconsistent courses; secondly, the act must be intentional; and thirdly, the act must be done "with knowledge". In the circumstances of this particular case, I cannot see that the inadvertence of the plaintiff in about May 1989 constituted a waiver of the -- 23 of 24 -- 16 plaintiff's right to obtain a transfer in favour of the Crown of the "balance area" referred to in cl. 23. It has not been suggested that there has been any detriment suffered by the defendant in consequence of the plaintiff sealing the relevant plans as and when it did; indeed the concession that the area of approximately 17.86 hectares is transferable (albeit consequent upon the terms of the Rezoning Deed of 28 June 1985) is a sufficient answer to such a proposition. In the circumstances, I am of the view that waiver has not been made out. It follows, in my view, that the plaintiff is entitled to the relief that it seeks. Minutes of Judgment were placed before c me and unless there are submissions to the contrary based on ( procedural and technical grounds I will make an order in thos·e terms. In the circumstances, the plaintiff is entitled to its taxed costs of and incidental 'to the action. c c -- 24 of 24 --