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

No judgment structure available for this case.

Reported Decision: (2006) 149 LGERA 162

Land and Environment Court

of New South Wales

CITATION: Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act and Anor [2006] NSWLEC 180

PARTIES: APPLICANT
Darkinjung Local Aboriginal Land Council
FIRST RESPONDENT
Minister Administering the Crown Lands Act
SECOND RESPONDENT
Wyong Shire Council

FILE NUMBER(S): 30425 of 2005

CORAM: Pain J

KEY ISSUES: Aboriginal :- land claim - claimable Crown land - meaning of lawful use and occupation - whether interest in land under the Crown Lands Act 1989 - whether control exercised under Local Government Act 1993 - whether multiple activities are lawful use or occupation - meaning of "needed/likely to be needed for an essential public purpose" - meaning of community facilities - whether private activity can fulfil public purposes - whether nature conservation by local council an essential public purpose - whether a local council's purposes are public purposes - consideration of multiple public purposes

LEGISLATION CITED: Aboriginal Land Rights Act 1983 Recital, s36(1), s36(5), s36(6), s36(7), Part 2
Conveyancing Act 1919 s178
Constitution Act 1902 s51
Crown Lands Act 1989 s6, s7, s34(1)(a), s34(1)(b), s80, s87, s92, Pt 5
Crown Lands Consolidation Act 1913 s28
Education Act 1990 s122
Environmental Planning and Assessment Act 1979
Local Government Act 1993 s48, s56(2), s187
National Parks and Wildlife Act 1974
Protection of the Environment Operations Act 1997 Pt 5.6A
Rural Fires Act 1997, s6, s7, s22 , s23
Summary Offences Act 1988
Threatened Species Conservation Act 1995
Water Management Act 2000 s285
Wyong Development Control Plan – 44 “San Remo Community Centre”
Wyong Development Control Plan - 81 "Retail Policy and Retail Investment Framework"
Wyong Local Environmental Plan 1991

CASES CITED: Bank Voor Handel En Scheepvaart v Slatford [1953] 1 QB 248;
Bathurst City Council v PWC Properties (1998) 195 CLR 566;
Birrigan Gargle Aboriginal Land Council v Minister Administering the Crown Lands Act (1999) 102 LGERA 33;
Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 ;
Daruk Local Aboriginal Land Council v Minister administering the Crown Lands Act (1993) 30 NSWLR 140 ;
Deerubbin Local Aboriginal Land Council v Minister administering the Crown Lands Act (1997) 95 LGERA 353;
Georgeski v Owners Corporation 49833 [2004] 62 NSWLR 534;
La Perouse Local Aboriginal Land Council v Minister administering the Crown Lands Act (1991) 74 LGRA 176 ;
Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 ;
Minister Administering the Crown Lands Act v Deerubbin LALC (No 2) (2001) 50 NSWLR 665 ;
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (No 2) (1997) 42 NSWLR 641 ;
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1993) 31 NSWLR 106 ;
Minister Administering the Crown Lands Consolidation Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 ;
Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 ;
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 ;
New South Wales Aboriginal Land Council v Minister for Natural Resources (1986) 59 LGRA 318;
New South Wales Land Council (on behalf of Dubbo Local Aboriginal Land Council) v Minister administering the Crown Lands Act [1997] NSWLEC 157 (unreported, Lloyd J, 22 October 1997) ;
Re Ellenborough Park [1956] Ch 131 ;
Western Australia v Ward (2002) 213 CLR 1;
Wanaruah Local Aboriginal Land Council v Minister administering the Crown Lands Act (2001) 113 LGERA 163;
Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act and Anor (1991) 72 LGRA 149

DATES OF HEARING: 06/04/2006, 07/04/2006, 10/04/2006, 11/04/2006

DATE OF JUDGMENT:
09/20/2006

LEGAL REPRESENTATIVES: APPLICANT
Mr T Robertson SC with Mr J Lazarus
SOLICITOR
Woolf Associates
FIRST RESPONDENT
V B Hughston SC and J Waters
SOLICITOR
Crown Solicitor
SECOND RESPONDENT
M Wright (Barrister)
SOLICITOR
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

20 September 2006

30425 of 2005 Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act and Wyong Shire Council
JUDGMENT

1 Her Honour: On 28 July 2003, the Applicant lodged Aboriginal land claim No 6989 over land identified as Lot 183 DP 823113 Brava Avenue, San Remo, New South Wales (“Lot 183”) under the Aboriginal Land Rights Act 1983 (“the ALR Act”). Lot 183 was Crown land at that stage. Wyong Shire Council (“the Council”) became the owner of Lot 183 on or about 10 June 2004 by way of compulsory acquisition from the Crown. The Minister administering the ALR Act refused the claim under s 36(5)(b) of the ALR Act on 22 March 2005. The Applicant has lodged this Class 3 appeal under s 36(6) of the ALR Act.

2 A view was conducted of the site and surrounding area during the hearing. I would like to thank Commissioner Davison for his assistance in this matter.

Description of Lot 183 and the locality

3 Lot 183 has an area of 1.2 ha and is heavily vegetated with coastal swamp forest in the southern portion. A sewer line runs east-west across the land. There is an unformed walking track next to or over the sewer line. There are also drainage pipes and unpiped drainage lines on the land. Other unformed walking tracks across the land have been created through long use by members of the public. It adjoins Lot 160 to the east. The San Remo Neighbourhood Centre and the Links Youth Centre are on Lot 160 DP 46754 being Crown reserve no 97329 (“Lot 160”).

4 To the north of Lot 183 is a residential subdivision completed in 1994 fronting a cul-de-sac known as Scribbly Gum Close. A number of dwellings in the subdivision adjoin Lot 183. To the east of Lot 183 is Northlakes High School on the opposite side of Brava Road. Adjoining Lot 183 to the west is a large parcel of land which fronts the Pacific Highway. The Charmhaven Hotel and a service station with associated shop are located on that land. To the south-east is further residential development.

5 San Remo is a residential community within the Wyong Local Government area. The area is characterised by single lot residential development. It is bounded by Wallarah Creek and Budgewoi Lake to the south, the Pacific Highway to the west, Scenic Drive to the east and bushland to the north. The suburb of Blue Haven adjoins San Remo to the west and Doyalson is located to the north of Blue Haven.

History of Lot 183/Lot 160

6 On 10 August 1951, a parcel of Crown land including Lot 183 was reserved from sale for future public requirements under s 28 of the Crown Lands Consolidation Act 1913 (“the CLC Act”). No trustee has been appointed as manager of the land under the Crown Lands Act 1989 (“the CL Act”) or the CLC Act. Lot 160, which is adjacent, is also Crown land. It has an area of approximately 5,000m2 and has been reserved for community purposes since 1984. The Council is the trustee/manager of Lot 160, pursuant to the CL Act.

Respondents’ reasons for refusal of claim

7 The Minister relied on the Council’s use and occupation of the land and its purposes in relation to the land to refuse the Applicant’s claim. In identical statements of grounds as to why the land is not claimable Crown land, both Respondents argued that at the date of the claim (28 July 2003) Lot 183 was needed or likely to be needed for the essential public purposes of:

(i) a neighbourhood centre, that is, a retail centre integrated with, and associated with, car parking and community facilities

(ii) car parking and community facilities (arising independently of the association of such purposes with a retail centre)

(iii) a drainage system, comprising of a piped and unpiped drainage channel, overland flow path and retention basin

(iv) sewerage infrastructure

(v) asset protection from fire

(vi) nature conservation

(vii) public access.

8 Further, at the date of the claim (28 July 2003), Lot 183 was lawfully used and/or lawfully occupied by Wyong Shire Council as a result of the following uses:

(i) The use of the land for sewerage infrastructure, originally constructed by the Council in around 1980-1982 and then replaced in September 1995, and the inspection and maintenance of the sewerage infrastructure by officers of the Council.

(ii) The use of part of the land as a piped and open drainage channel, overland flow path and retention basin, and the inspection and maintenance of the drainage channel and overland flow path by officers of the Council.

(iii) The use of part of Lot 183 by officers of the Council for access to the Council’s sewerage infrastructure and drainage channel/overland flow path.

(iv) The use of Lot 183 adjacent to Scribbly Gum Close as an asset protection zone with respect to the residential properties in that road, and the maintenance of this asset protection zone by officers of the Council in conjunction with the Rural Fire Service.

(v) The care, control and maintenance of the whole of Lot 183 together with the land in Lot 160 immediately adjacent to Lot 183, by officers of the Council. This has involved inspection by Council officers and removal of rubbish and other discarded material, and the inspection of Lot 183 by officers of the Council to determine whether the removal of rubbish from Lot 183 was required.

(vi) The inspection of the whole of Lot 183, together with the land in Lot 160 immediately adjacent to Lot 183 by Council officers. These inspections were carried out to determine whether undesirable/antisocial behaviour by members of the public was occurring on Lot 183, and the removal of any such members of the public from Lot 183 by Council officers.

(vii) The construction of earth mounds at Lot 183 by Council officers to prevent vehicles from being driven through Lot 183 to Brava Avenue.

(viii) The use of the land by members of the public for access to areas to the north of Lot 183, including the Charmhaven Hotel and Scribbly Gum Close, as well as for access from areas to the north of Lot 183 to areas to the south of Lot 183, including Northlakes High School.

(ix) The use/occupation of Lot 183 by Council officers and agents following the Council’s resolutions on 26 February 2003 and April 2003 to compulsorily acquire Lot 183 as part of Council’s strategic urban planning decision to locate a neighbourhood centre on Lot 183 and the adjoining Charmhaven Hotel land, including:

(a) Attendance at the site by the Council’s Strategic Planner, Robert Hodgkins, on 13 March 2003;

(b) Attendance at the site by the Council’s Strategic Planner, Scott Duncan, to conduct field survey work on 21 March 2003;

(c) The preparation by the Council of consultant briefs for a plan of management/preliminary ecological investigation in relation to Lot 183 in May 2003;

(d) Site meeting of Council officers on 23 June 2003;

(e) The engagement by the Council of Robert Payne, flora and fauna consultant on 11 June and field survey work conducted by Mr Payne on 26, 27 and 30 June 2003; and

(f) The preparation by Council of a San Remo and Wadalba economic study consultant brief in July 2003.

Relevant legislation

9 The recital to the ALR Act states:

WHEREAS:

(1) Land in the State of New South Wales was traditionally owned and occupied by Aborigines:

(2) Land is of spiritual, social, cultural and economic importance to Aborigines:

(3) It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land:

(4) It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation:

…

10 Pursuant to s 36(1) of the ALR Act, "claimable Crown land " is defined as:

… lands vested in Her Majesty that, when a claim is made for the lands under this Division:

…

(b) are not lawfully used or occupied,

…

(c) are not needed, nor likely to be needed, for an essential public purpose, …

11 Section 36(5) of the ALR Act states:

(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.

12 The decision as to whether land is claimable Crown land is made by the Minister. The conditions in s 36(1) of the ALR Act must be satisfied at the date the claim is made. On appeal, the Court exercises the same functions and discretions as the Minister and determines in a hearing de novo whether the land is claimable Crown land. The Minister bears the onus of proving that the land is not claimable Crown land (s 36(7)).

13 As provided by s 36(5), a claim may be granted in whole or in part if it is determined that only part of the claimed land is claimable Crown land within the meaning of s 36 of the ALR Act. If a claim is successful the grant is made by transferring the land in fee simple to the land council. In practice, as a first step, a letter is sent by the Minister to the claimant land council informing it of the Minister’s decision. If the claim is to be granted in whole or in part, the land is granted to the claimant land council by the transfer to it of the whole or part of the claimed land in fee simple. Ordinarily if the Court finds that the land is claimable Crown land, the Court can order the Minister to transfer the land to the claimant land council under s 36(7) of the ALR Act. The Council is now the landowner so that if the Court determines that Lot 183 is claimable Crown land the Minister and the Council are likely to enter into arrangements to give effect to that finding.

Purposes of the ALR Act

14 The recital to the ALR Act is set out at par 9 above. As has been noted in numerous cases the Act is beneficial and remedial legislation: see Kirby P Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 157; Stein J NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 at 194. Given that beneficial purpose, exceptions to the right to claim Crown land should be narrowly construed; Minister Administering the Crown Lands Act v Deerubbin LALC (No 2) (2001) 50 NSWLR 665 at [53] – [54] per Spigelman CJ.

15 In Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 Kirby P stated at 157:

The

1983 is beneficial and remedial legislation. Clearly, it was enacted to give important rights in Crown land to the representatives of the Aboriginal people. By common acknowledgement, such people have suffered substantial injustice and loss consequent upon the deprivation of their land following the settlement of Australia. … Against such a background, and given its purposes and context with other land rights and similar remedial legislation, the

1983 should be given by the courts the most beneficial operation compatible with its language. But that language includes s 36. Section 36(5) is clearly designed to take into account competing claims to Crown land.

Lawful use and/or occupation

16 If either s 36(1)(b) or (c) are satisfied Lot 183 is not claimable Crown land. It is appropriate to consider firstly whether Lot 183 was subject to lawful use and occupation at the date of the claim. The activities on the land at the date of the claim are determinative of whether there was lawful use and/or occupation. The Respondents argued there was both lawful use and occupation at the date of the claim (28 July 2003).

17 Before considering the evidence of activities said to satisfy lawful use and occupation there are some legal issues requiring resolution which concern whether or not the activities relied on could be a lawful use and/or occupation.

Section 6 Crown Lands Act – must “use” or “occupation” be pursuant to estate or interest in land?

18 Section 6 of the CL Act states:

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

.

19 Section 7 of the CL Act provides:

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

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

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

Applicant’s arguments

20 The Applicant argued that pursuant to s 6 of the CL Act the only way an interest giving rise to a lawful use or occupation of land can arise over Crown land is if authorised by the CL Act. The CL Act makes provision for a number of mechanisms by which land can be lawfully used or occupied. These include sale, lease, exchange or otherwise dispose of or deal with Crown land (s 34(1)(a)), the granting of easements or rights of way over, or licences or permits in respect of the land (s 34(1)(b)), dedication (s 80), the creation of a trusteeship, appointment of a land manager and adoption of a management plan (Pt 5, Div 4,5 and 6), reservation (s 87) and through the creation of reserve trusts (s 92). These are the only ways in which Crown land can be lawfully used or occupied under the CL Act.

21 The Council has not acquired any interest under the CL Act which can give rise to a lawful use or occupation of the land under s 6 of the CL Act. Its activities on the land are not underpinned by any relevant legal interest and therefore s 36(1)(b) cannot be satisfied.

Respondent’s arguments

22 The reference in the ALRA Act to “lawfully used or occupied’” is not restricted to use or occupation pursuant to an interest created by instrument or grant. The use or occupation can also be lawful if it occurs pursuant to another statutory regime. The Applicant’s reliance on s 6 of the CL Act is misconceived. See Georgeski v Owners Corporation 49833 [2004] 62 NSWLR 534, par 28, below.

23 As a matter of statutory construction words of general import should not be construed as abrogating rights. The construction propounded by the Applicant would deny members of the public any entitlement to be present on Crown land in the State because s 6 had not been satisfied. There was no reference to this significant change in the Explanatory Memorandum for the CL Act when it was introduced.

24 Further s 7 of the CL Act states that it should not be read and construed so as to affect the operation of any other Act such as s 48 of the Local Government Act 1993 (“the LG Act”) or the operation of a claim by a land council under s 36 of the ALR Act. In construing s 6, the operation of other legislation must be unaffected by virtue of s 7.

25 “Used” or “occupied” under the ALR Act should not be given the same meaning as under the CL Act for several reasons. Under the ALR Act, determination of whether the land is being used requires consideration of the purpose of the use. The words do not have a single precise meaning but are of wide import and depend on the context for their use. In s 6 of the CL Act, the words “use” and “occupation” appear in the context of a wider compound expression, unlike under the ALR Act. This suggests the words refer to a use or occupation that is a dealing in land, rather than s 36(1)(b) of the ALR Act which contemplates “use” by a person arising without any dealing having taken place.

Finding on s 6 CL Act

26 Before 1990, Crown land could not be dealt with (that is, an interest in Crown land could not be created in favour of another) except pursuant to the CLC Act. Section 6 of the CLC Act provided “Crown land shall not be sold, leased, dedicated or dealt with except under and subject to the provisions of this Act”. No reference was made to “occupation” or “use”, unlike s 6 in the later CL Act. The CLC Act did not place constraints on the use or occupancy of Crown land in the same way as s 6 of the CL Act, which does not permit use or occupation of Crown land without authorisation by the Act.

27 For the reasons stated by the Minister in par 23 of his submissions, in light of s 7 of the CL Act, where the Council undertakes lawful activities on the land pursuant to a provision in another Act that use or occupation can be considered under the ALR Act to determine if it constitutes lawful use or occupation.

28 In Georgeski, one of the few cases to consider s 6 according to the First Respondent, the plaintiff was granted a licence over Crown land pursuant to s 34 of the CL Act. A jetty and slipway occupied the whole of the licensed land. The plaintiff sought declaratory and injunctive relief to restrain two neighbours from “trespassing” on the jetty and slipway. It was held by Barrett J at 563 that the jetty and licence were fixtures of the Crown land and therefore, since they belonged to the Crown and not the licensee, the licensee had no legal right of possession in relation to them and could not resort to the law of trespass to restrain entry to the land. At [85]-[90] Barrett J considered briefly the meaning and construction of s 6 of the CL Act. He stated at [85] that by virtue of s7 of the Act, any other Act authorising Crown land to be disposed of or dealt with takes precedence over s 6. This conclusion supports the Respondents’ arguments.

29 I agree with the Minister’s submissions as set out in par 24 of his submissions that both “use” and “occupation” under the ALR Act have a different meaning to that in the CL Act. Lawful use and occupation of land under the ALR Act is not restricted only to lawful use and occupation as provided under the CL Act. Several cases under the ALR Act have been determined since the CL Act came into force in 1990 which confirm that “use” under the ALR Act does not require a legal dealing in land. Section 36(1)(b) of the ALR Act is consistent with “use” by a person who has the right to use the land which arises without any dealing necessarily taking place; see Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1997) 42 NSWLR 641 at 653, and can include a “use” which is not objected to by the body authorised to do so; Minister Administering the Crown Lands Consolidation Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 (“Tweed Byron LALC”) at 143. I conclude therefore that activities on land which are not underpinned by an interest referred to in s 6 of the CL Act can be considered as lawful “use” and/or “occupation” under the ALR Act.

Statutory basis for exercise of control – Is s 48 LG Act applicable?

30 The Council and therefore the Minister relied on s 48 of the LG Act as the basis for the exercise of control over Lot 183. Section 48 of the LG Act provided at the date of the claim that:

(1) Except as provided by section 98A of the

, a council has the control of:

(a) public reserves that are not under the control of or vested in any other body or persons and are not held by a person under lease from the Crown, and

…

31 Public reserve is defined in the dictionary to the LG Act as:

(a) a public park, or

(b) any land conveyed or transferred to the council under section 340A of the Local Government Act 1919, or

(c) any land dedicated or taken to be dedicated as a public reserve under section 340C or 340D of the Local Government Act 1919, or

(d) any land dedicated or taken to be dedicated under section 49 or 50, or

(e) any land vested in the council, and declared to be a public reserve, under section 37AAA of the Crown Lands Consolidation Act 1913, or

(f) any land vested in the council, and declared to be a public reserve, under section 76 of the Crown Lands Act 1989, or

(g) a Crown reserve that is dedicated or reserved:

(i) for public recreation or for a public cemetery, or

(ii) for a purpose that is declared to be a purpose that falls within the scope of this definition by means of an order published in the Gazette by the Minister administering the Crown Lands Act 1989, being a Crown reserve in respect of which a council has been appointed as manager of a reserve trust for the reserve or for which no reserve trust has been established, or

(h) land declared to be a public reserve and placed under the control of a council under section 52 of the

, or

(i) land dedicated as a public reserve and placed under the control of a council under section 159 of the

and includes a public reserve of which a council has the control under section 344 of the

or section 48, but does not include a common.

32 The Respondents argued that the Council had control over Lot 183 by virtue of s 48 of the LG Act and relied on the last unnumbered part of the definition of “public reserve”. They also argued that the Applicant’s arguments that as Lot 183 is vested in the Crown s 48A cannot apply would mean that s 48A would never apply as it would always be vested in another “person”. As s 48 applied, the Council “occupied” the land for the purposes of the ALR Act.

33 The Applicant argued that s 48 did not apply as the last part of the definition of “public reserve” in the dictionary relied on cannot apply. Lot 183 is vested in another person or body, the Crown, is not held by a person under lease from the Crown (which is a “person” under the Interpretation Act 1987), and is not a public reserve placed under the control of the Council. Nor does any other part of the definition of “public reserve” in the dictionary to the LG Act apply to Lot 183.

Finding on s 48

34 There is no definition of “public reserve” under the CL Act or the CLC Act. Lot 183 was reserved as a Crown Reserve under the CLC Act, s 28, as the Act stood in 1951 when the land was reserved from sale. This is the equivalent of the current CL Act, s 87. “Public reserve” is defined in the LG Act, as set out above at par 31.

35 Section 98A, as referred to in the preamble to s 48 is not applicable. The section applies to public reserves not otherwise under the control of or vested in a body other than the council and not held under lease from the Crown. None of the numbered definitions of “public reserve” in the dictionary to the LG Act is relied on by the Respondents. Only the last, unnumbered, paragraph is relied on. That leads to a somewhat circular argument because it simply states that “public reserve” includes a public reserve which a Council has control over under s 48 (or s 344 of the LG Act 1919 which the Respondents did not refer to in Court). Considering the definition of “public reserve” does not therefore assist in the interpretation of s 48.

36 For the Respondents’ argument to be correct “public reserve” in s 48 must mean Crown land of some description, although no such term is used in the CL Act or its predecessor. Section 87 of the CL Act provides for the Minister to reserve any Crown land from the sale, lease or licence or for future public requirements or other public purpose, as occurred with Lot 183 under the equivalent provision of the CLC Act. I agree with the Respondents that the section will never operate if “vested in any body or person” includes land vested in the Crown as all public land unless vested in another entity is likely to be vested in the Crown. The section, although not ideally drafted, is aimed at enabling a council to exercise control of land in its local government area reserved for public purposes, whether current or future, not otherwise under the control of another entity. That is the circumstance with Lot 183. I do not consider that the power to exercise control of Lot 183 amounts to occupation of Lot 183 for the purposes of the ALR Act but rather is a factor to consider in the circumstances of the case when determining whether there is lawful use and/or occupation. I have already noted that none of the definitions of public reserve in the definition section of the LG Act were argued to apply to the land. The fact that the Council can exercise control over Lot 183 does not alter its status as vacant Crown land reserved for future public purposes.

Other legislation under which control exercised?

37 The Council argued that regardless of whether s 48 does apply, other Acts could be relied on as the basis for the power to exercise control over Lot 183, namely, the Rural Fires Act 1997, s 7, s 22 and s 23, the Summary Offences Act 1988, the Protection of the Environment Operations Act 1997 Pt 5.6A (ss 144A-146E), the Local Government Act 1993, s 56(2), the Water Management Act 2000, s 285 and the Education Act 1990, s 122. I will consider the issue of “use” and “occupation” on the basis that these statutes apply to the activities of the Council’s officers who went onto Lot 183 as well as s 48 of the LG Act.

Lawful use and occupation – general principles

38 Both parties made similar submissions on the general legal principles relating to lawful use and occupation as derived from numerous cases. There is a difference between lawful use and occupation as one can have lawful use without occupation (Tweed Byron LALC per Clarke JA at 142). The parties generally agreed the following. When s 36(1)(b) uses the phrase “lawfully used or occupied”, the word “lawfully” qualifies “used” as well as “occupied”, so that the lands may be used for lawful purposes or occupied for lawful purposes. Mere proprietorship is not sufficient to establish that lands are occupied, something more is needed. Physical acts of occupation and the exercise of control and maintenance of lands are relevant to the inquiry: Tweed Byron LALC at 140 per Clarke JA; Daruk Local Aboriginal Land Council v Minister administering the Crown Lands Act (1993) 30 NSWLR 140 per Priestley JA at 163.

39 For land to be “occupied” there must be some actual physical occupancy of at least part of the land, as opposed to constructive occupation. The mere exercise of control over or maintenance of the land without any occupation is insufficient: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 at 197-8 per Stein J.

40 “Used” means actually used in the sense of being used in fact and to more than a merely notional degree: Daruk per Priestley JA at 164; Tweed Byron LALC at 143 per Clarke JA.

41 In deciding whether lands are being lawfully used within the meaning of s 36(1)(b), it is necessary to take into account the purpose for which it is claimed they are being used. The purpose will dictate the degree of immediate physical use required to decide whether they are actually used in more than a notional sense: Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1993) 31 NSWLR 106 per Sheller JA at 121.

Evidence

42 As identified in the “Statement of Grounds as to why the land is not claimable Crown Land”, (see par 8) the Council and Minister relied on activities undertaken by Council officers and the public to argue there was lawful use and occupation. Evidence for these activities was contained in the affidavits of Ken Bruce Holton, the Council’s regional supervisor for water and sewerage, sworn 25 August 2005, Ian Dennerley, a technical officer employed by the Council, sworn 26 August 2005, Peter Ronald Barwick, a gardener employed by the Council, sworn 26 August 2005, and Derek Peter O’Toole, the chief ranger employed by the Council, sworn 20 October 2005, Eddy Tyler, Council’s pump station operator dated 26 August 2005 and Gary James Watson, Team Leader for the Work for the Dole Program, dated 13 September 2005. The Applicant relied on the affidavit of Dr Perrens, consulting engineer, in relation to drainage matters.

43 The seven broad areas of activity relied on relate to

(i) the provision and maintenance of sewerage (par 8(i) and (iii))

(ii) the provision and maintenance of drainage (par 8 (ii) and (iii))

(iii) the construction of earth mounds to prevent car access (par 8(vii)),

(iv) the maintenance of an asset protection zone next to the houses on Scribbly Gum Close along the northern boundary of the land (par 8(iv)),

(v) the collection of rubbish and patrolling the land to regulate anti-social behaviour (par 8(v), (vi) (vii)),

(vi) access by Council officers and Council consultants to undertake studies for urban planning for the site (par 8(ix)),

(vii) general public access across the site to the Charmhaven Hotel on adjoining land and areas to the north of Lot 183 (par 8(viii)).

44 The Respondents argued that the various uses relied on could be considered cumulatively. The decision of Stein J in New South Wales Aboriginal Land Council v Ministering Administering the Crown Lands Act (the Department of Education Claim) (1992) 76 LGRA 192 was relied on in support of that argument.

Specific uses

(i) Sewerage

45 According to the affidavits of Council’s officers, a sewer main owned and maintained by the Council traverses the land in an east-west direction. It was installed around 1980 to 1982 and was completely replaced by the Council in September 1995. The Crown granted a permit to enter the land to carry out works associated with or incidental to the construction of buildings, road and water reticulation, to the Council on or about 11 November 1983. The affidavit of Eddy Tyler, a pump station operator with the Council, sworn 26 August 2005, states that for the past 18 years he has inspected the sewer pipe running through the subject land approximately three or four times per year. He also attended the land in response to reports from members of the public when other problems arose such as leaks with the sewer line. The affidavit of Ken Bruce Holton, the Council’s regional supervisor of water and sewerage, states that the Council checks the system and flow of the sewer line every six to eight weeks. This involves the Council staff attending the site, walking the sewer line, and checking manhole covers and the general integrity of the system.

Parties’ submissions

46 The Applicant submitted that the Council, as owner of the sewerage infrastructure, has power exercisable over both public and private land in accordance with s 59A of the LG Act to maintain and repair the pipes. Although the Council is a water supply authority under Sch 3 of the Water Management Act 2000 (“the WM Act”) s 59A still applies to it by virtue of s 56 of the LG Act because the Council was not constituted as a water supply authority by the WM Act. Section 286(1)(c) of the WM Act only applies to the bodies in Pt 1 of the Schedule and the Council is not nominated in that schedule. The mere presence of sewerage infrastructure below the surface of the land clearly cannot amount to use or occupation of the land in the relevant sense, but because of the LG Act, the Council is not a trespasser on the land. Use of land does not give the Council an interest in the land for the purpose of lawful use or occupancy, because use or occupation of the land is not necessary for the Council to exercise its statutory powers.

47 The Respondents argued the use of the land for sewerage is clearly a lawful use and occupation. Any works carried out by the Council and inspection and maintenance of them are lawful pursuant to this permit and pursuant to s 59A of the LG Act.

Finding on sewerage

48 I agree with the Respondents that the presence of the sewer and the works conducted on the sewer line and inspection and maintenance of it are a lawful use and occupation under s 36(1)(b). That is clearly in accordance with the cases relied on by both parties and set out above at par 38-41, being a more than nominal use and occupation of part of the land for what is clearly a Council purpose, being the provision of sewerage infrastructure. The Council built the current sewer line across Lot 183, and the presence of the line is clearly an occupation of the land. The fact it is carried out pursuant to a statutory function under the LG Act does not prevent it being a lawful occupation and use of the land under the ALR Act, particularly in light of my finding on the operation of s 6 and s 7 of the CL Act above. Given this use of land is in a small area, this use and occupation of part of Lot 183 is not a basis for denying the Applicant’s claim to the whole of Lot 183.

49 This use can clearly be accommodated by an easement in relation to the sewer infrastructure but that is specifically provided for under s 36(5A) of the Act in relation to land identified for an essential public purpose rather than land which is being lawfully used or occupied.

(ii) Drainage

50 The evidence of the relevant Council staff in relation to drainage is found in the affidavits of Ken Bruce Holton, Regional Supervision of Water and Sewer North, sworn 25 August 2005, and Ian Dennerley, a technical officer at the Council, sworn 26 August 2005. Mr Holton states that there is a piped and unpiped Council drainage system through the land along the northern and western boundaries which discharges through an open drainage system along the western boundary adjacent to No 41 Brava Avenue. Mr Holton attests that the system was constructed in 1995 when the Scribbly Gum Close subdivision was developed. The affidavit of Mr Dennerley states that from at least 1988 the Council has had in place a system of responding to complaints from the public with respect to its drainage channels, including those on Lot 183. Mr Holton states that the system is integral to draining a large area of Council’s road gutter system which, in turn, takes drainage from houses in Scribbly Gum Close. Stormwater from the Charmhaven Hotel site drains to an open drainage channel which connects with the Council system located on the land. Mr Dennerley also states that the open drain located on the land is categorised by the Council as a major open drain, which means that it is routinely inspected every three months.

51 The report of Dr Perrens dated 22 February 2006, a consulting engineer experienced in engineering hydrology, including stormwater drainage and flooding relied on by the Applicant, stated:

52 Mr Ken Holton and Mr Ian Dennerley were both asked if they disagreed with anything in Dr Perrens’ report and they replied in the negative.

53 In relation to the drainage from the Scribbly Gum Close residential development to the north, the Applicant tendered (Exhibit J) the deposited plan of the subdivision dated 17 August 1994, which does not show any drainage is to be located on Lot 183. Correspondence from the Crown Lands Service, dated 18 August 1994 and 6 March 1995, was also tendered (Exhibit K) which does not refer to any agreement to the drainage being located on Crown land. I therefore have no evidence that the drainage located on the northern part of Lot 183 to service the Scribbly Gum Close residential subdivision is lawful.

Parties’ arguments

54 The Applicant argued that the fact that the natural contours of the subject land have particular drainage characteristics is not a use or occupation of the land by the Council. If any drainage infrastructure is present on the land, the use of it does not constitute use or occupation of the land for the reasons given above in relation to sewerage infrastructure; namely, that that entry to the land and carrying out work on it arises as a statutory right, and not as a result of a right to use or occupy the land itself under the CL Act. Use or occupation of this particular land is not necessary for the Council to carry out its statutory powers.

55 The Respondents argued that the Council’s piped and unpiped drainage systems utilise the subject land. The part of the land upon which the Council’s sewerage line and drainage system is located is, and was at 28 July 2003, both used and occupied by the Council. Any works carried out by the Council and inspection and maintenance of them are lawful pursuant to s 59A of the LG Act.

Finding on drainage

56 For the reasons stated as to why the sewer is a lawful use and occupation at par 48 part of the drainage infrastructure on Lot 183 is a lawful use and occupation of part of Lot 183. The piped drain and open drain on the western boundary of the land occupies a small part of Lot 183, as identified by Dr Perrens. Its presence and the regular maintenance of it are a lawful use and occupation of the land.

57 The legal basis for the construction of the piped drainage system close to the northern boundary is unclear, as identified in par 53 above. As this was raised as a very late issue by the Applicant in the hearing, at the end of submissions in reply, the Respondents need to further investigate this matter and advise me further before final orders are made as to the legal status of this drainage. In any event the drainage is not managed by the Council and cannot support a claim for lawful use and occupation by the Council.

58 Dr Perrens’ and my observation of the land suggests that there is not a retention basin in the southern portion. Rather, the land is low lying in this area reflecting the natural contours of the land which slopes gently towards Wallarah Creek. This area is not part of any formal drainage system and it has no features suggesting it is part of a formal drainage system. I accept the evidence of Dr Perrens in this regard.

59 In relation to stormwater flows from Scribbly Gum Close to the north on Lot 183, I note that Mr Ken Holton, Regional Supervisor at the Council, stated in cross-examination that there were no difficulties with stormwater drainage on the subject land.

60 The drainage system on the western boundary is not a basis for denying the Applicant’s claim for the whole of Lot 183 given that this occupies only a small part of the site. This use can clearly be accommodated by an easement in relation to the piped and unpiped drain on the western boundary but that is specifically provided for under s 36(5A) of the ALR Act in relation to land identified for an essential public purpose rather than land which is being lawfully used or occupied.

(iii) Construction of earth mounds

61 Two earth mounds were seen on the view and were placed along the sewer line to prevent vehicles driving along it. The area they occupy is within an area used for access and maintenance of the existing sewer line. Any arrangements made in relation to sewerage infrastructure can accommodate these. I do not consider they are separately a lawful use of the land which defeats the claim.

(iv) Asset protection zone

62 Section 7 of the Rural Fires Act 1997 provides:

(1) A function conferred or imposed by or under this Act on a local authority for and in respect of a rural fire district is to be exercised:

(a) by the local authority for the area for which the district is constituted under section 6…

63 Section 6 of the Act provides the meaning of “rural fire district”, which is:

…constituted by this section for the area of each local authority…

64 The Dictionary to the Act defines “local authority” as follows:

local authority

means:

(a) in relation to land that is situated within an area within the meaning of the Local Government Act

—the council of the area…

65 Section 22 of the Act states:

(1) An officer of a rural fire brigade or group of rural fire brigades of a rank designated by the Commissioner may, for the purpose of controlling or suppressing a fire or protecting persons, property or the environment from an existing or imminent danger arising out of a fire, incident or other emergency:

(a) exercise any function conferred on the officer by or under this Act, or

(b) take any other action that is reasonably necessary or incidental to the effective exercise of such a function.

(2) The officer may exercise such a function or take such an action with such persons as the officer considers necessary for the purpose.

(2A) Any function that may be exercised, or action that may be taken, by an officer of a rural fire brigade or group of rural fire brigades because of this section may be exercised or taken by the Commissioner…

66 Section 23 of the Act states:

An officer of a rural fire brigade or group of rural fire brigades may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act.

67 A strip of land approximately five metres by 150 metres located along the northern boundary of land to the rear of the residential properties in Scribbly Gum Close is identified by the Council as an asset protection zone. The affidavit of Gary James Watson, Team Leader for the Work for the Dole Program, who works for the Rural Fire Service when directed to do so by the Council, states that he attended this asset protection zone on several occasions from 2002-2004 to maintain it. This involved mowing and cutting work to remove scrub and other vegetation. Records given to the Rural Fire Service of this maintenance work confirm it has been carried out. In cross-examination he stated that it took about one year for his team to get to all asset protection zones in the Shire.

Parties’ arguments

68 The Applicant argued in relation to maintenance of the asset protection zone that the evidence suggests that certain parts of the land were subject to infrequent visits by particular Council officers at various times. Inspections were not conducted on a regular basis, but infrequently and intermittently for generally short periods of time. There was no actual physical occupation of the land or any real attempt to exercise control over it. The fact that maintenance of the asset protection zone was conducted is not sufficient to constitute occupation or use in the relevant sense of the word. It is also unclear why there is an asset protection zone on Crown land in relation to adjoining private land. Usually the private land would be required to include an asset protection zone on that land.

69 The Respondents argued that maintenance work carried out by Gary James Watson shows actual lawful use of that part of the land at the date of the claim by the Council.

Finding

70 It is unclear from the Respondents’ evidence and submissions of the precise legal basis apart from the general provisions of the Rural Fires Act as to why asset protection is taking place on Crown land in relation to development on private land on Scribbly Gum Close. It would appear that the general powers under the Rural Fires Act relied on by the Council officers in undertaking this activity apply to private or public land. The exercise of such powers, while involving intermittent work on the land, is clearly not occupation of the land.

71 While the activity is lawful, does it amount to lawful use? If officers under the Rural Fires Act exercising their powers go onto private land to intermittently carry out functions authorised by that Act such as clearing of vegetation, their presence would not generally amount to a use of the land in my view. If my understanding of the Rural Fires Act is correct, if there was no designated asset protection zone identified on Lot 183, officers acting under the Rural Fires Act could nevertheless come onto the land and carry out the work. I do not consider this activity amounts to a use of the land. It is infrequent and does not satisfy the tests as set down in the cases referred to at par 40 and 41.

(v) Inspection and litter removal

72 The affidavit of Derek Peter O’Toole, the Council’s chief ranger, states that in the period from 2000-2003 he visited the site on a daily basis on weekdays to clear the area of truants, and on weekends to deal with public anti-social behaviour. The affidavit of Peter Ronald Barwick, the Council’s gardener, states that he inspected the land every six to eight weeks from 1999 to 2005 to determine whether litter removal was required. He also stated that he attended the land with community service workers for the purposes of removing litter and rubbish approximately three times per year for the past six years. In cross-examination he stated that he was last on the land in June or July 2005.

Applicant’s arguments

73 The Applicant submitted that, in line with the arguments it raised about the maintenance of the asset protection zone, the most that can be said about inspection and maintenance of the site is that it occurred on certain parts of the land only. Inspections of the subject land were not conducted on a regular basis but were infrequent, intermittent and generally for short periods of time. There was no actual physical occupation of the land or any real attempt to exercise control over it. The fact that maintenance activities were conducted on Council owned infrastructure by Council officers is insufficient to constitute occupation or use in the relevant sense. In summary, the land was not used or occupied in fact by the Council to more than a notional degree.

74 Further, the Applicant argued that the inspections conducted by Council officers were in performance of statutory powers or duties, as set out in par 37 and not pursuant to any interest conferred under the CL Act which might have otherwise authorised the use or occupation. There was no attempt to exercise control over the land in the sense of exercising a property right with respect to the land. It cannot be said that the subject land was at any time “used” by the Council. It merely inspected the land from time to time, arranged for litter removal (pursuant to its enforcement powers as a result of the anti-littering amendments in 2000 to the POEO Act) and the removal of truants in accordance with s 122 of the Education Act 1990. That is not the kind of presence on the land that, on the authorities, would defeat the land claim.

Respondents’ arguments

75 The Respondents argued that the whole of Lot 183 is, and was at 28 July 2003, under the active care, control and maintenance of the Council along with adjoining Lot 160 for the purposes of removing litter and other rubbish from the land and obstructions to the access track, regulating access to the land by vehicles and controlling antisocial behaviour on the land. The Minister relied on the case of Tweed Byron LALC to argue that the Council used and occupied the land at the time of the claim in this way.

Finding on inspection and litter removal

76 I have considered earlier inspections for the maintenance of sewerage and drainage infrastructure on the land which I held applied to a small area of Lot 183. I need only deal here with the Council’s claims in relation to rubbish control, and control of antisocial behaviour. These activities are conducted pursuant to specific statutory functions as set out at par 37 and possibly because the Council had control over Lot 183 by virtue of s 48.

77 The Applicant distinguished this case from Tweed Byron LALC where Crown land reserved for public recreation was held to be lawfully occupied. The Council was the trustee of the reserve and had exercised its powers of control and management almost on a daily basis. It was conceded that the northern portion of the land was used or occupied. The southern area of land in dispute contained a disused quarry which was used as a car park by visitors, with a walking track to the beach, uses permitted by the Council. It was held by Clarke JA at 141 that the critical factors in establishing the Council’s occupation of the land were that the southern portion of the reserve formed part of the larger area of the land of which the Council was trustee, and was undoubtedly both used and occupied by the Council. He stated at 141 that:

The fact that some of the land has been left undeveloped will not detract from the conclusion that the whole is occupied.

78 Concerning the southern part of the land, there was evidence of a path to the beach being used for public access, regular visits to the site by the Council’s ranger, and maintenance of the site by the Council’s parks and garden staff. There was no discrimination between the two sections of the land in regards to maintenance and inspection.

79 Here, the Council is not a trustee of Lot 183 nor is the land reserved for public recreation. I have already held in my finding that s 48 of the LG Act applies but that that does not change the status of Lot 183 from the vacant Crown land (see par 36). The Council has sought permission from the Crown to enter and undertake sewerage activities on the land and also to undertake assessment activities related to the compulsory acquisition of the land. It can exercise control over the whole of the land under s 48 of the LG Act but the land is not a public reserve within the definition in the LG Act. Apart from the sewer line area and walking track along it, it presented on the view as vacant Crown land. This is not surprising given that its use is still identified as reserved for future public purposes, as yet unspecified. It is not managed as a recreation area or park, for example, for the obvious reason no doubt that that is not its current purpose. In these circumstances the inspection and maintenance activities of the Council pursuant to specific statutory powers it exercises throughout the local government area under s 48 of the LG Act or under other statutes identified in par 37 do not amount to occupation of the land.

80 The issue arises therefore of whether these activities amount to lawful use over the whole of the land. The maintenance and control over the whole site on a regular basis is also absent in this case. I do not consider the activities of the ranger, Mr O’Toole, amount to a use of land when he inspects it for truants and accept the Applicant’s arguments in that regard. The frequency of inspections for litter control is also not sufficient in my view to warrant a finding that that activity is a lawful use across the whole of Lot 183. I do not consider the Respondents have made out their case for lawful use and occupation of the whole of Lot 183 on this basis.

(vi) Public access

81 On the coloured map attached to the “Statement of Grounds as to why the land is not claimable Crown land” filed 27 October 2005 there are three unformed walking tracks identified across the land, one running east-west along the sewer line, and two running north-south from Scribbly Gum Close.

Evidence

82 The affidavit of Daniel Smith, the director of strategic planning for Wyong Shire Council, sworn 11 October 2005, states that several walking tracks traverse the subject site in a north-south and east-west direction, including an unformed pathway located along the sewer line. He states that access along these walking tracks has been enjoyed since at least 1992. The affidavit of Derek O’Toole, the Council’s chief ranger, sworn 20 October 2005, states that there is a track in approximately the same location as the sewer line used by members of the public to walk from Brava Avenue to the adjoining Charmhaven Hotel site or vice versa, and to and from the Pacific Highway. He states that he has observed members of the public using this track on countless occasions. The affidavit of Ken Bruce Holton, the Council’s regional water and sewer supervisor, sworn 25 August 2005, states that patrons from the Charmhaven Hotel also use the walking track along the sewer line. The affidavits of Eddy Tyler, the Council’s pump station operator, sworn 26 August 2005 and Peter Ronald Barwick, the Council’s gardener, sworn 26 August 2005, give evidence of the walking track along the sewer line being traversed by students and members of the public.

83 Apart from the general statements of Daniel Smith about the existence of walking tracks on the site in the places identified on the plan attached to the statement of grounds, there is no evidence supporting the specific use of the tracks identified apart from the substantial use by the public of the path along the sewer line.

Applicant’s arguments on public access

84 The Applicant argued the use of the land by the public was not lawful. The subject land has not been opened as a Crown public road and at common law, this is the only way to create a public use entitlement: Western Australia v Ward (2002) 213 CLR 1 at 137 [217] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. Neither is the land a public reserve open to the public as of right (Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 at 72-74 per Windeyer J) as the land was in the Tweed Byron LALC case. Therefore the public do not enjoy access to the land as a legal right. It is a well settled principle that the common law does not recognise any right to wander across open space: Re Ellenborough Park [1956] Ch 131 at 176, 184 per Evershed MR. Section 178 of the Conveyancing Act 1919 also states that no grant of way shall be presumed against the Crown by way of use.

85 Further, all the paths lead at one end to private land and so the paths do not provide for public access to other public land.

86 Even if the land was being lawfully used, the fact that the land is used for access to adjoining properties does not mean that the land is being used or occupied in the relevant sense. Merely because persons travel through the land to go from point A (outside the land) to point B (also outside the land) does not mean that the land they travel through is being “used” in the sense of being actually used, to more than merely a notional degree. Thus, the presence of unformed pathways on the land, and evidence that persons have used those paths for access to adjoining properties, cannot amount to an exercise of control over the land by the Council or the Crown.

Respondents’ arguments on public access

87 The use of the land by local residents and students, as well as the evidence of the walking tracks providing access to and from the Charmhaven Hotel are evidence of lawful use and/or occupation of the land. The land is regularly accessed and inspected by Council’s employees and is subjected to intensive community use.

Finding on access

88 I do not consider I have heard sufficient argument to determine definitively the legal position of the public entering onto vacant Crown land. I do not need to definitively resolve this issue here. While the Applicant has argued that there is no enforceable right of the public to walk on such land it is clear that such use has been allowed here in that it has happened over a substantial number of years on part of Lot 183 without the Crown or the Council preventing that use. The walking track along the existing sewer line is obvious and the evidence suggests its use is long standing. The precise legal basis on which this has occurred is unclear from the Respondent’s arguments which argue essentially that the use is long standing and, presumably, not illegal. Even accepting the Applicant’s argument that the public does not have an enforceable right to walk on the land it does not follow that they are trespassing when they enter such land in the absence of any attempt to stop them walking across part of the land over a long period. Such use is therefore likely to be a lawful use of the land.

89 Under s 48 of the LG Act the Council can exercise control of the land and other statutory functions under various pieces of the legislation to enable it to enter Lot 183 and control entry of the public. The public’s use of part of the land over a long period, being the walking track along the sewer line, does not amount to lawful occupation by the Respondents in the circumstances of this case but that activity can be considered a lawful use for the purposes of s 36(1) of the ALR Act. The evidence relied on by the Council does not substantiate the use of other walking paths by the public to a sufficient level to justify a finding of lawful use of those paths.

90 To the extent arrangements are made in relation to the sewer line, a track for public access in this area can be accommodated also.

(vii) Preparation for compulsory acquisition

91 In the period from 26 February 2003 to November 2003 the Council argued it both lawfully used and occupied Lot 183 for the purpose of carrying out inspections and investigations preparatory to the compulsory acquisition of Lot 183 in the manner particularised at 2.10 of the Council’s statement of grounds. The six inspections and investigations by the Council staff and consultants are set out par 8(ix). The Respondents relied on these as demonstrating lawful use and occupation.

92 The Applicant argued that these inspections, together with the preparation of consultants’ briefs, were all conducted for the express purpose of the compulsory acquisition of the land for future development and resale. These matters are relevant to the future use of the land, not its use as at the date of the claim. As discussed above, for the land to be “lawfully used” within the meaning of s 36(1)(b), the use must be more than notional and must be a present use when the claim is made, rather than a contemplated or intended use: Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106 per Sheller JA at 121.

93 It is also significant that Council applied for, and received, the consent of the Department of Lands to access the land to conduct its pre-acquisition investigations. The fact that access to the land was only possible with the consent of the Crown is a strong indication that this alleged “use or occupation” of the land was not a “use or occupation” as of right, but rather was only permissible with the consent of the Crown. Accordingly, it is not a “use or occupation” within the meaning of s 36(1)(b) of the ALR Act.

Finding on compulsory acquisition – preparatory works

94 In New South Wales Land Council (on behalf of Dubbo Local Aboriginal Land Council) v Minister administering the Crown Lands Act [1997] NSWLEC 157 (unreported, Lloyd J, 22 October 1997) his Honour held at 12 that preliminary survey works to determine the suitability of a particular site for sporting facilities were “extremely tenuous acts of occupation”. His Honour held that activity was not a lawful use or occupation within the meaning of s 36(1)(b) of the ALR Act. His comments apply to the circumstances relied on here, in my view. I adopt the Applicant’s arguments at par 92-93 and hold that the preparatory studies for the compulsory acquisition do not demonstrate occupation or use of the land.

95 It is necessary to consider whether all of these activities amount to lawful use of the whole of Lot 183. I have held that the infrastructure and related maintenance activities and public access are limited to a small area of Lot 183 not claimable Crown land. Does the inspection and collection of litter and detection of truants and antisocial behaviour by the Council ranger result in lawful use of the whole of Lot 183? These activities are carried out pursuant to particular statutory functions the Council exercises across the whole local government area. They do not connote a use of the land to which s 36(1) refers. They do not satisfy the lawful use of the whole of Lot 183 in my view. Accordingly part of Lot 183 is potentially available as claimable Crown land subject to my finding on essential public purpose. Further clarification of the legal status of the drainage on the northern boundary is needed.

Essential public purpose

96 The next issue to arise is under s 36(1) (c) of the ALR Act concerning whether Lot 183 is required or likely to be required for an essential public purpose as at the date of the claim. As set out at par 7 there are seven purposes identified which are argued by the Respondents to be essential public purposes that Lot 183 was needed for, or likely to be needed for, at the date of the claim. As the parties set out in submissions it is first necessary to identify whether a nominated purpose is an “essential public purpose” (requiring consideration of the meaning of “essential” and also “public purpose”) separate from its location on Lot 183 and then whether the land in question, Lot 183, is needed or likely to be needed for that purpose at the relevant date. Before considering these matters a threshold issue was raised by the Applicant as to whether the Council’s purposes can be essential public purposes under the ALR Act.

Are the Council’s purposes “public purposes” under the ALR Act?

97 As noted by the parties these proceedings are atypical under the ALR Act because the process of compulsory acquisition of Lot 183 under the Just Terms Act by the Council underway at the time of the claim has since been completed and the Council is now the owner of the land. The essential public purposes relied on by the Respondents are the Council’s purposes in relation to the land.

98 The Applicant relied on Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 254, to argue that the ALR Act required that the land be needed or likely to be needed for an essential public purpose by the executive government. As local councils are not the executive government, any purposes the Council has in relation to the land cannot satisfy the ALR Act. If correct, the Respondents’ case on essential public purpose under s 36(1)(c) of the ALR Act must fail now.

99 The Minister’s submissions referred to the role of local government under the LG Act s 7, which enables councils to provide goods, services and facilities and to carry out activities appropriate to the current and future needs of local communities and the wider public. These purposes are identified by the legislature as public purposes. Under s 51 of the Constitution Act 1902 (NSW) (“the NSW Constitution”) local government is the third tier of government. By the NSW Constitution, councils have been charged with responsibility for acting for the better government of the areas that are subject to local government control and responsibility. The introduction to Chapter Two of the LG Act specifies that councils have been invested with the means to give effect to the purposes of that Act and s 51 of the NSW Constitution. This satisfies the finding of Stein J in New South Wales Aboriginal Land Council v Minister for Natural Resources (1986) 59 LGRA 318 (“the Tredega claim”) at 331, where he adopts the findings of Romer LJ in Bank Voor Handel En Scheepvaart v Slatford [1953] 1 QB 248 at 298, that purposes are:

required and created by the Government of the country and therefore deemed part of the use and service of the Crown… [and] purposes of the administration of the government.

Accordingly the Council’s purposes can satisfy the essential public purpose test.

Finding

100 “Public” purposes are the purposes of the administration of government: the Tredega claim at 331. I agree with the arguments presented by the Minister in par 99 that the purposes carried out under the LG Act can be public purposes within the context of s 36(1)(c) of the ALR Act.

101 Given that the facts in Deerubbin did not concern a local council I do not consider that the general statement of Meagher JA relied on by the Applicant is definitive as to the relevant level of government which must identify the essential public purpose. Other cases such as the Tweed Byron LALC case demonstrate that a council’s use and occupation of land is relevant to issues such as whether there is lawful use and occupation under the ALR Act. This suggests the Council’s purposes can be relevant in the context of essential public purpose also.

Are the purposes relied on essential public purposes?

102 The Respondents have identified seven essential public purposes over part or all of the land, set out in par 7 above. The Minister is not confined to the grounds of refusal identified in the Minister’s notice of refusal, which referred only to lawful use and occupation as the ground for refusal; Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 158. According to the Respondents, at the date of the claim Lot 183 was needed for a number of different purposes and the development of the land for those purposes is capable of meeting different needs simultaneously. The purposes are not inconsistent and would not “cancel each other out”, as the Applicant sought to argue. I will consider this issue in more detail when I consider particular purposes relied on.

103 Which parts of Lot 183 were intended for what purposes can be inferred in part from the evidence. Four of these purposes are the same activities relied on to demonstrate lawful use and occupation, namely sewerage infrastructure (par 7(iv)), a drainage system (par 7(iii)), asset protection (par 7(v)), and public access (par 7(vii)). The purposes are dealt with individually later in the judgment but it is useful to summarise that the sewerage infrastructure and drainage system take place on a small area of Lot 183. Asset protection is also conducted on a small part of the land and also need not defeat the claim if I hold that it is an essential public purpose. The use of the land for public access is not claimed over the whole of the land but relates to the use of a couple of walking tracks established by long use across the land. The actual area used is small. Once again, if found to be an essential public purpose, it would not necessarily defeat the claim but may be able to be accommodated within the area required for the sewer line as I found above in par 49.

104 The annotated plan of Lot 183 attached to the “Statement of Grounds as to why the land is not claimable Crown land” shows the essential public purpose of a neighbourhood centre, carparking and community facilities across the whole of the land (par 7(i) and (ii)). That overlaps with the essential public purpose of nature conservation also relied on by the Respondents (par 7(vi)). The use of part of the land for conservation purposes relates to a defined area of an endangered ecological community in the southern part of the site and part of the vegetated land to the north. These would appear to be overlapping purposes in that nature conservation, meaning reservation of the land for that purpose, cannot occur simultaneously with development. That conflict of itself does not negate reliance on both these purposes, as noted in Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council by Meagher JA at 252. It does have practical consequences as to how the evidence is considered in relation to those separate uses.

105 The principal essential public purposes relied on for the whole of the land are the neighbourhood centre, including a retail component together with or separately from community facilities and carparking (par 7(i) and (ii)), and the evidence and argument was directed largely to these purposes. The Respondents combined their evidence and arguments about the two purposes so it is difficult to separate them out.

106 It is necessary to set out some of the planning history in relation to the surrounding area and Lot 183 in order to assess this part of the claim to determine what was the nature of the facilities intended by the Council for Lot 183, and if there was a need or likelihood of such a need arising at the date of the claim.

Chronology of events in relation to Lot 183

(i) August 1982 – Draft San Remo Neighbourhood Centre Study prepared by Hassell Planning Consultants Pty Ltd for the Department of Local Government and Lands and Paketai Pty Ltd (the then owner of the Charmhaven Hotel site) considered the use of the subject land as part of a Neighbourhood Centre including a retail shopping centre, community facilities and car parking.

(ii) 11 November 1983 – Crown granted to Wyong SC a Permit to Enter Lot 162 DP46754 (which includes the subject land) “at any time and to carry out works thereon associated with or incidental to the construction of buildings, road and water reticulation.”

(iii) 21 October 1991 – The Council considered a report prepared by the Department of Lands and Paketai Pty Ltd, which related to the rezoning proposal for Lot 183. The Council stated that it proposed to rezone approximately 2 ha of the site for community facilities and car parking.

(iv) 1 April 1992 - The Council considered a report relating to the exhibition of a draft LEP rezoning Lot 183 and adjoining land for community facilities and car parking. A Council report dated 1 April 1992 stated that at this time, “the type of community facilities that will be developed are not known”.

(v) 31 July 1992 – Lot 183 and the adjoining lot 160 rezoned 5(a) Special Uses (Community Facilities and Car Parking) by amendment no 24 to the Wyong LEP.

(vi) 11 November 1992 – Wyong SC adopted Development Control Plan 44 – San Remo Community Centre (“DCP 44”), proposing the integration of (proposed) community facilities and car parking with facilities existing on adjoining land. The Council’s community planner identified a shortage of community land in the locality in a report dated 4 November 1992.

(vii) 10 July 1993 - The Department of Conservation and Land Management advised the Council that it was seeking expressions of interest for the lease by tender of Lot 183 for community uses.

(viii) 13 November 1996 - The Council wrote to State Land Services seeking the granting of a licence for it to build a carpark over Lot 183, for use by the day care and neighbourhood centres on Lot 160.

(ix) 6 January 1998 – Wyong SC submitted an unsuccessful application for endorsement of application to use the subject land for “temporary car parking” (16 car spaces) to Department of Land and Water Conservation (DLWC).

(x) October 1992 – s 94 Contribution Plan No 8 (San Remo District) adopted. Contributions for community facilities sought. New site identified was not Lot 183. It was located in the adjoining Blue Haven district.

(xi) 24 April 2002 – DCP 81 – Retail Centres came into effect. The DCP identified a retail hierarchy for existing and proposed retail centres in the Wyong Shire. There was no neighbourhood retail centre proposed for Lot 183. A suitable site was identified in the adjoining Blue Haven area.

(xii) 24 July 2002 - A report to the Council stated that the preferred location for a neighbourhood or retail centre was Lot 562 not Lot 183. The report stated that, “alternate sites for such a use…are difficult to identify”.

(xiii) 6 November 2002 – the Council amended s 94 Contribution Plan No 8 (San Remo District) (adopted in October 1992). This stated at Cl 10.3 under “Guidelines” that:

For the remainder of the district, apart from the Blue Haven Urban Release Area, assessment of existing landholdings shows that there is an excess of community land for the existing population and that there is no significant shortfall due to the requirements generated by the future development.

In the Blue Haven release area the existing landholdings will be insufficient to cater for the increased population and land will need to be provided within the release area.
Assessment of existing services indicates there is no spare capacity in these facilities to meet the need generated by the future development considered in the Plan. Therefore, additional facilities will need to be provided to cater for the proposed population increase in both the urban release areas and in the existing area.

(xiv) 4 February 2003 – General Manager of Wyong SC wrote to DLWC “Council has identified Crown Land Reserve 74427 Lot 183 DP 823113 No 26 Brava Avenue, San Remo as a site required for public purposes – car parking and community facilities”.

The Council sought:

(a) consent to the acquisition under s 30 of the Land Acquisition (Just Terms) Compensation) Act 1991, and

(b) “access to the site for planning purposes pending the outcome of this application”.

(xv) 24 February 2003 – Letter from DLWC District Manager to the Council’s General Manager:

(a) consenting to the proposed acquisition, and

(b) advising that there is “no objection to Council entering upon the Crown Land site prior to acquisition to undertake planning and preliminary survey work.”

(xvi) 26 February 2003 – Council resolved to compulsorily acquire the land. Confidential report considered by the Council stated:

“Lot 183 … is strategically placed opposite North Lakes High School and between the Charmhaven Hotel and lot 160 DP 46754 which is also Crown Land with care, control and management vested in the Council … Acquisition of the property would give Council a significant advantage in progressing the planning and development of this general area. Because it is currently vacant Crown Land …, Council as a public authority could acquire it for public purposes by way of compulsory acquisition … whereas for it to be disposed of to a private buyer it would have to be offered by way of competitive tender/auction or the like. If the land is acquired by Council it should be classified as operational land.”

(xvii) 3 March 2003 – State Valuation Office inspected the land to complete its valuation for purpose of the proposed acquisition and subsequently valued the land at $570,000.

(xviii) 13 March 2003 – Council’s Senior Strategic Planner, Robert Hodgkins, carried out a preliminary inspection of the land and identified the need for an ecological survey.

(xix) 18 March 2003 – Wyong SC appointed Robert Payne, Environmental Consultant to undertake environmental investigations in relation to the subject land.

(xx) 21 March 2003 – Council’s Strategic Land Use Planner, Scott Duncan, inspected the land and made a preliminary assessment of ecological and threatened species constraints. In an email annexed to the affidavit of Daniel S Smith, a planner for the Council sworn 11 October 2005, Scott Duncan noted that there is remnant vegetation located on Lot 183.

(xxi) April 2003 – Wyong SC continued negotiations with Stevens Group, a development company, in relation to development of the subject land for community and retail purposes. The Stevens Group’s letter of 14 April 2003 read in part:

152 The Council argued it did not have to specify the particular community facilities it intended to be located on Lot 183 nor where these would be located on Lot 183 to make good its claim. It was apparent from the Respondents’ submissions that community facilities could include private medical facilities such as doctors’ surgeries as well as facilities such as the community managed neighbourhood centre on adjacent Lot 160.

153 The affidavit of Mr Smith sets out on behalf of the Council community use planning for Lot 183 and the surrounding area at the strategic planning level and is referred to in part above at par 107 - 110. The types of community purposes the subject of s 94 contributions for the neighbouring Blue Haven district were offices, meeting rooms, youth facilities and counselling facilities.

154 The Applicant submitted the lack of specificity of the kinds of facilities relied on makes assessment of whether such facilities are an essential public purpose or whether there is a need for such facilities, difficult to gauge. Mr Sanders, town planner, gave evidence that community facilities covers a wide range of functions including health, education and recreation. He stated that it is common for certain types of community facilities to be provided by the private sector such as medical facilities and childcare centres. Many community facilities are also operated by non-government organisations.

155 I have to agree with the Applicant’s submissions that the broad range of activities that can potentially fall under community facilities makes assessment of whether these are essential public purposes difficult. The issue arises as it did in relation to a neighbourhood shopping centre of whether these will be conducted on land owned privately if they are private facilities such as a private medical centre. Clearly the provision of community owned or managed facilities on Council owned land would be likely to satisfy a finding of public purpose. It is less straightforward in my view if community facilities, using that term broadly, are privately owned and on private land.

156 On the assumption that the community activities are those identified in the letter from the Council to the Department of Local Government dated 17 September 2003 namely youth facility such as exists on Lot 160 adjacent, and community health facilities which are not private surgery facilities intended to be on private land I consider facilities of this type could satisfy the requirement for an essential public purpose in a local council area.

Need for community facilities?

157 As I heard argument on the need for community facilities, and in case I am wrong about requiring the Respondents to better specify such facilities in order to determine whether these are an essential public purpose, I will need to consider if there was a need or likelihood of need for community facilities at the date of the claim on Lot 183. The chronology set out above at par 106 shows that since the early 1980s Lot 183 was identified for community facilities and car parking, and zoned accordingly in 1992 under the Wyong LEP 1991. The area including Lot 183 was zoned for Special Uses - community facilities and car parking on 22 July 1992. DCP 44 – San Remo Community Centre provides for the integration of (proposed) community facilities with car parking facilities which exist on adjoining land. It states at “C” that:

Land zoned 5(a) Special Uses – Community Facilities and Carparking shall be provided for the development of community facilities subject to development consent from Council…Proposed community facilities shall be integrated with the existing facilities already established on Lot 160…

158 The s 94 Contributions Plan 8 (San Remo District) (adopted in 1992 and amended in November 2002) covered parts of the San Remo and Blue Haven Urban Release Area. It provided for funds to be collected for, inter alia, community facilities. Section 10.3 of Plan 8 related to community facilities. It stated that in the Blue Haven Urban Release Area (rather than San Remo) there would be insufficient land to cater for the facilities for the increased population and that the Council proposed to construct a multi-purpose community centre and children’s activity/youth centre and associated carparking. The remainder of funds would be used to augment existing facilities at Blue Haven and San Remo. As Mr Sanders, town planner, pointed out there is no provision for new facilities to be provided in San Remo and no new facilities were proposed for Lot 183 in the s 94 plan.

159 The evidence of Mr Smith, Council’s strategic planner, disclosed that the nature of what was considered for Lot 183 changed over time. His affidavit and the Respondents’ submissions emphasised that there remained demand for community facilities in San Remo and adjoining areas for local youth, and that needs and demands altered over time so that strategic planning had to take these into account over a long period.

160 The letter of 17 September 2003, from the Council to the Department of Local Government stated that a youth facility and community health facilities, unspecified, were intended to be established on Lot 183. Other documents on the Council’s file before and after the date of claim from the Stevens Group show a variety of schemes related to the establishment of a supermarket, sometimes with community facilities and sometimes not. A plan sent by the Stevens Group with a letter dated 14 April 2003 to the Council showed about half of a supermarket building and carparking on Lot 183 (xxi in par 106). No community facilities are identified on Lot 183 in that plan. There is no suggestion that this proposal was adopted in any way by the Council. Later correspondence and plans exchanged between the Stevens Group and the Council (see xxx-xxxi in par 106) show different configurations of a supermarket, speciality shops and community facilities for Lot 183 and the adjoining Charmhaven Hotel site. Documents in evidence in late 2004/early 2005 (xxxv-xxxvii in par 106) suggest the majority of Lot 183 apart from the southern area, which is to be retained by the Council for environmental protection, is surplus to requirements and is intended to be sold to the Stevens Group. As noted at xxxviii in par 106, the February 2005 report to the Council by its officers states that any future community uses will focus on Lot 160 rather than Lot 183. The Council gave consent to its own subdivision of Lot 183 into two lots in June 2005 reflecting this proposal (xxxix in par 106).

161 I consider that the Council has not demonstrated a need or likelihood of a need for community facilities as at the date of the claim. The s 94 plan amended in 2002, only a year before the date of the claim, does not make particular provision for community facilities of the type able to be the subject of a s 94 contribution plan for Lot 183. While there is a lengthy history of consideration of possible uses including for community facilities on Lot 183 there is no demonstrated need or likelihood of need for Lot 183 for that purpose. Events after the date of claim do not confirm that Lot 183 was needed or likely to be needed for community facilities.

(iii) Drainage

162 Maintenance of a drainage system across part of the land is clearly an essential public purpose. I have held the use of that land near the western boundary renders part of Lot 183 not claimable Crown land. In any event, this use is an essential public purpose which could be accommodated by an appropriate easement as provided for by s 36(5A). As already considered in relation to lawful use and occupation, the extent to which a drainage system should be accommodated is less than the extent argued for by the Council. This purpose is confined and need not defeat the Applicant’s claim for the whole of Lot 183.

(iv) Sewerage infrastructure

163 The Applicant argued that the sewerage pipeline cannot be a reason for refusal of the claim. Sewerage can be considered an essential public purpose, given its location on the land for some eighteen years. As I have already indicated above in relation to lawful use and occupation, such a purpose does not extend beyond the area needed to access and maintain the sewer pipes. I have held that the land required for the sewer line is not claimable Crown land. If I am wrong I consider the existence and maintenance of the sewer line is an essential public purpose. This use can clearly be accommodated with an appropriate easement, as recognised by s 36(5A) of the ALR Act. Sewerage infrastructure as an essential public purpose does not defeat the Applicant’s claim for the whole of Lot 183.

(v) Asset protection

164 The Respondents submitted that it is clear that protection from fire through management of the asset protection zone is an essential public purpose under the Rural Fires Act. The regularity of the activity was otherwise relied on as support for its essential public purpose.

165 The Applicant submitted that there is no reason why the maintenance of an asset protection zone should be considered an essential public purpose. It is not an activity which is “public” in nature. It is the responsibility of private landowners to provide asset protection from bushfire on their own land. Furthermore, an asset protection zone operates in effect as a restriction on development of the relevant area. The fact that it has been used in the past as an area cleared of combustible material does not establish that this particular area is “needed” for an essential public purpose. The existence of the asset protection zone is not inconsistent with the claim for the bulk of the land and cannot be the basis for a refusal of the claim over the whole of Lot 183.

Finding

166 The Rural Fires Act applies to both publicly and privately owned land. The exercise of a statutory function by the Council’s officers under the Rural Fires Act does not render the use of this land an essential public purpose under the ALR Act if those functions can be carried out regardless of who owns the land. I consider the carrying out of these functions is analogous to the activities of the Council’s officers acting as rangers on the land, albeit that it involves the carrying out of work. The land does not need to continue in public ownership in order for the purpose of asset protection to continue. This suggests that a grant of the land under the ALR Act need not be subject to the exclusion of land in the asset protection zone on the northern boundary.

(vi) Nature conservation

167 The southern area of Lot 183 contains an Alluvial Floodplain Shrub Swamp Forest vegetation community, being an area bounded by the sewer line, and the southern and western boundaries of Lot 183. This is an endangered ecological community listed under the Threatened Species Conservation Act 1995 (“Threatened Species Act”). Only 895 hectares of this endangered ecological community remains in Wyong Shire. The two ecological experts Geoff Winning and Robert Payne, relied on by the parties, agree on this.

168 The Applicant argued that given the inclusion of s 36A of the ALR Act the reference to nature conservation is really directed at areas of land with regional or State significance. It relied on the evidence of Mr Sanders that there are adequate and appropriate mechanisms available under the EP&A Act to ensure that nature conservation objectives can be achieved if Lot 183 is in private ownership. These include the appropriate zoning of the area for environmental protection under the relevant environmental planning instrument.

169 The Respondents argued that the area of the endangered ecological community in the southern part of Lot 183 should remain in public ownership as this was an essential public purpose.

Finding

170 There does not appear to be a decided case in which the question of whether nature conservation is an essential public purpose has been determined in circumstances similar to this case. The Respondents made only brief submissions, essentially that because there was an endangered ecological community on the southern part of Lot 183 it was needed for the essential public purpose of nature conservation. The argument on this potentially significant matter was not well developed by the Respondents in my view.

171 Section 36A(1) of the ALR Act refers to arrangements that can be made if the Minister considers the land is needed or likely to be needed for nature conservation as an essential public purpose. If a claimant agrees, it can negotiate the lease of land under the National Parks and Wildlife Act 1974 (“the NPW Act”) so that the land is rezoned or dedicated under the NPW Act. There is no suggestion here that the land should be dealt with on the basis that it becomes or is managed as national park given its size and location, so that s 36A(1) has no application.

172 In Deerubbin (No 2) the essential public purpose argued by the Minister was for nature conservation. In that case the land in issue was argued to be needed for a national park. At first instance and on appeal it was common ground that including land in a national park for nature conservation was an essential public purpose. Similarly, in Birrigan Gargle Aboriginal Land Council v Minister Administering the Crown Lands Act (1999) 102 LGERA 33, it was argued the land was needed for the essential public purposes of nature conservation and access. Whether “nature conservation” is an essential public purpose was not in issue in these cases. The issue in the cases was whether the land was “needed or likely to be needed” for that purpose at the date of the claim.

173 The evidence is that the area in the southern part of Lot 183 below the sewer line is an endangered ecological community under the Threatened Species Act. There are a number of mechanisms identified under that Act which must be taken into account if activities likely to affect listed communities are proposed. The extent to which those should be protected in public reserves is not a matter dealt with directly in legislation so far as I am aware.

174 At local government level the decision whether land remains in council ownership to be managed for conservation is a decision local councils can make subject to State government oversight. For example, ministerial approval of environmental planning instruments which identify areas for zoning purposes, including environmental protection, is required under the EP&A Act. Compulsory acquisition of land by local councils for various purposes, including conservation, also requires the consent of the Minister for Local Government under s 187 of the LG Act, as occurred in this case. It is clear that local councils can, as part of their responsibilities under the LG Act and their planning responsibilities under the EP&A Act, identify areas they consider should be conserved. Conservation of endangered bushland in local government areas can be an essential public purpose carried out by local councils in my view.

Need/likelihood of need

175 I need to consider whether in the context of Wyong Shire, Lot 183 was needed or likely to be needed for the conservation of an area of an endangered ecological community identified under the Threatened Species Act at the date of the claim. Identification as endangered under the Threatened Species Act means that in the opinion of the Scientific Committee established under that Act the ecological community is facing a very high risk of extinction in NSW in the near future (s 12(2)(a) Threatened Species Act). I am unfortunately not assisted by any detailed submissions from the Respondents as to why the identification of land under the Threatened Species Act means that Lot 183 is needed or likely to be needed for its conservation. That Act provides, for example, for the development of recovery plans by the Director-General of National Parks and Wildlife Service for endangered ecological communities (s 56). Section 59 states what must be included in a recovery plan including what must be done to ensure the recovery of the threatened ecological community. I have no evidence before me from the Respondents of any plans at State or local government level for measures to protect this endangered ecological community in the Wyong Shire.

176 At first instance in Deerubbin (No 2), Bignold J considered whether the high ecological and conservation values of the land by virtue of their intrinsic ecological qualities generated a need for the land independent of any appraisal by human agencies. At [106] his Honour concluded that the undoubtedly high ecological significance of the claimed land did not demonstrate a need for the land or justify an inference being drawn of such a need. In this case there has been identification of the high ecological significance of the endangered ecological community by virtue of its identification by the Scientific Committee under the Threatened Species Act. The evidence suggests this community is scarce in the Wyong Shire and the Council has responsibility to manage the land in its local area for, inter alia, nature conservation.

177 The need for or likelihood of the need for the essential public purpose has to exist at the date of the claim. It can be relevant to consider events before and after the date of the claim to determine that question, that is, to confirm a foresight. The Council’s strategic planner identified the need for ecological studies to be conducted on Lot 183 in March 2003. The Council’s ecological consultant undertook flora and fauna field survey work from June 2003. The date of claim was 28 July 2003. A reference to the use of the land for conservation appears in correspondence to the Department of Local Government dated 5 August 2003. Subsequent events up to December 2004 and early 2005 suggest it has continued to be the Council’s intention to retain the southern part of the land for conservation. I consider the southern part of Lot 183 was needed or likely to be needed for the essential public purpose of nature conservation at the date of the claim.

178 The evidence of Mr Sanders, town planner, is that there are mechanisms for dealing with areas considered worthy of protection under the EP&A Act such as appropriate zoning for environmental protection. These instruments do not necessarily require that the land be in public ownership.

179 It is therefore appropriate that I ask the Applicant if it would agree to a condition of a grant which would protect the southern area of Lot 183 for nature conservation purposes as is provided for by s 36(5A) of the ALR Act.

(vii) Public access

180 The Respondents argued that public access across the unformed walking tracks which have formed over time on Lot 183 is an essential public purpose. This is opposed by the Applicant. I have considered the evidence in relation to public access already at par 88-90 and held that the evidence supports a finding of lengthy use for a number of years of access from the adjoining private land on which the Charmhaven Hotel is located along the sewer line to Brava Avenue and that is a lawful use. That access can be accommodated along the sewer line. The Respondents have the onus of demonstrating such a use is an essential public purpose. There is no basis put in the limited submissions of the Respondents to support this as an essential public purpose.

181 I should note for completeness that the Applicant raised a number of allegations of impropriety on the part of the Council in its dealings with the Stevens Group and the Department of Local Government in relation to Lot 183 in the course of the hearing. I do not consider these allegations have any relevance to the matters in this case and have not considered them.

Conclusion

182 Part of Lot 183 is claimable Crown land under s 36 of the ALR Act excluding land used for the existing sewer line, drainage on the western boundary, and public access along the sewer line. The areas used and occupied for sewerage and drainage are identified in the plan of subdivision approved by the Council on 9 June 2005. The easement for drainage is 3m wide, and the easement for sewerage is 3m wide. Conservation protection of the southern part of Lot 183 “below” the sewer line is an essential public purpose and I will ask the Applicant whether it wishes to propose any mechanism under s 36(5A) in relation to this area. Clarification of the legal status of the drainage servicing the private residential subdivision on the northern boundary is needed (see par 53).

183 The Applicant needs to consider this judgment and, in consultation with the Respondents, determine what orders are appropriate to give effect to my findings.

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Citations

Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 180

Most Recent Citation

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 158

Cases Citing This Decision

21

Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2016] NSWCA 253

Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138

New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 (“Jannali”) [2024] NSWLEC 41

Cases Cited

14

Statutory Material Cited

17

Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48

Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] [2001] NSWCA 28

Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48

CITATION:	Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act and Anor [2006] NSWLEC 180
PARTIES:	APPLICANT Darkinjung Local Aboriginal Land Council FIRST RESPONDENT Minister Administering the Crown Lands Act SECOND RESPONDENT Wyong Shire Council
FILE NUMBER(S):	30425 of 2005
CORAM:	Pain J
KEY ISSUES:	Aboriginal :- land claim - claimable Crown land - meaning of lawful use and occupation - whether interest in land under the Crown Lands Act 1989 - whether control exercised under Local Government Act 1993 - whether multiple activities are lawful use or occupation - meaning of "needed/likely to be needed for an essential public purpose" - meaning of community facilities - whether private activity can fulfil public purposes - whether nature conservation by local council an essential public purpose - whether a local council's purposes are public purposes - consideration of multiple public purposes
LEGISLATION CITED:	Aboriginal Land Rights Act 1983 Recital, s36(1), s36(5), s36(6), s36(7), Part 2 Conveyancing Act 1919 s178 Constitution Act 1902 s51 Crown Lands Act 1989 s6, s7, s34(1)(a), s34(1)(b), s80, s87, s92, Pt 5 Crown Lands Consolidation Act 1913 s28 Education Act 1990 s122 Environmental Planning and Assessment Act 1979 Local Government Act 1993 s48, s56(2), s187 National Parks and Wildlife Act 1974 Protection of the Environment Operations Act 1997 Pt 5.6A Rural Fires Act 1997, s6, s7, s22 , s23 Summary Offences Act 1988 Threatened Species Conservation Act 1995 Water Management Act 2000 s285 Wyong Development Control Plan – 44 “San Remo Community Centre” Wyong Development Control Plan - 81 "Retail Policy and Retail Investment Framework" Wyong Local Environmental Plan 1991
CASES CITED:	Bank Voor Handel En Scheepvaart v Slatford [1953] 1 QB 248; Bathurst City Council v PWC Properties (1998) 195 CLR 566; Birrigan Gargle Aboriginal Land Council v Minister Administering the Crown Lands Act (1999) 102 LGERA 33; Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 ; Daruk Local Aboriginal Land Council v Minister administering the Crown Lands Act (1993) 30 NSWLR 140 ; Deerubbin Local Aboriginal Land Council v Minister administering the Crown Lands Act (1997) 95 LGERA 353; Georgeski v Owners Corporation 49833 [2004] 62 NSWLR 534; La Perouse Local Aboriginal Land Council v Minister administering the Crown Lands Act (1991) 74 LGRA 176 ; Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 ; Minister Administering the Crown Lands Act v Deerubbin LALC (No 2) (2001) 50 NSWLR 665 ; Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (No 2) (1997) 42 NSWLR 641 ; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1993) 31 NSWLR 106 ; Minister Administering the Crown Lands Consolidation Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 ; Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 ; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 ; New South Wales Aboriginal Land Council v Minister for Natural Resources (1986) 59 LGRA 318; New South Wales Land Council (on behalf of Dubbo Local Aboriginal Land Council) v Minister administering the Crown Lands Act [1997] NSWLEC 157 (unreported, Lloyd J, 22 October 1997) ; Re Ellenborough Park [1956] Ch 131 ; Western Australia v Ward (2002) 213 CLR 1; Wanaruah Local Aboriginal Land Council v Minister administering the Crown Lands Act (2001) 113 LGERA 163; Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act and Anor (1991) 72 LGRA 149
DATES OF HEARING:	06/04/2006, 07/04/2006, 10/04/2006, 11/04/2006
DATE OF JUDGMENT:	09/20/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr T Robertson SC with Mr J Lazarus SOLICITOR Woolf Associates FIRST RESPONDENT V B Hughston SC and J Waters SOLICITOR Crown Solicitor SECOND RESPONDENT M Wright (Barrister) SOLICITOR Abbott Tout

[2006] NSWLEC 180

20/09/2006