Armidale Local Aboriginal Land Council v Minister Administering the Crown Lands Act

[2001] NSWLEC 268

Reported Decision: 118 LGERA 356

Land and Environment Court

of New South Wales

CITATION:	Armidale Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 268
PARTIES:	APPLICANT: Armidale Local Aboriginal Land Council RESPONDENT Minister Administering the Crown Lands Act
FILE NUMBER(S):	30303 of 1999
CORAM:	Bignold J
KEY ISSUES:	Aboriginal :- Aboriginal Land Claim-Crown land used for the conduct of University-Tenancies granted in respect of child care centre and residence for visiting academic-whether land lawfully used or occupied-whether tenancies valid
LEGISLATION CITED:	Aboriginal Land Rights Act 1983 Crown Lands Act 1989, s 102(1) Crown Lands Consolidation Act 1913 Higher Education (Amalgamation) Act 1989 (Act No 65) University of New England Act 1993 University of New England Act 1989 (Act No 67) Western Lands Act 1901
CASES CITED:	Industrial Properties (Barton Hill) Ltd v Associated Electrical Industries Ltd (1977) QB 580; Minister for Minerals and Energy v Vaughan-Taylor (1991) 73 LGRA 115; Minister for Natural Resources v NSW Aboriginal Land Council (1997) 9 NSWLR 154 at 158; National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573; NSW Aboriginal Land Council v The Minister Administering the Crown Lands Act 1989 (Matter No 30072 of 1996-unreported 22 October 1997) Lloyd J ; NSW Aboriginal Land Council v Tamworth Local Land Council (Matter No 40200 of 1988-unreported 14 December 1988); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Ryde Municipal Council v Macquarie University (1978) 139 CLR 633; Tasker v Fullwood (1978) 1 NSWLR 20
DATES OF HEARING:	20, 21 August 2001
DATE OF JUDGMENT:	11/27/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr J Maston, Barrister SOLICITORS Wroth Wall RESPONDENT: Mr S Lloyd, Barrister SOLICITORS NSW Crown Solicitor

JUDGMENT:

IN THE LAND AND

Matter No. 30303 of 1999

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

27 November 2001

ARMIDALE LOCAL ABORIGINAL LAND COUNCIL

Applicant

v

MINISTER ADMINISTERING THE CROWN LANDS ACT

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal pursuant to the Aboriginal Land Rights Act 1983, s 36(6) (the ALR Act) against the Minister’s refusal of the Applicant’s land claim made under that Act (Claim Registered No 6209) in respect of land situate at Armidale and known as Section 83, Parish of Armidale and County of Sandon, comprising an area of some 9.712 ha and being a part of the “Newling” Campus at the University of New England (the University).

2. In hearing the present proceedings I have been assisted by Commissioner McDermott, pursuant to the Land and Environment Court Act1979, s 37(2).

3. The Minister’s refusal of Claim No 6209 was notified to the Applicant by letter dated 22 September 1999. (The same letter also dealt with Claim Registered No 6210, lodged by the Applicant in respect of another piece of land situate on the “Newling” Campus of the University). The Minister’s letter stated the following reason for his decision refusing both land claims:—

I refer to Claims 6209 and 6210 lodged by the Armidale Local Aboriginal Land Council in respect of Section 83 (remainder) of 9.712 hectares and Lot 1140 DP722471 of 15.92 hectares, being parts of the Newling Campus of the University of New England at Armidale, Parish Armidale, County Sandon and shown by red and green edges respectively, on the attached diagram.

The Council of the University of New England was appointed Corporate Manager of these lands by notification in the NSW Government Gazette of 3 February 1995. This appointment further confirmed the University’s existing control and management of these lands under Section 19, University of New England Act 1993.

Following investigation I am satisfied that when the claims were made the whole of the claimed lands shown by red and green edges on the diagram were not claimable Crown lands within the meaning of the Aboriginal Land Rights Act, 1983, as these lands were lawfully occupied by the Council of the University of New England as the Corporate Manager of the reserved and dedicated lands and were lawfully used by various sporting and cultural groups within the University and others of the Armidale and district community.

4. The Applicant appealed to this Court against the Minister’s refusal of Claim No 6209 by class 3 Application filed on 19 November 1999.

5. However, by its Amended class 3 Application filed 7 June 2001, the Applicant amended its application to “no longer claim the whole of the land described in the application dated 19 November 1999 but to only claim” two small portions of that land described in the amended application by reference to words and a map. These two small portions comprise parts of a building and a separate building, each forming part of “Newling” Campus, which at the date when the Applicant’s land claim was made, 25 September 1998 (the relevant date) were the subject of separate tenancies granted by the University - in the one case for the conduct of a Child Care Centre Agency and in the other for the short term residency of a visiting academic.

6. The Respondent has not raised any objection to the Applicant amending its class 3 Application, and the case has been conducted on the basis that the Applicant’s appeal against the Minister’s decision refusing the whole of claim Registered No 6209 is to be treated as an appeal against the Minister’s decision refusing only that part of the claim comprising the two small portions of the land originally claimed that the Applicant has identified in its Amended class 3 Application.

7. Another, and perhaps more precise way of noting the true effect of the Applicant’s Amended class 3 Application is to say that the Applicant has abandoned its appeal against the Minister’s refusal of its Land Claim Registered No 6209 except for the two small portions of the land that are described in the Amended class 3 Application (the claimed land).

8. One practical effect of the belated amendment to the Applicant’s class 3 Application is that the evidence adduced by the Respondent generally addresses the whole of the land originally claimed which is readily identified as the land comprising Reserve 62148 that was temporarily reserved from sale for the public purpose of “Teachers’ College” under the Crown Lands Consolidation Act 1913 by notification published on 26 September 1930.

9. However, the Respondent’s evidence also focuses attention on the two tenancies, the land the subject of which forms the two separate parts of Reserve 62148 that the Applicant’s land claim now encompasses.

10. Whereas the issue raised in an appeal pursuant to the ALR Act, s 36(6), is always whether the Minister has established that the claimed land is relevantly not “claimable Crown lands” as that expression is defined in s 36(1) of the ALR Act, at the date of the land claim, the sole basis for the Applicant’s challenge to the Respondent’s determination in the present case is its contention that each of the two tenancies granted in respect of the separate parts of Reserve 62148 now claimed by the Applicant in its Amended Application was invalid from the date of grant (and therefore at the date of the Applicant’s land Claim Registered No 6209).

11. The Applicant’s case is founded upon the proposition that if that contention of invalidity be upheld, the result will be that the lands were not at the relevant date “lawfully used or occupied” within the definition of “claimable Crown lands” with the ultimate legal consequence that such lands must be regarded as being relevantly “claimable Crown lands” within the meaning of s 36(1) of the ALR Act. In other words, the relevant uses and occupations which existed in fact were not “lawful” because of the invalidity of the two tenancies.

12. It should at once be noted that the alleged invalidity of both tenancies is based upon the Applicant’s contention that both tenancies were granted, otherwise than in accordance with the relevant statutory regime governing the dealing with lands (such as Reserve 62148) the control and management of which, was vested in the University. In this respect, the Applicant asserts that the relevant statutory regime is Part 5 of the Crown Lands Act 1989 whereas the Respondent asserts that the relevant regime is the University of New England Act 1993 (1993 University Act). The resolution of this fundamental dispute will necessitate an examination of a number of labyrinthine statutory provisions contained in a number of Acts (being the two Acts just mentioned and their legislative predecessors).

13. Although the Respondent’s case is that even if the relevant tenancies were held to have been invalidly granted (eg because the University granted them without obtaining the consent of the Minister) this conclusion would not ipso facto render the claimed lands relevantly “not lawfully used or occupied” within the meaning of the definition of “claimable Crown lands”, I propose to initially determine the disputed question concerning the applicable statutory regime governing the University’s dealing with Reserve 62148, because of the Applicant’s proper concessions that unless the two relevant tenancies were invalid at the date of its land claim, the existence of those tenancies necessarily established that the claimed lands were relevantly “lawfully used or occupied” within the meaning of the definition of “claimable Crown lands” with the ultimate consequence that they are not “claimable Crown lands” and the Applicant’s appeal must accordingly fail.

14. However, as will presently be seen, although the Applicant’s contention of invalidity of the two relevant tenancies of the claimed land was originally founded exclusively upon its contention that Part 5 of the Crown Lands Act provides the relevant statutory regime for the University dealing with Reserve 62148 in the course of argument, the Applicant broadened its attack upon the validity of the tenancies advancing subsidiary and alternative bases for contending that the two tenancies were invalid, namely (i) that they were not granted by or on behalf of the Council of the University and (ii) that they did not contain a condition against assignment, contrary to the 1993 University Act, s 19(4).

15. I should, at this stage, note that there is strong support in the existing case law for the approach and rationale of the Applicant’s foundational argument, namely that it is legitimate in a case such as the present involving an asserted “lawful use or occupation” of the claimed Crown Land for a claimant to accept the fact of the use or occupation but to challenge the lawfulness of the grant of the particular form of Crown tenure authorising that use or occupation of Crown land.

16. Thus, in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 where Crown land was used and occupied for grazing purposes pursuant to a permissive occupancy, the claimant alleged that the permissive occupancy was invalid for the reason that under the Western Lands Act 1901, there was no power to grant a permissive occupancy and for the separate alternative reason that the purported grant of a permissive occupancy by the secretary of the Western Lands Commission was invalid because there was no proof that the Minister’s power to grant a permissive occupancy had been delegated to the Secretary of the Western Lands Commission.

17. The decision of the Court of Appeal in that case proceeded upon the express basis stated at 166 in the judgment of Clarke A - JA (agreed in by Kirby P) that the question whether the Crown land was relevantly lawfully used or occupied focussed “on whether the Secretary of the Western Lands Commission validly granted Mr Mooring a permissive occupancy of the land with the consequence that his occupation should properly be categorised as lawful”. To similar effect is the following statement at 159 in the judgment of McHugh JA (as he then was):

The Land Council asserted that the grant of occupancy was invalid because at no relevant time did the Secretary or the Minister have the power to make the grant.

18. In NSW Aboriginal Land Council v The Minister Administering the Crown Lands Act 1989 (Matter No 30072 of 1996—unreported 22 October 1997) Lloyd J held that a licence granted in contravention of the requirement of the Crown Lands Act 1989, s 102(1) that the Minister’s consent thereto be obtained, rendered unlawful any use or occupation of the licensed land.

B. THE RELEVANT FACTS

19. The relevant facts are as set forth in the Statement of Agreed Facts (Exhibit A), a copy of which is annexed hereto. The following abbreviated summary of relevant facts has been derived from that Statement—

(i.) The Applicant’s amended application makes claim to two separate areas of land occupied by parts of a building and a separate building (the claimed land) which areas are included in the land comprising some 24 acres constituted as Reserve 62148 created on 26 September 1930 pursuant to the Crown Lands Consolidation Act 1913, s 28 reserving the land for the public purpose “Teachers’ College”;

(ii.) Since its creation in 1930 Reserve 62148 has continuously, and successively, formed a part of the campus of each of the following educational institutions and has been used successively in the conduct of each of those institutions:

The Armidale Teachers College;

The Armidale College of Advanced Education; and

The University of New England

(iii.) Upon and following, the commencement of the 1993 University Act, Reserve 62148 was included in “the property used in the conduct of the University”, created by that Act, which, by virtue of s 19(1), vested the control and management of the Reserve in the University Council.

(iv.) On 3 February 1995, a Reserve Trust was created pursuant to s 92(1) of the Crown Lands Act 1989 in respect of specified lands including Reserve 62148 and the University was appointed pursuant to s 95(1) of that Act to manage the affairs of that Reserve Trust.

(v.) On 25 September 1998 being the date upon which the Applicant made its land claim (Claim Registered 6209) in respect of Reserve 62148, the claimed land was the subject of two existing tenancies in respect of two different parts of that land, namely (i) a weekly tenancy granted to Armidale Family Day Centre Ltd in respect of parts of a building complex known as “Newling House” used for the conduct of a child care centre agency with priority for caring for children of staff members of the University and students of the University which tenancy followed the grant of an original lease to that tenant for a term of one year commencing on 1 February 1996 and thereafter pursuant to the “holding over” provision in the lease as a periodic tenancy from month to month; and (ii) a lease granted to Professor Swartz, a short term visiting academic to the University in respect of a building known as “Taylor Street Lodge” for a term from 11 September 1998 to 24 December 1998.

(vi.) The two aforesaid tenancies had been granted by officers of the University in the name of the University (as landlord) without having obtained any consent thereto from the Minister.

C. THE LEGAL STATUS OF RESERVE 62148 AT THE RELEVANT DATE

20. According to the agreed facts, Reserve No 62148 has continued in existence at all material times since its creation on 26 September 1930 pursuant to the Crown Lands Consolidation Act 1913, s 28(1) by notification published in Government Gazette No 144 dated 26 September 1930. The Notification reserved the land for the public purpose of “Teachers’ College”.

21. Section 28(1) of the Crown Lands Consolidation Act provided as follows:

The Minister may by notification in the Gazette declare what portions of Crown lands shall be reserved temporarily or otherwise from sale for any public purpose or for commonage and the lands which are the subject of any such notifications shall thereupon be reserved from sale accordingly.

22. Upon the repeal of the Crown Lands Consolidation Act 1913 by the Crown Lands Act 1989, s 185, the legal effect of the reservation of Reserve 62148 was sustained (as if it had been reserved under the repealing Act) by virtue of the savings and transitional provisions contained in Schedule 8 Part 1 Clause 1 of the latter Act.

23. The University was originally established by the University of New England Act 1989 (Act No 67) being declared by cl 5 of Schedule 3 to that Act to be “a continuation of and the same legal entity as, the University of New England established by the University of New England Act 1953”.

24. By virtue of the Higher Education (Amalgamation) Act 1989 (Act No 65), the Armidale College of Advanced Education was amalgamated with the University. Section 4(2) of that Act vested in that University the property of that College of Advanced Education and s 4(3) provided that the University “has the control and management of land that was under the control and management of” that College.

25. The 1989 University Act was repealed by the 1993 University Act which established a new university by the same name (s 4 and s 5) and contained savings and transitional provisions in Schedule 3 with respect to the transfer to the new University of staff and property of the former university to take effect from the “transfer day” (being the day upon which the earlier Act was repealed by the current Act, namely 1 January 1994).

26. Part 3 of the 1993 University Act created the Council of the University and Part 4 specified the functions of the Council. Those functions includes the following functions (which are relevant to Reserve 62148) as provided by s 19:

19. (1) Where any property used for the conduct of the University is vested in the Crown or a Minister of the Crown (whether as constructing Authority or otherwise), the Council has the control and management of that property and is responsible for its maintenance.

(2) Nothing in subsection (1) enables the Council to alienate, mortgage, charge or demise any land vested in the Crown or a Minister of the Crown (whether as Constructing Authority or otherwise).

(3) Despite subsection (2), the Council may (on behalf of the Crown or a Minister of the Crown) lease land of which it has, pursuant to this section, the control and management.

(4) Such a lease:

(a) is to be for a term not exceeding 21 years; and
(b) is to contain a condition that the lease is not to be assigned and such other conditions as the Council thinks fit.

(5) The Council is, in the exercise of its functions under this section, subject to the control and direction of the Minister.

27. As I have earlier noted, in the course of the hearing, the Applicant initially conceded that if the 1993 University Act, s 19 provided the governing regime for dealings with Reserve 62148, its contention that both tenancies were invalid, must fail. However, as I have already noted this concession was modified to become subject to the Applicant’s subsidiary attack upon the validity of the tenancies in its alternative argument. Nonetheless, the Applicant argued that s 19 did not govern the grant of the two tenancies, but that the governing regime was that provided by the savings and transitional provisions contained in Part 3 of Schedule 3 to that Act and in particular, cl 16 which is in the following terms:

16. (1) On and from the transfer day:

(a) the assets of the former University at Armidale vest in the new University by force of this clause and without the need for any conveyance, transfer, assignment or assurance; and
(b) the rights and liabilities of the former University at Armidale become by force of this clause the rights and liabilities of the new University; and
(c) all proceedings relating to the former University at Armidale commenced before the transfer day by or against the former University of New England and pending immediately before the transfer day are taken to be proceedings pending by or against the new University; and

(d) anything done or omitted to be done in relation to the former University at Armidale before the transfer day by, to or in respect of the former University of New England is (to the extent that it has any force or effect) taken to have been done or omitted to be done by, to or in respect of the new University; and
(e) a reference in any other Act, in any instrument made under any Act or in any document of any kind to the former University at Armidale or to the former University of new England (to the extent that it relates to the former University at Armidale) is to be read as, or as including, a reference to the new University.

(2) The new University has the control and management of land that was under the control and management of the former University of New England in relation to the former University at Armidale immediately before the transfer day.

(3) The assets of the former University at Armidale vested in the new University by this clause are vested subject to any trusts or conditions subject to which they were held immediately before the transfer day and are to be applied by the new University for the purposes of the new University.

(4) The transfer, by this Part, of the control and management of any asset to the new University does not affect any power of the person or body by whom the control and management of that asset has been conferred, or of any lawful successor of that person or body:

(30) to remove the control and management of that asset from the new University; or
(31) to vary the conditions subject to which the control and management of that asset may be exercised by the new University,

that could have been exercised by that person or body, or by that lawful successor, in respect of that property had this Act not been enacted.

28. In respect of the content of cl 16, it is to be noted that cl 14 contains a number of definitions, including the following:

assets means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description (including money), and includes securities, choses in action and documents;

rights means all rights, powers, privileges and immunities (whether present or future and whether vested or contingent).

29. It should be noted at this point that the case has been conducted upon the common basis that (i) the control and management of Reserve 62148 was, immediately before cl 16 took effect, vested in the former University and (ii) pursuant to cl 16(2) that control and management was transferred to the new University. The first assumption appears to be validated by virtue of the provisions of s 22(1) of the University of New England Act 1989 which provided as follows (although it is to be noted that it is the Board of Governors and not the University itself, in which control and management is vested):

22.(1) Where any property used for the conduct of the University is vested in the Crown or a Minister of the Crown (whether as Constructing Authority or otherwise), the Board has the control and management of that property and is responsible for its maintenance.

30. The second assumption is validated by cl 16(2) of Schedule 3 to the 1993 University Act.

31. A further common assumption made by the parties was that Reserve 62148 was relevantly an “asset” within the meaning of cl 16(4) of Schedule 3 to the 1993 University Act. This assumption is probably correct, although in view of the statutory definitions of “assets” and “rights” contained in cl 14 of Schedule 3, it may be more correct to regard the control and management of Reserve 62148 as a “right” rather than an “asset”. However, I am prepared to assume that Reserve 62148 was relevantly an “asset” within the meaning of cl 16(4) of Schedule 3 to the 1993 University Act.

32. The Applicant submits, that cl 16(4) of Schedule 3 to the 1993 University Act, provides the legal foundation and justification for the action that was taken pursuant to the Crown Lands Act 1989 sections 92 and 95 by virtue of the relevant notifications that were published in Government Gazette No 11 of 3 February 1995, respectively creating the University of New England (Newling Campus) Reserve Trust and appointing the University to manage the affairs of that Reserve Trust.

33. Notwithstanding what had been said in his letter refusing the Applicant’s land claim Registered 6209 suggesting that the Minister regarded the separate statutory regimes as being “confirmatory” of one another (the relevant extract is recited in par 3 of these reasons) the Respondent, on the hearing of the appeal has denied validity to the action taken pursuant to the Crown Lands Act 1989 on the basis that such action exceeded the powers conferred by that Act in view of the later contrary provisions contained in the 1993 University Act. Particular reliance was also placed upon s 7 of the Crown Lands Act which provides as follows:

Relationship with other Acts

This Act shall not be construed so as to affect the operation of a provision of any other Act which:

(1) makes special provision for any particular kind of Crown land, or
(2) authorises Crown land to be disposed of or dealt with in any manner inconsistent with this Act.

34. Somewhat curiously, the Applicant has submitted that this Court has no jurisdiction to determine whether the relevant action taken pursuant to the Crown Lands Act 1989, s 92 and s 95 was invalid as contended by the Respondent.

35. The submission must be firmly rejected as clearly this Court has the jurisdiction to determine the question as a disputed issue requiring adjudication in the course of the exercise of this Court’s statutory jurisdiction to determine the Applicant’s appeal pursuant to the ALR Act, s 36(6): see National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 and Minister for Minerals and Energy v Vaughan-Taylor (1991) 73 LGRA 115.

36. In Stables Perisher, Gleeson CJ said at 582

The Land and Environment Court, of course, in resolving a claim that is properly brought within its jurisdiction, has the power and the duty to decide all questions of fact or law that need to be decided in order to deal with that claim

37. Similarly, in Vaughan-Taylor, Meagher JA at 123 said:

It (the Land and Environment Court) had, as was conceded, no jurisdiction to determine a direct challenge to the mining lease as such, but it did have jurisdiction to determine that question in an indirect or collateral fashion.

38. It will be necessary presently to determine the disputed efficacy of the action taken pursuant to the Crown Lands Act 1989, but for the present, I should note the relevant provisions contained in that Act, Part 5, in pursuance to which the said action was purportedly taken on 3 February 1995. The relevant provisions are s 92, s 95, s 99, s 100 s 102 and s 103 which provide as follows:

92 Reserve trusts

(1) The Minister may, by notification in the Gazette, establish and name a reserve trust and appoint it as trustee of any one or more specified reserves or any one or more parts of a reserve.

(2) A reserve trust established under subsection (1) is constituted by this Act as a corporation having as its corporate name the name assigned to the trust in the notification of its establishment.

(3) The Minister may, by notification in the Gazette, dissolve a reserve trust or alter the corporate name of a reserve trust.

(4) A reserve trust has the functions conferred on it by or under this Act.

(5) A reserve trust is charged with the care, control and management of any reserve (or any part of a reserve) of which it is appointed trustee.

(6) The affairs of a reserve trust shall be managed:


(a) by a trust board with members appointed under section 93,

(b) by a corporation appointed under s95, or

(c) if an administrator is appointed under section 117 – by the administrator.

(7) If a reserve trust is appointed as trustee of more than one reserve (or more than one part of a reserve), a reference in this Part to the reserve (or part of the reserve) in relation to the reserve trust includes a reference to any one or more of the reserves or any one or more of the parts of the reserve of which the reserve trust has been appointed as trustee.

95 Appointment of corporation to manage reserve trust

(1) The Minister may, by notification in the Gazette, appoint:


(a) a council,

(b) a corporation constituted by or under an Act providing for the holding, managing of or dealing with church property, or

(c) any other corporation,

to manage the affairs of a reserve trust.

(2) A corporation so appointed has power to accept the appointment and to exercise all the functions of a manager of a reserve trust despite the provisions of the Act by or under which the corporation is constituted.

(3) A council may not be appointed to manage a reserve trust if the reserve is wholly or partly within the area of another council, except with the consent of the other council.

(4) A document is sufficiently executed by a reserve trust managed by a corporation if it is executed under the seal of the corporation instead of the seal of the trust.

99 Operation of Division

(1) This Division does not affect the provisions of any other Act relating to a particular reserve or reserve trust.

(2) The functions of a reserve trust or the Minister under this Division are not affected by anything contained in any Crown grant issued for the reserve.

100 Estate of trust

(1) For the purposes only of this Part and a by-law under this Part, a reserve trust that, but for this section, would not have an estate in fee simple in the reserve has such an estate.

(2) The reserve trust is not capable of alienating, charging, granting leases of or licences or easements in respect of, or in any way disposing of the whole or any part of the reserve, except in accordance with this Part.

(3) Revocation of the dedication or reservation of the whole or part of a reserve divests the reserve trust of any estate in the land affected by the revocation.

102 Consent of Minister to sale, lease easement, licence or mortgage

(1) A reserve trust may not sell, lease or mortgage land, or grant an easement or a licence (except a temporary licence) in respect of land, comprising the whole or any part of the reserve unless:

(a) the trust has decided that it is desirable to do so on the terms and conditions specified in the decision,
(b) in the case of a proposed sale, the trust has caused a notice to be published in a newspaper circulating in the locality of the land setting out the date and the terms and conditions of the trust’s decision, the location of the land and other prescribed particulars,
(c) the trust has (in the case of a proposed sale, not earlier than 14 days after the publication of the newspaper notice) applied to the Minister in writing for consent, giving full details of the proposal, and
(d) the Minister has consented in writing to the proposal.

(2) The Minister may not give a consent under subsection (1) (d) to:


(a) a sale,

(b) a lease for a term exceeding 5 years, or

(c) a lease for a term that, by the exercise of an option, could exceed 5 years,

unless at least 14 days have elapsed since notice of intention to give the consent has been published in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State.

(3) The Minister’s consent may relate to the whole or part only of the land with which the application is concerned. ,

(4) If the application for consent proposes a sale, lease, easement or licence, the Minister’s consent:


(a) may be general, authorising the proposal subject to such conditions, restrictions, reservations and covenants, and in such manner and within such time, as the Minister thinks desirable or

(b) may be specific, approving of a particular contract of sale, lease or licence.

(5) If the application for consent relates to a mortgage, the Minister’s consent can only be given to the specific terms of the mortgage.

(6) In giving consent, the Minister may:


(a) vary the terms and conditions to which the sale, lease, easement, licence or mortgage is to be subject, and

(b) impose such other terms and conditions as the Minister thinks desirable.

(7) The Minister may, at any time, wholly or partly withdraw the consent or vary its terms, but only if to do so would not prejudice the rights of third parties.

103 Sale, lease, easement, licence or mortgage in accordance with consent

(1) A reserve trust may sell, lease, grant an easement or a licence in respect of or mortgage the reserve in accordance with the terms of the Minister’s consent.
(2) If the Minister’s consent to a sale, lease, easement or licence is general, the sale, lease easement or licence must not proceed unless the price agreed on, the rent reserved, the terms of the easement or the charge for the licence has been submitted to and approved by the Minister.

39. Again, as I have earlier indicated, the Applicant concedes that its contention that the two tenancies are invalid because they were granted without the Minister’s consent thereto, would be unsustainable, if the relevant power for granting the leases is that provided by the University Act 1993, s 19.
D. WHAT IS THE APPLICABLE STATUTORY REGIME FOR DEALING WITH RESERVE 62148?

40. The Applicant’s argument that the Crown Lands Act 1989, Part 5 provides the applicable regime takes as its obvious starting point, the plain fact that on 3 February 1995, action was taken pursuant to s 92 and s 95 of that Act creating the Reserve Trust and appointing the University to manage the affairs of the Reserve Trust.

41. Subject to my consideration of the Respondent’s argument that such action exceeded the power conferred by that Act in relation to Reserve 62148, it is not doubted that Reserve 62148 was relevantly a “reserve” as defined by s 78 of that Act and therefore, prima facie, was capable of having a reserve trust established pursuant to s 92 in respect of it. (It may here be noted that cl 4 to cl 6 of Schedule 8 to the Act contain savings and transitional provisions in respect of reserves for which a trustee or trustees held office immediately before the commencement of Part 5 of the Act. Part 111B of the Crown Lands Consolidation Act 1913 had contained comprehensive provisions for the management (by appointed trustees) of lands reserved under the Crown Lands Act).

42. The Applicant submitted that the legal consequence of the action taken pursuant to the Crown Lands Act was that the control and management of Reserve 62148 was vested in the University (and not the Council of the University as provided in the 1993 University Act, s 19(1)) and dealings with that Reserve and in particular, the leasing of it (or any part of it) was governed by the regime contained in the Crown Lands Act, s 102 and s 103 (and not the regime contained in the 1993 University Act, s 19(2) to s 19(5)).

43. The Respondent’s rebuttal of the Applicant’s argument takes its principal stand on the relationship between the Crown Lands Act and the 1993University Act in their respective applications (or potential applications) to Reserve 62148. Thus, the Respondent’s argument proceeded along the following lines—
(i.) The 1993 University Act, s 19(1) vests in the Council of the University control and management of the Reserve because the Reserve is indisputably property “used for the conduct of the University” that “is vested in the Crown”.
(ii.) That vesting of control and management is not whittled down or otherwise affected by the operation of cl 16 of Schedule 3 to the 1993 University Act because those provisions are clearly “transitional and savings” provisions relevant to the transfer of assets etc from the former according to the new University.
(iii.) Properly construed, cl 16(4) of Schedule 3 to the 1993 University Act does not reserve to the Minister any power—rather, that power is reserved to the Legislature which was the body which relevantly conferred upon the former University control and management of Reserve 62148. Accordingly, the action taken by the Minister in purported reliance upon the Crown Lands Act, s 92 and s 95 was not action that was relevantly authorised by cl 16(4) of Schedule 3 to the 1993 University Act.
(iv.) The control and management of the reserve that is vested in the Council of the University by s 19(1) of the 1993 University Act is not affected by the Crown Lands Act by virtue of the express paramountcy provision contained in s 7 of that Act.
(v.) In any event, if there were any conflict between operation in relation to the Reserve of Part 5 of the Crown Lands Act and the 1993 University Act, s 19, the latter Act would prevail over the former Act, being the later of the two Acts.

44. The Applicant’s answer to the Respondent’s argument is that cl 16 of Schedule 3 to the 1993 University Act prevails over s 19 of the Act so that there is no conflict between Part 5 of the Crown Lands Act and the 1993 University Act since the action taken pursuant to the Crown Lands Act, s 92 and s 95 was expressly authorised by cl 16(4) of Schedule 3 to the 1993 University Act. Accordingly, the Crown Lands Act, s 7 does not operate to exclude the action taken pursuant to Part 5 of that Act in respect of Reserve 62148.

45. In my judgment, the Respondent’s arguments on this complex issue are to be preferred. My reasons for so concluding can be summarised as follows:
(1) The 1993 University Act s 19(1) clearly vests in the Council of the University control and management of Crown land which is property being “used for the conduct of the University”. In the present case, it is an indisputable fact that Reserve 62148 was relevantly so used and accordingly, the vesting in the Council of control and management of that Reserve is the clear and unequivocal intent and effect of s 19(1).
(2) That clear and unequivocal vesting is not abrogated by the transitional and savings provisions contained in cl 16 of Schedule 3 to the 1993 University Act—either in their direct operation or their indirect operation—principally because they are obviously savings and transitional provisions which are directed to matters concerning the transfer of assets etc from the former University to the new University, and such provisions are by their true nature and effect simply inapt to abrogate the substantive provisions contained in the 1993 University Act.

This conclusion would apply even if the provisions of cl 16 of Schedule were clear and unambiguous (which they are not) in their contrariety with s 19(1) of the Act. For example, cl 16(1) and 16(2) vest respectively, in the new University (i) the assets; and (ii) control and management of land vested in the former University whereas s 19(1) of the Act vests in the Council of the University the control and management of property which is (i) used for the conduct of the University and (ii) vested in the Crown.

Accordingly, it may readily be appreciated that s 19 is focussed on particular land (land vested in the Crown and used for the conduct of the University) whereas cl 16(2) and cl 16(4) of Schedule 3 is dealing with “land” generally.

Moreover, s 19 vests control and management in the Council of the University and cl 16(2) vests control and management in the University itself.

Next (and assuming in favour of the Applicant that Reserve 62148 is relevantly embraced by the operation of cl 16(2) of Schedule 3), it is clear from the terms of the 1989 University Act, s 22(1) that control and management of that Reserve “being property used for the conduct of the University” was vested in the Board as Governors of the former University and that vesting was effected by force of that statutory provision.

Accordingly, the power reserved by cl 16(4) of Schedule 3 must be construed as reserving the relevant power to the Legislature, being “the person or body by whom the control and management of that asset has been conferred”.

Accordingly, cl 16(4) properly construed, did not authorise the action taken in relation to Reserve 62148 by the Minister on 3 February 1995 pursuant to s 92 and s 95 of the Crown Lands Act.

For all the foregoing reasons, the University Act, s 19(1) relevantly vested in the Council of the University the control and management of Reserve 62148 and s 19(2) to s 19(5) relevantly prescribed the regime for the Council dealing with that Reserve (including granting of leases in respect of it or parts of it).

(3) The clear terms and operation of s 19 of the 1993 University Act is relevantly for the purpose of the Crown Lands Act, s 7 a provision of an Act which:

(a) makes special provision for any particular kind of Crown land; or

(b) authorises Crown land to be disposed of or dealt with in a manner inconsistent with this Act

As to (a) s 19 makes special provision for Crown land “ used in the conduct of a university”.

As to (b) s 19(2) to s 19(5) of that Act are inconsistent with the Crown Lands Act, s 6, s 92, s 95, s 102 and s 103 (all but the first mentioned of which sections have earlier been recited). Section 6 provides as follows:

Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence, reservation or dedication or other dealing is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989

It follows from the express terms of the Crown Lands Act , s 7 that these aforesaid provisions must be construed so as to not affect the operation of the 1993 University Act , s 19.

The effect of s 7, in my opinion, is reinforced by the express provision made by s 99(1) of the Act the effect of which is that the provisions of the Crown Lands Act, Division 5 of Part 5 (dealings with reserve trusts) do not affect the provisions of the 1993 University Act, s 19(2) to s 19(5).

The practical outcome of the foregoing consideration is that the action taken on 3 February 1995 pursuant to s 92 and s 95 in respect of Reserve 62148 does not affect the operation of the 1993 University Act, s 19. Whether this result means that the action taken pursuant to the Crown Lands Act was invalid or is to be taken as not affecting the operation of s 19 of the University Act, it is not necessary here to decide, since it is recalled that the creation of the Reserve Trust was in respect of a number of other parcels of land in addition to Reserve 62148.

(4) The express terms of the Crown Lands Act, s 7 and s 99 means that there is no conflict between the Crown Lands Act and the 1993 University Act in their application (and potential application) to Reserve 62148. Accordingly, no case arises for the application of the doctrine of implied repeal of the earlier Crown Lands Act by the later 1993 University Act.

46. Accordingly, for all the foregoing reasons, I hold that the 1993 University Act, s 19 provides the applicable statutory regime for dealing with Reserve 62148 (including the granting of the two tenancies relevant to the present case). It follows from this conclusion that the Applicant’s principal attack upon the validity of the two tenancies, on account of the absence of the Minister’s approval to the tenancies under the Crown Lands Act, s 102 and s 103, must fail because those provisions were not applicable.
E. THE APPLICANT’S SUBSIDIARY ATTACKS UPON THE VALIDITY OF THE TWO TENANCIES

47. The Applicant advanced three subsidiary bases contending for the invalidity of the two tenancies in its alternative argument (ie on the assumption that the Court would hold that the governing law for the grant of the tenancies was s 19(2) to s 19(5) of the 1993 University Act) namely:
(i.) Both tenancies incorrectly nominated as the landlord the University and not the Council of the University;
(ii.) The Council of the University had not delegated any power to staff of the University to grant the tenancies;
(iii.) The tenancies were granted without containing the condition or covenant against assignment of the tenancy, contrary to the express requirement of s 19(4) that such a condition or covenant be imposed in any lease.

48. Although this alternative argument in support of the invalidity of the tenancies was developed more by way of response to some submissions advanced by the Respondent on the principal matter in dispute (namely what was the governing regime for the granting of leases of Reserve 62148), and although the third of the stated bases was barely raised in the Applicant’s argument, I must nonetheless adjudicate upon these subsidiary attacks upon the validity of the tenancies. I so proceed recognising that the Applicant’s case, which is manifestly highly technical (cf the Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 158) is wholly dependent upon it establishing that the two relevant tenancies were invalid, with the suggested consequence that the use and occupation made of the claimed land by the respective tenants was, on that account, not relevantly lawful.

49. I shall need to consider separately each of the three bases for invalidity of the tenancies advanced by the Applicant’s argument.
(i.) The nomination of the wrong landlord

50. In both tenancy documents, the University is stated to be the landlord. The Applicant contends that this was legally erroneous and that the error vitiates the tenancies.

51. Somewhat surprisingly, in view of the obvious technicality of the Applicant’s arguments contending for the invalidity of the tenancies, it was not submitted by the Applicant that conformably to the express terms of s 19(3) of the 1993 University Act the appropriate landlord was the Crown in whom was vested Reserve 62148.

52. Rather, the Applicant’s argument relying upon the alleged misnomer of the landlord focussed on the distinction between the University on the one hand and Council of the University on the other.

53. The legal relationship between the University and the Council of the University is fully revealed in the detailed provisions of the 1993 University Act.

54. The University is established by s 4, is incorporated by s 5 and has the functions set forth in s 6 and s 7.

55. The Council is established by s 8 with the constitutive membership specified in s 9 and with its functions specified in Part 4.

56. Significantly s 8(2) provides that the Council “is the governing authority of the University” and s 16(1) includes within the “powers” of the Council the following:

(c) the control and management of the affairs and concerns of the University and is to act in all matters concerning the University in such manner as appears to it to be best calculated to promote the objects and interests of the University.

57. Section 18(1) which is contained in Division 2 “Property” provides as follows:

18. (1) The Council:

(a) may acquire by gift, bequest or devise any property for the purposes of this Act and may agree to carry out the conditions of any such gift, bequest or devise; and
(b) has the control and management of all property at any time vested in or acquired by the University and may, subject to this section, dispose of property in the name and on behalf of the University.

58. In my judgment, the Applicant’s argument that the tenancies are invalid because they nominated the University as landlord, rather than the Council of the University, is unsustainable because it wholly fails to appreciate the true and proper relationship between the University and the Council of the University.

59. In the present context where Reserve 62148, being land vested in the Crown, is relevantly “property used for the conduct of the University” (s 19(1)) and where the Council, which “has the control and management of the affairs and concerns of the University” (s 16(1)(c)) is vested with the control and management of that property (s 19(1)), the power to demise that property that is vested in the Council by s 19(3) is, in my judgment, duly exercised when the Council determines to grant a lease of such property, whether that lease nominates as the landlord (i) the Crown; (ii) the University; or (iii) the Council of the University.

60. Even if the nomination of the University as the landlord of the tenancies was assumed to be legally and factually incorrect, the tenancies on that account would not be vitiated. As between the landlord and tenant the misnomer of the landlord would not deprive the tenancies of their legal effect or efficacy according to their express terms: Industrial Properties (Barton Hill) Ltd v Associated Electrical Industries Ltd (1977) QB 580 and that position should, in my judgment, be no different in the case of a challenge to the validity of the tenancies made by a third party, such as that advanced in the present case by the Applicant. Accordingly, even assuming in favour of the Applicant’s argument that the tenancies misnominated the University as the landlord, that misnomer would not, in my judgment, affect either the validity of the respective tenants’ rights created by those tenancies or the validity of the tenancies themselves.
(ii.) Absence of delegation by Council to University staff to grant tenancies

61. Section 17 of the 1993 University Act confers upon the Council of the University an express power of delegation. It provides as follows:

17. The Council may, in relation to any matter of class of matters, or in relation to any activity or function of the University, by resolution, delegate all or any of its functions (except this power of delegation) to any member or committee of the Council or to any authority or officer of the University or to any other person or body prescribed by the by-laws.

62. By virtue of the 1993 University Act, s 16(1)(b), the Council has the power of appointment of academic and other staff of the University.

63. According to the agreed facts (par 16) all of the officers of the University who were involved in the granting of the two tenancies were senior officers whose duties included property management.

64. In my judgment, the actions taken by these senior officers of the University in granting the two tenancies are relevantly to be regarded as the actions of the Council of the University exercising the leasing power conferred upon it by s 19(3) of the 1993 University Act for the reason that they were relevantly so acting as the authorised agents or delegates of the Council of the University.

65. In so concluding, I have applied the presumption of regularity, notwithstanding the fact that no express delegation by the Council pursuant to the 1993 University Act, s 17 has been proved. Indeed, although not precisely reflected in the Statement of Agreed Facts, the Respondent’s argument appeared to concede that no such express delegation existed.

66. The scope of the presumption of regularity, and an apt illustration of its application in a very similar context to the present case, is found in the following passages from the judgment of McHugh JA (as he then was) in Minister Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 163 where his Honour was considering the Minister’s reliance upon the presumption of regularity to establish that the Secretary of the Western Lands Commission in granting a permissive occupancy had done so with the necessary authority delegated by the Minister:

I am of opinion that his Honour was in error in holding that the maxim was not applicable. The legislation to which his Honour’s attention had been drawn showed that the Minister had the power to grant a permissive occupancy and, pursuant to the Crown Lands Consolidated Act, s17A, could delegate that function to the holder of a prescribed office. The secretary of the Western Lands Commission was the holder of one of the prescribed offices. The secretary had purported to grant the permissive occupancy to Mr Mooring. So the only question of the secretary’s authority which was outstanding was whether, in purporting to grant the occupancy, the secretary was acting pursuant to a delegation by the Minister.

In my opinion, this was a classic case for the application of the maxim whose rationale was explained by Lord Simonds in Morris v Kanssen [1946] AC 459, a company case, where his Lordship said (at 475):


….One of the fundamental maxims of the law is the maxim omnia praesumuntur rite esse acta It has many applications … The wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order.

The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled

…….

…….

A particular application of the maxim which is relevant to this case is stated in Broom’s Legal Maxims, 10th ed (1939) at 642 as follows:


…where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium — everything is presumed to be rightly and duly performed until the contrary is shown.

67. In my judgment, notwithstanding the apparent non-existence of any express delegation by the Council pursuant to the 1993 University Act, s 17, the presumption still operates to establish that the senior officers of the University, in granting the tenancies did so as the authorised agents or delegates of the Council of the University, which had “the control and management of the affairs and concerns of the University”: s 16(1)(c).

68. My finding that the senior officers of the University were relevantly acting as authorised agents of the Council applies the principle enunciated in the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 37:

The presence of an express statutory power of delegation does not necessarily exclude the existence of an implied power to delegate or, to express it more accurately, to act through the agency of others.

69. To similar effect, is the following more expansive exposition of the principle contained in the judgment of Gibbs CJ in O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 11:

There can be no doubt that as a general proposition at common law a person sufficiently signs a document if it is signed in his name and with his authority by somebody else, but if by statute a document has to be personally signed the duty of signing cannot be delegated to a third person: see London County Council v Agricultural Food Products Ltd (44). Exactly the same principles apply when the power is given by statute to a designated person to issue a notice. The notice may be given by the authorized agent of the designated person, whose act will be the act of the principal, unless the statute on its proper construction requires the notice to be issued only by the person who is designated.

It would serve no useful purpose for me to canvass all the authorities in which questions of this kind have been considered in relation to the exercise of statutory powers; they are discussed in de Smith’s Judicial Review of Administrative Action, 4th ed., pp. 303-309. The answer to the question whether the statute requires the power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case: cf. Re Reference under Ombudsman Act, s. 11(45), per Brennan J. However, I should mention the line of authorities which commenced with Carltona Ltd v. Commissioners of Works (46) and which are discussed in In re Golden Chemical Products Ltd. (47). Those authorities established that when a Minister is entrusted with administrative functions he may, in general, act through a duly authorized officer of his department. This result depended in part on the special position of constitutional responsibility which Ministers occupy, and in that respect these authorities are distinguishable from cases such as the present. However, they also rest on the recognition that the functions of a Minister are so multifarious that the business of government could not be carried on if he were required to exercise all his powers personally. Ministers are not alone in that position. This has been judicially recognized. In Commissioners of Customs and Excise v Cure & Deeley Ltd. (48), it was said that the Commissioners in that case were in a position parallel to that of Ministers, and in Ex parte Forster; Re University of Sydney (49), the Senate of a University was regarded as being in a similar situation. I can see no reason why, in construing sections of the Act which confer powers on the Commissioner, it should not be proper to consider the undoubted fact that the Commissioner could not possibly exercise all those powers personally.

(44) [1955] 2Q.B. 218. at pp. 223-224
(45) [1979] 2 A.L.D. 86. at p. 93.
(46) [1943] 2 All E.R. 560.
(47) [1976] Ch. 300.
(48) [1962] 1 Q.B. 340, at p. 371
(49) [1963] S.R. N.S.W. 723, at p. 733

70. Gibbs CJ’s reference to Ex parte Forster is particularly apt for the application of the principle to present case because there, the Full Court of The New South Wales Supreme Court was considering the functions of the Senate, as the governing body of the University of Sydney, which functions were framed in similar statutory language to the statutory powers and functions conferred upon of the Council of the University by the 1993 University Act.

(iii.) The Statutory Requirement that the Tenancies contain a condition against assignment

71. According to the Statement of Agreed Facts, the tenancy granted to the visiting academic did not contain a covenant against assignment, but the tenancy granted in respect of the child care centre agency contained the following covenant:
(30) (a) The Tenant shall not assign or sub-let or part with possession of the premises or any part thereof except with the written consent of the Landlord.

(b) The landlord shall not withhold his consent unreasonably, provided that the tenant gives him fourteen days notice and the tenant pays any reasonable expenses involved in the landlord giving consent.

72. This covenant was contained in the lease granted for a term for one year from 1 February 1996 which lease was later continued under the hold-over clause as a periodic tenancy upon the same terms and conditions. (The tenant had in fact been in continuous occupation since 1982: vide the affidavit of Patricia Ann Marson sworn 19 July 2001).

73. Section 19(4) stipulates that any lease granted pursuant to s 19(3) “is to contain a condition that the lease is not to be assigned”.

74. In my judgment, this requirement, properly construed, did not require a covenant absolutely forbidding assignment but understood within the context of conventional conveyancing and tenancy law, the requirement would be satisfied by a covenant forbidding assignment either absolutely or conditionally.

75. Upon this construction, the tenancy in respect of the child care centre agency containing the qualified prohibition against assignment, would satisfy the requirement of s 19(4) but the tenancy for a term of 3 ½ months granted to the visiting academic without any covenant against assignment did not satisfy the statutory requirement. (Indeed, except for the covenant to pay rent, the lease contained no express covenants.)

76. The question is whether the non-compliance with s 19(4) invalidated the tenancy granted to the visiting academic.

77. The legal consequence of non-compliance with s 19(4) is a matter of construction of the 1993 University Act: cf Tasker v Fullwood (1978) 1 NSWLR 20 and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

78. In my judgment, the answer to the relevant question “whether it was a purpose of the legislation that an act done in breach of the provision should be invalid” (Project Blue at 390) is that it was not intended that a lease granted pursuant to the statutory leasing power conferred by s 19(3), but without containing the required covenant against assignment, should be regarded as an invalid lease.

79. For all the foregoing reasons, the Applicant’s subsidiary attacks upon the validity of the tenancies must be held to have failed.
F. CONCLUSIONS

80. Having concluded that the Applicant’s principal and subsidiary attacks upon the validity of the two tenancies have failed, it follows from the agreed facts that at the date when the Applicant made its land claim, the claimed land was relevantly “lawfully used or occupied” within the meaning of the definition of “claimable Crown lands” contained in the ALR Act, s 36(1).

81. Accordingly, the claimed land was not relevantly “claimable Crown land” when the Applicant’s land claim was made, and accordingly, the Applicant’s appeal must be dismissed.

82. This conclusion means that it is not necessary to adjudicate upon a number of matters that had been raised by the Respondent in the event of the Court finding that Part 5 of the Crown Lands Act 1989 (and not s 19 of the 1993 University Act) was the applicable statutory regime for dealing with Reserve 62148.

83. Since my adjudications on these matters could only operate as obiter dicta, I think it preferable that I not proceed to determine those matters especially in the light of the Respondent’s attempt to avoid the holding by Lloyd J in the NSW Aboriginal Land Council case that where a licence had been granted under the Crown Lands Act 1989, s 102 in contravention of the requirement that the Minister’s consent thereto be obtained, any use or occupation of the Crown land pursuant to that licence would be, on that account, unlawful. In this respect, the Respondent had submitted that that case was distinguishable on the facts from the present case because Lloyd J had also found that there was no relevant use or occupation of the claimed land.

84. The Respondent had also relied upon an earlier decision of Cripps CJ in NSW Aboriginal Land Council v Tamworth Local Land Council (Matter No 40200 of 1988—unreported 14 December 1988) where his Honour had held that a forfeiture of conditional purchases in respect of Crown lands effective at the date when a land claim to those lands was made (which forfeiture was subsequently reversed) did not render unlawful the conditional purchase holder’s continuing use and occupation of the lands comprising the forfeited conditional purchases.

85. For the reasons I have given, I do not think it appropriate that I adjudicate upon these important matters involving possibly conflicting decisions, when my adjudication would have no greater authority than that of an obiter dictum.

86. However, there is a discrete matter raised by the Respondent upon which there is no existing authority and upon which I think I should express my views. This is the Respondent’s submission that if the Court had held the two tenancies were invalid, with the legal consequence that the respective uses and occupations made of the lands by the respective tenants were not lawful within the meaning of the expression “lawfully used or occupied” contained in the statutory definition of “claimable Crown lands” those uses would nonetheless have been held to be “lawful” because they were relevantly “uses” made of the property (ie the relevant parts of Reserve 62148) by the University in its conduct of the University conformably to the 1993 University Act, s 19(1)).

87. In so submitting, the Respondent relied upon the majority decision of the High Court of Australia in Ryde Municipal Council v Macquarie University (1978) 139 CLR 633 holding that land located within the grounds of Macquarie University that was leased by the University (in whom the land was vested) to various commercial tenants providing shopping and banking facilities etc to University staff and students (as well as being available to the general public) was relevantly “land used by the University solely for its purposes” within the meaning of a rating exemption provided by the Local Government Act 1919.

88. The Respondent’s argument is an ingenious response to the Applicant’s argument contending for the invalidity of the two tenancies. It is to the effect that if the respective tenants’ uses and occupations of the claimed land are unlawful, because the tenancies are invalid, nonetheless those uses which exist in fact, are lawful because they are uses “for the purposes of the University” in “the conduct of the University”.

89. The availability of the Respondent’s argument which is founded upon the operation of the 1993 University Act, s 19(1), distinguishes the present case from the earlier cases I have cited where the question whether the Crown lands were relevantly “lawfully used or occupied” entirely depended upon the validity of the type of crown tenure that had been granted to authorise such uses and occupation.

90. The Respondent’s argument raises the question whether the uses made of the claimed land by the two tenants are relevantly uses made of the land by the University in the use of the property (comprising Reserve 62148) in the conduct of the University. If this question is answered affirmatively, there can be no question but that those uses made by the University are “lawful” uses, the 1993 University Act, s 19(1) providing the necessary authorisation and lawful status for those uses.

91. In my judgment, the reasoning of the majority decision of the High Court in the Macquarie University case entirely supports the Respondent’s argument. In the course of one of the majority judgments, Gibbs ACJ said at 639:

Where use, and not occupation, is in question, I can see no reason to disregard the indirect use which an employer makes of a house by providing it as a residence for the use of his employees. If, for example, a university considered it desirable in its own interests that the vice-chancellor should live in particular premises which the university owned, the university would, in my opinion, use those premises if it made them available as a residence for the vice-chancellor, and this would be so whether the premises were let or occupied under licence.

In my opinion, therefore, land may be used by a university, in the ordinary and natural meaning of that word, if the university grants a lease of the land for the purposes of the university.

92. In my judgment, the tenancy granted to the visiting academic for his short term residency at the University obviously was a use by the University of the property.

93. Although not so obvious, in my judgment the other tenancy granted in respect of the child care centre agency, likewise can reasonably be characterised as a use made of the property by the University for its purposes. In so concluding I have also relied upon Ms Marson’s affidavit which details the nature of the agency and its relationship to the University.

94. Accordingly, had I upheld the Applicant’s case that the two tenancies were invalid and that in consequence the uses and occupations made by the respective tenants were, on that account, not “lawful uses or occupations” within the meaning of that expression in the statutory definition of “claimable Crown lands” I would, nonetheless have held the uses made by the respective tenants to be uses of the property made by the University in the conduct of the University and, on that account, to be lawful uses.

95. For all the foregoing reasons I must dismiss the Applicant’s appeal.

96. The Respondent submitted that the Applicant should be ordered to pay the Respondent’s costs in the proceedings, particularly in the light of the fact that at an earlier stage in the proceedings the Applicant, over the Respondent’s objection, had obtained a direction from the Registrar that the Court determine, as a preliminary matter, the disputed question concerning the applicable statutory regime for the University dealing with Reserve 62148, but that on the day fixed for the hearing of that preliminary matter, the Applicant, with the Respondent’s consent, had obtained an order vacating that hearing.

97. In my judgment, there should be no order for costs made in the present proceedings, because the Applicant’s case has proceeded along lines entirely consistent with the action taken by the Respondent pursuant to the Crown Lands Act 1989 on 3 February 1995 creating the Reserve Trust in respect of lands including Reserve 62148, the validity of which action the Respondent on the hearing of the present appeal has expressly disavowed.

98. So understood, it may fairly be concluded that the Respondent’s action has induced the Applicant to bring the present proceedings challenging the Respondent’s determination refusing the Applicant’s land claim in circumstances where the reasons for that determination had expressly included reliance upon that action taken pursuant to the Crown Lands Act 1989.

99. Accordingly, I make the following orders
1. Appeal dismissed.
2. No order as to costs.

ANNEXURE A

STATEMENT OF AGREED FACTS

‘Exhibit A’

1. On 30 September 1930, by publication in the Government Gazette, land known as Reserve 62148 at Armidale was reserved under the Crown Lands Consolidation Act 1913 (NSW) for the purpose of a Teachers’ College. Reserve 62148 currently covers the land known as section 83, Parish of Armidale, County of Sandon.

2. In 1928, the Armidale Teachers’ College was established on land which became Reserve 62148.

3. The Armidale Teachers’ College was subsequently declared a College of Advanced Education pursuant to s 17(2) of the Higher Education Act 1969 (NSW). Reserve 62148 was thereupon used in the conduct of the Armidale College of Advanced Education.

4. In 1988, the Armidale CAE, the University of New England (UNE) and the Northern Rivers College of Advanced Education entered into an agreement to amalgamate the colleges and the UNE.

5. Upon the amalgamation under the Higher Education (Amalgamation) Act 1989 (NSW), Reserve 62148 was used in the conduct of the UNE.

6. On 1 January 1994, the relevant portions of the University of New England Act 1993 (NSW) (UNE Act) came into force. At that time, the property covered by Reserve 62148 (and in particular the two areas in issue in the present proceedings), although vested in the Crown, was used for the conduct of the University.

7. On 3 February 1995, pursuant to the Crown Lands Act 1989, upon publication on that day in the Government Gazette and subsequent correction on 13 April 1995, the University of New England (Newling Campus) Reserve Trust was established and appointed as trustee of Reserve 62148. On the same day, the University of New England was appointed to manage the Reserve Trust pursuant to the Crown Lands Act 1989.

8. On 16 August 1996, a document purporting to be a commercial lease expressed to be between the University of New England and the Armidale Family Day Care Centre Limited (AFDC Ltd) was signed in respect of premises known as corner Mann and Taylor Streets, Armidale, which is part of the land claimed under claim 6209 (and which previously had been part of the Armidale CAE and the Teachers’ College before that).

9. The land covered by the purported lease involves a part of a larger building complex (Newling House) and a small fenced area of land immediately adjacent to it. The remaining portion of Newling House was used by various departments of the UNE as at 25 September 1998.

10. The purported lease was valid for one year from 1 February 1996 to 31 January 1997. It was renewed on a month-by-month basis from 30 June 1997 to January 1998. From January 1998 until 25 September 1998 (and subsequently), a weekly tenancy otherwise on the same terms as previous arrangements was purported to be created. The board of the AFDC Ltd were members of the staff on the UNE and the AFDC Ltd provided child minding services giving priority to assisting members of staff and students at the UNE. At no point was any rent paid pursuant to the lease or subsequent arrangements

11. The respondent did not give consent to the grant of the lease to Armidale Family Day Care Centre Limited

12. On 11 September 1998, a document purporting to be a lease agreement expressed to be between the University of New England and Professor Neil Schwartz was signed in respect of land known as Taylor Street Lodge, which is part of the land claimed under claim 6209 (and which previously had been part of the Armidale CAE and the Teachers’ College before that). The term of the purported lease agreement was for a period commencing on 11 September 1998 and ending on 24 December 1998. Professor Schwartz was a short-term visiting academic to the UNE. Other visiting academics, staff or students of the UNE (or its predecessors) have occupied the Taylor Street Lodge on similar arrangements both before Professor Schwartz’s use of the property.

13. After entering possession of the Lodge, Professor Schwartz made rent payments to the University of New England.

14. The respondent did not give consent to the grant of the lease to Professor Neil Schwartz.

15. At no material time did any officer of the UNE object to the AFDC as to the use of the land by the AFDC.

16. All of the officers who either signed the purported leases or gave extensions were senior officers engaged by the University whose duties included property management.

17. On 25 September 1998, the applicant lodged land claim number 6209 under the Aboriginal Land Rights Act 1983 (the ALR Act) over crown lands managed by the University of New England (UNE), which lands are part of Reserved 62148 being section 83, Parish of Armidale, County of Sandon.

18. On 6 September 1999, the respondent refused claim No 6209 on the basis that the lands were not claimable lands within the meaning of s.36 of the ALR Act as they were said to be lawfully occupied or used at the time of the claim.

19. On 19 November 1999 the applicant filed a Class 3 application in the Land and Environment Court appealing against the respondent’s refusal of claim 6209 commencing these proceedings, which application has since been amended.

20. There was not at any material time a resolution of the Council of UNE delegating the Council’s power to enter into leases of land.