Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Land Management Act (“Mt Irvine Claim”)

[2024] NSWLEC 127

Land and Environment Court

New South Wales

Medium Neutral Citation:

Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Land Management Act (“Mt Irvine Claim”) [2024] NSWLEC 127

Hearing dates:

28, 29 30 and 31 May 2024

Date of orders:

28 November 2024

Decision date:

28 November 2024

Jurisdiction:

Class 3

Before:

Pepper J

Decision:

See orders at [134].

Catchwords:

ABORIGINAL LAND RIGHTS: whether the land was claimable Crown lands as at the date of the claim – whether land was divisible for the purpose of the claim – whether the land was used as at the date of the claim – whether the land was occupied as at the date of the claim – whether the land was lawfully used as at the date of the claim – whether the land was lawfully occupied as at the date of the claim – relevant legal principles – appeal upheld in part.

Legislation Cited:

Aboriginal Land Rights Act 1983, s 36

Crown Lands Act 1884, ss 101, 104

Crown Lands Act 1989, ss 3(2), 6, 92, 93, 100, 121A, 124, Pt 5, Sch 8, cl 4(3)

Crown Lands Consolidation Act 1913, ss 2, 3(b), 28, 29, 37Q

Public Trust Act 1897

Real Property Act 1900, s 13J

Sunday Entertainment Act 1966

Theatres and Public Halls Act 1908

Cases Cited:

Darkingjung Pty Ltd v Darkinjung Local Aboriginal Land Council [2006] NSWSC 1008

Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 (“Doyalson”) [2023] NSWLEC 134

Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140

Dorrigo Plateau Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 653; (2007) 155 LGERA 307

Griffith Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 108

Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547

Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379

Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665

Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359; (2012) 193 LGERA 276

Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352; (2009) 171 LGERA 56

Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee) (2012) 194 LGERA 1; [2012] NSWCA 358

Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285

Minister Administering the Crown Lands(Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133

Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154

New South Wales Aboriginal Land Council – Little Bay v Minister Administering the Crown Land Management Act [2022] NSWLEC 142

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act (1988) 14 NSWLR 685

New South Wales Aboriginal Land Council v Minister Administering the Crowns Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act(The Department of Education Claim) (1992) 76 LGRA 192

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 241

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2015] NSWCA 349; (2015) 215 LGERA 103

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Broggabri) [2014] NSWLEC 58; (2014) 202 LGERA 272

Petersen v Moloney [1951] HCA 57; (1951) 84 CLR 91

Weber v Greater Hume Shire Council [2019] NSWCA 74; (2019) 100 NSWLR 1

Category:

Principal judgment

Parties:

Deerubbin Local Aboriginal Land Council (Applicant)

Minister Administering the Crown Land Management Act (Respondent)

Representation:

Counsel:
S Docker SC (Applicant)
G Wright SC with O Berkmann (Respondent)

Solicitors:
Henry William Lawyers (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2023/110056

Publication restriction:

Nil

JUDGMENT

Deerubbin Local Aboriginal Land Council Claims Crown Land

1. These proceedings concern a Class 3 appeal pursuant to s 36(6) of the Aboriginal Land Rights Act 1983 (“ALRA”) in respect of the refusal by a delegate of the Minister administering the Crown Land Management Act 2016 (“the Minister”) of Aboriginal Land Claim 23465 lodged on 11 December 2009 by the applicant, Deerubbin Local Aboriginal Land Council (“Deerubin”), over Lot 7006 in DP 92885 described as 254 Mount Irvine Rd, Mount Irvine NSW (“the claimed land”).

2. The claimed land is part of a reserve comprising the Mount Irvine Village Hall (“public hall”), an open area and a tennis court. The land also contains a monument, a driveway, a vehicular gate leading to the public hall, memorial trees and plaques, and a septic system located immediately south of the hall with a connected sewerage absorption trench located on the southern part of the boundary. The whole of the land was declared a reserve for the public purpose of “For Public Hall” on 30 November 1928 (“the reserve purpose”).

3. The Minister refused the claim on 6 December 2022 because he was satisfied that when the claim was made the land was not “claimable Crown lands” under s 36(1) of the ALRA, on the basis that it was lawfully used and occupied as a public hall consistent with its reserve purpose.

4. The proceedings were commenced by Deerubin on 5 April 2023.

5. As reflected in the Statement of Agreed Facts and Issues dated 20 May 2024 (“SOAF”), Deerubbin does not press its appeal in respect of that part of the claimed land which includes the public hall and a small curtilage including the monument, which are depicted by the area hatched in blue in the image below, on the basis of its acceptance that that part of the claimed land was lawfully used for the reserve purpose when the claim was lodged.

6. The principal issue for determination is whether, as at the date of the claim, the balance of the claimed land was lawfully used or occupied within the meaning of s 36(1)(b) of the ALRA.

7. For the reasons that follow the appeal must be upheld in part.

8. I acknowledge the considerable assistance provided to me by Smith AC. All findings are, however, my own.

History of the Claimed Land

9. The claimed land is located in Mount Irvine, in the Parish of Bilpin, County of Cook, in the Blue Mountains local government area.

10. In 1908 the Theatres and Public Halls Act 1908 was enacted.

11. The following year, on 10 November 1909, the Minister for Lands notified that the purpose of “For Public Hall” was a public purpose within the meaning of ss 101 and 104 of the Crown Lands Act 1884.

12. The Crown Lands Act 1884 was repealed by s 2 of the Crown Lands Consolidation Act 1913 (“CLCA 1913”). Under s 3(b) of the CLCA 1913, any declaration made as to what things or matters came within the expression “public purpose” were deemed to have been made under the CLCA 1913.

13. On 1 February 1924 the land immediately to the south of the claimed land was reserved from sale and lease generally for “Public Recreation” (Reserve 56783-4).

14. On 30 June 1928, by notification in the New South Wales Government Gazette (“the Gazette”), the claimed land was subject to Reserve 60844 for Public Hall (“Reserve 60844”).

15. On 30 November 1928 the claimed land was temporarily reserved from sale for “Public Hall” under Reserve 60844 and from lease generally under Reserve 60845. The Gazette notice referred to ss 28 and 29 of the CLCA 1913, which empowered the relevant Minister to declare portions of Crown lands to be temporarily reserved from sale for any public purpose and to reserve Crown lands from being sold, leased or licenced.

16. On 15 March 1929 the Governor appointed trustees of Reserve 60844 pursuant to the Public Trust Act 1897.

17. The Governor made regulations for the management of Reserve 60844 pursuant to the Public Trust Act on 21 June 1929 (“the Reserve Regulations”). The Reserve Regulations included the following:

1. cl 10 provided that “no meeting, performance or entertainment of any kind shall be allowed on the reserve, or in any building thereon, without the written permission of the trustees being first obtained”;

2. cl 11 provided that “all applications for permission to use the hall on the reserve shall be made to the secretary of the trustees”;

3. cl 12 provided for charges for the use of the hall specified in the Schedule;

4. cll 14 to 17 contained prohibitions on certain conduct by persons on the reserve, including obstructing servants of the trustee or interfering in any meeting, performance or entertainment;

5. cl 18 provided that precedence in the use of the building shall be given for school purposes; and

6. the Schedule of Charges included a variety of uses of the hall, namely, moving pictures or magic lantern entertainments, political or social meetings not exceeding four hours, use of main room for school purposes during school hours, teacher’s quarters, use of main rooms for the whole day when not required for school purposes, and religious services.

18. The tennis court was built in 1935.

19. The current public hall was built during the 1960s.

20. On 24 January 1964 the Governor proclaimed that Pt II of the Theatres and Public Halls Act applied to the public hall.

21. In 1976 the tennis court was upgraded to a hard surface court.

22. On 16 March 1984 the Minister appointed seven persons as trustees of Reserve 60844 for the period between 19 July 1984 and 18 July 1989.

23. On 24 December 1986 the Minister notified that he had declared the trustees of Reserve 60844 and their successors to be a corporation with the name “Mt Irvine Public Hall Trust” (“the Reserve Trust”) pursuant to the provisions of s 37Q of the CLCA 1913. The effect of this was that on and from publication in the Gazette, the powers, authorities, duties and functions of the trustees of Reserve 60844 were deemed to be conferred or imposed on the trustee alone (s 37Q(2) of the CLCA 1913). Also, the common seal of the Reserve Trust was required to be kept by such trustee or officer of the trustees as the trustees from time to time authorised (s 37Q(4) of the CLCA 1913).

24. On 1 May 1990 the Crown Lands Act 1989 (“CLA 1989”) commenced.

25. On 12 August 1994 the Minister specified the name “Mt Irvine Public Hall (R60844) Reserve Trust” as the name of Reserve 60844 pursuant to Sch 8, cl 4(3) of the CLA 1989. The effect of this was merely to change the name of the Reserve Trust.

26. On 4 December 1997 DP 92885 was registered and the lot that is the claimed land was recorded but a folio was not created.

27. On 6 February 2008 folio 7006/92885 was created under the Real Property Act 1900 (“RPA”) and “The State of New South Wales” became the registered proprietor of the claimed land. Where “The State of New South Wales" is recorded as the registered proprietor of land under s 13J of the RPA, the estate to which that recording relates is an estate in fee simple. This did not, however, prevent the claimed land being vested in Her Majesty under s 36(1) of the ALRA (see s 3(2) of the CLA 1989).

28. On 12 June 2009 the Minister reappointed five persons as members and appointed one new member of the board of the trust pursuant to s 93 of the CLA 1989. These six persons continued to constitute the trust board for the trust as at the date of the claim (“Trust Board”).

29. On 27 July 2009 the Mount Irvine Progress Association wrote to the Trust Board for Reserve 60844 noting that the tennis court needed repair.

30. On 10 August 2009 Leith Conybeare, in her capacity as Secretary to the Trust Board, signed and lodged an application for grant funding with the NSW Government Community Building Partnership program to fund works on the tennis court and electrical work on the public hall. In relation to the tennis court, the application described its state as follows:

The bitumen surface of the community tennis court is in poor condition, as a result of deterioration through time and weather, root upheaval and inadequate drainage. Repair and restoration of the surface and underlying base of the tennis court are needed to restore its usefulness as a community recreational facility. …

…

The Mount Irvine tennis court is the only publicly available court to serve the Mount Wilson and Mt Irvine communities. A vintage community resource, it provides a formal exercise venue for youth, seniors and families. …

31. On 14 January 2010 Premier Kristina Keneally MP sent a letter to James Tzannes, in his capacity as Chairman of the Reserve Trust, regarding a grant of Community Building Partnership funding for restoration work on the tennis court and rewiring of the public hall (“application 2267”).

32. The Department of Premier and Cabinet (“the Department”) transferred $5000 to the Reserve Trust on 8 October 2010.

33. Communities NSW notified Tzannes on 8 December 2010, that the Department had agreed to extend the deadline for application 2267 to 30 June 2011.

34. Therefore, as at the date of claim:

1. the State of NSW owned the claimed land in fee simple;

2. the claimed land remained subject to the reserve purpose “For Public Hall”;

3. the claimed land was vested in the Reserve Trust for the purpose of Pt 5 of the CLA 1989 (see s 100(1) of that Act); and

4. the Reserve Trust had responsibility for the care, control and management of Reserve 60844 and the affairs of the Reserve Trust were managed by the Trust Board pursuant to s 92(6) of the CLA 1989.

35. As referred to above, at various times various community members were appointed to the Trust Board of Reserve 60844 as follows:

1. the first trustees were appointed on 15 March 1929 under the Public Trusts Act;

2. Fae Boult and Helen Naylor were appointed as trustees on 2 November 1973;

3. Mark Austin was appointed as an additional trustee on 19 December 1980;

4. Roger Howard-Smith was appointed as an additional trustee on 29 January 1982;

5. on 16 March 1984 Alan Gunn, William Scrivener, Hubert Smart, Boult, Helen Naylor, Austin and Roger Howard-Smith were reappointed as trustees for the period 19 July 1984 to 18 July 1989;

6. Susanna Gailey was appointed as a trustee for the period 1 August 1986 to 18 July 1989 on 1 August 1986;

7. on 25 August 1989 William Scrivener, Austin, Roger Howard-Smith, Gailey, Boult, Helen Naylor and Alan Gunn were reappointed as trustees for the period 19 July 1989 to 18 July 1994;

8. on 10 September 1993 Raymond Harrington was appointed as a trustee for the period 10 September 1993 to 18 July 1994;

9. on 29 July 1994 Helen Naylor, Roger Howard-Smith, Gailey, Austin, William Scrivener and Raymond Harrington were appointed as trustees for the period 19 July 1994 to 18 July 1999;

10. on 25 June 2004 Kathleen Howard-Smith, Raymond Harrington, Elisabeth Gunn, Geoffrey Naylor, Conybeare, Sara Sernack and John Lee were appointed as trustees for the period 19 July 2004 to 18 July 2009; and

11. on 12 June 2009 the following persons were appointed as members of the Trust Board for a five year term commencing 19 July 2009 and expiring 18 July 2014, namely, Raymond Harrington, Elisabeth Gunn, Conybeare, Geoffrey Naylor, Lee and Tzannes. As at the date of the claim, the Trust Board consisted of the same members.

36. The above chronology of Trust Board appointments from 1929 to 2009 demonstrates the continuity of the Reserve Trust. It also establishes the enduring community involvement in the affairs of the Reserve Trust insofar as most of the trustees were members of the Mt Irvine community at various points in time.

Issues for Determination

37. Over the course of the hearing, and as a result of the evidence adduced in the proceedings, the issues for determination in the appeal were refined. For example:

1. the assertion by the Minister in the Statement of Facts and Contentions filed on 11 August 2023, that the land was needed, or likely to be needed, for the essential public purpose of a public hall or community meeting place was abandoned;

2. Deerubbin conceded that the Court should find that each part of the land was used in fact as at the date of the claim. This included:

1. that the open space (that is, the whole of the area not comprising the public hall or tennis court) was used by the Reserve Trust as a garden and by the public for picnics; and

2. that the tennis court was used by the public for the casual recreational activities of tennis hitting, basketball and riding bicycles; and

3. Deerubbin conceded that if the open space was in fact occupied, such occupation was lawful (T10:25-26).

38. The issues for determination were accordingly narrowed to be four-fold (adopting, for convenience, the description provided by Deerubbin):

1. first, whether the use of each part of the claimed land was lawful (“the lawful use issue”);

2. second, in deciding the lawful use issue, whether the open space should be treated as “part” of the land for the purpose of the Court’s determination of claimability pursuant to s 36(5) and (7) of the ALRA. That is, whether the claimed land is a single indivisible parcel of land which includes the public hall, open space and tennis court, or whether the open space and tennis court can be treated as separate and discrete portions of that land for the purposes of the claim (“the divisibility issue”);

3. third, whether each part of the claimed land was occupied (“the occupation issue”); and

4. fourth, in relation to the tennis court only, whether, if it was occupied, such occupation was lawful (“the lawful occupation issue”).

Legislative Framework Governing the Claim

39. Section 36 of the ALRA defines “claimable Crown lands”. Land is claimable if it complies with s 36(1)(a) and the land does not fall under one of the exceptions in s 36(1)(b)-(e) of that Act:

36   Claims to Crown lands

(1)   In this section, except in so far as the context or subject-matter otherwise indicates or requires—

claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division—

(a)     are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901,

(b)     are not lawfully used or occupied,

(b1)    do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands,

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

(d)     do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and

(e)     do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands).

Crown Lands Minister means the Minister for the time being administering any provisions of the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 under which lands are able to be sold or leased.

40. It is not disputed that the land was land vested in Her Majesty which satisfied s 36(1)(a) of the ALRA.

41. Accordingly, only s 36(1)(b) is relevant in this proceeding.

42. Section 36(5) and (7) of the ALRA provides that the claim may be granted in whole or in part if it is “claimable Crown lands”:

(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.

…

(7)   The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council.

43. Section 92(5) of the CLA 1989 states that:

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

44. Section 100(1) of that Act says, in relation to Pt 5 dealing with the “Dedication and reservation of land”, that:

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

45. It was not in dispute, however, that the State of NSW remained the owner in fee simple of the land comprising Reserve 60488.

46. Finally, s 124(1) of the CLA 1989 empowers the Trust Board to remove persons from Reserve 60844:

124 Removal of persons

(1)   A member of the trust board for a reserve trust, an administrator of the affairs of a reserve trust or a ranger or other officer appointed by a reserve trust, may remove a person from the reserve or a public place (within the meaning of the Summary Offences Act 1988) if:

(a)   the person is found contravening a by-law applicable to the reserve, or

(b)    the person, by disorderly conduct in the reserve or public place, causes annoyance or inconvenience to persons in the reserve or going to or coming from the reserve.

Evidence of the Parties

47. In addition to the SOAF and various tendered documents, Deerubbin relied upon an affidavit of Jennifer Hutton affirmed 31 October 2023.

48. The Minister similarly relied upon the SOAF, tendered documents, and the following affidavits:

1. two affidavits of Bruce Kerridge, sworn 2 August 2023 and 12 January 2024. Kerridge is a volunteer of the Mount Wilson and Mount Irvine Rural Fire Brigade (“RFB”), the Mount Irvine Progress Association and Secretary and board member of the Trust Board;

2. an affidavit of Tzannes, sworn 3 August 2023. He was appointed Chair of the Trust Board in July 2009;

3. an affidavit of Allen Hyde, sworn 3 August 2023. Hyde is the current President of the Mount Irvine Progress Association as well as an Executive member of the Mount Wilson and Mount Irvine RFB; and

4. an affidavit of Conybeare, affirmed 3 August 2023. Conybeare served as the Secretary of the Trust Board for five years.

49. The Minister’s witnesses gave evidence relating to the Trust Board’s activities with respect to Reserve 60844 and their individual use and occupation of the open space and the tennis court and the use and occupation of the claimed land by the community. All four were cross-examined.

General Applicable Legal Principles

50. Although well traversed, it is convenient to repeat some of the fundamental legal principles underpinning the determination of land claim appeals under the ALRA. First, the ALRA was enacted in an attempt to mitigate the past dispossession of land from First Nations peoples in the State. This is expressly reflected in the preamble and objects of the Act (which are not repeated here). The Act has accordingly been described as beneficial and remedial legislation (see Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157B).

51. Nevertheless, care must be taken not to place undue emphasis on the beneficial purpose underpinning the ALRA. As the High Court of Australia stated in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 (“Berrima Gaol HCA”) (at [33] per French CJ, Keifel, Bell and Keane JJ, footnotes omitted. See a similar sentiment expressed by Gageler J at [94]):

33. That is not the situation which arises with respect to s 36(1) of the ALR Act, where it is the meaning of particular words which is in question. In Victims Compensation Fund Corporation v Brown it was pointed out that to commence the process of construction by posing the type of construction to be afforded – liberal, broad or narrow – may obscure the essential question regarding the meaning of the words used. It is one thing to say that no restricted construction should be given to legislation which confers benefits; but if the focus is on the meaning of specific words, the circumstance for a liberal application may not arise.

52. Second, exceptions to the right to claim land under the ALRA should be narrowly construed (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] [2001] NSWCA 28; (2001) 50 NSWLR 665 at [53] and Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 (“Bathurst”) at [186]).

53. Third, it is generally settled law that, as stipulated by s 36(7) of the ALRA, the onus of proof falls on the Minister to satisfy the Court that the claimed land is not “claimable Crown lands” under s 36(1) of the ALRA. If the Minister fails to discharge this statutory onus, then the Court is bound to order the transfer of the land to the applicant (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act (1988) 14 NSWLR 685 (“Winbar”) at 692D – 693D).

54. Fourth, the date for determining whether land is “claimable Crown lands” is the date that the claim was lodged, not the date that the claim was determined (Winbar at 691F-G and Dorrigo Plateau Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 653; (2007) 155 LGERA 307 at [9] and [44]).

55. Fifth, although it is the date of the claim (in this instance, 11 December 2009) which is the relevant date for the purpose of s 36(1)(b) of the ALRA, the Court may take into account post-claim evidence in determining whether, as at the date of the claim, the land was “claimable Crown lands” (Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359; (2012) 193 LGERA 276 (“Malabar CA”) at [19]). Specifically, the Court may consider evidence that comes into existence subsequent to the date of the land claim if it confirms attributes of the land as at the date of the claim or if it demonstrates a continuity of activity by indicating what occurred before or after the date of the claim (Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547 at 562-564 and 575-579 and New South Wales Aboriginal Land Council v Minister Administering the Crowns Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171 at [62] and [125]-[127]). The Court may admit evidence of future events that occurred after the date of the claim to confirm a hindsight but not to prove a hindsight.

56. Sixth, it may be appropriate to view parts of the claimed land separately for the purposes of determining whether the criteria for claimable Crown lands in s 36(1) of the ALRA is established (Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 (“Daruk”) and New South Wales Aboriginal Land Council – Little Bay v Minister Administering the Crown Land Management Act [2022] NSWLEC 142 (“Little Bay”)).

Lawful Use or Occupation

Actual Use or Occupation

57. Although the principles in relation to whether land is, in the statutory context of s 36(1)(b) of the ALRA, “used or occupied” have been stated numerous times (see, for example, Little Bay at [25] and Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 (“Doyalson”) [2023] NSWLEC 134 at [167]), they nevertheless bear present repetition:

1. the phrase “lawfully used or occupied” should be understood disjunctively by a separate consideration of the words “used” and “occupied”. That is, either a lawful use or a lawful occupation of the land will defeat the claim (Berrima Gaol HCA at [14], Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 (“Wagga”) at [69] and Bathurst at [232]);

2. the question of occupation and use is determined as at the date of the claim (Berrima Gaol HCA at [25]). The question is one of fact (Berrima Gaol HCA at [17]-[23]);

3. it is therefore necessary to consider the particular acts, matters and circumstances said to deprive the land of the characteristic of being “not lawfully used or occupied”. These must be measured against an understanding of what would constitute use or occupation of the land (Wagga at [69] and Bathurst at [232]). This requires a qualitative assessment of what is said to amount to use and occupation (Little Bay at [25(2)]);

4. generally, the matters considered in determining occupation will also be relevant to determining use (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2015] NSWCA 349; (2015) 215 LGERA 103 (“Berrima Gaol CA”) at [14]-[15]);

5. assessing whether land is used or occupied requires an examination of the activities undertaken upon the land in question, and in considering whether land is “occupied”, factors such as continuous physical possession must be taken into account (Berrima Gaol CA at [17]-[18]). Accordingly, “recurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land. And a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land” (Wagga at [69], footnotes omitted);

6. a continuous physical presence over the entirety of the land is not necessary to establish occupation. The fact that some of the land has been left undeveloped does not in and of itself mean that the whole of the land is unoccupied (Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 (“Tweed Byron”) at 140-142). Thus not every part of the land needs to be used in order for the whole of the land to be lawfully used (Malabar CA at [39]);

7. total abandonment is not required to find that the land is not lawfully used or occupied (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Department of Education Claim) (1992) 76 LGRA 192 (“Education Building”) at 198);

8. occupation includes legal possession, that is, the ability to exclude third parties (Berrima Gaol HCA at [18]). But ownership of land is not, of itself, actual occupation for the purposes of s 36(1)(b) of the ALRA (Berrima Goal HCA at [46]);

9. for land to be used or occupied, it must be actually used or occupied in the sense of being used in fact and not in a nominal sense or merely to a notional degree (Bathurst at [161]-[162] and [227]-[230], Malabar CA at [45]-[47] and Berrima Gaol CA at [17]). Put another way, the use or occupation must be more than de minimis, that is, in light of the circumstances of the case, it must be of substance rather than “so miniscule, insignificant or token as to be disregarded” (Bathurst at [161] and Malabar CA at [46]-[47]). A use or occupation that is limited, casual and sporadic is insufficient (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 241 at [143] and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352; (2009) 171 LGERA 56 at [169]);

10. use requires actual, and not contemplated or intended, employment of the land (Griffith Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 108 at [41] and [55] and Education Building at 199);

11. it follows that constructive use is insufficient (Daruk at 164B-D, Berrima Gaol CA at [16] and Malabar CA at [43]-[47]). Likewise, constructive occupation is equally insufficient (Daruk at 162D-E); and

12. the concept of use in the ALRA requires actual use of the land for some purpose (Education Building at 198-199). This encompasses notions of “utilisation, exploitation and employment of the land” (Wagga at [73]).

Lawfulness of the Use or Occupation

58. It is incumbent upon the Minister to satisfy the Court that the use or occupation of the claimed land is lawful (Bathurst at [240]). That is, was the use or occupation of the particular Crown land legally authorised (Tweed Byron at 142).

59. However, it is not necessary that the dedicated or reserve purpose of Crown land be actively pursued by the acts relied upon as constituting occupation of the land (Berrima Goal HCA at [39]). That construction would deny occupation of its separate sphere of operation (Berrima Goal HCA at [43] and [46], footnotes omitted):

[43] The adjective “lawfully” which precedes “used or occupied” does not assist the NSW ALC's argument. It may be accepted that the dedication of land has a limiting effect. Its use, benefit and possession must conform to the purpose for which it was dedicated. A use which is made of land which is inconsistent with its dedicated purpose is not a lawful use of it. But the NSW ALC does not suggest that the acts relied upon as constituting occupation are inconsistent with the dedicated purposes. What it does say is that for it to be lawful occupation, those purposes must be pursued. To say that is to say that the claimed land must be actively used for those purposes if it is to be said to be lawfully occupied. There is no basis to be found in s 36(1) for that submission.

…

[46] It is one thing to acknowledge that ownership of land is not, of itself, actual occupation for the purposes of s 36(1)(b) of the ALR Act; it is another thing to say that actual occupation by the owner is not lawful occupation.

60. To be “lawful” for the purpose of s 36(1)(b) of the ALRA, the use must be authorised by, or reasonably in furtherance or ancillary to, the purposes for which the claimed land was reserved and not for “some unrelated purpose” (Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee) (2012) 194 LGERA 1; [2012] NSWCA 358 at [33] and [37] per Basten JA).

61. In Tweed Byron, Clarke JA held that “lawful” within the meaning of s 36(1)(b) of the ALRA involves a consideration of “whether the user of the particular Crown land is legally authorised”. His Honour went on to opine that the qualification that the user must be lawful was introduced to “to distinguish between cases where a person uses the land without any lawful right to do so (the trespasser or squatter) and the person who enjoys a licence or permit which, while not constituting that person as an occupier, renders his use a lawful one” (at 142).

The Lawful Use Issue

62. As observed above, as a result of the evidence adduced during the hearing, Deerubbin accepted that the whole and each part of the claimed land was used in fact as at the date of the claim for the purpose of s 36(1)(b) of the ALRA.

63. In other words, Deerubbin conceded that the open area and the tennis court were in fact used. As the evidence of Kerridge, Hyde and Conybeare demonstrated, the open area was used by the Trust Board as a garden and by the public as a picnic area. Moreover, the evidence of Kerridge, Hyde, Conybeare and Tzannes revealed that the tennis court was used by the public for the casual recreational activities of tennis hitting (the court’s surface was sufficiently degraded that games could not be played), basketball and riding bicycles.

64. The issue, therefore, is whether or not this use was lawful.

65. Relying principally upon Berrima Goal HCA and Goomallee, Deerubbin argued that if the claimed land was not being used for the purpose for which it was dedicated, or some purpose ancillary thereto, then the use was not lawful. More specifically, because the use of the claimed land did not fall within the reserve purpose of “For Public Hall” it was unlawful.

66. To the extent that the Minister asserted that the use of the claimed land was, in each instance, ancillary to the reserve purpose, in the sense of related or connected to the reserve purpose, and therefore lawful, this contention ought to be rejected on the basis that it was inconsistent with the meaning of ancillary, that is, as something that is “accessory or auxiliary”.

67. Deerubbin further submitted that because the Theatres and Public Halls Act was not amended before Reserve 60844 was created on 30 November 1928, and having regard to the definitions of the terms “public hall”, “public entertainment” and “public meeting” contained within that Act, and the everyday common usage of the term “hall” (as evidenced by the definition of that word contained in the Macquarie Dictionary), the activities carried out in and around the public hall on the claimed land did not fall within the reserve purpose.

68. According to Deerubbin, the concept of the hall is central to the reserve purpose. A hall is a place which serves to limit the activities that fall within the nominated purpose because a “public hall” is “a large building or room” which the community or public can access. Its lawful uses are constrained accordingly. Therefore, leaving aside any permitted ancillary uses, only community uses of the public hall, such as meetings, entertainment and performances, fell within the purpose of Reserve 60844. In the present case, the use of the land surrounding the public hall was not within the reserve purpose because it was not a use of the hall.

69. While Deerubbin acknowledged that it was possible for there to be community uses of land surrounding the public hall that were ancillary to the use of the hall “For Public Hall” purposes, the use of the surrounding open space for public recreation and the use of the tennis court were neither accessory nor auxiliary to the use of the public hall. At the time that Reserve 60844 was gazetted there was no tennis court and the land to the south was already reserved for public recreation, suggesting that public recreation was not an authorised use of the claimed land, especially the open space and the tennis court. The surrounding circumstances did not, therefore, support an approach which assumed that something different or wider that the stated reserve purpose of “For Public Hall” was ever contemplated.

70. Because the use of the tennis court was not accessory or auxiliary to the use of the public hall. The possibility that the tennis court might have been used in an ancillary way to the public hall was not sufficient. In respect of the open area, its use for picnics was not ancillary to the use of the public hall. These were discrete activities carried out by the community members or by people visiting the area. The gate to Reserve 60844 was not locked and the general public were not excluded from the claimed land.

71. The use of the tennis court and the open area was not in accordance with, or ancillary to, the reserve purpose and were consequently prohibited under s 6 of the CLA 1989, and hence, unlawful.

72. By contrast, the Minister argued that when regard was had to the Theatres and Public Hall Act (as amended by the Sunday Entertainment Act 1966, which included in the definition of “public entertainment” in the former Act a reference to a “sporting event”) and the Reserve Regulations imposed in 1929, the breadth of possible uses of the public hall were numerous and included, for example, boxing. This supported the conclusion that the reserve purpose of “For Public Hall” was broad enough to allow for the activities that occurred in the open space and on the tennis court.

62. The Reserve Regulations also indicated by their terms that the claimed land was intended to be considered as a single parcel of land, not merely limited to a building. For example, under cl 10, meetings, performances or entertainment “of any kind” were permitted “on the reserve or in any building thereupon” subject to written permission from the trustee. The wide ambit of the identified activities permitted indicated that the claimed land was intended to be used for a broad variety of community activities. Other clauses in the Reserve Regulations expressly permitted “social meetings”, that is, a place for the community to congregate, which would encompass the activity that was currently occurring in the open area and on the tennis court. Accordingly, the reserve purpose could accommodate a low impact activity such as the use of the tennis court for a casual hit or for basketball as a use ancillary to that of a public hall. This activity would not overwhelm the reserve purpose thereby obliterating its ancillary character.

63. Finally, it was the Minister’s contention that because the overriding purpose of Reserve 60844 was as a public space, the use of the tennis court was an extension of the use of the public hall for community purposes. Viewed this way, the tennis court formed part of the land comprising the open space that was put to active use. The Minister sought to emphasise the degree of connection between the use of the public hall and the use of the tennis court, to demonstrate that the tennis court “was complimentary [sic] to the use of the hall”. The net for the tennis court, for example, was locked in the men’s toilet in the public hall. It was accessed by members of the Mount Irvine Tennis Association who had a key.

Divisibility Issue

75. At this juncture it is convenient to deal with the divisibility issue, that is, whether the claimed land is divisible in the tripartite manner for which Deerubbin contends, namely, the public hall, the open space, and the tennis court.

76. The Minister sought to argue that the existence of Reserve 60844 and the Reserve Trust were compelling considerations in determining whether or not the open space ought to be, as the Minister contended, considered as part of the indivisible whole of the claimed land. In particular, the Minister relied upon various indicia in relation to the care, control and management of the whole of the claimed land authorised under s 92(5) of the CLA 1989 to submit that:

1. the reservation of the claimed land “For Public Hall” was not limited only to the purpose of a physical building but to the entirety of the land comprising Reserve 60844;

2. in conformity with the terms of the Reserve Trust, the claimed land was managed as a single parcel. The public hall was not, for example, fenced off, the tennis court, albeit fenced, was not locked, and the gardens and trees were maintained to enhance and promote the amenity of Reserve 60844 as an outdoor meeting place (the open space and tennis court) and an indoor meeting place (the public hall); and

3. the open space was not managed differently than the public hall building by the Reserve Trust. Both the open space and the public hall were discussed, cared for and controlled by the Reserve Trust. The Trust Board and community viewed Reserve 60844 as a continuous whole.

77. In Daruk Mahoney JA noted that there was a marked difference between the use and occupation of the two parts of the claimed land to the north and south that were separated by a road and were quite distinct from each other (at 164F-G). Such a finding was permitted because s 36(5)(a)(ii) and (b)(ii) of the ALRA “clearly contemplates the possibility of a claim succeeding in regard to part of the lands claimed only” (at 164G).

78. Similarly in Little Bay, where part of the claimed land that was neither lawfully used nor occupied was held to be claimable Crown lands and was therefore transferred to the applicant, Duggan J opined (at [71]-[72]):

71 The question then arises, having regard to the Curtilage as an area that is capable of being considered as a separate or divisible component of the whole of the Claimed Land, is the Curtilage used or occupied within the meaning of s 36(1) of the ALR Act?

72 As indicated above, taking the evidence as a whole there is no identified Puse or occupation of the Curtilage of the Claimed Land with the exception of the use of the path from Murra Murra Place to the Building. The use of the path is a defined area designated by a formed path. The evidence is that the path is the access used by persons attending the Building. The use of the path is sufficient to indicate for the purposes of s 36(1) that the part of the Claimed Land to which the path relates is relevantly lawfully used and occupied for access by the SLSS. However, I do not consider that the use of the path is sufficient to indicate that the balance of the Curtilage areas is also used and occupied for any purpose including access. Whilst it is not necessary that all parts of parcel of land are required to be used or occupied in order for the relevant land to be used and occupied in the meaning of s 36(1) where a use of some part of the land is relied upon to demonstrate use of the whole, that particular use must have some characteristic that warrants treating the use of part as use of the whole. In this case, the use and occupation for access is limited and does not require or import a characteristic to the balance of the Curtilage area such that the balance of the Curtilage would be also considered as being used and occupied by the SLSS. For those reasons, and the reasons outlined above, I find that the Curtilage is not actually used or occupied except to the extent of the access path from Murra Murra Place.

79. I am of the opinion that the lands are able to be divided in the manner conceived of by Deerubbin. Not only is such an approach supported as a matter of law under the ALRA, as a practical matter the open space and the tennis court are used and occupied to a different extent and in a different manner from each other and to that of the public hall.

80. By way of illustration, the evidence demonstrates that the open space was primarily used and maintained as an outdoor meeting place and garden to enhance the amenity of, and as an adjunct to, the use and occupation of the public hall:

1. according to Kerridge, the garden around the public hall in the open space was planted in the 1960s by local residents “and it was part of the beautification and activation of, of the reserve to make it a more beautiful and welcoming space” (T244:18-20);

2. a memorial tree and stone was installed in the open space in honour of Dorothy Scrivener;

3. the evidence of Conybeare, Tzannes, Hyde and Kerridge was to the effect that working bees were held by community volunteers and Trust Board members to maintain the space. These occurred regularly, including before or after events or the hiring of the public hall. In addition to mowing, weeding, sweeping and pruning, the maintenance included digging a trench, fence repair and tree removal. Some of these works were performed voluntarily and other were the subject of paid employment (such as the mowing of the grass in the open area);

4. the maintenance was funded by the Reserve Trust, the annual Easter BBQ event and through donations. On occasion, out of pocket expenses were reimbursed to individuals;

5. the open space and the tennis court were used by the community and the wider public, who could enter at will;

6. the Reserve Trust had been proactively managing and caring for the open space for almost a century;

7. the open space was used by the community for its annual Easter BBQ event. Tzannes deposed to children playing hide and seek in the dark in the grounds of the open space and climbing the trees at the event on 11 April 2009, while the adults congregated in the public hall;

8. the open space was used for picnics and games;

9. in her affidavit, Conybeare gave evidence that the open area between the tennis court and the public hall and the open area behind the public hall were “areas where the kids would play and run around, especially when the Hall was full”; and

10. the open area was used by the Rural Fire Service and RFB during bushfire incidents, both as a place of community refuge and as a staging post for firefighting operations. For example, although there were no bushfires in 2009 or 2010, Conybeare recalled a major fire event in 1994 where tents were erected in the open space for non-local firefighters to sleep.

81. While the open space was viewed as an extension of the public hall by the community members who gave evidence in the proceedings, in my opinion, its use and occupation was sufficiently different from that which occurred in the public hall itself - which is unsurprising given that the use of the latter mainly comprised indoor meetings and, perhaps with the exception of the annual Easter BBQ, other indoor events. The fact that the Reserve Trust managed and maintained both the public hall and the open space together does not derogate from this view. While the management structure was the same, the activities that the Reserve Trust controlled and supervised in respect of the open space and public hall were distinct.

82. Applying the reasoning above, it becomes apparent that the tennis court can, and should, also be treated as a distinct parcel of claimable land. Again, its use was almost entirely separate to the use of the public hall (T121:30-40). I do not consider the fact that the net was stored in the men’s toilet under lock and key to be a sufficient nexus between the use of the public hall and the use of the tennis court that would warrant the claimed land being treated as an indivisible whole for the purpose of the claim under the ALRA.

83. In the result, even if this conclusion is incorrect, and the tennis court, open space and public hall ought to be considered as forming part of a single parcel of land for the purpose of the claim under the ALRA, the conclusion is the same, namely, that the claimed land was, either in its totality or its constituent parts, used (as was eventually conceded by Deerubbin). The salient question is the lawfulness of that use.

The Public Hall Was Lawfully Used

84. As accepted by Deerubbin, there was clear evidence of the regular use of the public hall for community events or meetings. Moreover, there could be no dispute, given that the stated purpose of Reservation 60844 was “For Public Hall”, that the use of the public hall was lawful.

The Use of the Open Space Was Lawful

85. If the open space formed part of an indivisible continuum of the land on which the public hall was located, then, having regard to the evidence (see, for example, that referred to above at [81]), I find that the use of the open space was lawful. The physical acts carried out on, and in, the open space involved the use of that land being made to serve a purpose consistent with the reserve purpose insofar as the open space was developed as a garden to enhance the amenity of the public hall. Likewise, the recurring acts of maintenance of the open space by the Reserve Trust establish use because they were directed to making the land serve the purpose of the public hall as a place for the community to meet and congregate.

86. Although passive, the use was actual and continuous and had been managed by the Reserve Trust for over half a century. In this context, it should be recalled that not every part of the open space must be used to establish lawful use. Having said this, there was unchallenged evidence that an underground sewage treatment system was attached to the public hall consisting of a septic tank, underground sewer pipes and absorption trench all located in the open space. The sewage treatment system in the open space was activated whenever the bathrooms or the sink in the kitchen of the public hall were in use.

87. The open space was used more actively when the public hall was in use for community events, such as the annual Easter BBQ, or for the purpose of firefighting and other community events.

88. On any view, the use of the open space was more than sporadic, causal or de minimus and was in furtherance of the reserve purpose. In short, the use of the open space was lawful.

89. In the alternative, if the above conclusion is wrong and the open space was not being used for the purpose for which the land was reserved, viz, “For Public Hall”, I nevertheless find that the use of the open space was ancillary to that reserve purpose.

90. As noted above, according to Deerubbin, the use of the open space was only ancillary to the reserve purpose if it was “accessory or auxiliary” to it. Whether the use of the open space is accessory or auxiliary to the reserve purpose or “subordinate” or “subsidiary” (see the definition of “ancillary” in the Oxford English Dictionary (online ed)) to it, does not, in my view, matter. The issue is not one of semantics but one of fact and degree. Plainly there are some uses of the open space that would not be ancillary to the reserve purpose of “Public Hall”. The grazing of livestock or the extraction of minerals would be examples of uses that could not be described as ancillary to the reserve purpose.

91. However, the same cannot be said of the uses to which the open space was put as at the date of the claim as outlined above. These were auxiliary, accessory, subordinate or subsidiary, to the purpose of the reservation insofar as they were an incident of, or complementary to, the use of the public hall.

92. The fact that land to the south was reserved specifically for the purpose of public recreation does not necessarily preclude the claimed land being used in an incidental or similar manner, provided the use is ancillary to the reserve purpose, which in this case I find that it was.

93. As the Minister submitted, Deerubbin takes an impermissibly circumscribed view of the ambit of the physical acts that are relevant to establish whether the use of the open space is ancillary to the use of land reserved for the purpose of “For Public Hall”. The logical corollary of Deerubbin’s argument is that only the use of the public hall would be lawfully permitted; all other uses not involving that physical structure falling outside the reserve purpose, and therefore, unlawful. Regarded this way, no use of the land surrounding the public hall, other than, it may be assumed, the land used to access the hall itself, would fall within the reserve purpose. This is overly restrictive.

94. On the contrary, in my opinion, the reservation of the land “For Public Hall” is not limited to the use of the physical buildings. Rather, it being for the purpose of “For Public Hall”, the open space surrounding that structure plays, as the evidence in this case establishes, a central role in facilitating and furthering the reserve purpose.

95. In the present case, the Reserve Trust had the care, control and management of the whole of the claimed land, including the open space. The oversight of the open space and the public hall were both discussed and managed during Trust Board meetings; the open space was subject to routine maintenance, together with the repair of the public hall; congregation by the community occurred in the open space as a consequence of the use of the public hall; the gardens and undeveloped parts of the open space enhanced the amenity and enjoyment of the use of the public hall; and both the public hall and the open space were integrated, with (unlike the tennis court) no barrier separating them (for example, there was no fence around the public hall. In the original Crown Plan there was, by contrast, a fence drawn around the public hall).

96. The evidence of the witnesses, both in their capacity as Trust Board members and community members, was to the effect that the open space was viewed by the Reserve Trust and the public as a community meeting place, abeit outdoors. That is, the open space was used in a manner that was ancillary to the use of the public hall. This characterisation was reflected in the documentary evidence. By way of illustration, the 2008-2009 and 2009-2010 Annual Return of the Reserve Trust described the use of the whole of the claimed land as a “community meeting place and recreational tennis venue” and “RFS Emergency HQ…when required”.

97. While I agree with Deerubbin for the reasons that it articulated that neither the definitions contained in, nor the amendments made to (which were, in any event, promulgated after the reservation) the Theatres and Public Hall Act assist the Minister, the same cannot be said of the Reserve Regulations. These Regulations are a contextual indicator that the reach of the reserve purpose of “For Public Hall” was intended to extend beyond the public hall building itself. For example, cl 10 states that unless written permission from the trustee was first obtained, meetings, performances or entertainment “of any kind” were not permitted “on the reserve or in any building thereupon”. Although expressed as a prohibition, the wide ambit of the identified activities suggest that the land forming part of Reserve 60844, including the public hall and the open space, was envisaged to be used for a wide variety of community activities. And other clauses in the Reserve Regulations expressly permit “social meetings”.

98. For these reasons, I find that if the use of the open space was not directly authorised by the “For Public Hall” purpose, then its use was ancillary to the reserve purpose. As a consequence, the open space was lawfully used, and therefore, is not claimable Crown lands for the purpose of s 36(1)(b) of the ALRA.

The Use of the Tennis Court Was Not Lawful

99. The same cannot be said, however, in respect of the tennis court. In my view, while there was, as Deerubbin conceded, sufficient evidence of the use of the tennis court (for a “hit-up”, basketball or bicycle riding), that use neither formed part of, nor was ancillary to, the reserve purpose of “For Public Hall”. The recreational sporting activities carried out on the tennis court, while undoubtedly undertaken by the local community, were sufficiently divorced from the use of the public hall so as to remove it from the ancillary sphere of the reserve purpose.

100. The various indicia relied upon in making this finding include:

1. at the time Reserve 60844 was gazetted there was no tennis court on the land;

2. the Theatres and Public Halls Act was not amended to include a reference to a “sporting event” within the definition of “public entertainment” until after Reserve 60844 was declared. That Act did not apply to the public hall until 8 January 1964. The use of the tennis court in the manner described by the witnesses may be for the purposes of entertainment, but in my opinion, the activity is not “public entertainment” as defined in the Act. That definition connotes activity that is organised and structured and to which there are spectators. This is not how the tennis court was being used as at the date of the claim;

3. although the Reserve Regulations contemplated a variety of activities to take place in and around the public hall, including “social meetings”, properly construed, there was nothing in the Reserve Regulations that was broad enough to allow tennis, and therefore, the use of the claimed land for the purpose of a tennis court. While a game of tennis is undoubtedly a social activity, I do not consider that a group of people who assemble for a friendly game of tennis (even a “hit-up”), to play basketball or to ride bicycles, constitutes a “social meeting”. Were this so, almost any use of the claimed land could be classified as a “social meeting” and would fall within the reserve purpose, thereby rendering the nominated purpose of “For Public Hall” almost devoid of content;

4. the land to the south of the claimed land was specifically reserved for the purpose of “public recreation”. When the land was temporarily reserved from sale the Minister could have added purposes to the reserve (s 121A of the CLA 1989), but elected not to do so;

1. as at the date of the claim the condition of the tennis court, unlike that of the open space or the public hall, was in a state of abject disrepair;

2. the use of the tennis court could not be said to further or promote the use of the public hall. The fact that the net was locked in the men’s toilet in the public hall does not alter this conclusion. On the contrary, as Deerubbin submitted, the use of the public hall in this manner is more properly characterised as being ancillary to the use of the tennis court, not the inverse;

3. there was no evidence that the use of the tennis court was in conjunction with the use of the public hall. The use of the tennis court was as a stand alone facility, other than the housing of the net in the men’s toilets. The tennis court had a separate booking system to that used to book the hall, which had previously been administered by Elly Gunn, a Trust Board member. Although, as at the date of the claim, this practice had fallen into desuetude, presumably because the surface of the court had deteriorated to the point that tennis matches could no longer be played. The Minister could not adduce evidence of any booked use of the tennis court (for a fee or otherwise) as at the date of the claim;

4. the tennis court was left unlocked and could be accessed by anyone. Permission was neither required, nor sought, to use it;

5. the tennis court was described separately (as a “recreational tennis venue”) in the 2008-2009 and 2009-2010 Annual Returns for the Reserve Trust from the public hall and the open space (a “community meeting place”). It was described as a “community recreational facility” in the grant application dated 10 August 2009 and as a “social and recreational facility” in the Completion Report and Completion Acquittal Statement by Grant Recipient – Community Building Partnership Program signed by Elisabeth Gunn (on 29 June 2011) and Conybeare (on 6 July 2011) (“the Completion Report”). In other words it was perceived by the Reserve Trust as a use and a facility that was wholly separate to that of the public hall; and

6. this bifurcation was consistent with the evidence of some of the witnesses before the Court. Conybeare, for example, indicated that “people from Mount Wilson would come and use it if they knew it was there” (T189:09).

101. Collectively these factors permit the Court to make a finding that the use of that part of the claimed land upon which the tennis court is located was not, as at the date of the claim, in accordance with, or ancillary to, the reserve purpose. Therefore, its use was unlawful insofar as it was prohibited by dint of s 6 of the CLA 1989. It was therefore “claimable Crown lands” as that term is defined in s 36(1) of the ALRA.

The Occupation Issue

102. The Minister separately submitted that if, contrary to his submissions, the use of any part of the claimed land was unlawful, then the acts done to occupy that part of the land constituted lawful occupation and the land is therefore not claimable under the ALRA on this basis.

103. As the High Court in Berrima Goal HCA made plain, the concepts of lawful use and lawful occupation cannot be conflated given their distinct spheres of operation for the purposes of s 36(1)(b) of the ALRA, notwithstanding that the acts relied upon to demonstrate one may be used to establish the other (at [39]). This means that the lawful occupation of the claimed land does not depend upon, although it may be informed by, conformity with the reserve purpose of “For Public Hall”.

104. Again, because no issue arose as to the lawful occupation of the public hall, and in light of the concession by Deerubbin that if the open space was occupied such occupation was lawful, it is convenient to turn initially to the open space to determine whether or not it was occupied as that concept is understood under the ALRA. If it was not, then it is claimable Crown lands pursuant to s 36(1) of the ALRA.

The Open Space Was Occupied

105. In my opinion, having regard to the principles outlined earlier in this judgment, it cannot be concluded that the open space was not occupied.

106. It should be reiterated that the concepts of use and occupation, while accommodating overlap, are nevertheless distinct. Thus the facts and circumstances used by the Minister to establish use cannot be relied upon seriatim to demonstrate occupation.

107. While there was no continuous physical presence over the entirety of the open space, this is not necessary. The evidence demonstrates that the open space was regularly maintained and beautified by both volunteers (working bees) and for payment (the mowing of the grass), that were either organised, or at the very least, authorised by the Trust Board. Viewed this way, the acts of occupation were the acts of the Reserve Trust. Moreover, as discussed above, the open space was used when the public hall was in use for meetings and community events, and for the purpose of bushfire fighting. Again, this was evidence of occupation by the Reserve Trust insofar as it was aware of and permitted these activities to take place in and on the open space. On any view, this was more than notional occupation or occupation as a matter of constructive inference - it was occupation in fact.

108. Deerubbin submitted that the reserve purpose could not be ignored in determining whether the claimed land was occupied in fact. That is, the reserve purpose informed the acts of occupation that the Minister could rely upon. The Reserve Trust was therefore required to manage the open space in a way that promoted the use of the public hall. This demanded much more active management than that demonstrated by the evidence. For example, no control was exercised by the Reserve Trust over access to the open space.

109. In my opinion, the acts of maintenance detailed above are sufficient. They were performed in order to enhance the amenity and enjoyment of the public hall. That the open space was used by people other than those persons using the hall is not fatal (and in any event, it is the acts of the Reserve Trust that are relevant, not the public). Neither is the fact that the access to the open space was unimpeded. At all times the Reserve Trust retained the power to remove persons from the open space pursuant to s 124 of the CLA 1989.

110. Given Deerubbin’s acceptance of the lawfulness of any occupation found, it follows that the open space was lawfully occupied, and therefore, not claimable Crown lands pursuant to s 36(1)(b) of the ALRA.

The Tennis Court Was Not Occupied

111. The same conclusion cannot be drawn in respect of the tennis court.

112. The Minister contended that the acts carried out on the tennis court by way of management and maintenance amounted to actual occupation of it by the Reserve Trust. In particular:

1. the tennis court was fenced;

2. weeds were removed and the vines were trimmed or cut down;

3. debris on the tennis court was swept;

4. works carried out in the open space included works on the tennis court. The Court could not view the activities carried out on the tennis court in isolation from the maintenance carried out in the open space;

5. there were at least two working bees carried out on the tennis court in September 2009 and in October or November 2009;

6. the Trust Board maintained and managed the whole of the reserve, including the tennis court. The Trust Board was entitled to conduct maintenance on the tennis court area as part of its care, control and management of the land under s 92(5) of the CLA 1989;

7. no paid works were carried out on the tennis court without permission from the Trust Board; and

8. because the Trust Board was aware of and consented to the use by the public of the tennis court, this use could be attributed to the Reserve Trust (exclusive possession by the Reserve Trust not being required for the purpose of s 36(1)(b) of the ALRA).

113. By contrast, Deerubbin submitted that the acts of maintenance and use relied upon by the Minister were insufficient to prove occupation because:

1. use by the public did not constitute use by the Reserve Trust given that there was no control over this use. Unlike the public hall, the Reserve Trust exercised no control over the public’s activities on the tennis court, which was open to anyone;

2. as at the date of the claim, the tennis court was in such a state of disrepair that the Court could not find that it was being maintained anything more than in a casual and de minimus manner;

3. there was scant evidence that as at the date of the claim there had been any routine maintenance of the tennis court. Rather, apart from some clearing of debris and poisoning of tree roots in October or November 2009 (as described by Kerridge) and a working bee in September 2009 (as deposed to by Tzannes), the evidence strongly suggested that the overwhelming majority of the work on the tennis court occurred after the date of the claim (for example, the working bees by the scouts around 2011 and 2012 and the investigation of the trees roots adjacent to the tennis court in late 2010 and in 2011). Prior to the date of the claim the Trust Board did not appear to have any knowledge of any works occurring on the tennis court at the time that they were arranged and carried out by members of the community (not members of the Trust Board);

4. similarly, it was not clear to what extent the maintenance was carried out by, or even for, members of the Mt Irvine community, rather than the Reserve Trust itself. The community members carrying out these acts were not on the Trust Board at the time and were not acting as agents of the Reserve Trust; and

5. although the Reserve Trust is deemed to have an estate in fee simple in Reserve 60844 (see s 100(1) of the CLA 1989), the State of NSW was nonetheless the owner of the claimed land for the purpose of the ALRA and the effect of deeming title under s 100(1) of the CLA 1989 was limited to Pt 5 of that Act and did not extend to s 36(1)(b) of the ALRA. The Reserve Trust did not, therefore, have a right of exclusive possession in respect of the tennis court, and in any event, did not exercise any measure of control over who had access to the tennis court (other than locking the net in the men’s toilets in the public hall). Although the Trust Board could remove a person from the reserve land, there was no evidence of this ever having been exercised with respect to the tennis court (see s 124 of the CLA 1989).

114. I accept Deerubbin’s submissions. For the following additional reasons I find that the acts of maintenance and use relied upon by the Minister did not establish occupation in fact for the purpose of s 36(1)(b) of the ALRA.

115. First, while the acts of occupation relied upon by the Minister included the use and upkeep of the tennis court, its condition was so poor that it may be inferred that as at the date of the claim, it was not being maintained in anything other than the most casual and sporadic manner. For example:

1. the surface of the tennis court had deteriorated through the effluxion of time, exposure to the elements and poor drainage (T95:01-33, 164:08-11 and 175:03-09);

2. the surface of the tennis court had at least 10 undulations from roots (T231:20-33 and 232:40-43) and the roots had penetrated the asphalt surface (T230:36-231:19). These roots had grown suckers (T230:13-44) and 5 to 10 saplings had grown through the surface of the bitumen (in some cases up to 1 m high) that had to be severed at the surface (T108:39-109:48). As a consequence, tennis matches could no longer be played on the court (T84:44-50, 95:01-33 and 164:13-30);

3. the evidence of Kerridge and Hyde, along with the meeting minutes of the Mount Irvine Progress Association, demonstrate that no real attempt had been made to remediate the court as at the date of the claim, save as to some minor investigative work that was undertaken in late 2010;

4. other works included the removal of the grass and moss and vines, and some exploratory work in respect of tree roots on the road-side of the tennis court by Alan Gunn in late 2009, however, these were both ad hoc and minimal;

5. while there was random maintenance specific to the tennis court in September 2009 and October or early November 2009, the more regular working bees to clean up the tennis court occurred after the date of the claim and appeared to be carried out by third parties (such as the scouts) and not the Reserve Trust or members of the Trust Board;

6. the work carried out by Tzannes, Kerridge, Alan Gunn and Geoffrey Naylor that occurred in late 2009 prior to the date of the claim was voluntary, in their capacity as community members, and without the knowledge of the Trust Board;

7. photographs annexed to Hutton’s affidavit taken in January 2010, showed debris on the surface of the tennis court and vines growing on at least two sides of the fence surrounding the court. Photographs annexed to Kerridge’s affidavit showed a similar state of dereliction; and

8. although the oral evidence of Kerridge indicated that there were brooms placed close to the entrance of the tennis court to sweep up the debris on the surface of the court, none could be seen in the photographs tendered to the Court. Again, assuming that they were present, it is not known who provided the brooms (there was no evidence that they were provided by the Reserve Trust), and the sporadic sweeping was not carried out by the Reserve Trust.

116. Second, in my opinion, Deerubbin is correct in its contention that the evidence of the use of the tennis court by the public are not acts that constitute occupation by the Reserve Trust. Only the acts of the Reserve Trust are relevant for the purpose of determining whether there was occupation in fact.

117. At the risk of repetition, the Reserve Trust exercised no control as a matter of fact over the use of the tennis court. Access was available to anyone, the booking system had been abandoned as at the date of the claim, and the Reserve Trust did not have the benefit of exclusive possession of the tennis court (the fee simple created by s 100(1) of the CLA 1989 neither operated to displace the ownership of the reserve land by the State of NSW nor did it grant a right of legal possession: see s 100(2) of that Act). While s 124 of the CLA 1989 permitted the Trust Board to remove a person from the tennis court, this power was circumscribed (s 124(a) and (b)). Thus while the Trust Board had the care, control and management of the tennis court, the evidence does not disclose that the acts of care, control and maintenance relied upon by the Minister were carried out by, or even on occasion with the knowledge of, the Reserve Trust.

118. In having said this, I have taken into account the written and oral evidence of the witnesses and the minutes of the meetings of the Mount Irvine Progress Association and Trust Board, that indicate that the Reserve Trust was aware of, and, it may be inferred, consented to, some of the acts of maintenance being carried out in the future on the tennis court. To the extent that works were envisaged to be carried out, the Mount Irvine Progress Association noted, for example, that any such works would be carried out under the supervision of the Trust Board. The Mount Irvine Progress Association regularly reported to the Trust Board. It was the Trust Board that had to approve any expenditure in this regard. The difficulty for the Minister is, however, that whatever remediation works were contemplated in respect of the tennis court, in the main, they were not realised despite agitation by various people at various meetings. In short, nothing was ultimately done (for example, it appears that there was no expenditure of Reserve Trust monies on any repair work carried out in respect of the tennis court: T79:37-39).

119. Furthermore, the occasional impromptu “tidying up” (T206:01) to remove vegetation and to sweep the court was carried out by volunteer community members, and not the Reserve Trust, or persons engaged on its behalf. To the extent that quotes for works were obtained and grant money sought, the work was never executed. In addition, some of this “tidying up” was for purposes unrelated to the occupation of the tennis court, rather it was, as Kerridge observed, for the purpose of the beautification of the reserve (T235:04-05).

120. There was no legal basis for attributing any acts of occupation to the Reserve Trust because the community members who carried out the work on the tennis court were not, moreover, its agents. This was in contrast to Berrima Goal HCA where it was held that the State of NSW occupied the land through its agents (at [62] and [142]). There was no evidence of any intention by the Reserve Trust to create legal relations between a person occupying the position of principal and third parties, or at least between the Reserve Trust and the various community members who carried out the maintenance work (Petersen v Moloney [1951] HCA 57; (1951) 84 CLR 91 at 94). There was no evidence of any Trust Board resolution conferring such capacity on any person in respect of the tennis court and there was no record or register of works.

121. The Reserve Trust did not make any payments for maintenance between June 2008 and February 2011 (T71:43-50, 72:09-15; 78:29-50, 80:07-18 and 81:02‑04). And while there was discussion by the Mount Irvine Progress Association at their meetings (which were attended by Trust Board members) about the need for the tennis court to be upgraded in 2008, this was not carried out as at the date of the claim (see, for example, the minutes of the meetings on 9 February 2008 and 5 October 2008). True it is that according to the minutes of the Mount Irvine Progress Association dated 28 February 2009, a quote was obtained by the Tennis Court Sub-Committee to deal with intrusive tree roots, there is no evidence that this work had been carried out as at the date of the claim. On the contrary, the material discloses that it was not until after the date of the claim that both the Mount Irvine Progress Association and the Trust Board took sustained and meaningful steps to improve the condition of the tennis court. This is so notwithstanding the request from the Secretary of the Association to the Trust Board on 27 July 2009, for “assistance in the refurbishment of the tennis court”. Handwritten minutes of meetings of the Trust Board on 18 July 2009 (although “2010” is handwritten, the parties accepted, and I infer, that the correct date is 2009) and 4 October 2009, clearly refer to the need for work to be done to the tennis court, including repairing the surface, but again, as at the date of the claim this had not been effected.

122. Finally, although on 10 August 2009 Conybeare, on behalf of the Reserve Trust, lodged an application for a grant to carry out electrical work on the public hall and to restore and repair the tennis court, the money was not received until 21 September 2010, that is, after the date of the claim. More significantly, it appears from the Completion Report that as at mid 2011 works to the tennis court had not commenced and the Trust was awaiting further funding. In fact it is unclear if any of the $5000 grant money had been spent on upgrading the tennis court. On the contrary, the Completion Report indicates, and I infer, that the money was spent on electrical works in the public hall.

123. The facts here may again be distinguished from those in Berrima Goal HCA, where occupation was held to have been established. There acts of actual occupation were able to be demonstrated, namely, continuous physical possession and the continuous presence of a security guard. The repairs, maintenance and gardening were carried out under a regular maintenance contract or by persons serving community service orders (at [15], 28] and [90]). While the public visited the gardens, this was only pursuant to permission granted by Corrective Services NSW (at [15]).

124. In this instance, as at the date of the claim there was no continuous physical possession, the maintenance was sporadic, and was carried out by members of the public who could use the tennis court at any time without having to seek permission prior to entry. That a key was required to access the net in the men’s toilets does not alter this view. While exclusive possession of the land comprising the tennis court is not, as stated above, a necessary element of occupation in fact, it can be a route by which the Minister establishes occupation.

116. For the sake of completeness, although strictly not necessary to determine in light of the findings above, it should be noted that I do not accept Deerubbin’s submission that the Reserve Trust was incapable of performing the acts of remediation constituting occupation because maintaining a tennis court for separate use was contrary to the powers conferred upon it.

117. In short, Deerubbin sought to argue that notwithstanding that it is the State in right of NSW that owns Reserve 60844, because the Reserve Trust is deemed to be a landowner by reason of the operation of s 100(1) of the CLA 1989, as a statutory corporation its capacity to carry out certain functions incidental upon land ownership is restricted by statute (Weber v Greater Hume Shire Council [2019] NSWCA 74; (2019) 100 NSWLR 1 at [33] and [34] per Basten JA). In the present case, the powers of the Reserve Trust as a deemed owner in fee simple of Reserve 60844 were qualified by the purpose for which the estate was conferred (citing Weber at [33], Bathurst at [179]-[184] and [240] and Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council [2006] NSWSC 1008 at [45], [68]-[75] and [89]-[119] per Barrett J, as his Honour then was), namely, “For Public Hall”. Therefore, because the Reserve Trust was not permitted to operate the tennis court as a standalone recreational facility, because to do so was inimcal to the reserve purpose, then the acts of maintenance could not be attributed to the Trust, and accordingly, could not be relied upon in support of its occupation of the tennis court.

118. There are several difficulties with this proposition. First, the statutory provisions identified by Deerubbin said to curtail the power of the Reserve Trust as a statutory corporation to operate a tennis court did not support this argument. Second, properly analysed the contention is no more than a variation of the argument rejected by the High Court in Berrima Goal HCA (at [43]). See the discussion above at [51]). I note that the first instance decision in Darkinjung, upon which Deerubbin placed considerable reliance, was determined prior to Berrima Goal HCA.

If the Claimed Land Was Actually Occupied, the Occupation Was Lawful

128. Given Deerubbin’s concession that if actual occupation of the open space was established (which it has been), the occupation is lawful, the only issue that remains for resolution is, if the Court is incorrect in its conclusion that the tennis court was not in fact occupied, whether the occupation of the tennis court by the Reserve Trust was lawful.

129. Deerubbin effectively repeated the submission that the Reserve Trust was lawfully incapable of performing the acts of care and control of the tennis court because they were beyond the objects, functions and powers of the Reserve Trust as a statutory corporation inasmuch as these powers were circumscribed by the reserve purpose of “For Public Hall”.

130. Again, as discussed above, this contention impermissibly conflates lawful use and lawful occupation. Just as it was not accepted in Berrima Goal HCA, it must be presently dismissed.

131. Were the Minister able to prove that there was occupation in fact of the tennis court (which the Court has rejected) there was nothing unlawful about it. The Reserve Trust had a proprietary interest in the land the subject of the reservation, including the tennis court, pursuant to s 100(1) of the CLA 1989. While this did not have the effect of vesting an estate in fee simple in the Reserve Trust for any purpose (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Broggabri) [2014] NSWLEC 58; (2014) 202 LGERA 272 at [51]-[53]), it was sufficient to enable it to occupy all of the claimed land. There is nothing in the Reserve Regulations or any of the instruments establishing Reserve 60844 or the Reserve Trust that compels a different conclusion. On the contrary, these instruments, and the statutory framework pursuant to which Reserve 60844 was created, make it plain that the Reserve Trust lawfully occupies all of the claimed land. The fact that the Reserve Trust did not enjoy the full complement of rights incident upon legal ownership of the claimed land - such as exclusive possession - is not decisive. As Deerubbin accepted, neither the Reserve Trust nor those acting with its authority, were trespassers on the land.

Conclusion

132. The Minister has not wholly discharged the onus of satisfying the Court that all of the claimed land was lawfully used or occupied as at the date of the claim pursuant to s 36(1)(b) of the ALRA. This is because the Court has found that the tennis court was neither lawfully used nor actually occupied. By operation of s 36(7) of the ALRA Deerubbin is therefore entitled to an order that the part of the claimed land comprising the tennis court be transferred to it.

Costs

133. As neither party indicated, either during their written or oral submissions, that an order for costs should be made, it is appropriate that each party bear their own costs. Accordingly, no order for costs is made unless, within 14 days, either party seeks a different costs order by notice of motion supported by accompanying evidence.

Orders

134. The orders of the Court are therefore that:

1. the appeal is allowed in part;

2. the respondent must transfer that part of Lot 7006 in DP 92885 comprising the tennis court only in fee simple to the applicant;

3. the respondent shall do all things necessary to enable the transfer of the land referred to in order 2, including surveying the land if required, within 12 months of the date of these orders;

4. there is no order for costs unless, within 14 days, either party files a notice of motion supported by affidavit evidence seeking a different costs order; and

5. the exhibits are to be returned.

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Decision last updated: 28 November 2024