Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act ‘Gosford 1 & 2'
[2022] NSWLEC 68
•7 June 2022
|
New South Wales |
Case Name: | Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act – ‘Gosford 1 & 2’ |
Medium Neutral Citation: | [2022] NSWLEC 68 |
Hearing Date(s): | 14-17 February 2022 |
Date of Orders: | See [292] |
Decision Date: | 7 June 2022 |
Jurisdiction: | Class 3 |
Before: | Pain J |
Decision: | See [250], [288] |
Catchwords: | ABORIGINAL LAND RIGHTS – whether land needed or likely to be needed for essential public purpose at the date of claim of provision of supported employment for disabled persons in workshop located on the land |
Legislation Cited: | Aboriginal Land Rights Act 1983 (NSW), ss 3, 36 |
Cases Cited: | New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2012) 190 LGERA 171; [2012] NSWLEC 174 |
Texts Cited: | Gino Dal Pont, Law of Charity, (2nd Ed, 2016, LexisNexis) |
Category: | Principal judgment |
Parties: | Darkinjung Local Aboriginal Land Council (Applicant) |
Representation: | Counsel: |
File Number(s): | 2020/296485, 2021/190274 |
Publication Restriction: | No |
table of contents
Aboriginal Land Rights Act 1983
Contentions and issues
Statement of agreed facts
Survey plan
Evidence of the Minister
Fealy first affidavit
Fealy second affidavit
Minutes of Terama Industries Inc executive meeting and AGM 2009
Mr Fealy - oral evidence
Fegan affidavit and exhibit
Documentary tender bundle
Osborne Affidavit
Internal Crown Lands department emails
Crown Lands manual of procedures
Office Practice Guidelines – Crown Land Management
Letter from ARP to Mayor of Gosford
Internal memorandum of proposed construction of road off Gertrude Street
Internal memorandum for disposal of Crown land at Gosford
Letter from undersecretary for Lands to General Secretary, ARP dated 18 December 1970
Internal memorandum for proposed appointment of ARP as trustee of R88027
Executive Council minute of appointment of ARP as trustee of R88027, gazettal
Evidence of the Applicant
Emails between Mr Allen and DSA
Expert evidence of traffic experts/surveyor
Documents referred to in traffic evidence
Traffic evidence - Joint Report
Surveyor evidence – Mr Bracken
Concurrent oral evidence of experts
Reversing into or out of Henry Parry Drive
Turning around in widened driveway
Access via the roller door onto level 3 using the driveway off Terama Place
Changes to carport on Henry Parry Drive
Encroachment onto Lot 6
Essential public purpose - Lot 7
Minister’s submissions
Statutory construction of ALR Act
‘Public’
Terama Industries Inc was a charitable organisation in ordinary sense
‘Essential’
‘Needed or likely to be needed’
No specific view need be formed at or near the date of claims
No requirement of lawfulness
No need to prove that no other land available for the purpose
Reserve purpose of ‘charitable organisations’ not determinative
Commonwealth government’s actions support NSW government intentions
Applicant’s submissions
Statutory construction of ALR Act
‘Public’
Terama Industries Inc is not a charitable organisation
‘Essential’
‘Needed or likely to be needed’
Reserve purpose not the Minister’s purported public purpose
No view formed at appropriate level of government
Continual use cannot be relied upon
Commonwealth’s actions should not be construed as those of NSW government
Consideration of need or likely need for essential public purpose – Lot 7
Consideration of post-date of claim evidence
Public purpose
Was Terama Industries Inc a charitable organisation at the date of claims?
‘Essential’
‘Needed or likely to be needed’
View of essential public purpose formed by appropriate level of government in 1969-71
Is evidence of reconsideration of need for land for essential public purpose close to date of claim required?
16 October 1981 letter from ARP to mayor of Gosford
Does s 36(1)(c) require occupation of Crown land to be lawful?
Conclusion on Lot 7 – not claimable Crown land
Essential public purpose – Lot 8
Minister’s submissions
Henry Parry Drive driveway
Roller door access into level 3
Encroachment onto Lot 6
Easement
Applicant’s submissions
Entry from Henry Parry Drive
Vehicular access to level 3 roller door
Encroachment onto Lot 6 and 2011 Building works
Consideration of essential public purpose – Lot 8
The use of Lot 7 relied on the use of the driveway on Lot 8 at the date of claims
Conclusion on Lot 8 – driveway not claimable Crown land
Encroachment on Lot 6 irrelevant to whether Lot 7 and Lot 8 claimable Crown land
Future finalisation of orders
Judgment
The Applicant the Darkinjung Local Aboriginal Land Council has filed two appeals under s 36(6) of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) appealing the refusals by the Minister Administering the Crown Lands Management Act 2016 (NSW) (Minister) of two land claims. Aboriginal land claim (ALC) 17974 is in relation to Lot 8 of Section 96 in DP 758466. ALC 18000 is in relation to Lot 7 of Section 96 in DP 758466. Part of ALC 18000 over Lot 6 was determined in favour of the Applicant on 17 June 2020. Lots 7 and 8 are located at 143 Henry Parry Drive Gosford. The claims were lodged on 2 June 2009. I thank Acting Commissioner Smith for his assistance in this matter.
The Lots are Crown land subject to Reserve Trust R88027, identified at the date of claims as the ‘Gosford Charitable Organisation (R88027) Reserve Trust’ (R88027) created under the Crown Lands Act 1989 (NSW) (CL Act). Terama Industries Inc occupied Lots 7 and 8 at the date of claims.
The Minister by letter to the Applicant dated 17 June 2020 refused ALC 17974 in relation to Lot 8 and granted ALC 18000 insofar as it related to Lot 6 and refused it insofar as it related to Lot 7. The reason given for the refusal of ALC 17974 in relation to Lot 8 and ALC 18000 insofar as it related to Lot 7 was that the land was “not claimable Crown land as it was needed for the essential public purpose of supported employment for disabled persons”.
The Minister bears the onus of establishing that Lots 7 and 8 are not claimable Crown land: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 (Berrima Gaol HC) at [13]. If that onus is not discharged the Court must order the whole or part of lands (as relevant) to be transferred to the relevant Aboriginal Land Council: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 (Winbar No 3) at 692-694.
Aboriginal Land Rights Act 1983
Relevant sections of the ALR Act applying follow:
Part 1 Preliminary
3 Purpose of Act
The purposes of this Act are as follows—
(a) to provide land rights for Aboriginal persons in New South Wales,
(b) to provide for representative Aboriginal Land Councils in New South Wales,
(c) to vest land in those Councils,
(d) to provide for the acquisition of land, and the management of land and other assets and investments, by or for those Councils and the allocation of funds to and by those Councils,
(e) to provide for the provision of community benefit schemes by or on behalf of those Councils.
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Part 2 Land rights
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Division 2 Claimable Crown lands
36 Claims to Crown lands
(1) In this section, except in so far as the context or subject-matter otherwise indicates or requires—
claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division—
(a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901,
(b) are not lawfully used or occupied,
(b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands,
(c) are not needed, nor likely to be needed, for an essential public purpose, and
(d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and
(e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands).
Crown Lands Minister means the Minister for the time being administering any provisions of the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 under which lands are able to be sold or leased.
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(3) One or more Local Aboriginal Land Councils may make a claim for land within its or their area or, with the approval of the Registrar, outside its or their area.
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(5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall—
(a) if the Crown Lands Minister is satisfied that—
(i) the whole of the lands claimed is claimable Crown lands, or
(ii) part only of the lands claimed is claimable Crown lands,
grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be, or
(b) if the Crown Lands Minister is satisfied that—
(i) the whole of the lands claimed is not claimable Crown lands, or
(ii) part of the lands claimed is not claimable Crown lands,
refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require.
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(5A) Where, under subsection (5), a Crown Lands Minister is not satisfied that the whole or part of the lands claimed is claimable Crown lands because the lands are needed, or likely to be needed, for an essential public purpose, but that the need for the lands for the public purpose would be met if the claim were to be granted in whole or in part subject to the imposition of a condition (whether by way of covenant or easement or in any other form) relating to the use of the lands, the Crown Lands Minister may, notwithstanding that subsection, where the condition is agreed to by the Aboriginal Land Council making the claim, grant the claim under that subsection subject to the imposition of the condition.
(6) An Aboriginal Land Council may appeal to the Court against a refusal under subsection (5)(b) of a claim made by it.
(7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council.
....
(9) Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.
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(10) A transfer of lands pursuant to this section operates to revoke any dedication or reservation under the Crown Lands Consolidation Act 1913 to which the lands were subject immediately before the transfer.
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(12) A transfer of lands pursuant to this section is subject to the following—
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(b) any condition imposed under subsection (5A),
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Contentions and issues
The Minister’s Amended Statement of Facts and Contentions (SOFAC) contended in respect of Lot 7 that as at 2 June 2009 the workshop on Lot 7 was needed or likely to be needed for the essential public purpose of providing supported employment for disabled persons, such that paragraph (c) of s 36(1) of the ALR Act was satisfied.
In respect of Lot 8, or alternatively, the part of Lot 8 comprising the driveway to Lot 7 and associated car parking, the Minister’s contention was that this land was not claimable Crown lands within the meaning of s 36(1) of the ALR Act because the driveway was needed to provide safe access to the delivery dock and workshop and carparking for staff and disabled employees and Lot 8 was needed for the essential public purpose of providing supported employment for disabled persons, such that paragraph (c) of s 36(1) of the ALR Act was satisfied.
One contention of lawful use and occupation was no longer pressed by the Minister in the course of the hearing following evidentiary rulings. Consequently, the questions that remain for determination, as agreed by the parties, are whether:
(1)the Minister can satisfy the Court that, as at the date of claims, any part of Lot 7 and Lot 8 was needed or likely to be needed for an essential public purpose of “supported employment of disabled persons” and was therefore not “claimable Crown lands” within the meaning of s 36(1)(c) of the ALR Act; and
(2)any appropriate orders to be made in light of the Court’s determination on that issue.
It should be noted that as a result of the Minister not pressing the matter of lawful use and occupation, Terama Industries Inc, the occupier at the date of claims, cannot be assumed to have been lawfully occupying Lots 7 and 8 as at the date of claims for the purposes of the CL Act. The circumstance resulting in this situation is referred to at the SOAF par 48 below, namely Terama Industries Inc was not appointed the trustee of R88027 for the purposes of the CL Act at the date of claims.
Statement of agreed facts
The parties provided the following statement of agreed facts (SOAF) dated 18 January 2022:
The land
1. Lots 6, 7 and 8 of Section 96 in Deposited Plan 758466 are located in the Parish and Town of Gosford in the County of Northumberland on the Central Coast of New South Wales.
2. Lots 7 and 8 together comprise parcels of land known as 143 Henry Parry Drive, Gosford, New South Wales. Lot 6 is an adjacent parcel of land.
3. Lots 7 and 8 are steep blocks, sloping downwards to the west and south.
4. Lot 7 is located on the corner of a main road known as Henry Parry Drive and a dead-end street known as Terama Place.
5. Lot 8 abuts the eastern boundary of Lot 7 (on the far side of Henry Parry Drive) and fronts onto Terama Place.
6. Lot 6 is a slim parcel of land that fronts onto Henry Parry Drive and spans the length of the southern boundary of Lot 7 to abut Lot 8.
7. Henry Parry Drive forms part of the State Road network and is classified as being Main Road 673. It is a four-lane dual carriageway with a 60km speed limit, which decreases to 50km around 5 metres past the frontage of Lot 7. The road has a north- south orientation in the vicinity of 143 Henry Parry Drive and rises steeply to the north from the intersection of Terama Place at a grade of 13.6%.
8. As at 2 June 2009 (the date of claims), when Aboriginal Land Claims 17974 and 18000 were lodged, Lots 6, 7 and 8 were Crown land.
9. On 17 June 2020, the Minister determined that Lot 6 was claimable Crown land. Lot 6 has since been transferred to the Applicant.
History of the land
10. On 29 October 1965, Aid Retarded Persons NSW (ACN 000 510 136) (ARP) was formed as a company limited by guarantee to pursue the following primary objects:
• To further the interests, train, educate and promote the welfare generally of intellectually handicapped persons and to promote their economic and social well-being.
• To establish sheltered workshops for intellectually handicapped persons either as pre-employment training or as terminal occupation or otherwise.
• To facilitate the absorption of intellectually handicapped persons into industry and foster harmonious relations in respect of their employment.
• To establish hostel accommodation social clubs and other facilities and amenities for intellectually handicapped persons.
• To present the special needs of intellectually handicapped persons to the relevant authorities parliamentary or otherwise.
11. In 1966, a State-wide survey conducted by ARP revealed the need for a sheltered workshop on the Central Coast for intellectually handicapped persons over 16 years of age. A group of concerned citizens, keen to help establish the workshop, formed the ARP Central Coast Branch.
12. In around 1968, the then Minister for Lands made available for lease by charitable organisations a series of allotments of land off Gertrude Street, Gosford around a proposed road. Gertrude Street later became known as Henry Parry Drive and the proposed road became Terama Place.
13. ARP applied to the Crown Land Agent for an allotment.
14. In around October 1968, ARP’s application for Crown Land in Gosford was approved.
15. On 1 March 1969, a Special Lease in Perpetuity (68-12 Gosford) was granted to Aid Retarded Persons NSW under the Crown Lands Consolidation Act 1913 (NSW) (CLCA) over Allotments 7 and 8 of Section 96, Town of Gosford for the purpose of “Erection of buildings (training centre for handicapped persons)”.
16. Between around 1969 and 1970, ARP constructed a workshop and associated facilities on Lots 7 and 8. This included a driveway from Terama Place on Lot 8, which wound around the back of the workshop on Lot 7, through a “carport” and out onto Henry Parry Drive.
17. The workshop was completed and occupied from around 3 August 1970. It was officially opened by the Minister for Social Services on 7 November 1970.
18. The Commonwealth contributed grants for the construction of the workshop, in the order of approximately $19,064 against a total construction cost of $28,524.
19. On 27 November 1970, Special Lease 68-12 was withdrawn. In its place, on the same day, Reserve 88027 (R88027) was notified over Allotments 6, 7 and 8 of Section 96, Town of Gosford. The reserve purpose was “for charitable organizations”.
20. On 19 February 1971, by proclamation published in the NSW Government Gazette under the Public Trusts Act 1897 (NSW) (PTA), ARP was appointed as trustee of R88027. That proclamation was authorised by the Governor of NSW and the Executive Council, based on a recommendation of the then Minister for Lands.
21. On 24 December 1971, by proclamation published in the NSW Government Gazette under the PTA, ARP was appointed trustee of another reserve, being Reserve 88406 for “Charitable Organizations” (R88406) in Lambton, Newcastle.
22. In around 1971, the Patron-in-Chief of ARP was the Governor of NSW, Sir Roden Cutler, and other Patrons were the Premier and Treasurer of NSW, the Deputy Premier and Minister for Education and Science, the Minister for Health, the Minister for Child Welfare and Social Welfare, and the President of the Rural Bank of NSW.
23. 1981 was the International Year of Disabled Persons. In that year, the workshop at Henry Parry Drive achieved the official status of a “sheltered workshop”. Instead of being classified as trainees, the workers were to be known as employees.
24. On around 16 April 1981, DA 14278/81 was lodged with Gosford City Council for alterations and additions to the existing structures on Lots 7 and 8 by Grenfell, Fraser & Associates on behalf of the owner given as “Aid Retarded Person’s NSW Gosford Branch”. The Council granted approval on 8 May 1981.
25. On around 1 December 1981, the ARP Central Coast Branch resolved to change its name to “Terama Industries”.
26. ARP Central Coast Branch received funding approval from the Commonwealth Department of Social Services (DSS) for the works in DA 14278/81, and they commenced on 9 May 1982. The extensions were officially opened by the Parliamentary Secretary to the Prime Minister on 7 November 1982.
27. On 27 February 1987:
a. a provisional liquidator was appointed to ARP by order of the Supreme Court of NSW; and
b. the provisional liquidator commenced proceedings in the Supreme Court of NSW for the winding up of ARP, namely Re Aid Retarded Persons NSW BC9201477 (Supreme Court Proceeding No.1467/1987).
28. The appointment of the provisional liquidator was gazetted in the Commonwealth of Australia Gazette on 24 March 1987.
29. On 18 August 1987, ‘Terama Industries Inc’ (Incorporation Number Y0313803) was registered with the NSW Office of Fair Trading.
30. On 21 December 1987, ARP (Provisional Liquidator Appointed) and Terama Industries Inc entered into an agreement for the transfer of various assets owned by ARP to Terama Industries Inc, including:
a. furniture and equipment located at 143 Henry Parry Drive, Gosford;
b. leasehold improvements to premises at 143 Henry Parry Drive, Gosford;
c. trade debtors and other debtors; and
d. stock located at 143 Henry Parry Drive, Gosford.
31. On 23 November 1990, pursuant to clause 4(3) of Schedule 8 of the Crown Lands Act 1989 (CLA), the corporate name “Gosford Charitable Organisation (R88027) Reserve Trust” was assigned to the reserve trust for R88027. The reserve trust manager was noted in the gazette notice to be “Aid Retarded Persons (NSW)”.
32. On 12 July 1991, the then Minister for Conservation and Land Management placed an official notice in the NSW Government Gazette which stated the following:
DISSOLUTION OF RESERVE TRUST
PURSUANT to Clause 4 of Schedule 8, Crown Lands Act 1989, a reserve trust was constituted in respect of Reserve 88406 for Charitable Organisations at Lambton, notified 26 November 1971. By virtue of Clause 5 of Schedule 8, the corporation known as Aid Retarded Persons NSW was appointed to manage the affairs of the reserve trust. Aid Retarded Persons NSW has been wound up and the NSW Supreme Court has ordered its assets to be transferred to Wickham Industries Incorporated.
Accordingly it is HEREBY NOTIFIED that the aforesaid reserve trust is dissolved pursuant to Section 92(3) Crown Lands Act 1989 (thereby the corporate manager is in effect removed).
A new reserve trust has been established and Wickham Industries Incorporated has been appointed to manage its affairs so that effect may be given to the Supreme Court order insofar as the aforesaid reserve is concerned - see separate notification dated this day. MD89 R 118
33. Immediately thereunder, there were notices gazetting the formation of Lambton Charitable Organisations (R 88406) Reserve Trust and the appointment of Wickham Industries Incorporated as corporate reserve manager.
34. On 19 November 1992, the Supreme Court of NSW in Supreme Court Proceeding No.1467/1987, ordered that ARP be wound up under the Companies (NSW) Code and appointed a liquidator.
35. On 27 November 1992, notice of the Court-ordered winding up of ARP and appointment of the liquidator was published in the NSW Government Gazette.
36. On 30 March 1995, notice was given in the Commonwealth of Australia Gazette that the registration of ARP would be cancelled and the company dissolved by publication of that notice, pursuant to s 574(1) of the Corporations Law.
37. On 30 November 2007, notice was given in the NSW Government Gazette that, as ARP had ceased to exist, other charitable organisations with similar objects could apply for the funds left in the will of a deceased person who had nominated ARP as a beneficiary in their will under the doctrine of cy-pres.
38. On 2 June 2009, the Applicant lodged Aboriginal Land Claim (ALC) 17974 over Lot 8 and ALC 18000 over Lots 6 and 7.
Use of Lots 7 and 8 as at 2 June 2009
39. As at the date of claims, the facilities on Lots 7 and 8 comprised a workshop building, located wholly on Lot 7, and a driveway that ran from Terama Place on Lot 8 around the back of the workshop, through a “carport” and out onto Henry Parry Drive.
40. The workshop on Lot 7 was used by Terama Industries Inc as a facility which provided supported employment to persons with disabilities.
41. The driveway on Lot 8 was used by vehicles accessing the workshop, carport and parking on Lot 7.
42. The workshop operated 5 days a week, Monday to Thursday 7.30am-3pm and on Fridays 7.30am-12pm.
43. The only wheelchair access was the ramp at the back of the workshop from Lot 7 to Level 2 and there was no internal lift or ramp within the workshop.
44. The only amenities at the workshop were located on Level 2.
Status of Terama Industries
45. As at the date of claims, Terama Industries Inc was registered as a charity with the Australian Taxation Office and received certain charitable concessions.
46. As at the date of claims, Terama Industries Inc was a registered disability services provider with the DSS.
47. As at the date of claims, Terama Industries Inc was substantially reliant for its income on government grants, specifically, grants from the Department of Family and Community Services (“FACs”).
48. As at the date of claims, Terama Industries Inc had not been appointed the trustee of R88027 by notification in the NSW Gazette pursuant to s 95 of the CLA.
Events after 2 June 2009
49. On 2 November 2009, Allotments 6, 7 and 8 of Section 96 were converted from old system title to Torrens title, and became Lots 6, 7 and 8 (respectively) of Section 96 in DP 758466.
50. In December 2020, a survey of the eastern end of the driveway on Lots 7 and 8 was undertaken, which shows that the driveway on Lot 7 encroaches onto Lot 6 over the boundary between Lot 6 and Lot 7. This is the survey at Appendix A to the affidavit of Stuart Bracken affirmed 9 April 2021.
The Aboriginal Land Claims
51. On 2 June 2009, the Applicant lodged ALC 17974 over Lot 8 and ALC 18000 over Lots 6 and 7.
52. By letter to the Applicant dated 17 June 2020, the Respondent:
a. refused ALC 17974 in relation to Lot 8; and
b. granted ALC 18000 insofar as it related to Lot 6 and refused it insofar as it related to Lot 7.
53. The reason given for the refusal of ALC 17974 and ALC 18000 insofar as it related to Lot 7 was that the land was “not claimable Crown land as it was needed for the essential public purpose of supported employment for disabled persons”.
54. On 5 August 2020, the Respondent transferred Lot 6 to the Applicant. A new certificate of title was issued on 26 August 2020.
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Survey plan
The Applicant provided a survey plan produced by Mr Stuart Bracken (annexed to Ex 7, Mr Bracken’s survey report dated 29 January 2021, see below in [72(5)]), reproduced below for ease of reference as it shows the relationship between Lots 6, 7 and 8:
Evidence of the Minister
The evidence of the Minister (other than in relation to traffic/surveying) included a number of affidavits which were read in whole or part as follows:
(1)The affidavit of Mr Richard Fealy dated 8 April 2021. Paragraphs 1-11, 13-14, 17-19, 22-38, 41-45, 47-58, 61-64, 66-75 and 77-80 were read in whole or part. Paragraphs 46, 54, 59, 60, 65 and 76 were read following examination in chief of Mr Fealy clarifying that they applied to circumstances at the date of claims.
(2)The affidavit of Mr Fealy dated 9 December 2021. The entire affidavit was read in whole or part (par 8 was part read).
(3)The affidavit of Ms Melanie Osborne dated 15 October 2021. Paragraphs 1-4, 6-10, 12-14, 16-18, 23-30, 49-52 were read in whole or part.
(4)The affidavit of Ms Caitlin Fegan dated 15 October 2021.
The Minister’s tendered exhibits (other than in relation to traffic/surveying) included the following:
(1)exhibit RF-1 to the affidavit of Mr Richard Fealy dated 8 April 2021 (Ex 1);
(2)volumes three to five of the Evidence Book, tabs 11-86 (Ex 3);
(3)a supplementary evidence book including the SOAF (Ex 4);
(4)Evidence Book pages 305-306 within the exhibit to Ms Osborne’s affidavit, which contained emails between Ms Osborne, a Group Leader at the Crown Lands department, and a project officer at Crown Lands department, in October 2021 (Ex 5); and
(5)exhibit CF-1 to the affidavit of Ms Caitlin Fegan, solicitor for the Minister, dated 15 October 2021 (Ex 6).
Fealy first affidavit
Mr Fealy is the Manager at Terama Industries Inc, an Australian disability enterprise registered under the National Disability Insurance Scheme.
Mr Fealy has worked at Terama Industries Inc for 28 years (since 1992), becoming an administration and finance manager in 2002 and manager in 2008. He volunteered at both Terama Industries (as Aid Retarded Persons NSW, Central Coast branch (ARP) was known before the incorporation of Terama Industries Inc in 1987) and Terama Industries Inc between 1984 and 1992 with roles including training and supervision of employees, when his father was a supervisor there (his father became manager in 1987). Terama Industries Inc is an Association that has been registered with the NSW Office of Fair Trading since 18 August 1987. Terama Industries Inc’s current constitution was adopted in April 2010, with the previous constitution, as far as Mr Fealy could recall, being adopted in around 1982.
Mr Fealy deposed that Terama Industries Inc is and has been since he has worked there, a charitable organisation that helps people with disabilities access work opportunities through supported employment and helps them access the community through participation services. Its main activity is the operation of a workshop which employs people with disabilities at 143 Henry Parry Drive, Gosford. It also offers a supported accommodation service, which opened in 2018.
As at the date of claims Terama Industries Inc was registered as a charity with the Australian Taxation Office (ATO) and received charitable concessions. Mr Fealy annexed to his affidavit a notice of endorsement from the ATO dated 8 July 2005 recording endorsement of Terama Industries Inc for an income tax exemption, GST exemption and FBT rebate before the date of claims. Terama Industries Inc has been endorsed as a Deductible Gift Recipient since October 2015.
Since 1 July 2007, Terama Industries Inc was a registered disability services provider with the Commonwealth Department of Social Services (DSS), formerly the Department of Family, Housing, Community Services and Indigenous Affairs (FaHCSIA). As at the date of claims, the DSS/FaHCSIA would arrange for an external contractor to attend Terama Industries Inc’s premises and certify its compliance with relevant standards each year. During all the period Mr Fealy has worked at Terama Industries Inc, it has been substantially reliant for its income on government grants specifically from DSS/FaHCSIA. The financial statement for the year ending 30 June 2009 annexed to Mr Fealy’s affidavit recorded that $494,177.50 of total income of $715,947.19 was received from subsidies/grants. An extract of Terama Industries Inc’s MYOB statement for 1 June 2009 to 30 June 2008 shows a number of “FACS Grants” being received into its bank account during that period.
Mr Fealy deposed that rates notices from the Central Coast Council regarding 143 Henry Parry Drive have been addressed to Terama Industries Inc at least since about 1998 when Mr Fealy started doing the accounts. Lot 7 is on a busy main road in Gosford, with two lane travel in each direction and a 60km/h speed limit, and Terama Place is a quiet dead-end street. Lot 8 abuts the back of Lot 7 and faces onto Terama Place.
Mr Fealy annexed a document obtained from Terama Industries Inc’s hardcopy records entitled “The History of Terama Industries” which described the history of ARP and Terama Industries from 1966 to 1982. That document states that in 1982 extensions were made to the workshop pursuant to a DA. The new wing of the workshop was opened officially by Mr Alan Cadman MP, then Parliamentary Secretary to the Prime Minister, in 1982. A plaque on the wall of the workshop states that the building was officially opened by the Commonwealth Minister for Social Services on 7 November 1970.
An article attached to Mr Fealy’s affidavit in the Gosford Star in 1981 entitled “name change” stated that ARP will now be known as Terama Industries in response to the International Year of Disabled Persons.
ARP went into liquidation in the late 1980s and ARP (Provisional Liquidator Appointed) entered into an agreement in 1987 between ARP (Provisional Liquidator Appointed) and Terama Industries Inc (the 1987 agreement). ARP’s assets were split between a number of new entities including Terama Industries Inc. Mr Fealy deposed that he knew from his volunteer work at Terama Industries at the time that there was no change to the activities at the workshop as a result of the transfer of assets from ARP to Terama Industries Inc. ARP Gosford Branch had been known as Terama Industries for several years previously.
In 2009, the workshop operated similarly to today, being 5 days a week Monday to Thursdays 7:30am to 3:00pm and on Fridays 7:30am to 12:00pm. In June 2009, the workshop employed 51 people with disabilities and a further five staff. Twenty-seven of the employees with disabilities are still working at Terama Industries Inc today. Mr Fealy recalls that in 2009 the work performed by employees at the workshop was packaging cosmetics, shampoos, conditioners, hair dyes and hair curlers for Proctor & Gamble, covering library books for Gosford Library, and packing pet food for the Australian Reptile Park in Somersby.
The facilities are in substantially the same form today as they were after the renovations in 1981. The use of the facilities has not changed in any substantial way since Mr Fealy began working there. The facilities comprise a workshop building located wholly on Lot 7 and a driveway from Terama Place on Lot 8 through to the loading dock of the workshop on Lot 7 and from there out onto Henry Parry Drive. There is parking partly on Lot 7 and partly on Lot 8. The workshop has three levels.
Level 1 contains a delivery dock for loading and unloading vehicles, storage of electronic waste and cosmetic products and packaging machinery. There is a hoist located on level 1 which brings up pallets of e-waste and cosmetic products to the middle floor, level 2, to be dispersed to the employees for production. Level 1 also contains two machines and a hand-operated forklift. One machine shrink wraps cosmetic products and the other shrink wraps pallets for the completed products to be transported out of the building. Level 1 also contains tools which are sometimes necessary to prepare the pallets and space for storage of goods. The delivery dock is at the side of the workshop, facing Henry Parry Drive. It is accessed by the driveway that leads in from Terama Place on Lot 8 and winds around the back of the workshop building. The driveway then goes through the delivery dock and out onto Henry Parry Drive.
Level 2 is the main workshop floor which accommodates 40 employees. This is where the amenities are located. A wheel-chair access ramp rises to this level at the back of the building accessible through the Lot 8 driveway. That is the only wheelchair access to the building, which lacks a lift. Wheelchair access to Levels 1 and 3 is not available. Since 2009, Mr Fealy estimated there are one to two employees in wheelchairs who need the wheelchair access every year and one to two who use walkers and also need that access.
Level 3 of the building is used as a workshop for 25 employees. Level 3 has a roller door and driveway access to the street level at Terama Place from Lot 7. It is used from time to time by employees to access level 3 of the workshop. For the entire time Mr Fealy has worked at Terama Industries Inc, the roller door and driveway have never been used by vehicles to access the workshop. Access is prohibited to vehicles of any type because the entire floor is used as a workshop every day for 25 employees. That number would have been similar in 2009 as the split between the two floors has always been around half and half. It would not be possible to change the use of level 3 as the other floors cannot accommodate all of the employees. The level 3 access does not have any of the equipment needed to load the products onto the pallets, and load and unload trucks, which are all on level 1. There is also no excess space to store goods. The hoist only goes between levels 1 and 2 and cannot be moved. Mr Fealy did not think level 3 could accommodate all of those things. Even if it could, production would need to be halted for a significant period of time to renovate level 3 to incorporate all those things, which would be highly disruptive to operations.
Terama Industries Inc uses trucks to bring goods into the workshop to be packaged and deliver the goods to their destination once packaged. It is necessary for trucks to be able to access the workshop for these purposes to enable the operations at Terama Industries Inc to occur. In 2009, Terama Industries Inc owned one six pallet truck. A 14 pallet truck from Proctor & Gamble also made deliveries of goods to be packaged using the driveway. For as long Mr Fealy has worked at Terama Industries Inc, the trucks making deliveries and taking goods away from the workshop have never used the Henry Parry Drive access to enter the workshop because the incline of the driveway is too steep for a fully loaded truck to reverse up it, and because in any case it would be unsafe to do so. Henry Parry Drive is a busy main road and it would cause a safety hazard for a truck to have to stop in the middle of Henry Parry Drive to reverse into the driveway. There is also a very steep rise at the top of Henry Parry Drive to the north, coming around a bend in the road, which means traffic travelling south from that direction moves quite fast with limited visibility of the driveway from the workshop. The left lane where the driveway meets the road is also a no-standing zone. The only use of the Henry Parry Drive access point has always been for the truck to leave once it is loaded or unloaded, which it does by driving forward down the driveway out onto Henry Parry Drive. The employees and staff never use the Henry Parry Drive access to enter or leave Terama Industries Inc because the steep gradient of the driveway makes it too dangerous. There are also safety concerns about using the Henry Parry Drive access because of the constant, on-coming traffic from the rise at the top of Henry Parry Drive past the access point. Mr Fealy does not allow the employees with driver’s licences to use the Henry Parry Drive access point due to safety concerns.
For as long as Mr Fealy has worked at Terama Industries Inc, due to the safety concerns the Lot 8 driveway has been used to access the workshop. The Lot 8 driveway is used by trucks to enter the property. They do this by driving forward from Terama Place, along the driveway around the back of the workshop, to the delivery dock on level 1. The truck is then unloaded at the delivery dock by staff and employees before it drives out forward onto Henry Parry Drive. The trucks use the driveway for this purpose around three times a day, five days a week. The Lot 8 driveway is also used for general access by all people who attend the workshop, including vehicles dropping off wheelchair bound employees and employees who use walkers to the wheelchair ramp at the back of the building at level 2.
Mr Fealy estimated that during the period 2009 to date, people have used the driveway from Lot 8 to drop off and pick up people in wheelchairs around three times a week. In addition, during the same period, taxis and community transport drivers dropping off employees, staff and employees with physical disabilities have used the driveway from Lot 8 every day. The three employees with disabilities and who drive cars park in the allocated parking spots on Lot 8 along with other staff, to the side of the driveway (area marked “existing carpark” on the 1981 DA plans). Mr Fealy and other staff park in spots on Lot 7 accessed via the Lot 8 driveway. These people attend the premises five days a week, which has been consistent since the 1990s.
Fealy second affidavit
Mr Fealy’s second affidavit addressed the upgrade to the loading dock on level 1 of the workshop that took place in around 2011. The upgrade did not in any material way change the use of the loading dock. There is a dock on the side of the building that trucks can drive into to load and unload, labelled “existing carport” on the plans. Before 2011, this dock comprised a structure with a corrugated colourbond roof, corrugated colourbond walls and corrugated colourbond swinging doors at each end of the structure. Engineers assessed how the structure could be reinforced to make it safe, and works were carried out by a builder in around 2011. They involved pouring a new slab of concrete on the right-hand side of the dock, reinforcing the roof beams by replacing the support posts and replacing the swinging doors with a roller door. The swinging doors were removed but then reattached as they had been before. The rest of the colourbond was reused in the walls and roof of the new structure.
These works did not change how the dock was used. Both before and after the works, trucks entered the site from the driveway onto Lot 8, drove along the driveway on Lot 7 around the back of the workshop, stopped in the dock for loading or unloading and once complete drove forward out of the dock onto Henry Parry Drive.
Minutes of Terama Industries Inc executive meeting and AGM 2009
A Notice of Annual General Meeting for 14 October 2009 contained minutes of an Executive meeting held on 12 August 2009, exhibited to Mr Fealy’s affidavit (Ex 1). The Treasurer’s report states that Terama Industries Inc had a profit in June 2009 of $68,000.00. The Manager’s report records that “we had a great last year with profit for the year being $210,000.00”.
Mr Fealy - oral evidence
In examination-in-chief, Mr Fealy confirmed that the facilities were in substantially the same form as shown on the 1981 DA plans as at the date of claims. The facilities in the loading dock on level 1 (see above in [25]) were also confirmed to be in the same form in June 2009. The functions undertaken in the loading dock were the same as at the date of claims. The hoist and other boxes and equipment were also in place on level 1 as shown on the photographs annexed to Mr Fealy’s first affidavit, as at 2009. Some equipment had been replaced since 2009. The same kinds of equipment was always stored in the same location.
Mr Fealy confirmed that the evidence summarised in [24], [26], [27] and [30] above applied as at the date of claims. In 2009, two employees needed wheelchair access. Two to three used walkers. They used the wheelchair access on level 2.
Mr Fealy was cross examined by the Applicant. He testified that the Crown wrote his first affidavit while he was present.
He was not aware that his references to Terama Industries Inc before 1987 in his first affidavit could not legally have been correct given Terama Industries Inc was only registered in 1987. He has only ever known the entity as “Terama Industries”. He accepted that to the extent Terama Industries Inc was not legally in existence before 1987, the constitution of Terama Industries Inc to which he referred in [15] above could not have been that of Terama Industries Inc and it likely related to ARP. He accepted that his reference to Central Coast Council (see above in [19]) could not be correct as that Council did not exist as at 1998.
In relation to the document entitled “History of Terama Industries” (see above in [20]), Mr Fealy accepted that the document, compiled in 1982, could not refer correctly to Terama Industries Inc as that entity had not come into existence yet. In relation to the article in the Gosford star (see above in [21]) Mr Fealy couldn’t one hundred percent say that the reference to Terama Industries Inc must have been a reference to ARP as he has always known it as Terama Industries. Mr Fealy accepted that in the 1987 agreement, Terama Industries Inc is stated as a new entity to which ARP’s assets would be transferred.
Mr Fealy was told about ten to 15 years ago by previous management that Terama Industries Inc was on Crown land. He was not aware that occupying Crown land requires consent from the Minister or Department. He was not aware of anyone at Terama Industries Inc obtaining that consent.
Mr Fealy was asked about extensions made to the carport in 2011, the subject of his second affidavit. He accepted there was about a three-foot extension. He accepted that the extension occurred sometime in 2010 [I note that his second affidavit places the time of the works in around 2011]. He accepted that he was not aware that the Central Coast Council did not produce any documents relating to the works carried out on the carport. Mr Fealy hired a builder for the works and left the builder to seek council approval for the works. He was not aware whether permission was sought from the Council. When asked why the material he produced on behalf of Terama Industries Inc in response to the Applicant’s subpoena in these proceedings included DA plans dating back to 1981 but no documents falling within the terms of the subpoena, particularly in relation to building works completed on Lots 7 and 8, Mr Fealy answered that there was no record of any building application or DA in respect of the carport works. He agreed that it was probably the case that no application was ever made in respect of the carport extension; he “left it up to the builder, I hired the builder, and he went on everything and finished the job, so I didn’t put one in, it was up to the builder to do that.”
Mr Fealy was shown survey plans of Lots 6, 7 and 8 prepared by Mr Bracken, the Minister’s expert surveyor witness. When asked whether he agrees that the driveway on Lot 7 traverses across into Lot 6, which is owned by the Applicant, Mr Fealy accepted that the survey plans do show encroachment and that this was the current position. He did not know when the encroachment occurred. Mr Fealy did not seek permission from the Applicant to cross into Lot 6. Mr Fealy stated that the driveway was “done way before my time”.
Mr Fealy did know that Terama Industries Inc was located on a Crown reserve. He did not fully appreciate the legal meaning of that term. He spoke with Mr Shane Smith of Crown Land at Dubbo around 2019/2020 about what a ‘reserve’ was. He did not speak to anyone at the Crown Lands department about the reserve of which Lots 7 and 8 are part or about Terama Industries Inc being reserve manager prior to 2019/2020. He understood that an obligation of being a reserve manager is submitting reports to the Department of Lands about reserve management. He was not aware of ARP submitting any reports of this nature.
In re-examination, Mr Fealy stated:
(1)that Terama Industries Inc received rates notices from Gosford Council from 1998;
(2)that the extension to the carport “went out the same distance as the roof”;
(3)that nearly all documents were shredded after seven years. The hard copy files that he found at the workshop and gave to the Minister’s solicitors were not shredded; and
(4)there have been no changes to the driveway or carport since Mr Fealy has been at Terama Industries Inc other than the carport works in 2011.
Fegan affidavit and exhibit
Ms Fegan’s affidavit exhibited a variety of public documents relating to the provision of supported employment services to disabled people. These included the following documents:
(1)the NSW Legislative Council Standing Committee on Social Issues Parliamentary Paper No 247 titled “Making it happen: Final Report on Disability Services” published in November 2002 (the 2002 NSW Legislative Council report);
(2)The NSW Government’s official response dated 19 August 2003 to the Legislative Council report above (NSW Government Response 2003);
(3)the “National Disability Agreement” introduced by the Council of Australian Governments (COAG) in 2009 (National Disability Agreement 2009);
(4)the “2010-2020 National Disability Strategy” published in February 2011 by COAG (National Disability Strategy 2011);
(5)the Productivity Commission Report inquiry into disability care and support released on 10 August 2011 (Productivity Commission Report 2011);
(6)the “Advisory Group: Vision for Sustainable Supported Employment” report published by FaHCSIA in 2012 (FaHCSIA Report 2012);
The 2002 NSW Legislative Council report at [12.26]-[12.27], [12.32], [12.34], [13.32]-[13.37] and recommendations 49 and 55 states:
Commonwealth State Territory Disability Agreement
12.26 The Commonwealth has a significant responsibility within the disability service system to fund some types of service directly and also to fund State Government disability service programs. Under the Commonwealth State Territory Disability Agreement (CSTDA, formerly known as the Commonwealth State Disability Agreement or CSDA), the Commonwealth is responsible for the funding, planning and management of employment services and it shares responsibility with States and Territories for advocacy services. States and Territories are directly responsible under the CSTDA for all other specialist disability services, including accommodation support, respite and day programs. While States and Territories are directly responsible for the administration of these areas, the Commonwealth contributes approximately 20 percent of the funding for State based programs. This contribution arises from the fact that prior to the CSTDA, the Commonwealth funded non-government service providers directly.
12.27 All jurisdictions in Australia are facing similar challenges relating to unmet need and the growing complexity of demand to those faced in New South Wales. The CSTDA is intended to clarify the respective roles of States and the Commonwealth in this area and to provide a national framework for provision of specialist disability services. The present CSTDA is due to expire at the end of November and is currently being re-negotiated.
…
12.32 The CSTDA underpins the disability service system in New South Wales. To have an effective and equitable system it is essential that workable and cooperative funding arrangements exist between the two tiers of government. From the perspective of people with disability, advocates and service providers, arguments about which level of government is responsible to provide additional funding appear to be little more than evasion of responsibility by both levels of government.
…
12.34 It is also important to clarify issues around daytime activity. People with disability that we spoke to during regional consultations indicated an overwhelming preference for employment over non-work related day programs. They were particularly concerned about the contraction of supported employment programs and the resultant loss of opportunities for financial independence and participation in the community. The Committee notes that access to employment is critically important for all members of the community and considers that significant additional funding for supported employment services is required.
Recommendation 49
As part of the negotiation for the forthcoming Commonwealth State Territory Disability Agreement, the Government should:
• Seek additional funding from the Commonwealth as a matter of urgency both to address unmet need and to accommodate cost increases in disability services
• Seek to develop an approach to funding under the CSTDA that links growth funding from the Commonwealth to identified unmet need
• Specifically seek additional funding for supported employment programs.
…
Meaningful daytime activity
13.32 A common theme during consultations was that when a person with disability leaves school, they and their family lose access to a valuable support network. They also face a lack of meaningful daytime activity that can rapidly lead to poor self-esteem, frustration, the emergence of challenging behaviours and crisis. Access to supported employment or day programs was therefore raised as a significant area of unmet need in submissions, evidence and hearings.
13.33 According to the Australian Institute of Health and Welfare, there are currently 5,400 people nationally who have unmet need for employment support and 8,200 people who report unmet need for non-employment related community access, or day programs. These figures equate to roughly 1,800 and 2,730 people respectively for New South Wales. We note that these estimates are based on current Commonwealth eligibility criteria for access to supported employment services, rather than an actual assessment of people’s capacity or desire to work. Different eligibility criteria could therefore result in a higher number of people needing access to supported employment programs and a correspondingly lower number requiring access to community participation. It is therefore more accurate to state that there are approximately 4,530 people in New South Wales who report unmet need for meaningful daytime activity.
13.34 Meaningful daytime activity enhances the independence, community participation and integration of people with disability and contributes to their wellbeing. In speaking to people with disability and advocates, the following key points emerged in relation to daytime activity:
• People with disability overwhelmingly prefer employment to day programs
• Continuity of funding for day programs must be ensured to provide certainty for people with disability, their families or service provider
• Non-employment related day programs should be flexible and emphasise inclusion in the community. Rather than provision of activities in an isolated setting, day programs should facilitate access to mainstream activities such as further education and training through TAFE.
13.35 Paid employment affords both a valued social role as well as an income, enabling people to exercise choice in many aspects of their lives. There is substantial unmet need for supported employment programs that both utilise people’s skills and provide opportunities for further development. The disability service system should reflect the preferences of people with disability and ensure that opportunities for employment are promoted as the first priority. In Chapter 12 we noted that this is an area where the Commonwealth could do more to fulfil its responsibilities.
13.36 At the State level, evidence to the inquiry has been characterised by high levels of uncertainty about the ATLAS Program for school leavers. For those who are unable to participate in employment and training programs, the Committee stresses the need for a system that provides meaningful day activities for all those who wish to participate in them.
13.37 There is an inextricable link between supported employment and day programs. We therefore consider that the State and Commonwealth should develop a joint and cooperative approach to meeting unmet need for meaningful daytime activity. The approach should be based on the principles outlined in the recommendation below.
Recommendation 55
The State and Commonwealth Governments should develop a joint and cooperative approach to meeting unmet need for meaningful daytime activity. This approach should be based on the following principles:
• Growth funding from both the Commonwealth and the State will be required to address unmet need for meaningful daytime activity
• The primary emphasis should be on supporting people with disability to access employment
• People with disability who are not able to access supported employment services should have guaranteed and continuing access to day programs"…
The NSW Government Response 2003 stated:
Commonwealth State Territory Disability Agreement
Recommendation 49
…
The Government is committed to the development of a third Commonwealth State Territory Disability Agreement to provide an adequate and sustainable funding base for disability services in NSW.
The Commonwealth has offered to provide an additional $125 million for all States and Territories over the next five years. During negotiations, the States and Territories have pressed for additional funds to be allocated by the Commonwealth.
The Government is, however, keen to finalise the Agreement to bring about certainty for people with a disability and service providers. In addition, the Government is seeking to secure bi-lateral agreements to improve support for:
• Young people with a disability in their transition to employment; and
• Young people with a disability living in residential aged care facilities and older people with a long-term disability
…
Recommendation 55…
…
In addition, as indicated previously, the Government is seeking to establish a Bilateral Agreement with the Commonwealth Government under the third Commonwealth State Territory Disability Agreement (CSTDA) to develop a joint approach to assisting the transition of young people with a disability from school to work…
The National Disability Agreement 2009 between the Commonwealth and the States and Territories relevantly states:
PRELIMINARIES
All Disability Minsters [sic] agreed to establish a new National Disability Reform Agenda that will place people with disability, their families and carers at the centre of services across Australia.
…
2. This Agreement has been updated to reflect the roles and responsibilities of governments (except Victoria and Western Australia) in relation to basic community care services and should be read in conjunction with the National Health Reform Agreement. These changes in roles and responsibilities will enable the creation of a national aged care system and a national disability services system.
…
OBJECTIVES
9. Through this Agreement, the Parties commit to the following objective as the long-term, overarching aspiration that governments should strive for in the provision of disability services. All aspects of the National Disability Agreement contribute to, or measure progress towards:
“People with disability and their carers have an enhanced quality of life and participate as valued members of the community.”
OUTCOMES
10. The Agreement will contribute to the following outcomes:
(a) people with disability achieve economic participation and social inclusion;
(b) people with disability enjoy choice, wellbeing and the opportunity to live as independently as possible; and
(c) families and carers are well supported.
OUTPUTS
11. The Agreement will contribute to the following outputs in support of the agreed outcomes:
(a) services that provide skills and supports to people with disability to enable them to live as independently as possible;
(b) services that assist people with disability to live in stable and sustainable living arrangements;
(c) income support for people with disability and their carers; and
(d) services that assist families and carers in their caring role.
ROLES AND RESPONSIBILITIES OF EACH PARTY
12. All Parties to this Agreement will work co-operatively together to realise the objectives and commitments made in this Agreement.
…
All Australian governments are committed to their responsibilities in relation to public leadership which actively promotes the rights of individuals with disability, and encourages the community to embody these values, which are the foundation of an inclusive society.
…
Role of the Commonwealth
17. The Commonwealth undertakes responsibility for:
(a) provision of employment services for people with disability, which includes:
(i) regulation, service quality and assurance;
(ii) assessment;
(iii) policy development;
(iv) service planning; and
(v) workforce and sector development
in a manner which most effectively meets the needs of people with disability consistent with local needs and priorities…
The National Disability Strategy 2011 was signed by the leaders of Commonwealth, State and Territory Governments including the Premier of NSW. Relevant extracts include the following:
Outcome: People with disability, their families and carers have economic security, enabling them to plan for the future and exercise choice and control over their lives.
Work is essential to an individual's economic security and is important to achieving social inclusion. Employment contributes to physical and mental health, personal wellbeing and a sense of identity. Income from employment increases financial independence and raises living standards. People with disability can face greater direct costs than other people because of additional expenses with transport, personal and health care, diet and communications requirements. Adequate housing security provides people with disability freedom of choice and is the basis for independent community involvement. The three policy directions in this outcome area focus on the economic and housing security necessary for people with disability, their families and carers, to fully participate in all aspects of Australian society.
Policy Direction 1: Increase access to employment opportunities as a key to improving economic security and personal wellbeing for people with disability, their families and carers.
The vast majority of people with disability can and do want to work and be as financially independent as possible, but employment is one critical area where Australia is lagging behind other countries. Work is the pathway used by most Australians to long-term economic security and wellbeing. Job retention and career development are also important. Barriers have to be identified and addressed, so that people with disability have opportunities for more control over their lives and, like other Australians, are able to build personal and community wealth.
“The concept of ‘giving someone a break’ fails to recognise the important economic benefits of ensuring skilled individuals are able to fully participate in the economy. Greater independence also produces long-term benefits by enabling people to become less reliant on government income support (Shut Out, 2009).”
“After my accident on the building site, I did a course to help me get a job in the building game working in an office providing quotes, costing, etc. I sent out over 350 applications without any result. In the end my brother and I had to start up our own business managing a motor vehicle repair business. It was tough at first but we are doing very well now (Disability Council of NSW, 2008).”
“In 2003, the labour force participation rate of people with disability aged 15 to 64 years was 53 per cent and the unemployment rate was 8.6 per cent. Corresponding rates for people without disability were 81 per cent and 5.0 per cent (ABS, 2004).”
“In 2003, primary carers also had a lower labour force participation rate (39 per cent) than people who were not carers (68 per cent) (ABS, 2004). ”
“As in the broader community, women with disability face poorer economic outcomes than men with disability. Data from 2003 indicate that the labour force participation rate of women with disabilities was only 46.9 per cent compared to 59.3 per cent for men with disabilities. The unemployment rate of disabled women in the same year was 8.3 per cent compared to 5.3 per cent for non-disabled women. In any type of employment women with disabilities are already more likely to be in low paid, part-time, short-term casual jobs (ABS, 2004).”
Among the “Current commitments 2010” the same document stated:
The Australian Government has implemented a number of strategies to assist Australians with disability to find and maintain employment through the National Mental Health and Disability Employment Strategy, including:
• $1.7 billion for new, demand-driven Disability Employment Services
• creation of an Employment Assistance Fund to improve workplace accessibility
• a $6.8 million Disability Support Pension Employment Incentive Pilot with wage subsidies of up to $3,000 to employers
• improved viability and better outcomes through Australian Disability Enterprises through a new 10 year vision which will include consideration of the social enterprise model and the benefits of a mixed workforce.
• The Australian Government is also introducing better and fairer assessment procedures for the Disability Support Pension to ensure that appropriate employment services and income support are provided to people with disability."
The Productivity Commission Report 2011 contained the following:
The Commonwealth, along with the States and Territories, has a major investment in disability specific support. However, there remains a significant level of unmet demand for disability services which impacts upon the lives of people with disability, their families and carers…
... Supported employment is designed to assist those 'people with disability whose employment opportunities would be very limited or non-existent if they were to compete for a job in the open labour market' (Australian Government 2010d, p. 10). Some 70 per cent (13 166) of supported employees have an intellectual disability. One quarter (a530) of supported employees were living in residential facilities and group homes (Australian Government 2010d).
The FaHCSIA Report 2012 includes the following:
Part 1 Overview
The vision—at a glance
The advisory group on inclusion for people with disability through sustainable supported employment has developed a 10-year vision. This vision has three main parts:
1. Australia has a supported employment system that benefits people with disability and Australia as a whole. It does this by helping people with disability take part in work and their community.
2. People with disability have access to a supported employment system. This system fully supports them to take part in work and their community. It includes them in Australian society by providing services so that they can get and keep good jobs.
3. The supported employment system works with other national systems that support people with disability. These include the National Disability Agreement, the National Disability Strategy and the National Disability Insurance Scheme.
…
.. Currently fewer than 10 per cent of people with disability who get the Disability Support Pension have paid work. Clearly the Australian Government is keen to make sure that people with disability who can work have opportunities to do so.
…
Employment support should focus on results. The main result should be good jobs for people with disability so that they can work and be part of their community.
People with disability should have real opportunities to have a job like all Australians. They should have the same rights at work and the same opportunities to find rewarding work.
People with disability should have access to jobs wherever they happen to live-no matter which state or territory they live in or whether they live in the country, the regions, a remote area or a city.
Support should be diverse and flexible. It should meet the unique and changing needs of individual people and respond to changes in the job market.
The system should be seamless and easy to use. It should give extra support at times of transition to help people move through life stages such as school, work and retirement.
Funding should reflect the support needs of the person with disability. The amount of funding should meet the demand. No-one should be denied support because there is not enough funding.
Organisations providing support should be better able to support themselves.
The system should encourage innovation. It should welcome, use and share new ideas.
…
Appendix 2 Economic importance of employing people with disability
Number of people with disability
The 2009 Australian Bureau of Statistics Survey of Disability and Carers reported the following findings.
• Four million Australians (18.5 per cent) had a disability in 2009 and over a million Australians had a profound or severe core activity limitation (5.8 per cent). Rates of profound or severe core activity limitation were highest in Tasmania (6.8 per cent), South Australia (6.4 per cent) and Victoria (6.2 per cent), and lowest in the Northern Territory (4 per cent) and the Australian Capital Territory (4.5 per cent), reflecting the age structure of these regions.
• Rates of disability and rates of profound or severe core activity limitation for five- to 14-year-old males (11 per cent and 6.6 per cent respectively) were close to double those for females in the same age group (6.1 per cent and 3 per cent respectively).
• The prevalence of disability in the Australian population declined 1.5 percentage points. This decrease is particularly noticeable in the younger age groups. From 2003 to 2009 the disability rate for 15 to 24 year olds fell from 9 per cent to 6.6 per cent. Over the same period the rate of disability also decreased for those aged between 25 and 34 from 11 per cent to 8.6 per cent. Similarly 22 per cent of 45 to 54 year olds reported a disability in 2003, compared with 18 per cent in 2009.
• The rate of profound or severe limitation in the core activities of communication, mobility and self-care declined from 6.3 per cent in 2003 to 5.8 per cent in 2009.
• Much of the decrease in the prevalence of disability between 2003 and 2009 is due to a decline in the proportion of Australians disabled by physical health conditions, such as asthma and heart disease.
…
However, some groups continue to be excluded from the opportunity and wealth experienced by other Australians. In supported employment:
• workers with disability work for an average of 24 hours a week
• 70 per cent of the workforce is part time
• the average wage of a worker with disability is $3.65 an hour (working 24 hours a week, this adds up to a weekly income of $87.50).
Only 13 per cent of people with a severe or profound core activity limitation have a bachelor’s degree.
In 2007 the Innov8 Consulting Group estimated that if all working-age Australians with disability receiving a pension (approximately 680 000 at the time) were working in jobs that paid the average weekly wage:
• the saving to the Australian Government in DSP and related welfare payments would be $9.4 billion per annum
• tax receipts would increase by $8.6 billion per annum
• the increase in GDP through increased economic activity (using US Department of Labor statistics specifically for Australia on the GDP contribution of Australian workers) would be $54 billion per annum.
…
United Nations Convention on the Rights of Persons with Disabilities
The UN Convention on the Rights of Persons with Disabilities makes a clear statement about what an employment vision for people with disability must contain:
States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realization of the right to work.
UN Convention on the Rights of Persons with Disabilities, Article 27, p 19.
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The affidavit also annexed copies of documents and correspondence in relation to R88027 from March 1969 to about April 1972. No files of the Crown Lands department could be identified in relation to R88027 after April 1972.
Documentary tender bundle
The SOAF pars 10-37 identifies the history of occupation and use of Lots 7 and 8 by ARP and the process by which this occurred under the Crown Lands Consolidation Act1913 (NSW) (CLC Act) from 1969. The construction of the workshop building on Lot 7 and driveway on Lot 8 took place in 1969 and 1970. On 27 November 1970 the creation of R88027 occurred and ARP was appointed the reserve manager in February 1971. The Governor of NSW was the patron-in-chief of ARP. DA 14278/81 was lodged by ARP with Gosford Council in 1981. Building pursuant to the grant of development consent occurred with Commonwealth government funds in 1982. ARP entered into provisional liquidation in 1987. Terama Industries Inc was registered on 18 August 1987. The agreement between ARP (provisional liquidator appointed) and Terama Industries Inc in December 1987 is summarised at SOAF par 30. On 23 November 1990 the reserve name ‘Gosford Charitable Organisation (R88027) reserve trust’ was assigned to the reserve trust. ARP was identified as the reserve manager. The notice of dissolution of ARP as reserve manager of a different reserve, R88406 for charitable organisations was gazetted in July 1991. A new reserve trust and a different entity as reserve manager was identified in the gazette. ARP was wound up in November 1992 and its company registration cancelled in 1995.
A large number of the documents tendered in the tender bundle confirm this history and do not therefore need to be summarised. Particular documents relevant to the parties’ submissions will be briefly identified.
No date for when Terama Industries Inc took over occupation from ARP is specified in the SOAF. That Terama Industries Inc was in occupation on the date of claims is agreed in par 40.
Osborne Affidavit
Ms Osborne is a Group Leader, Property Management in the Land and Management directorate of Crown Lands within the Department of Planning, Industry and Environment. As described above in [12(3)], much of Ms Osborne’s affidavit was not read. Those parts of her affidavit remaining in evidence addressed her responsibilities in her role; the role of Crown reserves; management of files in relation to Crown reserves; and rules and practices within Crown lands governing the appointment of and changes to reserve managers. Her affidavit also confirmed that from her search of the records, she could not locate any correspondence between Crown Lands and ARP at the time ARP became reserve manager of R88027, or any correspondence which notified Crown Lands of an insolvency agreement or the transition from ARP to Terama Industries Inc in the period between February 1987 and June 2018.
Internal Crown Lands department emails
The emails referred to above in [13(4)] began with an email from Ms Osborne to a project officer in the Crown Lands department on 13 October 2021 in which Ms Osborne asked the project officer if there is an audit process applicable where annual reports are not being submitted by a reserve manager. The project officer responded on 13 October 2021 that there has historically not been a systematic process in place to identify and follow up with Crown Land Managers who had not submitted reports. There was no documented follow up process however a team existed who were contacting reserves who have not reported.
Crown Lands manual of procedures
On 9 November 2021, the Applicant issued a notice to produce (in Ex 4) to the Minister seeking inter alia “A copy of all Crown Land policies relating to the management of Reserve Trusts by Corporate Reserve trust managers that applied from 1971 – 2009 inclusive”. In response, the Minister provided, among other documents, the ‘Crown Lands Manual of Procedures’, a document in loose-leaf form, copies of which were provided in Ex 3 (Manual of Procedures).
The Manual of Procedures states that in any disposal action of Crown lands, public requirements must be fully considered with particular regard to, among other things, charitable organisations, with a priority focus being “Priority 3 – Care and training of Handicapped or Disabled Persons”. “Care and training of Handicapped or Disabled persons” is one of the categories under s 25(1)(a) of the manual stating which categories of charity for which land is to be reserved. A “Sheltered Workshop” is listed in Appendix D to section 42 of the document as one category in a list of “public purposes for which reserve cards are to be prepared”.
Office Practice Guidelines – Crown Land Management
The Minister also provided the ‘Crown Lands Office Practice Guidelines – Crown Land Management’ Chapter 30 (Office Practice Guidelines) in response to the notice to produce mentioned above. Chapter 30 relates to the dedication and reservation of land. The index to the Evidence Book dates the document to 1989. Paragraph 30.4.1.11 directs attention to Annexure 30-A in relation to the public purposes declared pursuant to s 3 of the CL Act for the purposes of ss 80 and 87 of the CL Act. Part C of that Annexure is entitled ‘Rationalisation of Public Purposes’ and indicates that all of the public purposes listed have been brought forward from the list relating to the CLC Act and associated acts and include purposes for reservation, dedication, acquisitions, withdrawal from lease and Special Purchase under those Acts. The list of public purposes were considered broadly to cover all those notified under former legislation. It states that the list has been provided for guidance only and some anomalies may occur. Section 4 lists ‘Community Purposes’. In this list, the words “Sheltered Workshop” appear.
Paragraph 30.4.1.11 also notes that “corporations established under the Associations Incorporation Act 1984 need not be referred to Legal Branch for certification [a process required where it is proposed to reserve or dedicate land for charitable organisation] as that Act makes provision for incorporation of non-profit making organisations, only”.
Annexure 30-B of the Office Practice Guidelines contains a list of charitable organisations as certified by the legal branch of the Crown Lands Department. The list does include ARP. The list does not include Terama Industries Inc.
Letter from ARP to Mayor of Gosford
On 16 October 1981, ARP wrote to the Mayor of Gosford regarding the works approved by the DA 14278/81 in May 1981 the subject of par 24 of the SOAF (in Ex 3). The letter stated in part:
As you are aware, we recently had plans approved for the extension of our Sheltered Workshop facility in Henry Parry Drive. We are only awaiting confirmation of the verbal approval of the Department of Social Security and the timing of their financial assistance, before commencing the work which hopefully will be finished in mid-1982. These extensions will utilise all of that part of our land that is suitable for occupation - you will remember it is a very difficult block for utilisation and access.
This latter aspect has been of concern to our Executive Committee for some time, as it does place a serious restriction upon the type of disabled person that we can employ and train. We encourage our people to develop independence and expect them to travel to the workshop by normal public transport. If their disability affects their mobility, the steepness of the Henry Parry Drive Hill and our own access road becomes a major obstacle and certainly precludes us from admitting anyone in a wheelchair. Ideally our workshop should be located on an area of approximately 1/3 hectare of level 10nd, appropriately zoned for the varied work that we do and served by public transport.
We would like to commence discussions with you and your Council officers to explore all aspects of this problem. Not as an alternative for our planned building extensions which we desperately need for our present level of operations, but as preparation for our future long term development over the next decade. We appreciate that the unusual tenure of our land brings special problems but these like all others, can only be overcome by discussion and we would like to make a start on these in the near future.
Would you please give the matter some of your time and arrange for an initial explanatory meeting to be convened…with the aim of developing a strategy towards having our workshop/operation relocated on a more suitable site…
Internal memorandum of proposed construction of road off Gertrude Street
A memorandum dated 17 March 1969 signed by the Officer-in-Charge for East Maitland addressed to the Under Secretary for Lands (in Ex C) identified that:
Action is proceeding towards the granting of Special Lease 68/12 by Aid Retarded Persons in respect of Allotments 7 and 8 of Section 96…Following construction of the road eleven (11) blocks shown by blue edge will be available for Special Lease or Purchase for similar charitable and youth organisations.
A number of enquiries have been received in respect of the land and in the interest of public relation it is suggested that a press release might be issued by the Minister inviting interested bodies to enquire at this office.
Internal memorandum for disposal of Crown land at Gosford
A document entitled ‘Disposal of Crown Land at Gosford, Parish, Land District and Shire Gosford, County Northumberland’ in Ex C was dated 10 November 1969. It states:
Eleven (11) blocks for disposal, allotments 9 to 19 Section 96…
The purpose of the subdivision is to provide sites for charitable and religious organisations and allotments 7 and 8 have already been granted as Special Lease 68/12 to Aid Retarded Persons.
…
Letter from undersecretary for Lands to General Secretary, ARP dated 18 December 1970
A letter dated 18 December 1970 from the Undersecretary for Lands to the General Secretary of ARP (in Ex C) stated that by Gazette notification of 27 November 1970 Special lease 68/12 Gosford was withdrawn and R88027 for charitable organisations was created and action will now be taken to appoint ARP as trustee. Reservation was subject to some conditions.
Internal memorandum for proposed appointment of ARP as trustee of R88027
This internal memorandum in Ex C identified the proposed appointment of ARP as trustee for R88027 and contained the Minister’s approval of that proposed appointment.
Executive Council minute of appointment of ARP as trustee of R88027, gazettal
On 29 January 1971, the Department of Lands, Reserves Branch via the Under Secretary for Lands forwarded an attached Executive Council minute for submission to the Governor and the Executive Council (in Ex C). That minute recorded the recommendation of the Minister for Lands to the Governor that the attached notice under the Public Trusts Act 1897 (NSW) appointing ARP as the trustee of R88027 be signed and the notice be published in the Gazette. The minute and attached notice of appointment of trustee showed the approval of the Governor on 3 February 1971 that ARP be appointed the trustee of R88027. The notice placed in the Gazette dated 19 February 1971 was also in evidence.
Evidence of the Applicant
The Applicant’s tendered exhibits (other than in relation to traffic/surveying) included the following:
(1)the subpoena to produce issued by the Minister to the Central Coast Council (Ex A) on 18 December 2020 for:
“all documents including but not limited to approvals and development applications for construction/modifications of:
1. Buildings and driveways on Lot 7 in Section 96 DP758466; and
2. Driveways on Lot 8 in Section 95 DP 758466.
(2)A screenshot of the response from Terama Industries Inc regarding documents subpoenaed by the Applicant (Ex B);
(3)Evidence Book pages 196-202 within the exhibit to Ms Osborne’s affidavit, which contained emails between a Senior Property Management Officer at Crown Lands, and General Manager, IT, at Disability Services Australia (DSA) (Ex F).
Emails between Mr Allen and DSA
The series of emails in evidence (Ex F) between the Crown Lands department and DSA, as referred to in [69(3)], begins on 27 June 2018. The exchange proceeded as follows:
(1)The Crown Lands department emailed DSA attaching a copy of the NSW government gazette that appointed ARP as reserve manager of R88027. Crown Lands wrote “[a]s you would be aware the name changed to Amaroo Industries in 2002 and then to Disability Services Australia. Office records has failed to show any request for the now Disability Services Australia to be removed as Trust Manager”. The Crown Lands department asked DSA to check the organisation’s records to see if any administrative action had occurred, noting that any such actions needed Ministerial consent.
(2)DSA responded on 26 June 2018 that “Disability Services Australia does not have any sites that we manage in the Gosford area nor have we since my tenure for the last 8 years. I have checked our old files and there is no property listed in Gosford.”
(3)The Crown Lands department responded on 26 June 2018 referring to previous discussions regarding the care, control and management of the site, referring to Lots 6-8 and the corporate name of R88027. It wrote that DSA was the appointed corporate trust manager notified 19 February 1971.
(4)On 27 June 2018 the Crown Lands department emailed DSA writing that upon reviewing emails it had found a reference to Terama Industries Inc. A Google search identified Terama Industries Inc as being on the land. The Crown Lands department could not find any record of Terama Industries Inc having tenure and hoped DSA could assist.
(5)DSA responded on 27 June 2018 that it had called Terama Industries Inc, who confirmed they are located at 143 Henry Parry Drive. Existing records and retired staff members at DSA did not know of the property.
(6)On 28 June 2018, the Crown Lands department followed up, writing that it had to ensure the land was managed in accordance with the Crown Lands Act and asking for more information on how Terama Industries Inc became involved with the land.
(7)DSA responded on 5 July 2018 that, having asked those who had been working for DSA for a longer period, no one was aware of the property at 143 Henry Parry Drive and no documentation relating to it could be found. DSA questioned who Terama Industries Inc was paying rent to and who has been maintaining the property for the previous 47 years.
Expert evidence of traffic experts/surveyor
As access to Lot 7 over Lot 8 was in issue the parties called expert traffic engineers Mr Ross Nettle and Mr Sean Morgan to address relevant issues assisted by the evidence of Mr Stuart Bracken, surveyor.
The parties’ affidavits and tendered exhibits relating to the traffic and surveyor evidence were as follows:
(1)the affidavit of Mr Nettle dated 7 June 2021;
(2)the affidavit of Mr Bracken dated 9 April 2021;
(3)the affidavit of Mr Morgan dated 23 July 2021;
(4)exhibit RN-2 to the affidavit of Mr Nettle, traffic expert, dated 24 May 2021 (Ex G). A sentence on page 877 of the Evidence Book was not admitted;
(5)the Expert Report of Mr Bracken, surveyor, dated 29 January 2021 (Ex 7);
(6)the Expert Report of Mr Morgan, traffic expert, dated 21 July 2021 (Ex 8); and
(7)the Joint Expert Report of the traffic experts dated 3 December 2021 (Ex 9). A sentence written by Mr Nettle on page 919 of the Evidence Book was not admitted;
(8)the ‘expert bundle’ of documents, sent to assist the Court, parties and witnesses during the giving of concurrent evidence (Ex 2);
(9)an image of uncertain date and provenance sent to the Court by the Applicant’s solicitors displaying Henry Parry Drive at the entrance to the workshop on Lot 7 through a driveway leading up to a roller shutter door (Ex C);
(10)two screenshots of data sourced from the Centre for Road Safety and Transport for NSW respectively showing the location and frequency of motor vehicle crashes on Henry Parry Drive between 2016 and 2020 (Ex D); and
(11)an image captured on March 2020 by Google Street View displaying the roller door fronting Terama Place (Ex E).
Documents referred to in traffic evidence
Before summarising the expert evidence, it is appropriate to extract a number of rules, standards or guidelines referred to in the expert traffic evidence (Ex 2 and 3).
Australian Standard 2890.1 (2004) ‘Part 1: Off-street car parking’ (AS2890.1) relates to cars. At r 3.2.2 ‘Width requirements at low volume (Category 1) access driveways and connecting roadways’ (as applying to the Henry Parry Drive access) it states the following:
Where the circulation roadway leading from a Category 1 access driveway is 30 m or longer, or sight distance from one end to the other is restricted, and the frontage road is an arterial or sub-arterial road, both the access driveway and the circulation roadway for at least the first 6 m from the property boundary shall be a minimum of 5.5 m wide. In other cases subject to consideration of traffic volumes on a case-by case basis, lesser widths down to a minimum of 3.0 m at a domestic property may be provided. As a guide, 30 or more movements in a peak hour (in and out combined) would usually require provision for two vehicles to pass on the driveway, i.e. a minimum width of 5.5 m. On long driveways, passing opportunities should be provided at least every 30 m.
Reversing movements to public roads shall be prohibited wherever possible.
Australian Standard 2890.2 (2002) ‘Part 2: Off-street commercial vehicle facilities’ (AS2890.2) contains the following relevant standards for commercial vehicles including trucks:
1.4 Definitions
…
1.4.8 Major road
A road carrying predominantly through traffic, generally either a two-way roadway and generally more than 12 m between kerbs, or a divided road.
…
Section 3 Access Driveways and Circulation Roadways
…
3.2.2 Occasional service
Requirements and recommendations for providing for occasional service are as follows:
(a) The vehicle shall be able to stand wholly within the site.
(b) Reverse manoeuvres at the property boundary, if permitted by the relevant authority,
shall be limited to one only, either on entering or departing, and shall be subject to consideration of both safety and obstruction to other on-street traffic.
…
3.2.3 Regular service—Major road
Requirements and recommendations for providing for regular service from a major road are as follows:
… (c) Both entry and exit at the property boundary shall be in the forward direction.
The Australian Road Rules (ARR) r 296 states:
296—Driving a vehicle in reverse
(1) The driver of a vehicle must not reverse the vehicle unless the driver can do so safely.
(2) The driver of a vehicle must not reverse the vehicle further than is reasonable in the circumstances.
The RTA NSW Guide to Traffic Generating Development dated October 2002 (RTA Guide), states:
About this Guide.
Purpose.
This Guide outlines all aspects of traffic generation considerations relating to developments. The Guide provides information regarding traffic issues for those submitting Development Applications, and for those involved in the assessment of these applications. The overall objective is that both parties have access to common information relevant to the development approval process
…
Section 6 Access and Parking Area Design
…
6.2 Access requirements
…
6.2.1 Access Driveways - safety considerations.
Public safety is the main consideration when planning the location of access to a development.
...
6.2.2 Access driveways - design considerations.
Design Principles.
Follow these general design principles when planning access driveways for developments:
…
avoid reversing movements into or out of public streets (except in the case of individual dwelling houses).
…
6.4.2 Services vehicle areas.
Design considerations.
…
all vehicles are to enter and leave a site in a forward direction…
Deerubbin Cemetery was summarised by the Minister above in [144]. At issue was whether the claimed land was needed or likely to be needed for the essential public purpose of a cemetery. The land where the cemetery was located was dedicated as a general cemetery in 1889. The claimed land was a vacant parcel of Crown land adjacent to the cemetery. In 1967 an amendment to local government legislation vested the care, control and management of public cemeteries in local councils as trustees. Shortly after that date, the relevant council identified a need for the expansion of the cemetery and proposed a special use cemetery zoning over the adjoining unformed Crown road and the vacant claimed land. Lloyd J held that it could not be said that the vacant land was needed because there was clearly spare capacity within the existing cemetery. The question to be determined was one of likely need. The evidence from planning and environmental experts established that the claimed land was likely to be needed for the expansion of the cemetery and the claim was refused.
The Applicant sought to distinguish Deerubbin Cemetery on the basis that there was an identified need for the expansion of the cemetery, which evidence was said to be lacking in this case. The Applicant also distinguished Deerubbin on the basis that there was a perpetual need for the land for the internment of human remains. Strictly speaking the facts of Deerubbin Cemetery vary from this matter in that the claimed land was vacant at the date of claim and the likely need for the land for the future use as a cemetery was the subject of evidence relating to demand for that use in the future. Once again that is an important difference from this case.
In Wanaruah claims over Crown land were made on various bases. Part of the claim was refused because the land was needed for the essential public purpose of a trig station located on the Crown land at the date of claim. The Minister’s expert referred to the extensive use of trig stations in departmental mapping and for survey purposes and by other authorities and private organisations: at [80]. The evidence established that the existence of the particular station was an essential public purpose for which the claimed land was needed. At the date of claim an electricity transmission line was operating on the land which was part of the electricity works maintained and administered by a statutory state-owned corporation under the relevant legislation. There was no doubt that the land traversed by the line was needed for electricity distribution. The Minister discharged the onus of proving part of the Crown land was not claimable. As the Minister identified, no issue arose of whether there had been an expression of need by any level in the NSW Government at or near the date of claim.
Evidence of general demand for facilities for supported employment for disabled persons in 2009 in is identified in the Exhibit attached to Mr Fegan’s affidavit, summarised above. While not particular to Lot 7 it provides relevant information to assess the need for such facilities, and was relevant to the determination that the public purpose was essential.
In Newcastle Post Office at [194] it was said that evidence of varying purposes over time suggests that the claimed land was not needed for a particular use to a sufficient extent to satisfy the ALR Act. Similar reasoning is found in Castlereagh CA at 254 (Handley and Powell JJA). Arguably, the inverse holds true, that evidence of a singular consistent use for an essential public purpose over time suggests the claimed land is needed for the essential public purpose. Lack of knowledge of Terama Industries Inc’s occupation of Lot 7 while suggestive of poor record keeping in the Crown Lands department compounded by the department’s inability to undertake periodic or regular reviews of the use of Crown land does not undermine the Minister’s case. A reserve manager has at all times been appointed to R88027 with the entity appointed in 1990 being incorrect. It is fair to describe this omission by the Crown Lands department as technical and able to be cured under the CL Act. The view formed in 1969-1971 about the use of Lot 7 for an essential public purpose together with the continuous use of Lot 7 satisfies the Minister’s onus of proof that Lot 7 was needed for the essential public purpose relied on. I note that the Court of Appeal authorities stating that for land to be “needed” there should be an actual decision concerning use at the level of the Executive government (see Maroota CA at [50]; Berowra CA at [25]) do not state that the decision needs to occur at any particular time, other than before the date of claim. In this case, an actual decision concerning use was made and the use for an essential public purpose has continued uninterrupted for decades.
It is unnecessary to consider ‘likely to be needed’. The statements in various cases referring to the ‘trajectory’ of decision-making within the NSW Government about a future use of land do not arise for consideration on the facts of this case.
Two further issues require consideration.
16 October 1981 letter from ARP to mayor of Gosford
The Applicant relied on a letter dated 16 October 1981 from Terama/ARP NSW Central Coast branch to the mayor of Gosford referring to the recent development application made for extension of the sheltered workshop facility in Henry Parry Drive (see above in [63]). The letter refers to the difficulty of accessing the block including for wheelchair access and identifies that the attributes of desirable land include, inter alia, being level. The letter seeks discussions with the mayor and council officers with the aim of developing a strategy towards having the workshop operation relocated on a more suitable site, without having any financial burden on limited resources.
It is difficult to know precisely how such a letter is relevant unless to support an argument that Lot 7 is unsuitable, and that the public purpose could be provided more satisfactorily somewhere else. I consider this request and expression of opinion about the suitability of use of Lot 7 is irrelevant to the case the Minister must prove. The use of Lot 7 has continued for the same essential public purpose from 1970 up to the date of claim. Mr Fealy describes facilities for access by people in wheelchairs to the workshop and their use by people in wheelchairs as part of the land use at the date of claims. Mr Fealy could have been cross-examined about the letter and was not. It is settled principle that the Minister does not have to prove that the essential public purpose cannot be conducted anywhere else.
Does s 36(1)(c) require occupation of Crown land to be lawful?
A further issue requires determination in light of the Applicants’ submissions at [185] that continuous use in carrying out of the essential public purpose was immaterial because Terama Industries Inc was not in lawful occupation, inferring this is a requirement in order to satisfy s 36(1)(c). The circumstance that the needed essential public purpose was being conducted on Lot 7 by an entity in unlawful occupation at the date of the claim gives rise to the issue of whether lawfulness of occupation is relevant to the assessment of need or likely need for an essential public purpose. Whether the occupation of Crown land is lawful does not change the nature of the activity which constitutes the essential public purpose, in this case of providing supported employment to disabled persons. There is nothing inherently unlawful in conducting that activity. The statutory construction issue that arises is whether the essential public purpose relied on under s 36(1)(c) contains an implied element of lawfulness of occupation of the entity carrying out the public purpose, the words ‘lawful occupation’ or ‘lawful’ not being included explicitly in the subsection or anywhere else in s 36(1) apart from s 36(1)(b). No authority appears to have dealt with this issue. The Applicant did not refer to any case. It appears this is the first time this statutory construction issue has arisen given the somewhat unusual circumstances that arise in this case.
The modern approach to statutory construction requires that the text must be construed in its broad context in the first instance, with which consideration of purpose overlaps: Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 (Sydney Seaplanes) at [26]-[32] (Bell P, Leeming JA and Emmett AJA agreeing); Herzfeld and Prince, Interpretation (2nd ed, 2020, Thomson Reuters) (Herzfeld and Prince) at [1.140]. Purpose must be considered as a matter of legislative fiat by virtue of s 33 of the Interpretation Act 1987 (NSW): at [33].
The parties made conflicting general submissions about the application of Berrima Gaol HC to statutory construction of the ALR Act. At issue in that case was whether Crown land was occupied at the claim date. A majority of the High Court constituted by French CJ, Kiefel, Bell and Keane JJ stated at [34] concerning statutory interpretation, acknowledging the beneficial objects of the ALR Act, that:
34. True it is that the words "used" and "occupied" might be said to take much of their meaning from context. But that is not to say that they are devoid of a commonly understood meaning in ordinary parlance. They require an examination of activities undertaken upon the land in question and, in the case of "occupied", factors such as continuous physical possession must be taken into account. No question of differing approaches to construction arises for limiting the ordinary understanding of that term by reference to the beneficial purposes of the ALR Act.
Writing separately, Gageler J stated at [94]:
94. The beneficial purpose of the Land Rights Act is reflected in its recital and has repeatedly been acknowledged. Yet the beneficial purpose of the Land Rights Act says nothing of itself about how far the Act goes in pursuit of that purpose. In particular, it says nothing of itself about where the precise limits of claimable Crown lands are to be drawn in applying the detail of the definition in s 36(1). The principle that, as beneficial legislation, the Land Rights Act is to be construed beneficially does not mean that the most expansive view of claimable Crown lands must be taken whenever constructional choice arises in the application of that definition. The principle was not considered by the plurality in the Wagga Wagga Motor Registry claim case to provide relevant assistance in giving precise content to the words of s 36(1)(b). The principle provides no greater assistance in giving precise content to the same words here.
Berrima HC was focused on the scope of ‘use’ and ‘occupation’ in s 36(1)(b). I take from the passages above that generally the usual principles of statutory construction apply to the ALR Act. If there is a constructional choice required, a beneficial interpretation may be warranted. I do not consider such a constructional choice arises here. Applying the usual principles of statutory construction to whether there is an implied element (there being no explicit element) of lawful occupation in s 36(1)(c), the text and context are plain in that, unlike s 36(1)(b), lawfulness is not relevant to the inquiry under s 36(1)(c). The word ‘lawful’ or ‘lawful occupation’ does not appear in any other sub-section of s 36. To adopt the Applicant’s construction requires that the word ‘lawful’ or ‘lawful occupation’ be read into that subsection and no constructional basis for doing so arises in the context of s 36 as a whole, viewed also in the context of the ALR Act: see Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [35]-[40] (French CJ, Crennan and Bell JJ); Herzfeld and Prince at [5.300]-[5.340].
While I note that the Applicant relied on my finding that the test will not be satisfied if the functions could be carried out regardless of who owns the land (Darkinjung 2006 at [166]) that finding was made in relation to a minor consideration of asset protection in that case and has little relevance to the context I am considering. An important consideration in this case is that, as the Applicant accepted as it is consistent with authority, the Minister does not have to prove that the essential public purpose could not be achieved anywhere else.
Conclusion on Lot 7 – not claimable Crown land
For the above reasons I consider the Minister has established that Lot 7 was not claimable Crown land at the date of claims as it was then needed for the essential public purpose of the provision of supported employment for disabled persons. Lot 7 is not claimable Crown land for the purposes of the ALR Act.
Essential public purpose – Lot 8
At the date of claims, Lot 7 was accessed through a driveway on part of Lot 8 from Terama Place, a cul de sac, and from Henry Parry Drive, a major road. Whether Lot 8 was needed for an essential public purpose at the date of claims next arises, given my conclusion above that Lot 7 is not claimable Crown land. I note that Lot 8 is reasonably large and the driveway occupies only the ‘top’ section, off Terama Road.
Minister’s submissions
The initial special lease and then reservation and appointment of ARP as trustee of Lot 8, together with continuous use, is enough to show that the land was needed for an essential public purpose of providing supported employment for disabled persons at the date of claims.
Further, the Minister submitted that the expert and lay evidence shows that the driveway on Lot 8 was the only available and safe access to Terama Industries Inc.
Mr Fealy’s evidence establishes that it was necessary to Terama Industries Inc’s operations on the land that trucks deliver the materials for production and pick them up once produced and the expert evidence is to the effect that the only available and safe way to do that was the Lot 8 driveway. That is, the evidence is to the effect that, without trucks, Terama Industries Inc would not be able to carry out any of its activities, and that trucks must use the Lot 8 driveway, and therefore the evidence does support the proposition that the Lot 8 driveway was needed for the essential public purpose of supported employment for disabled persons.
The traffic experts identified the three access points above in [81]. They agreed no alternative driveway could be constructed (see above in [95]). Mr Morgan’s evidence should be preferred on all questions.
Henry Parry Drive driveway
In relation to the Henry Parry Drive driveway, the experts agreed that cars and small minibuses could turn around in the widened driveway area and therefore exit in a forward-facing direction onto Henry Parry Drive, avoiding safety concerns. Mr Morgan observed that the area is marked as “existing carpark” on the 1981 DA plans and if cars were parked in that area they would not be able to turn around without the parked cars being moved (see above in [109]). Mr Nettle did say that moving the cars would not be difficult to arrange however the experts ultimately agreed that the ability of the carpark to be used as such would be disturbed by its use as a turning circle (see above in [109]). The evidence is that the driveway was used for carparking at the date of claims, including the marking as “existing carpark” on the DA plans and Mr Fealy’s evidence above in [30]. The Minister submitted that it was therefore not viable for the widened driveway to be used as a turning circle by cars and small minibuses.
The experts agreed that trucks could not turn around in the widened driveway area (see above in [109]).
As to the permissibility of cars reversing onto Henry Parry Drive, AS2890.1 provided that reversing movements shall be prohibited wherever possible. Mr Nettle’s evidence on this was confused but Mr Morgan’s was clear that reversing was contrary to this standard (see above in [105]) and should be preferred.
As to the permissibility of trucks using the driveway to reverse onto Henry Parry Drive, the clear and unwavering effect of Mr Morgan’s evidence was that it would be impermissible under the applicable standards and rules and also unsafe for trucks to reverse either into or out of the Henry Parry Drive driveway (see above in [84], [85], [98], [104]). Mr Nettle began by arguing that reversing was permissible under AS2890.2 r 3.2.2(b), the consent and the ARRs (see above in [83]). He eventually conceded that the occasional service rule limits truck movements to at most only one per day, so that it has no application where there is more than one reversing movement (see above in [101]). Mr Nettle also accepted that permissibility under the standards was dependant on safety (see above in [101]).
Ultimately, the experts accepted that Henry Parry Drive was a “major road” within the definition in AS2890.2 r 1.4.8 and therefore the relevant standard was AS2890.2 r 3.2.3, meaning that entry and exit must be in a forward direction (see above in [104]). The experts agreed that reversing was also contrary to the RTA Guide (see above in [84], [102]).
Despite the debate about the status of the RTA Guide, Mr Morgan’s evidence should be preferred to the effect that the RTA Guide must be complied with in the same way as the Austroads standards.
Mr Fealy’s evidence is that as at 2009 there were two trucks and the driveway was used by those trucks about three times a day, five times a week (see above in [28], [29]). Accordingly, the Respondent submits it is clearly impermissible and contrary to AS2890.2 r 3.2.2 for trucks to reverse into or out of Henry Parry Drive.
As to the safety and desirability of reversing into or from Henry Parry Drive, Mr Morgan’s unwavering evidence was that reversing onto Henry Parry Drive was unsafe. His reasons for this were clear and understandable: they were that due to the speed of the vehicles on Henry Parry Drive, the downgrade of the traffic and the forward visibility, the fact that a truck reversing was likely to need two lanes, and therefore there was risk of collisions with cars and safety issues for pedestrians (see above in [85], [98]).
Mr Nettle maintained that trucks reversing was safe, but this opinion was based on a number of mistakes including the following.
(1)He accepted that the SISD for the driveway should be calculated as Mr Morgan had done and therefore that the SISD was exceeded for trucks, which it must be accepted occurs from time to time through the use of Henry Parry Drive (see above in [103]).
(2)He considered that the speed outside the driveway was 50km/h when it was actually 60km/h (see above in [103]).
(3)He called the incline a slight downgrade (see above in [106]) when it is in fact significant, being 13.6% (par 7 of SOAF) where the maximum downgrade in the standards is 8% (Table A7, mentioned but not extracted above in [78]).
(4)He relied on statistics as to crashes on parts of Henry Parry Drive (Ex D, see above in [72(10)], [106]), which do not support that trucks reversing onto or into Henry Parry Drive was safe because those statistics do not take into account the added risks of reversing onto Henry Parry Drive. If that was permitted, there would be an increased risk of accidents (see above in [107]). In any case, those were statistics as at 2016-2020 and not as at the date of claims.
When presented with a busy dual lane road of 60km with a steep downhill incline, Mr Nettle maintained that it was safe and not obstructive to traffic for a truck to reverse onto Henry Parry Drive. This is not believable.
Roller door access into level 3
The Minister submitted that the evidence does not establish that the roller door access into level 3 off Terama Place is one that as at the date of claims could be used to accommodate trucks for the types of packing and unpacking activities that Terama Industries Inc undertook on the land at that date.
The experts agreed that the width of the driveway suggested it was designed to accommodate trucks. The experts were unclear whether the height would enable trucks to drive into the workshop and whether the bridge like driveway could support the weight of a truck (see above in [111]). It was unclear whether the driveway was long enough for a truck to load and unload outside. Mr Morgan considered it was not and Mr Nettle considered it was (see above in [112]).
Even if the access point could theoretically be used for trucks, Mr Fealy’s evidence establishes that this was not viable (see above in [27]). Mr Fealy gave evidence that the roller door entered straight into the warehouse where half the workers at any given time were working. It was never used for trucks and could not be because if trucks were driving in there would not be enough space to fit the workers, nor would the location have all the equipment they need, including the hoist to distribute the materials, the shrink wrapper and the pallet wrapper. It would disrupt workshop operations to have to change from current practice. A photograph in Ex 2 showed the roller door open directly onto a workshop area with tables.
Encroachment onto Lot 6
The Applicant has not established that any further encroachment arose from the 2011 building works. There was an encroachment along the back of Lot 6. The experts have agreed that cars could squeeze along the driveway without encroachment (see above in [92]).
The fact that the Applicant, who obtained Lot 6 in 2020, would as at today’s date refuse permission for the encroachment, has no bearing on the issues as at the date of claims. In any case, the issue of any effect on Lot 6 does not bear on the question in respect of Lot 8 of whether it is claimable Crown land. The Applicant, as the current holder of Lot 6, has legal remedies in relation to an encroachment on their land which remedies are a matter for separate proceedings.
Furthermore, the niceties of town planning laws are not relevant to questions of lawfulness under s 36(1)(b) of the ALR Act let alone s 36(1)(c): Tweed Byron Local Aboriginal Land Council v Minister Administering Crown Lands (Consolidation) Act (1990) 72 LGRA 177 (Tweed Byron) at [114] (Stein J).
Easement
The Minister accepts that the need for part of Lot 8 for access to Lot 7 and for carparking could be met by the imposition of an appropriately drafted easement, if terms could be agreed with the Applicant.
Applicant’s submissions
The expert evidence is ultimately irrelevant where the Minister has conceded that Terama Industries Inc is an unlawful user because the use of Lot 8 as a driveway results in a trespass onto Lot 6. Nevertheless if the claim over Lot 7 is refused, the Applicant submitted that the need for Lot 8 at the date of claims has not been established.
Entry from Henry Parry Drive
In opening submissions the Applicant submitted that the driveway from Henry Parry Drive provided access for the carport on Lot 7. There is no evidence that at the date of claims, Terama Industries Inc's business required it to limit its services to the kinds of services which required the use of Lot 8. Car access to the carport was available via the Henry Parry Driveway. If Terama Industries Inc did not have the use of Lot 8 as at the date of claims, it would nonetheless have been able to use Lot 7. The limited restriction to movements by passenger cars would have been an inconvenience but that does not mean the use of the Lot 8 driveway is required.
In closing submissions the Applicant submitted that given safety concerns about reversing in or out of Henry Parry Drive (which were clearly established following the traffic experts’ evidence which confirmed Mr Fealy’s lay opinion), the roller door access from Terama Place to the warehouse on level 3 could have been used for truck access and therefore Lot 8 was not needed at the date of claim.
Vehicular access to level 3 roller door
The roller door access to the warehouse on level 3 was large enough for trucks to use and could have been used to obtain direct access to the workshop at the date of claims (see above in [81(1)], [111], [112]). The safety concerns in relation to Henry Parry Drive do not arise if that access is used (see above in [114]). The roller shutter has been reduced in size since December 2009 to accommodate a doorway, precluding its use as access for loading trucks. Mr Fealy’s evidence above in [27] was given taking into account how the warehouse is currently operating, which includes the reduced door size. If trucks cannot fit into level 3, this is because works have been undertaken to reduce the size of the roller door since the date of claims, and because Terama Industries Inc has set up the area behind the roller door to accommodate tables and chairs. Mr Bracken agreed that some adjustment to the way the building currently operates would be required (see above in [113]).
If Terama Industries Inc used the structure marked “existing carport” on the plans as a carport and used the roller door truck access to the workshop on level 3 from Terama Place at the date of claims for its intended purpose, Terama Industries Inc could still operate on Lot 7. This may be an inconvenience to Terama Industries Inc and may well require it to reduce the size of its operation at present, but it should be observed that its current operating capacity is based on modifications and uses of the existing warehouse that are not in accordance with the approved plans.
Encroachment onto Lot 6 and 2011 Building works
According to the survey undertaken in December 2020, the southern face of the driveway's existing kerb line encroaches onto Lot 6 by up to 1300 millimetres (see above in [93], [96]). A passenger car would be able to squeeze between the retaining wall at the south-east corner of the workshop and the boundary with Lot 6 (a gap of approximately 2250 millimetres), but a pallet truck would not as the minimum gap required for a truck is 3500 millimetres (see above in [92]).
Lot 6 is owned by the Applicant. The Applicant has not given any permission to Terama Industries Inc allowing a truck or any other vehicle to traverse the boundary line into its property. There is no easement which would afford Terama Industries Inc, or any other occupier of Lot 7, that right. The Applicant has the right to refuse to give that permission if it so decides. Given that a truck cannot use Lot 8 to access Lot 7 without traversing into Lot 6, and the Applicant does not consent to that occurring, Terama Industries Inc cannot use Lot 8 for the asserted essential public purpose without committing a trespass. In order for an asserted essential public purpose to justify the refusal of an Aboriginal land claim, the activities associated with it must be able to be lawfully done.
Mr Fealy’s second affidavit gives evidence of building works undertaken on the carport on level 1 in 2011. The area marked “existing carport” on level 1 facing Henry Parry Drive has been “significantly” extended, as agreed by the experts (see above in [115]-[116]). This has exacerbated the encroachment onto Lot 6. Those works enlarged the structure and widened the access roller door. The Applicant issued a subpoena to the Minister seeking documents related to approvals and development on Lot 7, as identified above in [40] in Mr Fealy’s oral evidence and [69] in the Applicant’s evidence. No documents were produced in response to the subpoena. The Minister acknowledges that there is no evidence of a development application for the 2011 building works and the Minister bears the onus of proving that development consent was obtained and cannot. The Applicant submitted that despite the limitations of the SIXmaps software, the evidence is that the 2011 building works on Lot 7 extended the encroachment onto Lot 6 (see above in [117]).
The objects of the ALR Act are undermined where during the period that it takes to determine claims, the Minister allowed the land to be subject to an unlawful encroachment by entities occupying the land without lawful authority such that Lot 6, the land already granted, becomes unusable for the beneficial and remedial purposes for which it was granted.
Consideration of essential public purpose – Lot 8
The Minister bears the onus of establishing that Lot 8 was being used for an essential public purpose at the date of claims. The Minister relies on the use of the driveway on Lot 8 to access the workshop on Lot 7 at the date of claims. The Applicant seeks to demonstrate that the use of Lot 8 was not needed for the essential public purpose relied on by the Minister because the operation of the workshop on Lot 7 did not require it at the date of claims. Mr Fealy’s evidence clearly establishes that the driveway on Lot 8 was being used to access Lot 7 at the date of claims in a manner that had continued for several decades up to that point. The driveway on Lot 8 has been in its present location and used for as long as he could remember. The SOAF refers to the driveway being on Lot 8 in 1969-1970, at par 16. The Applicant submitted in opening that Lot 8 was not essential for the use of Lot 7, a surprising submission given it was being used for decades according to the SOAF and Mr Fealy’s evidence. Two hypothetical scenarios were the subject of traffic engineering evidence. Firstly, that trucks and cars can enter and leave Lot 7 solely from Henry Parry Drive safely and presumably could have done at the date of claims and, secondly, that the roller door off Terama Place on level 3 of the workshop could have been utilised for truck deliveries and pick-ups at the date of claims. These scenarios if implemented would not require the use of Lot 8 according to the Applicant. Only the latter was ultimately pressed by the Applicant.
Paragraphs 39-44 of the SOAF contain a brief description of the layout of Lots 7 and 8, with a workshop building on Lot 7 and a driveway that runs from Terama Place on Lot 8 around the back of the workshop through a carport and onto Henry Parry Drive. The survey above in [11] shows the relationship of the lots. It is agreed that the driveway on Lot 8 was used by vehicles accessing the workshop, carport and parking on Lot 7. The workshop operates 5 days a week. Mr Fealy’s first affidavit summarised above at [23]-[30] describes in some detail the number of employees and staff attending the workshop each day (56 people); what is contained on the three levels of the workshop, including level 3 which has roller door and driveway access to the street level at Terama Place to which vehicle access is prohibited as the whole floor is used daily as a workshop; and the way activities on Lot 7 were conducted with deliveries and pick-up by trucks which drive across Lot 8 from Terama Place onto Lot 7 and exit onto Henry Parry Drive. For as long as Mr Fealy can remember trucks have never used the Henry Parry Drive access to enter the site as it at is a busy main road and the site is at the bottom of a steep rise to the north. Mr Fealy also describes the parking arrangements for the employees and staff on Lot 7 at the date of claims. Employees and staff exit Lot 7 onto Henry Parry Drive, never entering the site from that road. Wheelchair access arrangements are discussed. The parties agreed that Henry Parry Road is classified as a “Main Road” in the SOAF par 7 and a “Major Road” for the purposes of cl 1.4.8 of AS2890.2 (see above in [104]).
The use of Lot 7 relied on the use of the driveway on Lot 8 at the date of claims
As submitted above in [254] by the Minister Mr Fealy’s evidence establishes that the use of Lot 7 relied on the utilisation of the driveway on Lot 8 for truck access for deliveries and pick-ups at the workshop on Lot 7. Employees and staff also accessed the site in that manner, as at the date of claims.
Given the state of the traffic engineers’ evidence at the end of joint evidence as set out above in [97]-[110] the experts agreed that trucks could not turn around at all in the widened driveway area. Cars and mini buses could turn around if no cars were parked in an area the evidence establishes was used as car parking. As that could not have been a viable arrangement at the date of claims the issue of reversing from the Henry Parry Drive driveway arose. It is clear that reversing of any vehicles, particularly trucks, onto Henry Parry Drive, a major road, from Lot 7 would be unsafe and not permitted under the relevant Australian standard or the RTA Guide. That is not therefore an option to be considered for access to Lot 7 in substitution for the use of Lot 8. The Minister’s summary of the traffic engineering evidence as set out above in [256]-[265] is accurate. To the extent there was disagreement between the experts following joint evidence, Mr Morgan’s opinion is to be preferred to Mr Nettle as I consider Mr Morgan’s evidence more accurately reflected the actual circumstances of vehicle use on Lots 7 and 8 and his approach reflected a correct and greater focus on safety than Mr Nettle particularly in his application of the RTA Guide. I further take into account Mr Fealy’s lay opinion summarised above in [28] concerning the lack of safe access to and from Henry Parry Drive given the location of Lot 7 at the bottom of a steep incline, the speed of traffic outside Lot 7 and the volume of traffic on the main road.
The Applicant submitted that a further entry for trucks onto Lot 7 which Terama Industries Inc could have availed itself of at the date of claims was the existing concrete driveway over a void to a garage size roller door on level 3 from Terama Place. Terama Place is safer from a traffic management perspective being a cul de sac. That entry has never been used for truck delivery or pick up purposes according to the unchallenged evidence of Mr Fealy. Regardless of whether it is technically feasible from a traffic management or engineering viewpoint, and there was no evidence of the strength of the concrete driveway over the void, the operational requirements outlined by Mr Fealy make such an approach untenable. The area on that level is occupied by employees and does not have access to the necessary equipment which enables the space to function as a pick-up and drop-off point. That the roller door aperture may have been narrowed after the date of claims as the evidence of Mr Fealy suggested has no relevance given the circumstances which existed at the date of claims. A hypothetical different use of level 3 put forward by the Applicant to be assessed at the date of claims is difficult to attribute any weight given the actual use of the land that was occurring.
The Minister has established through Mr Fealy’s uncontested evidence (not the subject of cross-examination) and the traffic engineering evidence summarised above in [71]-[114] that the use of Lot 7 required the use of the driveway on Lot 8 for safe access and as a matter of utility at the date of claims.
Conclusion on Lot 8 – driveway not claimable Crown land
For the above reasons the Minister has established that the part of Lot 8 where the driveway was used to access Lot 7 was needed for an essential public purpose at the date of claims and is not claimable Crown land.
Encroachment on Lot 6 irrelevant to whether Lot 7 and Lot 8 claimable Crown land
That the use of the driveway on Lot 8 causes an encroachment on Lot 6 apparently became known to the parties only when Mr Bracken prepared his survey in December 2020. The extent of the encroachment is identified in the survey plans referred to above in [96]. According to Mr Fealy the position of the driveway on Lot 8 has been there for as long as he can remember. There is no evidence there was at any stage any deliberate encroachment onto Lot 6 from Lot 8. The traffic engineers considered that cars can access Lot 7 from Lot 8 without trespassing onto Lot 6.
The Applicant submitted that the act of trespass on Lot 6 when Lot 8 is used at least by trucks means that Lot 8 is claimable Crown land. It is difficult to place such an argument in the context of s 36(1) of the ALR Act. Similarly it is difficult to place the Applicant’s submission that the changes to the building on Lot 7 in 2011, for which there is no evidence that development consent was granted, and which may have resulted in a further encroachment onto Lot 6 as a relevant circumstance which renders Lots 7 and 8 claimable Crown land.
I note that a legal avenue available is an application under the Encroachment of Lands Act 1922 (NSW) which is directed to rectifying situations of encroachment through realignment of boundaries and/or the making of payment for land encroached on. The encroachment on Lot 6 is irrelevant to whether Lot 7 or part of Lot 8 is claimable Crown land.
Future finalisation of orders
The possibility arises that the part of Lot 8 not used as a driveway to access Lot 7 can be claimable Crown land under the ALR Act. Before finalising any order I would like to discuss with the parties the options available for the transfer of the whole of Lot 8 to the Applicant subject to an easement over the existing driveway in favour of Lot 7 or whether that part of Lot 8 not used for the driveway can be transferred to the Applicant, depending on the operation of the ALR Act. A timetable for doing so will be discussed with the parties.
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I CERTIFY THAT THIS AND THE 115 PRECEDING PAGES ARE A TRUE COPY OF THE REASONS FOR THE JUDGMENT OF THE HONOURABLE JUSTICE N. H. M. PAIN.
Acting Associate
7 June 2022
Amendments
24 October 2022 - Internal cross referencing in paragraphs [136], [137], [152], [192], [216] amended according to the Slip Rule on 21 October 2022.
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