Central Coast Council v Minister Administering the Crown Land Management Act 2016

By an amended summons filed on 31 October 2024, the plaintiff, the Central Coast Council (the Council), seeks judicial review of a decision of a delegate (the Delegate) of the relevant Minister (now the Minister for Planning and Public Spaces) made on 14 February 2024 to sell part of the land comprising a Crown road known as Bakali Road, Forresters Beach NSW (the Land) to the third defendant, Mr Darcy Smith, in 15 lots for a total price of $195,000 (the 2024 Decision). The grounds for review have been amended on several occasions. Most recently, they were set out in an amended statement of claim circulated on 5 December 2025. This judgment addresses the grounds of review by reference to that document.

By an amended cross-claim filed on 16 June 2025, Mr Smith seeks specific performance of what is said to be an agreement the Delegate entered into to give effect to the 2024 Decision (the Settlement Agreement). In the alternative, Mr Smith seeks two types of relief. First, in the event that he is not entitled to enforce the Settlement Agreement either because the 2024 Decision is invalid or because the Minister succeeds in his argument that the Settlement Agreement is not an enforceable one, he seeks specific performance of what is said to have been an agreement entered into on 23 April 2020 (the 2020 Agreement) to sell the Land to him in that form (that is, as 15 lots) for $37,471.60. Second, in the event that he is not entitled to obtain specific performance of the 2020 Agreement (for whatever reason) and is not entitled to seek specific performance of the Settlement Agreement because the 2024 Decision was invalid, he seeks damages for breach of the Settlement Agreement.

In the light of the position taken by Mr Smith, and in the event that Mr Smith is successful in establishing the existence of the 2020 Agreement, the Council also seeks judicial review of the decision of a delegate of the Minister (the First Delegate) that led to the Minister entering into that agreement (the 2020 Decision).

This judgment concerns the claim by the Council in respect of the 2024 Decision and Mr Smith’s claim for specific performance of the Settlement Agreement. The effect of amended orders made by the Court on 5 December 2025 is that the question whether Mr Smith is entitled to specific performance of the 2020 Agreement (if he fails in relation to the Settlement Agreement), the question whether the 2020 Decision is valid (assuming that it is still operative) and the question whether Mr Smith is entitled to damages for breach of the Settlement Agreement, if those questions arise, are all to be determined separately and at a later time.

It is common ground that prior to 2020 the Land formed part of a Crown road governed by the Roads Act 1993 (NSW) (Roads Act).

In May 2017, Mr Smith, whose land adjoins the road, made an application to purchase part of the road under s 152C(1) of the Roads Act (set out in para [40] below).

The then Minister, through what was then known as the Department of Industry (the Department) caused notice of the sale to be advertised in the local newspaper on 15 November 2018 and provided notice of the proposed sale by letter to affected public authorities and adjoining landowners, which included the Council.

The letter to the Council relevantly stated:

The advertisement relevantly stated:

Set out below is an extract from the diagram attached to the letter. The key to the diagram indicates that the area shaded in red belongs to Mr Smith and the area shaded in teal belongs to the Council.

The Council made a brief submission on 24 January 2019 (outside the 28 day time limit specified in the notice). In that submission, it objected to the road closure and sale on the basis that the Council had “infrastructure within the road reserve being a sewer pump station – SPS FB04, and 225mm gravity and 100mm rising mains” and that if the Land were to pass into private hands it would make “the operation, maintenance and repair of the infrastructure more difficult”.

It appears that there were subsequent discussions between the Council and the Department in which the Council indicated that it may be prepared to remove its objection if it were granted an easement in respect of its services. Little then happened until 30 August 2019, when the Department wrote to the Council setting out the history of the matter and the fact that the Department had been chasing the Council “on and off” for a clear indication of the location of the proposed easement, without success. The letter continued:

The Council responded to that letter on 25 September 2019. It maintained its objection to the closure. It gave the following reasons:

The Council’s response also raised an issue concerning the extent of the northern boundary of the Land.

The sale was approved by the First Delegate on 24 February 2020. The approval excluded that part of the road adjacent to the Council’s land. The approval was supported by a “Submission Report” prepared by the Department. The report identified the public authorities that had been consulted and their responses. It observed that the Council itself had requested that the Land be transferred to it.

Under the heading “Decision”, the report records the following:

In relation to the Council’s objections, the report states:

The report stated that an appropriate price was $5 per sqm and that the total price depended on a survey. An addendum to the report indicates that the area of the road to be sold was 6,770 sqm, making the proposed sale price $33,850. The addendum also indicates that the Land would be sold as a single lot.

On 26 March 2020, the Department sent Mr Smith an offer to sell the Land for $33,850. The letter included a document which stated “This agreement is to be regarded as a contract for sale of the land”. The letter asked Mr Smith to sign and return the document by 26 April 2020. The document included the following paragraph:

Mr Smith returned the document on or about 31 March 2020 (although it is dated 31 February 2020). He ticked the second box of item 3 and inserted the number “15” in the blank space indicating the number of lots he required. It is that document which Mr Smith says constitutes the 2020 Agreement.

On 7 April 2020, the Department wrote to the Council indicating that the Delegate had determined to sell the Land to Mr Smith. The letter set out the Delegate’s reasons, which largely repeated the reasons given in the report which formed the basis of the Delegate’s decision.

On 24 July 2020, the Department sent an email to the Council attaching a linen plan showing that the Land would be split into 15 lots. The email relevantly said:

On 7 August 2020, the Council provided an extensive response to that request in which it objected to the sale going ahead in 15 lots. It asserted that such a sale would be contrary to the public interest and have various adverse planning consequences. It also asserted that such a sale would have the effect of creating a subdivision of the Land without satisfying the legal requirements relevant to a subdivision and in doing so would avoid the restrictions on the development of the Land under the current applicable planning instrument, Interim Development Order No. 122 (IDO 122), which was said to impose a minimum lot size of 40 hectares (the size of each proposed lot was approximately 450 sqm). The letter also pointed to “numerous other engineering, flooding, hydrology, drainage, bushfire and ecological issues related to this land”, which meant that development consent for the creation of 15 lots would likely be refused. In making that submission, the Council repeated several of the problems it had raised in its earlier submissions. It again submitted that the Land should be transferred to it.

On 2 February 2021, the Delegate was copied in on an internal departmental email which attached a “brief in relation to the contentious Darcy Smith matter for review”. The “brief” was a memorandum which summarised the position to date. The memorandum stated (emphasis in original):

On 17 August 2021, the Department wrote to the Council saying:

Mr Smith was also informed of this decision in similar terms.

On 30 November 2021, Mr Smith wrote to the Honourable Melinda Pavey MP complaining about what had happened. Then, in 2023, he commenced proceedings against the Minister seeking, among other things, specific performance of what was said to be a binding agreement to sell the Land to him in 15 lots. Those proceedings were set down for hearing on 26 and 27 March 2024 (the 2023 Proceedings).

A mediation in the 2023 Proceedings was scheduled for 14 February 2024. In preparation for the mediation, the Department prepared, and the Delegate and others approved, a briefing note the final version of which was dated 7 February 2024. The briefing note sought approval from the Deputy Secretary to settle the proceedings within the reasonable bounds of:

Under the heading “Sensitivities/Contentious issues” the briefing note relevantly said:

On 18 January and 7 February 2024, the Department received internal valuations of the Land on three scenarios. The valuations (in the form of emails) indicated that on Scenario A, which was the sale of the Land as a single lot, the value was between $35,000 to $40,000; that on Scenario B, which was the sale of the Land as 15 lots but no entitlement to erect dwellings, the value was approximately $10,000 per lot; and that on Scenario C, which was the sale of the Land as 15 lots with an entitlement to erect a dwelling on each lot, the value was within a range of $4,000,000 to $5,000,000.

On 14 February 2024, the Delegate and Mr Smith attended the mediation. At the mediation, both signed the Settlement Agreement. A copy of that document is Annexure A (243 KB, pdf) to this judgment.

In a Statement of Reasons prepared and served in this proceeding pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 59.9, the Delegate, after describing the decision she made at the mediation and the background facts, relevantly said that in reaching her decision she agreed with:

The Delegate also said the following:

Following the signing of the Settlement Agreement, there was correspondence between DC Balog & Associates acting for Mr Smith and Clayton Utz acting for the Minister in relation to the terms of the deed of release and contract for the sale of the Land as contemplated by the preamble of the Settlement Agreement. However, no agreement has been reached on the terms of either document. Nor has the Council agreed to the terms of an easement in its favour over the Land.

The Council advances six grounds of review in relation to the 2024 Decision:

Ground 6 was sought to be added by a notice of motion filed in Court on 2 December 2025. A draft of an amended statement of claim including that ground had previously been served on the defendants. The Minister did not oppose the amendment. Mr Smith did. I reserved on the question whether I would allow the amendment on the basis that I would deal with the issue in this judgment. On the second day of the hearing, the Council sought to make other amendments to the statement of claim. I indicated that I intended to reject some and to allow others. Ultimately, in light of those indications, the defendants agreed to a form of that document being filed. Nothing more needs to be said about that application to amend. The Council should be given leave to file that document.

In defence of the cross-claim, the Minister asserts that the Settlement Agreement was not a concluded agreement but fell within the third class of case identified by the High Court in Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 (Masters v Cameron) – that is, the class in which “the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract”: at 360. That is the only issue raised by the cross-claim that requires determination in this judgment.

Section 5.3 of the Crown Land Management Act 2016 (NSW) (the Crown Land Management Act) relevantly provides:

Section 1.9 of the Crown Land Management Act relevantly provides:

Division 1A of Pt 10 of the Roads Act relevantly provides:

It is plain from these provisions that the Minister is entitled to sell or to dispose of a Crown road or part of a Crown road but must do so in accordance with Part 10, Division 1A of the Roads Act.

Section 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) relevantly provides:

Section 4.3 of the EPA Act provides:

“Development” is defined in s 1.5(1) to include relevantly “the subdivision of land” (para (b)) and “the erection of a building” (para (c)).

At the time Mr Smith sought to buy the Land, the relevant environmental planning instrument was IDO 122. Clause 18 of that instrument relevantly provides:

At the time, the Land was zoned 7(a) Conservation. Neither subclause (4) nor (5) contains a relevant exception. Accordingly, under IDO 122, subdivision of the Land to create an allotment of less than 40 hectares was prohibited.

IDO 122 was replaced by the Central Coast Local Environmental Plan 2022 (the LEP). Under cl 2.6 of the LEP, subdivision of the Land requires development consent. That was the position with respect to the Land at the time the 2024 Decision was made.

Section 6.3 of the EPA Act provides:

Section 6.13(1) of the EPA Act provides that “[a] subdivision works certificate is required for the carrying out of subdivision work in accordance with a development consent”.

Section 6.2 of the EPA Act defines “subdivision” for the purposes of that Act. It relevantly provides:

Section 23G of the Conveyancing Act 1919 (NSW) (the Conveyancing Act) sets out transactions which are exceptions to the requirements of s 23F. Section 23F relevantly provides:

The exceptions stated in s 23G include the following transactions:

“Existing lot” is defined in s 7 in the following terms:

“Current plan” is defined relevantly in s 7A to mean “a Crown plan or a registered plan”. “Crown plan” is defined in s 7 to mean “a plan (such as a county or parish map, a town or village map or a portion plan) that has been prepared by or on behalf of the Crown and is held by the Registrar-General, and includes a registered plan that has been lodged for registration with the Registrar-General by or on behalf of the Crown”.

Part 3 of the Real Property Act 1900 (NSW) (the Real Property Act) deals with Crown lands. It relevantly contains the following provisions:

Ground 1 raises two issues. The first is whether the Delegate was required to take into account the Council’s submission dated 7 August 2020 in making her decision. The second is whether she did so.

The answer to the first question is governed by the requirements of Pt 10 Div 1A of the Roads Act and, in particular, s 152E, which states that the “roads authority” (in this case, the Minister) may sell or dispose of the Crown road concerned “[a]fter considering any submissions that have been duly made with respect to the proposal”. The “proposal” is the proposed sale or disposal of a Crown road in respect of which notice has been given in accordance with s 152D.

The reference to “submissions” should not be construed as a reference to the documents by which submissions are made but rather as a reference to the substantive points made in those documents. In many cases, there will be no practical difference between the two. But in this case there is. The Council provided the Minister with several documents over an extended period of time in which it made submissions on why the Land should not be sold and should not be sold as 15 separate lots. The context in which the submissions were made to some extent changed over time. In particular, the original submissions made by the Council proceeded on the basis that the Land would be sold as one lot whereas that was not the final form of the proposal. Provided the Delegate considered all matters raised in submissions that were duly made, she discharged the obligation arising from s 152E, even if she did not consider each document. Having considered the submissions that were duly made, she was not obliged to give reasons for her decision.

The proposal that was the subject of the notice was a proposal to sell part of a Crown road. The only information that the Minister was required to include in the notice of the proposal was the information set out in s 152D(2). That information did not include information on, for example, how the sale was to be effected or the proposed price. There is a question whether submissions on those matters would be “duly made”. In my opinion they would be. “Duly” in this context means submissions that were appropriate and in accordance with proper procedures. It may be that submissions would not be duly made if they were expressed in offensive language or they were made by someone with no interest in the matter. However, in my opinion, submissions on how the sale ought to be effected by someone with an interest in the sale (such as the Council) are duly made because they are directly concerned with the circumstances in which such a sale should be permitted.

Section 152D does not specify a time limit within which submissions are to be made. Rather, it leaves that issue to the roads authority (here, the Minister) but requires the roads authority to specify a period of not less than 28 days. Section 152D requires a time to be specified in the notice, but it was not suggested by any of the parties that the roads authority could not extend that time.

The Minister submits that the Council’s submission dated 7 August 2020 was not “duly made” because it was not made within the 28 days specified in the notice given in accordance with s 152D and that therefore the Delegate was not required to consider it. I do not accept that submission. In my opinion, it involves an over-simplification of what is meant by the word “duly”. Submissions that are made late are not duly made. However, submissions that are made in accordance with an extension of time are duly made. As I have said, it was not seriously suggested by any party that the Minister was not entitled to grant an extension of time.

In the present case, then, the question is whether the Delegate was required to take account of the substance of the Council’s submissions in its letter dated 7 August 2020 and, if so, whether she did so. In my opinion, she was, insofar as that letter was responsive to the request made by the Department on 24 July 2020, and she did. The request for comments was made in the context of a long and drawn-out process of considering the proposal that had been the subject of the notice that had been given publicly on 15 November 2018. It was not suggested that that process had come to an end as a result of the decision made by the First Delegate on 24 February 2020 (an application to amend to advance a case in those terms was refused on the second day of the hearing). It was open to the Minister, through the Department, to extend the time for submissions notwithstanding those 28 days had long since passed; and submissions made in accordance with that extension were “duly made”.

As I have mentioned, the submissions made on 7 August 2020 were long and traversed some of the ground covered by earlier submissions. To that extent, they were not duly made. However, to the extent that they directly addressed the question whether the sale should proceed in 15 lots, they were, since that is the issue that the Council was specifically asked to address.

In my opinion, it cannot seriously be contended that the Delegate did not consider those submissions. Much of the following four years were concerned with the issue of whether the Land should be sold as 15 lots in the light of the Council’s objections. Initially, it appears that a delegate of the Minister accepted the Council’s submissions. The issue was reconsidered following the commencement of the 2023 Proceedings. It is not plausible that the Delegate did not consider the Council’s objections to the sale of the Land in 15 lots when the question that concerned the Delegate was what should be done in the 2023 Proceedings in the light of those objections. In her statement of reasons, in describing the history of the matter, the Delegate refers in para 2.13 to the letter dated 7 August 2020 which she describes as “objecting to the sale of the Crown Road to Mr Smith as 15 lots”. In setting out her “Reasons for Decision”, she refers back to the history, including that paragraph. Although it is true as the Council submits that when the Delegate sets out the documents she considered for the purposes of UCPR r 59.9(3)(b) and (c), she does not refer to the letter dated 7 August 2020, she does refer to the briefing note dated 7 February 2024, which attaches the letter dated 7 August 2020.

Ground 2 is that the notice given in November 2018 of the possible sale of the Land was defective because it did not state that it was proposed to sell the Land in 15 lots.

In my opinion, that ground must be rejected. There is nothing in s 152D which requires the Minister to state the terms of the proposed sale, including the number of lots in which the Land would be sold. Indeed, as in this case, that may not be known at the time the notice is given and may be the subject of negotiation if the Minister decides to sell the Land after considering submissions that were duly made. All that the notice is required to do is to identify “the road that is proposed to be sold or disposed of”: s 152D(2)(a). As the Minister points out in his written submissions, it may be inferred from the fact that notice must be published in a local newspaper that the purpose of the requirement of notice is to permit adjacent landowners and members of the public to object to the closure of the road which would be an inevitable consequence of its sale. That conclusion is supported by the Second Reading Speech during which the then Minister said:

The Council submits that procedural fairness required the Minister “to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made” (quoting from Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 at 592 per Northrop, Miles and French JJ). But in that case, the question was whether the Commissioner had failed to discharge his statutory obligations in refusing to grant the appellant a wholesale or retail ‘X’ video merchants licence. Under the relevant legislation, the Commissioner was required to grant such a licence if the Commissioner was satisfied “on reasonable grounds in the circumstances that the applicant is a fit and proper person to hold a licence of that type”: at 586. As the Court pointed out (at 590), a decision of that type attracted an obligation to accord the applicant procedural fairness:

Ground 3 raises two issues. The first is whether the Delegate made a reviewable error of law in assuming that the Land could be registered as 15 lots in the absence of a plan of subdivision. The second is whether the Minister has power to sell or to dispose of the Land in 15 lots in the absence of a subdivision, or to put the position more accurately whether the Minister has power to sell the Land in accordance with the terms of the Settlement Agreement.

It is not clear on what basis the Council maintains an argument based on the first limb of this ground. Section 69 of the Supreme Court Act 1970 (NSW) relevantly provides:

It is accepted that relief under s 69 of the Supreme Court Act is only available for jurisdictional error or error of law on the face of the record: D’Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201 at [42] (Simpson AJA, Macfarlan and Leeming JJA agreeing). It is unclear whether error of law on the face of the record is available as a ground of review except where the decision-maker is a court or tribunal: see Christian Community Ministries Ltd v Minister for Education and Early Learning [2023] NSWSC 272 at [7] (Basten AJ); Picos v Council of the New South Wales Bar Association [2023] NSWCA 218 at [76]ff (Gleeson JA, Leeming and Payne JJA agreeing). In any event, the Council accepted during the course of the hearing that the Delegate’s statement of reasons was not part of the record for this purpose and no other document was identified that was said to satisfy that description.

Moreover, it is not clear what the first limb of this ground adds to the second. If the Minister does not have power to sell or to dispose of the Land in accordance with the terms of the Settlement Agreement, that is the end of the matter. On the other hand, if the Minister does have power to sell the Land in accordance with those terms, it is difficult to see what error of law on the face of the record the Delegate made in deciding to enter into that agreement.

The answer to the second argument advanced by the Council depends on whether the Settlement Agreement amounts to a subdivision, and, if so, whether it falls within one or more of the exceptions to the definition of “subdivision” that are identified by reference to s 23G of the Conveyancing Act.

If the Settlement Agreement constitutes a subdivision that does not fall within one or more of those exceptions, there is nothing in the provisions of the Roads Act or the Crown Land Management Act that permits the Minister to sell or to dispose of all or part of a Crown road without complying with the relevant provisions of the EPA Act. The various exceptions to the definition of “subdivision” in s 6.2 of the EPA Act proceed on the assumption that but for the application of one or more of the exceptions the Minister is bound to comply with the provisions of the EPA Act.

The Settlement Agreement records in cl A that “[t]he parties have agreed that title for the Land can be issued in 15 lots (subject to registration by NSW Land Registry Services)”. Under cl K, the obligation is on Mr Smith to engage a surveyor to prepare “a full survey plan”. Under cl O “[i]t will be [Mr Smith’s] responsibility to register the Survey Plan … with NSW Land Registry Services” and Mr Smith acknowledges “that any decision to register the transfer is a matter for NSW Land Registry Services”. Settlement is to occur when relevantly “[Mr Smith] has provided a final survey plan”: cl I(a). Under cl M, following settlement “[the Minister] will undertake and carry out any necessary acts or give any necessary consents on its part to ensure title to the 15 lots is issued in the name of [Mr Smith]”.

In my opinion, the Settlement Agreement falls within the definition of “subdivision” for the purposes of s 6.2 of the EPA Act. The Settlement Agreement plainly contemplates that the Land will be sold as 15 lots. Clause A of the agreement says as much, and the price for the Land is clearly calculated on that basis. The Settlement Agreement sets out a mechanism by which the subdivision is to occur, which involves the relevant plan being prepared by Mr Smith with what must have been an intention that each lot shown on the plan would be available for separate occupation, use or disposition. That is sufficient to constitute a subdivision of the Land for the purposes of s 6.2 of the EPA Act since it is a division of the Land effected by an agreement between the landowner and the purchaser “rendering different parts of the land available for separate occupation, use or disposition”: s 6.2(1)(b).

The Minister takes issue with the conclusion of the previous paragraph on the basis that the Settlement Agreement specifically states that the agreement for the sale of the Land in 15 lots is “subject to registration by NSW Land Registry Services” and (in cl O) that Mr Smith “acknowledges that any decision to register the transfer is a matter for NSW Land Registry Services”. However, the fact that the parties recognise that registration is ultimately a matter for NSW Land Registry Services does not alter the fact that they reached an agreement between themselves that the Land would be divided into 15 lots.

The question whether the transaction contemplated by the Settlement Agreement falls within the exception referred to in s 23G(l)(iii) of the Conveyancing Act depends on whether it can be described as a “transaction that relates to the whole of the residue of an existing lot, where part of the lot … has been dedicated as a public road”.

In my opinion, the answer to that question raises a question of characterisation, namely, whether the agreement that the Land will be divided into 15 lots and that, in order to achieve that goal Mr Smith will prepare and lodge for registration a survey plan showing 15 lots, can be regarded as part of the same transaction by which the road is sold or whether it is a separate transaction, in which case, it does not fall within the exception.

I have concluded that it is a separate transaction. It is not a necessary part of the sale process (the position would be different if, for example, each lot was to be sold to a different purchaser). Moreover, to treat it as part of or as “relating” to the transaction by which the land is sold appears to undermine the requirements of the EPA Act in relation to subdivisions. The exception created by s 23G is necessary to enable the sale of part of a public road since that sale will necessarily involve a subdivision of the land that forms the public road. But there is no reason to interpret the exception as being broader so as to permit any subdivision of the land being sold. No argument was advanced by the Minister to explain why such an interpretation would be consistent with the policy objectives of the EPA Act, particularly insofar as they deal with subdivisions.

The Minister also appears to rely to s 23G(b) of the Conveyancing Act (which creates an exception in the case of an application by the Crown to bring Crown land under the provisions of the Real Property Act). But again, that provision should not be interpreted as permitting the Crown to subdivide the land that is to be brought under the provisions of the Real Property Act in any way it chooses. Rather, the section is to be understood as permitting a subdivision to the extent that the subdivision is necessary to permit the relevant land to be brought under the provisions of the Real Property Act.

The Minister submits that the Council’s submission should be understood as a submission that the Minister cannot sell the Land on the proposed terms and points out that the Minister plainly has power to sell the Land and is entitled under s 152F of the Roads Act to include in the contract of sale “any conditions that the roads authority determines”, which is all that has been done in this case. I cannot accept that submission. Section 152F of the Roads Act cannot be interpreted as permitting the Minister to include terms that require a breach of the law.

Ground 4 also has two limbs. The first limb is that the Delegate made an error of law in concluding that the sale of the Land in 15 lots did not affect the Council’s ability to approve or not to approve the development of the Land. The second is that the same conclusion involved a failure to take account of the Council’s submission of August 2020.

Neither ground is made out. As I have explained a mere error of law on the part of the decision-maker does not give rise to a ground of review, and the Council accepts that the Delegate’s statement of reasons does not form part of the record, even assuming that error of law on the face of the record is an available ground of review in this case. The Council does not point to any other document which is said to be part of the record where the error is supposed to have been made. In oral submissions in reply Mr Hutton SC, who appeared for the Council, properly conceded that “we might not get far with para 62 of the statement of claim” (which raises this issue). Nothing further, therefore, needs to be said about it.

For the reasons stated earlier in relation to Ground 1, it is plain that the Delegate took account of the submissions made by the Council in August 2020. Nothing more needs to be said about this aspect of Ground 4.

Ground 5 is an alternative to Ground 3. Since I have concluded that the Council should succeed in relation to Ground 3, it is unnecessary to consider this ground. However, even if Ground 3 had not been made out, I would have rejected this ground. There is no reason to suppose that the Delegate concluded that the Settlement Agreement was not sufficient to sell the Land to Mr Smith in 15 lots. Assuming that the Settlement Agreement is enforceable (an issue that is dealt with below), the effect of the agreement if implemented is that the Land will be sold to Mr Smith in 15 lots. If the conditions to the agreement are not satisfied, it will not. However, there is no reason why the Minister could not enter into a conditional agreement for the sale of the Land. Section 152F(1) of the Roads Act expressly permits the Minister to do so.

Although Mr Smith objected to the inclusion of this ground, it seems to me that this ground adds little to Ground 3 to which no objection was ultimately taken. The question that both grounds raise is the scope of the power conferred by s 152E of the Roads Act. I have concluded that the effect of the section (taken together with the relevant provisions of the EPA Act) is only to permit a subdivision to the extent that the subdivision is necessary in order to enable the sale or disposal of the “Crown road concerned”. It does not permit the further subdivision of the Land for any purpose without complying with the relevant provisions of the EPA Act.

By his amended cross-claim, Mr Smith seeks specific performance of the Settlement Agreement. The Minister resists that claim on the basis that a Settlement Agreement was not a concluded agreement, but instead fell within the third class of case described in Masters v Cameron.

As the Minister points out, in light of my conclusion that the Minister did not have power to enter into the Settlement Agreement, this issue does not arise. However, it is necessary to deal with it in the event that I am wrong about my primary conclusion.

In essence the question whether Mr Smith is entitled to specific performance raises two questions. The first is whether the parties intended the Settlement Agreement to be a legally binding document immediately. The second is whether the agreement is sufficiently certain to be a legally binding document.

So far as the first question is concerned, I accept Mr Smith’s submissions that the parties did intend the document to be legally binding immediately.

The relevant principles were stated by the Court of Appeal (Bell CJ, Hammerschlag CJ in Eq and Adamson JA) in these terms in Stellar Vision Operations v Hills Health Solutions [2023] NSWCA 102 at [64] (citations omitted):

In the present case, the Settlement Agreement is expressed to be an agreement. The introductory words to the document state that “[t]he parties have agreed to resolve the [2023 Proceedings] on the following terms and subject to entering into a Deed of Release and contract for the sale of land”. The document was prepared in the course of a formal mediation at which both parties were legally represented. The purpose of the mediation was to resolve the 2023 Proceedings that had been listed for hearing on 26 and 27 March 2024.

The Minister submits that the parties did not intend the agreement to be immediately binding because it was expressed to be subject to execution of a deed of release and formal contract of sale. He submits that that is a strong indication that the agreement was not intended to be legally binding. He points to the following passage from the reasons of Dixon CJ, McTierney and Kitto JJ in Masters v Cameron at 362-3 in support of that submission:

In my opinion, reliance on this passage is misplaced. In this passage, the High Court was concerned with cases in which the agreement itself is expressed to be “subject to contract”. That is not the present case. Rather, the Settlement Agreement is expressed to be subject to the satisfaction of three conditions – the execution of a deed of release, the execution of a formal contract of sale on terms identified in the Settlement Agreement and the execution of an easement in favour of the Council. The Settlement Agreement states that the deed of release must be executed within 14 days and that the contract of sale must be issued by the Department (the Minister) within a further 14 days, although there is a question whether time is of the essence in satisfying that condition. The Settlement Agreement does not state by when the third condition must be satisfied. In the absence of a specific time, a reasonable time would be implied: Hick v Raymond [1893] AC 22 at 28 (Lord Herschell LC), 32-3 (Lord Watson); Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 (Perri) at 543 (Gibbs CJ), 554 (Mason J), 557 (Wilson J), 567-8 (Brennan J, Stephen J agreeing). If the conditions precedent are not satisfied, the Settlement Agreement does not take effect. If they are, it does. Moreover, in my opinion, it was an implied term of the Settlement Agreement that each party would take reasonable steps to satisfy the conditions precedent: Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607 (Mason J), citing Mackay v Dick (1881) 6 App Cas 251 at 263 (Lord Blackburn) and Butt v M’Donald (1896) 7 QLJ 68 at 70-1 (Griffith CJ). Neither party could avoid their obligations under the Settlement Agreement simply by refusing to execute the other agreements contemplated by that agreement.

There does not appear to be a serious issue in relation to the formal contract of sale. The Settlement Agreement states that it is to be prepared by the Department and sets out its terms (the terms of the earlier contract with the modifications stated in cl G). The focus of the Minister’s submissions was on the other two conditions.

In relation to the deed of release, the Minister points out that the only thing the Settlement Agreement says about its scope is that it is to “provide for the release of [the Minister] from liability associated with the sale of the Land, with the release to take effect upon settlement occurring”: cl F. In fact, the parties have been unable to reach agreement on the scope of the release let alone within a period of 14 days.

In my opinion, that is not fatal. I do not accept that time is of the essence: see Perri at 568 (Brennan J, Stephen J agreeing) citing Tilley v Thomas (1867) LR 3 Ch App 61 at 67 (Lord Cairns LJ). Moreover, where the deed of release relates to the settlement of court proceedings and the parties do not specify the terms to be included in the deed, it is reasonable to interpret their agreement as an agreement that the scope of the release will mirror the “release” that would be obtained through the doctrines of res judicata, issue estoppel, Anshun estoppel (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) and the like. Consequently, absent agreement it would be possible for the Court to determine the scope of the release agreed by the parties.

The position is different in relation to the easement. There is no agreement on the terms of the easement in favour of the Council. Moreover, the Council is under no obligation to reach agreement on the terms or to sign the easement. There is no suggestion that the Council is prepared to agree to the terms of an easement and the existence of these proceedings suggests otherwise. In those circumstances, an essential condition of the Settlement Agreement cannot be satisfied, with the result that Mr Smith is not entitled to specific performance of it.

On the conclusions I have reached the Minister did not have power to enter into the Settlement Agreement because it provides for a subdivision of land that does not comply with the requirements of the EPA Act.

The parties should be given an opportunity to make submissions on the form of orders that should be made by the Court in the light of those conclusions and on the question of costs. It will also be necessary to list the matter for further directions to deal with the outstanding issues in the case.

Accordingly, the orders of the Court are: