Avoiding Section 9 of the Sale of Land Act - "literal" versus the "effect" of section 9
Layman's synopsis
|
The Law
The law was intended to prevent a developer from selling land until the allotments were useable and all services required by the Council were present. Crooked developers and their crooked lawyers sought ways around the law. Kenneth Raymond Buchanan and his solicitors, Palmer Stevens & Rennick were such crooks
Section 9 of the Sale of Land Act 1962 was intimately related to and dependant on section 569 of the Local Government Act 1958 and section 97 of the Transfer of Land Act 1958. Section 97 of the Transfer of Land Act was also related to and dependent upon section 569 of the Local Government Act.
Section 569(1) of the Local Government Act provided:
that where any person intends to subdivide land into two or more parts such person shall give notice of his intention to the council in writing and submit a plan.
Section 569B(7) of the Local Government Act provided:
that the Council must refuse to seal a plan unless the use or development was permitted under the Interim Development Order then in force.
The Interim Development Order then in force prevented the use or development of land except if the use or development was in accord with the Planning Permit issued by the Council [IDO section 2.b here, complete IDO here]
Section 97(2A) of the Transfer of Land Act provided:
The Registrar of Titles shall not approve a plan which is subject to section 569 of the Local Government Act unless:
the plan is the same as the plan sealed by the Council; and
there has been no contravention of section 9 of the Sale of Land Act.
Section 9 of the Sale of Land Act provided:
Where a notice of intention to subdivide land into three or more allotments has been given or is required to be given no person shall sell any such allotment unless the land is under the operation of the Sale of Land Act and the allotment is an allotment on a plan approved by the Registrar pursuant to section 97 of the Transfer of Land Act.
In simple terms, these three acts and Interim Development Order provided:
- that a person must give notice of his intention to subdivide; and
- where that intention is to subdivide into three or more lots then no sales can be made until the plan has been approved by the Registrar of Titles; and
- the Council is prevented from sealing a plan unless the subdivision was in accord with a Planning Permit; and
- the Registrar of Titles is prevented from approving the plan;
- unless the plan is a plan in accord with a plan sealed by the Council; or
- if a sale has been made before the plan was approved, i.e. if a sale has been made in breach of s.9.
This is the holistic view, i.e. the interdependance of the three acts and the IDO.
The literal provisions of section 9
The thing that gave effect to these sections was the words "intends" and "intention" in section 569(1) of the Local Government Act together with the words "or is required to be given" in section 9. These words make avoidance of the literal provisions of s.9 impossible.
Put simply, where a person intended to make an 18-lot subdivision, he was required to give notice of that intention pursuant to s.569(1). Section 9 of the Sale of Land Act therefore applied to any subdivision where the intention to subdivide the land into three or more allotments was required to be given. So, the fact was that where a developer's mere intention was for a subdivision of three or more allotments, there was no method of avoiding the literal provisions of s.9 of the Sale of Land Act.
"Fabricated" 2-lot plans could not and did not enable avoidance of the literal provisions of s.9 of the Sale of Land Act where the intention was to subdivide into 18 lots.
Avoidance - the mistaken "simplistic view"
On a simplistic but seriously mistaken view of s.9 of the Sale of Land Act, some people wrongly believed that s.9 could be avoided by means of a series of 2-lot plans such as occurred here. This simplistic view was apparently held by Buchanan and his crooked lawyer.
I also held this simplistic view during the period 1983 until about 1987. In 1983 my solicitor Danny Ginsburgh advised me that the Tylden Rd plans had been "contrived" to avoid s.9, however when I read the legislation in about 1987, I learned that the plans did not facilitate avoidance at all because, on the "holistic view", there were three pieces of legislation which supported each other.
In this case, the clear intention of Buchanan was to subdivide the Tylden Rd land into 18 lots. For the specific purpose of avoiding the "simplistic view" of section 9, he filed with the Council seven separate Notices to the effect of the Thirtieth Schedule, six of which fraudulently misrepresented his intention as being an intention to subdivide into two lots. However, because his intention was clearly to subdivide into 18 allotments, he had in fact breached rather than avoided s.9 when he sold the allotments.
The Council knew Buchanan's intention was to subdivide into 18 lots and the Council knew full well that each and every Thirtieth Schedule Notice given in relation to the series of "contrived" plans did not state that intention and was therefore in clear breach of s569(1) of the Local Government Act.
Buchanan and his lawyer actually made two sales from these plans and, while these "crooks" thought they were cleverly avoiding the law, the sales in fact remained in clear breach of section 9.
Avoiding the "effect" of section 9
Avoiding the "effect" of section 9 is insidious and was the only method of avoiding section 9.
Section 97(2A) of the Transfer of Land Act prevented the Registrar of Titles from approving a plan unless it was in accord with a plan sealed by the council; and
Section 569E(1) of the Local Government Act empowered councils to require developers to construct roads etc. on subdivisions, and section 569E(3) prevented the Registrar of Titles from Registering a plan until that requirement has been either complied with or withdrawn; and
Section 569(B)(7) provided that a council must refuse to seal a plan of subdivision:
unless all of the provisions of the local government act have been complied with; or
if an Interim Development Order was in force, unless the subdivision and the use or development was permitted under the IDO, and the Council had issued a planning permit.
The Shire of Kyneton Interim Development Order ("IDO") then in force prevented the use or development of land unless the subdivision was in accord with a planning permit issued by the Council. [see para 2b here - complete IDO here]
In simple terms, the Registrar of Titles could not approve a plan where the council had made a requirement (to construct roads etc.), and the council was prevented from sealing plans until the planning permit had been complied with, and the Registrar could not approve a plan which had not been sealed.
The clear "effect" of section 9 of the Sale of Land Act therefore was to prevent sales on subdivisions where the council had made a requirement under s569E(1) and that requirement had not either been complied with or lifted, and to prevent sales where the subdivision was not in accord with the planning permit.
Avoidance of the "effect" of s.9 was simple but required the cooperation of a compliant council which would seal the plans in full knowledge or with careless disregard for the fact that either the requirement had not been complied with or the planning permit had not been complied with. This is exactly what happened in the case of both Tylden Rd and Woodleigh Heights. This gave rise to the "causes of action"
Avoiding the "effect" of section 97 of the Transfer of Land Act.
Section 97(2A) of the Transfer of Land Act acted to prevent the Registrar of Titles from approving a plan of subdivision unless;
- The plan was a plan in accord with a plan sealed by the Council; and
- There had been no contravention of section 9 of the Sale of Land Act.
Section 97 also provided that the plans must show all of the roads and all of the allotments which were intended to be laid out.
The "effect" of section 97 was to prevent the Registrar of Titles from approving a plan until such time as the Council had lawfully sealed the plan.
By sealing plans in breach of its statutory duty to refuse to do so the Council facilitated avoidance of the "effect" of section 97.
"Contrived" 2-lot plans of subdivision do not even provide the pretence of avoiding section 97 of the Transfer of Land Act.
Avoiding the "effect" of section 97 was specifically alleged in relation to Tylden Rd at paragraph T7 of the Amended Statement of Claim.
Avoiding the "effect" of section 9 of the Sale of Land Act also facilitated avoidance of section 97 of the Transfer of Land Act.
Avoiding the "effect" of section 9 has nothing whatsoever to do with "unlawful" plans of subdivision. Avoiding the "effect" of section.9 was the basis of the "causes of action" in the 2005 Supreme Court proceeding before Master Efthim and Justice Osborn. Master Efthim was misled that "unlawful" 2-lot plans enabled avoidance of section 9 of the Sale of Land Act and he did not make judgment on the true "causes of action". Justice Osborn was not misled, he misstated the intent and purpose of section 9. |
Buchanan's futile attempt to avoid section 9
In its initial form, section 9 of the Sale of land Act prevented the sale of allotments on a subdivision until such time as the subdivision had been registered, pursuant to section 97 of the Transfer of Land Act by the Registrar of Titles. As stated in simple English by Mr. Rylah, the Attorney General at the time of enactment, clause 9 of the bill "requires subdivisions to be registered in the Titles Office before land is sold". Section 9 of the Sale of Land Act was subsequently amended by inserting the words "three or more" so that the amended section 9 prevented the sale of allotments on subdivisions consisting of three or more allotments until such time as the plans had been registered.
Now of course a dishonest but mistaken way around this law was to simply file a bunch of 2-lot plans of subdivision, and this is precisely what the developer Kenneth Raymond Buchanan did, believing it would enable him to lawfully sell land before he was otherwise lawfully entitled to. His intention was to subdivide the Tylden Road land into 18 residential lots, however he didn't want the law to get in the way of sales, so he filed a series of seven plans with the Council. Six of them were 2-lot plans and the seventh plan showed the remainder of the 18 lots. These plans were contrived in the following manner. The first one showed Lot 1 and Lot E. The second one showed Lot 7 and Lot F with "NIS" (not in subdivision) marked on the area where Lot 1 was. The third one showed Lot 8 and Lot G and "NIS" in the areas where Lots 1 and 7 were, etc. Here is that series of plans. The real lots, i.e. the ones numbers 1, 2, 3 etc are marked in orange. The bogus lots, i.e. those ones marked E, F, G etc are marked in aqua. The "not in subdivision" land is marked in yellow. Watch the "NIS" land grow!
It is significant that each plan was approved by the Registrar of Titles on the same day, i.e. 28th November 1980.
Buchanan sold two of these lots on 7th February 1980 and purported to give possession on 4th March 1980 which the same day as he filed the "contrived" plans with the Council and many months prior to the plans being approved by the Registrar of Titles. If the plans of subdivisions were for genuine 2-lot subdivisions, these sales would have been legal, however the truth is that the intended subdivision was for 18 lots, which is "three or more", so the sales were in fact unlawful because section 9 of the Sale of Land Act applies to subdivisions where the "intention" is three or more lots.
It is interesting to note that these Notices of Disposition are dated at the bottom 23rd December 1980 which was nine months after they were sold but one month after the plans were approved by the Registrar of Titles. In addition, the possession date recorded on the Notices of Disposition is the same day as Buchanan filed the contrived plans with the Council.
The legislation is most simple and here we have clear evidence that Buchanan filed the series of plans with the intention and purpose of avoiding the legislation and we have evidence of at least two sales in clear breach of the law. It does not get much simpler.
This attempt by Buchanan was futile, his intention remained an intention to do a subdivision of 18-lots.
The "unlawful" plans
The "unlawful" plans were contrived to avoid a mistaken or "simplistic view" of s.9 of the Sale of Land Act 1962 however these plans did not and could not facilitate such avoidance.
The series of "contrived" plans were in fact nothing more than plans which did not show all of the roads or all of the allotments and therefore they were in breach of s.569A(1) of the Local Government Act which required plans to show all allotments and all roads. All of them were "unlawful" because they did not show all of the lots. Several of them were also unlawful because they did not show all of the roads. The reality was that they were more "naughty" than "unlawful.
"Unlawful" plans of subdivision do not and cannot cause loss and damage
At the hearing before Master Efthim, the lawyers led Master Efthim to believe that, in respect to Tylden Rd, "unlawful" plans constituted or were related somehow to the "cause of action" however it is manifest that "unlawful" plans per se do not and cannot cause loss and damage and do not and did not constitute any part of the "cause of action".
In relation to subdivisions, loss and damage can only occur because of some loss-causing deficiency in or related to the allotments created by that subdivision. Manifestly, if a plan is technically deficient in some manner (as these ones were) and the allotments created by that deficient plan are identical to those which would have been created by a plan without that technical deficiency, then the plans, per se, do not cause any loss or damage.
In the case of the Tylden Rd land, the allotments created by the series of "unlawful" contrived 2-lot plans were identical to those that would have been created by the lawful 18-lot plan. Neither the "unlawful" contrived plans, nor the scheme to avoid the "simplistic view" of section 9 of the Sale of Land Act, were in any way contributory to the "cause of action" or loss and damage set out in the Statement of Claim.
The loss and damage, and therefore the "cause of action", was specifically due to the avoidance of the "effect" of section 9 of the Sale of Land Act as defined above. The plans did not and could not contribute to that loss and damage. The plans of cluster subdivision in relation to Woodleigh Heights were lawful in every respect, however the "cause of action" in relation to Woodleigh Heights was also expressly said to arise from things done for the purpose of avoidance of the "effect" of s.9.
"Unlawful" plans, once sealed are, for all purposes, lawful
Section 569B(10) of the Local Government Act provided that "The sealing of a plan of subdivision shall be conclusive evidence for all purposes that there has been compliance with this Act with respect to such sealing and that all preliminary steps and proceedings required to be taken in connexion therewith have been duly and properly taken".
In other words it is pointless arguing anything at all in relation to "unlawful" plans. Once sealed, they are lawful in all respects. To be otherwise would invite turmoil in the property system which underpins our economic system.
Section 569B(10) however cannot and does not purport to rectify, at law, a loss-causing deficiency in the allotments created, i.e. if the water supply is not present, s.569B(10) does not make the water present at law.
Notices of Requirement and "Requirements" are not invalid due to "unlawful" plans
Notices of Requirement issued and served by a council relate to work required to be done on allotments or roads which are defined on a plan of subdivision. Such notices are not invalidated by a technical deficiency in a plan of subdivision. If they were so invalidated, a council could seal a plan with a technical deficiency (upon which the plan becomes lawful in all respects) but the developer would not be required to carry out the works. Such a notion is nonsense.
Notices of Requirement and "requirements" apply to works to be done on the land shown in plans of subdivision. They have a life, at law, independent of whether or not the plans are technically perfect.
***********
Top of Page ------ Menu Page