Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act
[2012] NSWLEC 68
•30 March 2012
Land and Environment Court
New South Wales
Case Title: Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act Medium Neutral Citation: [2012] NSWLEC 68 Hearing Date(s): 15 - 18 August 2011, 31 October 2011, 1 November 2011 Decision Date: 30 March 2012 Jurisdiction: Class 3 Before: Pain J Decision: See par 169 Catchwords: ABORIGINAL - land claim - whether Crown land likely to be needed for essential public purposes of public recreation, nature conservation, open space/urban fringe park - whether essential public purposes - whether likely to be needed - whether local council interest in use of Crown land relevant to intention of State government actors - whether competing departmental interests to asserted essential public purposes at date of claim Legislation Cited: Aboriginal Land Rights Act 1983 s 36, s 36A
Interpretation Act 1987 s 14
National Parks and Wildlife Act 1974 s 49
Sydney Regional Environmental Plan 19: Rouse Hill Development Area
Trade Practice Act 1974 (Cth) s 45D (repealed)Cases Cited: Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800
Birrigan Gargle Aboriginal Land Council v Minister Administering Crown Lands Act [1999] NSWLEC 12; (1999) 102 LGERA 33
Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 180; (2006) 149 LGERA 162
Daruk Local Aboriginal Land Council v Minister Administering Crown Lands Act (No 2) [1995] NSWLEC 238; (1995) 89 LGERA 194
Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act [1997] NSWLEC 93; (1997) 95 LGERA 353
Deerubbin Local Aboriginal Land Council v The Minister Administering The Crown Lands Act [1999] NSWLEC 82
Dorrigo Plateau Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 653; (2007) 155 LGERA 307
Housing Commission (NSW) v Falconer [1981] 1 NSWLR 547
Illawarra Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2010] NSWLEC 124
Illawarra Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 188; (2008) 161 LGERA 294
Jerrinja Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 577; (2007) 156 LGERA 65
La Perouse Local Aboriginal Land Council v Minister Administering Crown Lands Act (1991) 74 LGRA 176
New South Wales v Commonwealth [1926] HCA 23; (1926) 38 CLR 74
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [2008] NSWLEC 13
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 (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685
New South Wales Aboriginal Land Council v Minister for Natural Resources (The Tredega Claim) (1986) 59 LGRA 318
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 (1998) 43 NSWLR 249
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 Illawarra Local Aboriginal Land Council [2009] NSWCA 289; (2009) 168 LGERA 71
Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2011] NSWCA 127
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352; (2009) 171 LGERA 56
Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154
Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367
Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 20; (2001) 113 LGERA 163
Worimi Local Aboriginal Land Council v The Minister (1991) 72 LGRA 149Texts Cited: Category: Principal judgment Parties: Deerubbin Local Aboriginal Land Council (Applicant)
Minister Administering the Crown Lands Act (Respondent)Representation - Counsel: Dr J Griffiths SC with Mr J Hutton (Applicant)
Dr C Mantziaris (Respondent)- Solicitors: Chalk & Fitzgerald (Applicant)
Crown Solicitor's Office (Respondent)File number(s): 30246 of 2010 Publication Restriction:
JUDGMENT
The Minister administering the Crown Lands Act (the Minister) refused Deerubbin Local Aboriginal Land Council's, the Applicant's, Aboriginal Land Claim 3465 (ALC 3465) on 8 December 2009. This appeal against the Minister's refusal was lodged pursuant to s 36(6) of the Aboriginal Land Rights Act 1983 (the ALR Act). ALC 3465 was lodged 23 years ago on 15 August 1989. I thank Acting Commissioner Davis for her assistance in this matter.
ALC 3465 relates to Lots 49, 306, 385, 387 and 414 in DP752047 and areas of vacant Crown land within the external boundary of the claim (the claimed land). The area is irregular in shape and difficult to describe in narrative. At the hearing the Minister conceded part of the land is claimable Crown land (Area A). The claimed land is outlined in black in Annexure J to the affidavit of Sonia Hughes dated 8 February 2011. The area with red cross hatching marked during the hearing represents Area A. The balance of the land the subject of these proceedings is known as Area B. The total land comprises approximately 355.5ha at Kenthurst within the Parish of Nelson, County of Cumberland along O'Haras Creek near Porters Road.
The Minister conceded that ALC 3465 should be granted over part of the claimed land. Area A comprises:
(i)that part of the claimed land situated within the inner green line (being the inner boundary of the DCP area highlighted in green shading) as set out on the map at Annexures F and J to the affidavit of Sonia Hughes sworn 8 February 2011; but
(ii)excludes the Crown public roads as dedicated in (i); and
(iii)excludes the area under Permissive Occupancy 1968/30 granted to the Northern Districts Pistol Club.
The Minister submitted that except for Area A, as at the date ALC 3465 was lodged (15 August 1989), the claimed land in Area B was needed or likely to be needed for the essential public purposes (EPPs) of open space and/or urban fringe park, nature conservation and public recreation. The Applicant conceded that Permissive Occupancy 1968/30 granted to the Northern Districts Pistol Club does not comprise claimable Crown land within the meaning of the ALR Act pursuant to cl 8 of Sch 4 of the Act. The Applicant also concedes that the dedicated roads in Area B are not claimable Crown land.
Aboriginal Land Rights Act 1983
Section 36 of the ALR Act relevantly provides:
(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:
...
(c) are not needed, nor likely to be needed, for an essential public purpose, and
...
(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.(5A) Where, under subsection (5), a Crown Lands Minister is not satisfied that the whole or part of the lands claimed is claimable Crown lands because the lands are needed, or likely to be needed, for an essential public purpose, but that the need for the lands for the public purpose would be met if the claim were to be granted in whole or in part subject to the imposition of a condition (whether by way of covenant or easement or in any other form) relating to the use of the lands, the Crown Lands Minister may, notwithstanding that subsection, where the condition is agreed to by the Aboriginal Land Council making the claim, grant the claim under that subsection subject to the imposition of the condition.
(6) An Aboriginal Land Council may appeal to the Court against a refusal under subsection (5) (b) of a claim made by it.
(7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council.
...Section 36A "Special provision concerning certain Crown lands having nature conservation value" relevantly provides:
(1) This section applies in relation to lands that:
(a) are the subject of a claim by one or more Aboriginal Land Councils under section 36, and
(b) the Crown Lands Minister is satisfied would be claimable Crown lands except for the fact that the lands are needed, or likely to be needed, for the essential public purpose of nature conservation.(2) If the Aboriginal Land Council or Councils making the claim agree to the imposition of the conditions that, before the grant of a claim to lands to which this section applies, the Aboriginal Land Council or Councils:
(a) must negotiate a lease of the lands, that complies with the requirements of Part 4A of the NPW Act, with the Minister administering that Act, and
(b) must agree:(i) to enter into a lease of the lands to the Minister administering the NPW Act in the terms negotiated in accordance with paragraph (a), and(ii) to the simultaneous reservation or dedication of the lands under the NPW Act, and(iii) to hold the lands as lands reserved or dedicated under the NPW Act, and(iv) to comply with the requirements of the NPW Act and, in particular, the requirements of Part 4A of that Act in relation to the lands,
the Crown Lands Minister may, despite section 36 (5) grant a claim to lands to which this section applies.
...The Minister has the onus of satisfying the Court that the lands claimed were not claimable Crown lands under s 36(7) including the establishment of primary facts and inferences to the satisfaction of the Court: Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 at [202] per Basten JA. The Minister must prove that the lands claimed were not claimable Crown lands as at the date of the land claim, that is, 15 August 1989: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 (Winbar No 3) at 691F - G per Hope JA. In that case his Honour stated:
"The first matter to be noticed is that the definition of "claimable Crown land" in s.36(1) fixes the time as at which the conditions which it specifies must be satisfied as the time when the claim for the lands is made. It does not require the conditions to be satisfied at some later time, as for example, when the Minister investigates the matter or when the Court, on appeal, investigates it. What the Minister was then required to do under s.36(5) was to investigate whether the land the subject of the claim satisfied the conditions of the definition at the time the claim was made, and if so satisfied he was required, under the Act in its original form, to transfer the land to the claimant land council in fee simple. He had no discretion in the matter; he was simply required to look at a state of facts existing at the date of claim."
The ALR Act is remedial and beneficial legislation enacted to address the injustice and loss suffered by Aboriginal people through losing their land after white settlement by giving their representatives rights in Crown land: Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 157 per Kirby P; Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 20; (2001) 113 LGERA 163 at [97] - [98]; Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 180; (2006) 149 LGERA 162 at [14] - [15]. Given that beneficial purpose, exceptions to the right to claim Crown land 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 (Maroota No 2 (CA)) at [53] - [54] per Spigelman CJ; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18 at [21] and [25] per Mason P with whom Tobias JA agreed.
A striking feature in this case is the length of time taken to determine the land claim, a matter referred to as a relevant consideration in cases such as Jerrinja Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 577; (2007) 156 LGERA 65 at [124] - [125]. As the Minister bears the onus of proof, if there is uncertainty about whether the claimed land was not claimable Crown lands owing to the absence of evidence or supportive material, the Court is required to transfer the claimed land to the Applicant under s 36(7): Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289; (2009) 168 LGERA 71 (Illawarra No 1 (CA)) at [114] per Basten JA.
Questions of fact - Governmental activity at the date of claim
The following questions of fact to be proved were identified by the Minister in the Respondent's Amended List of Issues to be Determined filed in Court on 18 August 2011.
Whether, as at the date of claim:
(a)Baulkham Hills Shire Council (BHSC), Department of Lands (Lands), National Parks and Wildlife Services (NPWS) had deferred planning in relation to that area of the claimed land which corresponded to at least the proposed subdivision on Crown land at the northern end of Porters Road.
(b)the Minister for Lands and the Minister for the Environment concurred with the position stated in (a) above.
(c)An area of open space had been proposed by BHSC around the perimeter of the residential subdivision proposed for Area A and further consideration of that proposal had been deferred as part of the deferral in (a) above and the Minister of Lands was aware of this proposal.
(d)BHSC acknowledged the environmental significance of the O'Haras Creek area, and agreed that at least Area B required protection.
(e)Lands acknowledged the environmental significance of the O'Haras Creek area, and agreed that at least Area B required protection.
(f)NPWS acknowledged the environmental significance of the O'Haras Creek area, and agreed that at least Area B required protection.
(g)Lands had proposed a reserve for public recreation and the promotion of the study and preservation of native fauna and flora over Area B, in the context of a general proposal that Area B should accommodate a mixture of conservation, active and passive recreation, open space and urban fringe park use.
(h)BHSC supported the Lands proposal for a reserve for public recreation and the promotion of the study and preservation of native fauna and flora over Area B
(i)[not pressed]
(j)NPWS deferred to BHSC's assumption of planning role in relation to Area B by supporting "local management of the area for conservation and natural area recreation".
(k)The Minister for the Environment supported management by local government (BHSC) for nature conservation and public recreation
(l)[not pressed]
(m)The Department of Housing had expressed a general interest in investigating the urban capability of all land within the BHSC area, but any interest in the claimed land was reducible to that part of the claimed land which was the subject of the subdivision at the end of Porters Road (that is, Area A)
(n)The interest of the Department of Housing in relation to use of the entirety of the claimed land for residential housing (that is, Areas A and B) was withdrawn on or about 14 May 1993.
(o)Relations between BHSC, Lands and NPWS in relation to land use planning for Area B were cooperative and not hostile.
In response to the Minister's submissions on questions of fact the Applicant sought the following findings of fact in the alternative:
| (a) | At the date of claim, the interest of BHSC and Lands in exploring a possible residential subdivision extended into Area B (it was not limited to Area A) |
| (b) and (c) | The Respondent's case that some of Area B was likely to be needed for "open space" is now limited to the penumbra around Area A and tied to the alleged residential development proposal. At the date of claim, NPWS opposed BHSC carrying out a residential subdivision on the claimed land. At the date of claim, any interest of Lands and BHSC to explore a possible residential subdivision on the claimed land was informal, indefinite, and in the form of a concept rather than a developed proposal. It was contingent on further investigation (particularly the completion of the 1989 Land Assessment and Planning Process (LAPP)). |
| (g) | At the date of claim, any intention on the part of Lands to create a reserve for public recreation and promotion of the study and preservation of native fauna and flora (reserve for mixed recreation and conservation) was informal, indefinite and in the form of a concept rather than a developed proposal. It was contingent on further investigation (particularly completion of 1989 LAPP). |
| (h) | At the the date of claim, BHSC's support for a reserve for mixed recreation and conservation was informal, indefinite and in the form of a concept rather than a developed proposal. It was contingent on further investigation (particularly completion of the 1989 LAPP). |
| (j) | At the date of claim, NPWS did not defer to BHSC's assumption of a planning role in relation to Area B (the contested land). |
| (k) | The Minister for the Environment did not express any support for a reserve for mixed recreation and conservation (which in any case was a matter for Lands and not BHSC). The Minister for the Environment only stated that the State Government would not consider dedicating the land as a nature reserve, which statement was later reversed. At the time of the date of claim, NPWS was opposed to the creation of a reserve for mixed recreation and conservation (at least in relation to some forms of recreation). |
| (m) and (n) | The Department of Housing's interest in the claimed land was not limited to Area A and extended to Area B. The Department of Housing had expressed an interest in the whole of the claimed land at the date of claim. |
| (o) | BHSC and Lands, on the one hand, and NPWS on the other hand, had inconsistent intentions in respect of the Area B. |
In addition, the Applicant contended for the factual finding that, at the date of claim, the Department of Mineral Resources (DMR) was opposed to a reserve over the claimed land (for nature conservation, public recreation or a mix of both) because of the interests of a soil extraction operation Kemp Sandstone Pty Ltd. At the date of claim, the DMR was or would have been opposed to a reserve over the claimed land (for nature conservation, public recreation or a mix of both) because of its effect on petroleum exploration rights.
Questions of law
The following questions of law were identified by the Minister in the Respondent's Amended List of Issues to be Determined filed in Court on 18 August 2011:
(a)Is a likely need for Crown Land for (i) "open space" or (ii) "urban fringe park" an EPP for the purpose of ALR Act s 36(1)(c)?
(b)Can land be considered as likely to be needed for an EPP under ALR Act s 36(1)(c) in circumstances where that land is identified as likely to be needed for any one or more EPPs, in circumstances where no specific dedication or reservation of any particular sub-parcel of that land has been made for one of the identified EPPs?
The Applicant's issues identified for each of the Minister's proposed EPPs of nature conservation, public recreation, open space and urban fringe park, were whether each was an EPP for the purposes of s 36(1)(c) ALR Act and whether the whole or part of Area B was likely to be needed for that EPP at the date of claim.
The Applicant's Core Contentions filed in Court on 1 November 2011 state:
The Court should find that the Minister has failed to discharge her onus because she has failed to establish that, as at the date of the claim (15 August 1989):
(a)there was any clear or sufficiently developed proposal regarding any of the three (now four) asserted EPPs against which the question of "likely need" could properly be addressed; and
(b)if there was any such proposal and it related to an EPP (both of which are denied), it has not been demonstrated that the Area B was likely to be needed for any of those purposes in the senses that "likely need" involves a real or substantial chance and not simply a remote chance or mere possibility.
Evidence
Documents drawn from the relevant departmental files were produced and are identified in the chronology below. The Minister additionally relies on the affidavit of Sonia Hughes dated 8 February 2011 and a letter from Lands to BHSC dated 30 November 1987 (exhibit 8).
Ms Hughes, Status Branch, Legal Services Division, Land and Property Management Authority (LPMA) annexes to her affidavit various maps requested by the Crown Solicitor's Office. She describes the method of creating the requested maps. She was asked to prepare maps showing:
(a)An outline of the claimed land and a broken outline surrounding the area identified as the "deferred area" on the diagram annexed to the letter dated 17 December 1987 to the Lands Office from BHSC (a copy of this document is located at tab 54 of the Respondent's Tender Bundle (RTB)).
(b)An outline of the claimed land and both green outlines on the draft Development Control Plan No 85 (DCP 85) diagram annexed to the draft Baulkham Hills Local Environmental Plan (LEP) (not numbered) and DCP 85 (a copy of this document is located at RTB tab 53).
(c)An outline of the claimed land and an outline of the area on the draft LEP attached to the letter dated 2 January 1986 to Lands from BHSC. I describe this area as the "LEP area".
The "DCP area" is the area between the green outlines on the draft DCP 85 diagram annexed to the draft LEP and DCP 85. Annexure F to her affidavit is a topographical map with outlines of the claimed land in black, the deferred area in broken purple line, and the DCP area in green and bounded by thick green lines. The red marking between the broken purple line and thick green line made during the hearing represents potential open space use. Annexure J is a copy of an orthophoto map with the outlines of the claimed land in black, the area deferred for zoning (see par 30 below) in a broken purple line, and the DCP area highlighted in green and bounded by thick green lines. The red cross hatching made during the hearing between the thick green line and the black line represents Area A.
A chronology of events follows:
Date Event 12 July 1963 Gazettal notice reserving land from sale for future public requirements under the Crown Lands Consolidation Act 1913. 1970 M Ruddock, State Member of Parliament for the Hills district, Press release to local papers on O'Haras Creek recommending the whole Cattai complex of bush areas should become part of a national park. O'Haras Creek would be a very important section of the park if it is created. 1970 Lands file note, "Proposed O'Haras Creek Nature Reserve" identifying that land has great conservation value and recommending that areas specified on a plan be dedicated as a nature reserve - including the claimed land 1970
(NPWS)
Lettersfrom NPWS to Department of Mines, State Planning Authority of NSW, BHSC and Forestry Commission of NSW on proposed dedication as a nature reserve over the broader O'Haras Creek region. 21 July 1970
(NPWS)
NPWS report, "Investigation of Proposed O'Haras Creek Nature Reserve" identifying its ecological qualities and that it be required to be dedicated as a nature reserve and cancellation of permissive occupancy 68/26 in the area and timber licences be withdrawn 12 October 1970
(NPWS)
NPWS report regarding Aboriginal relics within permissive occupancy for the removal of topsoil at O'Haras Creek 1973 Lands officers and BHSC were to prepare an Open Space Study of the Shire's Crown Land. This was never completed. Referred to in BHSC minutes of meeting dated 26 June 1990. July 1975 Conservation and Landscape Committee of the National Trust of Australia (NSW), Sydney 2000: requirements for conservation of natural areas, scenic preservation and recreation in the Sydney metropolitan area. 9 July 1982 Letter from BHSC to Lands seeking input into rural lands study (RLS) March 1983 NPWS extract of submissions on BHSC's RLS identifying areas of potential conservation value including O'Haras Creek June 1983 BHSC's RLS part 1. This was done over half of the Shire's rural land. The Study's objectives included investigating areas for future village, urban and rural residential expansion. It identified, inter alia, rural residential development potential in Kenthurst on land with urban capability and less suitable for agriculture, and a potential network of bushland reserves. O'Haras Creek identified by NPWS as having conservation value and its environmental features are identified. NPWS recommends 7(d) environment protection zoning. 7 July 1983 Letter from the Lands Office (Lands Office) letter to BHSC asking for progress report on study and whether there are rezoning proposals for Crown land. 18 July 1983 Letter from BHSC to the Lands Office 10 November 1983 Letter from BHSC to the Crown Lands Office advising study complete of half of rural lands in Shire recommendation in study that there be review with BHSC and the Department of Crown Land 12 December 1983 Lands' Metropolitan district surveyor's instruction to the senior surveyor 12 December 1983 Letter from the Lands Office to BHSC seeking further copies of the study 12 December 1983 Memorandum from the Lands' officer in charge to the Director of Crown Lands concerning preparation of response to the study 1984 Department of Environment and Planning's Guidelines for Preparing an Open Space Plan show the generally regarded standard of 2.83ha/1000 people for open space. 1984 Department of Environment and Planning's Sydney Region North West Sector Regional Environmental Study prepared. 30 March 1984 Lands' report on the RLS. It refers to "active and semi-active recreational pursuits" appropriate to bushland fringe" or "urban fringe areas". Lands supported a joint study with BHSC of possible bushland reserve networks. No such study is in evidence. 7 June 1984 Letter from the Lands Office to BHSC responding to study supporting BHSC's joint review of Crown land 13 June 1984 Acknowledgment letter from BHSC to the Lands Office January 1985 Letter from Minister of Lands to member for Hawkesbury refers to Lands commenced in January 1985 LAPP to assess suitability and capability of all Crown land in the Shire. [This was never completed and no draft was in evidence.] BHSC advised on 2 January 1986 that it had resolved to prepare a draft LEP to rezone land in Nyari and Portters Roads 1985 Department of Environment and Planning's 1982 Open Space Study identified the area of open space available in the Baulkham Hills local government area at the local and district levels at 5.70 ha/1000 people. It also found 41% of parkland in the local government area as having little usage. 20 January 1986 Letter from BHSC to the Lands Office regarding the RLS stating it would not zone sensitive areas using an environmental protection zone as proposed in the RLS and had resolved to review Interim Development Order No 118, insofar as it related to development of land within the RLS area. BHSC resolved to rezone land in the vicinity of Kenthurst Village to "permit the development of lots with a minimum area of 4000m2" and to "rationalize zonings within the existing Kenthurst Village." 24 March 1986 Letter from the Lands Office to BHSC notifying that it would be applying the LAPP to the Shire's Crown lands, proposing to produce a land use plan sensitive to both the land's capabilities and community needs. 25 March 1986 Letter from Lands to BHSC stating that it wished to participate in the proposal to prepare a draft LEP for development but it sought to defer rezoning proposals until completion of its 1985 LAPP. 27 March 1986 Letter from BHSC to the Minister for Natural Resources recording it had purchased land in the Nyari, Porters and Cadwells Roads area to develop it for semi-rural residential allotments. Immediately north was Lands' land, also suitable for that purpose. 30 April 1986 Department of Environment and Planning noted its interest in the 1985 LAPP to Lands 16 May 1986 Forestry Commission noted its interest in the 1985 LAPP. 21 May 1986 Letter from J Aquilina, Minister for Natural Resources, to K Rozzoli, Member for Hawkesbury regarding draft LEP. The Minister noted that on 2 January 1986 the "Council advised that it had resolved to prepare a draft Local Environmental Plan to rezone land in Nyari, Cadwells and Porters Roads" for rural residential subdivision purposes. He stated that the rezoning "would not commit the land to any course of action or development" until the LAPP studies had been completed. 26 May 1986 Land's report on Draft Local Environmental Plan - Nyari, Cadwells and Porters Road, Kenthurst states the proposal is to utilise ridgetop lands for two hectare lots and reserve steeper escarpment. 23 July 1986
(Department of Housing)
Letter from Department of Housing to Lands Office stating "all of the Crown land be regarded as areas of interest" to that department and requesting that it be consulted during the course of investigations and preparation of the draft LAPP. August 1986 Draft Baulkham Hills LEP became available for public comment containing provisions on subdivision and lot density. Under open space the NPWS's view that O'Haras Creek wet sclerophyll forest on valley floors are unusual and can be preserved with adjoining escarpments, steep slopes, whilst allowing recreational uses compatible with area's preservation. Open space below the escarpment was identified. It aimed to permit rural residential subdivision at a density yielding the same number of lots as a traditional 2ha subdivision. BHSC wrote to Lands as a landowner inviting a submission. 12 August 1986 Letter from BHSC to the Lands Office regarding Porters Road area, inter alia in draft LEP and draft DCP inviting inspection and comment 28 August 1986 Further letter from BHSC to the Lands Office regarding Porters Road area in draft LEP 11 September 1986 BHSC's subdivision plans feature in the Sydney Morning Herald. 15 September 1986 Letter from the Department of Agriculture to BHSC commenting that it raised no objections to the draft LEP. 15 September 1986
Exhibit A (ATB) tab 11
Lands wrote to NPWS re ALCs 2625-2628 asking whether it objected to the granting of the claims and advising that any objection had to be "fully justified" on the basis of "need or likely need for the land for an essential public purpose". 30 September 1986
(DMR)
Exhibit A (ATB) tab 12
DMR indicated the area relating to ALCs 2625-2628 (in the immediate vicinity of ALC 3465) was wholly within petroleum exploration licence (PEL) 260 by AGL Petroleum Operations Pty Ltd. 30 October 1986 Letter from Lands Office to BHSC advising that much of the Crown land in the area was subject to an ALC which needed resolution before any Crown development could occur and referring to LAPP advice so far identifies in Porters Creek area Crown lands home sites on ridge tops and conservation/recreation land in valleys. 3 February 1987 Lands Office's Report No 87/6 states that discussions were held between officers of Lands and the Department of Environment and Planning regarding Porters Road, Kenthurst. 9 March 1987 Letter from Kenthurst Progress Association (KPA) to R Carr, Minister for Environment and Planning proposing Crown land in the Porters Creek area be reserved as a nature reserve. 17 March 1987 Lands Office's Report No 87/9 re Porters Road, Kenthurst LAPP continuing "favourable consideration to reservation of land on basis of flora and fauna", and states "concern that escarpment not enough to preserve the environment of lower valley". The Report refers to meeting held between Lands, NPWS and Department of Environment and Planning staff on 5 March 1987 that it was "decided that the planning of the land in Crown ownership and portion 307 in Council ownership be deferred, that no firm commitment be made, that [DEP] officers again approach the S.W.B., notify [NPWS] to defer their study, to include it with their archaeological study, to discuss Council's open space needs in the area, and then write to this office". 17 March 1987 KPA's Plan of Proposed Nature Reserve 26 March 1987
(NPWS)
Exhibit A (ATB) tab 13
Letter from NPWS to Lands Office in context of other land claims acknowledging the O'Haras Creek region was under threat of suburban expansion and objecting under s 36 ALR Act as land needed for EPP. 24 April 1987 Letter from the Department of Environment and Planning to Lands asking to confirm it would not object to the deferral of the northern area Porters Road draft LEP as further assessment of the natural value of the area, and open space needs of regime required. Circa late April 1987 Letter from Lands to the Department of Environment and Planning confirming it would not object to the deferral of the rezoning of the northern section of the Porters Road area (re draft LEP) pending further assessment of the natural value/open space needs of the region and most suitable future use of the land. 1 July 1987 Letter from C Pratten, Environment Director, National Trust to J Hallam, Minister for Lands advising the National Trust was concerned BHSC was "acting in both a planning and entrepreneurial role over the Porters Road area" and seeking that an environmental study be completed 15 July 1987
(NPWS)
Letter from B Carr, Minister for Planning and Environment to J Baildon, KPA stating that "to date [NPWS] has not undertaken a specific study of the O'HHarHara's Creek area," and planned to investigate the O'Haras Creek area to determine its "significance for conservation," noting "it is not possible to indicate when this investigation will be undertaken as the Service has only limited funds and staff resources ... to carry out its many responsibilities throughout the State." Circa 7 August 1987
(Department of Housing)
Exhibit A (ATB) tab 14
Letter from Department of Housing to Lands Office in context of other land claims acknowledging the increasingly high demand for residential land especially in the Shire. 13 August 1987 Handwritten notes of an officer from the Lands Office commenting on a letter from National Trust regarding Porters Road expressing concern about development of ridgetop land for residential development. 21 August 1987
(NPWS)
Letter from P Keane, NPWS to E Cattell, Recreational Four Wheel Drive Clubs Association advising that the NPWS could not indicate when a study of the O'Haras Creek valley would take place due to "other State-wide priorities." 25 August 1987 BHSC's chief town planner's Report No 87/148 discussing possibility of regional bushland network, that area identified as significant in RLS including O'Haras Creek. While some parts are part of Porters Creek/Nyari Road subdivision, areas that have significant conservation value will be considered when objections to the LEP are considered. Merit in holding discussion with Lands to discuss a public reserve in the O'Haras Creek area. 3 September 1987 Letter from the Lands' regional manager to BHSC's shire clerk stating that after meetings with the Department of Environment and Planning it was agreed the rezoning of the northern section of Porters Road be "deferred pending further assessment of the natural value of the area, the open space needs of the region and the most suitable future use of the land." 10 September 1987 Letter from BHSC to Lands seeking to set up a meeting about the proposed public reserve - O'Haras Creek Area, Kenthurst. 24 September 1987 Letter from J Hallam, Minister for Lands to C Pratten, Environment Director, National Trust stating that after meetings with the Department of Environment and Planning and NPWS, it was agreed that "further assessment of the natural value of the area and the open space needs of the region should be undertaken" and that the rezoning of the area has been deferred. 15 October 1987 Letter from BHSC Community Bi-Centennial Committee Group Representative to BHSC's Chairman and Members providing a submission on nature reserve in O'Haras Creek. 15 October 1987 Ministerial memorandum from G Cahill, Policy Advisor, NPWS to J Whitehouse, Director NPWS asking for response to letter from KPA on its proposal for O'Haras Creek as nature reserve. 15 October 1987
27 October 1987
(Department of Housing)
Lands' K Morris noted in a memorandum and a letter to J Read, Senior Surveyor, that BHSC was interested in a reserve for public recreation over part or all of the Crown land at O'Haras Creek, the Department of Housing was interested in all the lands and that some of the lands are subject to ALCs. 27 October 1987 Letter from the Lands' K Morris to BHSC's shire clerk re proposed reserve O'Haras Creek area. 5 November 1987 S Walker, Lands, Telephone attendance note with I Brown, NPWS.
NPWS uncertain about any form of protection for the land, that is, dedication under the National Parks and Wildlife Act 1974 or other options e.g. BHSC with local trustees. The KPA considered that ill-advisable as BHSC wanted to develop the ridge tops. The notes reflect the area was not zoned 6A Open Space.
11 November 1987 J Whitehouse, Director NPWS, Briefing Note to Minister for Planning and Environment showing that an immediate survey by the NPWS was precluded due to "staff/funding constraints and other longstanding statewide priorities." 19 November 1987 B Lawson, "Locals oppose bush valley development", Daily Telegraph 24 November 1987 Letter from BHSC to the Lands Office re proposal to prepare consolidated LEP. 30 November 1987 Letter from Mr O'Hehir from Lands Office to BHSC enclosing copies of parish maps and requesting liaison on appropriate zonings to ensure compatibility "with the requirements and future intentions of both the Crown Lands Office and Council". 4 December 1987 BHSC's amended DCP 85 published. 17 December 1987 Letter from BHSC's shire clerk to the Lands Office advising that BHSC resolved on 15 December 1987 that the northern section of the Porters Road area (per attachment) be deferred pending the results of further investigations of the area. 23 December 1987 Letter from Minister for Planning and Environment to KPA noting it was not possible to indicate when a detailed investigation of the O'Haras Creek area could be carried out by the NPWS due to other "long-standing statewide priorities." 9 February 1988 Letter from BHSC to Lands re Porters Road area seeking result of meeting and advise on land management problems. 11 February 1988
Exhibit A (ATB) tab 18
Lands' 1985 LAPP had not been completed. Circa 2 March 1988 Lands wrote to the Northern Districts Pistol Club indicating that "no decisions" had been made regarding the future use of the lands around O'Haras Creek. 14 April 1988 Letter from BHSC to Regional Manager, Metropolitan Lands Office seeking draft DCP address land management problems and deferral of Porters Creek (north). 26 July 1988 Letter from J Friend, Western Sydney Network of Environmental Organisations to Mr Micali and Mr Reid of Lands. 16 August 1988 Ministerial Memorandum seeking advice on O'Haras Creek 24 September 1988 Minister for the Environment, Response to question posed during question time by R Jones, MP on 30 August 1988. The Minister was asked whether the Government was considering dedicating Crown land portions as O'Haras Creek Nature Reserve, and if so, when. The answer was "No. ... it is not considered that nature reserve status is appropriate." The practical alternative provided was for the area to be managed for conservation by local government. 25 October 1988 I Brown, NPWS Memorandum to L Cook stating the NPWS considers the area worthy of conservation, did not consider a nature reserve at O'Haras Creek "appropriate at this time," supporting a Crown lands reserve, perhaps with local private trustees, to manage the area for conservation and natural area recreation. It noted the Royal Botanical Gardens may have an interest in the area. 7 November 1988 Letter from K Rozzoli, Speaker and Member for Hawkesbury to T Moore, Minister for the Environment about KPA proposal for O'Haras Creek nature reserve. 23 November 1988
1 December 1988
J Whitehouse, Director of NPWS, Issue, Background, Present Position and Departmental Comment on O'Haras Creek. He noted that the area is "worthy of conservation" but nature reserve status was not appropriate. The NPWS supported local government management for conservation and rural area recreation. (Signed by T Moore, Minister for the Environment on 1 December 1988). 22 February 1989 Letter from K Rozzoli, Speaker and Member for Hawkesbury to T Moore, Minister for the Environment seeking reply to earlier letter. 14 March 1989
Exhibit A (ATB) tab 20
A letter from The Hills Residents' Environmental Action Trust (THREAT) suggests Lands had been ignoring correspondence relating to a "nature reserve proposal," and the issue had received "no committee or executive level discussion." The letter refers to damage occurring to trailways and due to four-wheel drive vehicles. 20 March 1989
6 April 1989
J Read, Senior Surveyor of Lands, Handwritten notes re Porters Road and J Friend indicate he met with BHSC to discuss the possibility of a reserve for public recreation and promoting the study and preservation of native flora and fauna, and that the Department "applied the LAPP process" over the Porters Road area and "had to have regard to many competing uses for the valuable remaining Crown Lands." A 6 April 1989 file note is to similar effect. 22 March 1989 Letter from T Moore, Minister for the Environment to K Rozzoli, Speaker and Member for Hawkesbury notes that while the NPWS considers the O'Haras Creek area was warranting conservation and having natural area recreation potential, nature reserve status was not considered "appropriate at this time and that local management of the area for conservation and natural area recreation would be a more practical alternative." 22 March 1989 Letter from T Moore, Minister for the Environment to F Caterson, Member for The Hills in similar terms to letter to K Rozzoli. 22 March 1989
(Department of Housing)
Notes from meeting with Regional Manager, Lands - current interest in the claimed land. Lands considered interest in the claimed land as including "[H]ousing, ALCs...[and the] pistol club." 25 March 1989
(NPWS)
Land Conservation Branch, NPWS, Approval to reference land as O'Haras Creek Nature Reserve.
Recreation is not identified by NPWS as an interest and "Proposed rural-residential subdivision" is noted as a conflict/problem area.
1 April 1989
Exhibit A (ATB) tab 22
Letter from THREAT to Lands re negotiations to secure O'Haras Creek Crown Land for subdivision. Lands was being accused by THREAT of undertaking "confidential" and "secretive" negotiations with BHSC with a view to BHSC securing 2 portions of O'Haras Creek Crown land. The suggestion is public interest grounds such as THREAT were excluded from discussions about the future use of the land. 11 April 1989 Letter from P Riddle of the Lands to BHSC's shire clerk stating Lands' intention to undertake another LAPP over an area covering all of the claimed land. 13 April 1989 Department's Draft Paper - Regeneration Strategy Options - Management Options for O'Haras Creek Reserve 14 April 1989 Instruction from A Leard, Regional Manager, Metropolitan Lands Office and officers on preparation of LAPP study O'Haras Creek/Porters Road attaching J Read's handwritten memorandum dated 6 April 1989. The memorandum states officers were to "prepare proposals for rezoning and the creation of a rural subdivision on Porters Road and a valley/escarpment Reserve for Public Recreation and the Promotion of the Study and Preservation of Native Fauna and Flora." 29 April 1989 Letter from P Kenyon, The Society for Growing Australian Plants to T Moore, Minister for the Environment seeking preservation of Crown land at Porters Creek Road/O'Haras Creek as nature reserve. 3 May 1989
(Department of Housing)
Exhibit A (ATB) tab 23
Lands' notes re Department of Housing's interest in land the subject of LAPP which mentions that "Housing need input in all of these areas - need to consult with them as to what are their ideas. 3 May 1989 Letter from Acting Manager, Metropolitan Lands Office to Director for Crown Lands, Land Resources and Environment Branch
A handwritten note regarding the LAPP at O'Haras Creek notes that "[f]unds are not currently available to undertake the work" and making reference to the need for detailed survey "if residential subdivision was proposed."
3 May 1989 J Read, Acting Manager, Metropolitan Lands Office of the Department, Submission to the Minister headed "Future of Crown Lands a O'Haras Creek - Porters Road, Kenthurst - various correspondence from Joe A Friend." J Read states in the context of informing the Minister about Mr Friend's attitude and allegations, that some land "is intended for Reservation for Public Recreation and Promotion of the Study and Preservation of Native Fauna and Flora, with Council as Trustee". 3 May 1989 Letter from Lands' Regional Manager to the Department of Environment and Planning re Land Assessment and Planning Study of Crown Lands at Kenthurst.
Lands "referenced" its LAPP over the O'Haras Creek/Porters Road area of Kenthurst.
A land assessment would "be used as the basis for determining future land use and to request for rezoning."
3 May 1989 Letter from Regional Manager of Lands to various community organisations inviting submissions on O'Haras Creek - Porters Road area for the LAPP
Lands "referenced" its LAPP over the O'Haras Creek/Porters Road area of Kenthurst.
17 May 1989
(NPWS)
I Brown, Senior Ranger, NPWS Memorandum to A Bon recommends referencing a Nature Reserve Proposal for O'Haras Creek - Porters Road. The NPWS had been "reluctant" to do so, hoping the lobby groups would assist. It states, "after three years, we are no closer to its reservation." 19 May 1989
(NPWS)
Letter from A Bond, Head, Land Conservation Branch, NPWS to J Friend, THREAT indicating that "we are currently reviewing the [O'Haras Creek] area and will shortly be determining whether or not it is appropriate to dedicate and manage it as a nature reserve." 19 May 1989 Society for Growing Australian Plants, Parramatta - Hills District Group, Schedule of Plants seen at Porters Road 23 May 1989 Letter from C Noakes, President Dural & Round Corner Chamber of Commerce & Industry Inc to T Moore, Minister for the Environment re O'Haras Creek Nature Reserve 4 July 1989 BHSC's press release, "Council wants answer on O'Haras Creek Park" states it had been pressing the State Government for an answer on its proposal for a nature reserve at O'Haras Creek (described in the title as a "Park") but it was "still waiting for an answer" from Lands. 20 July 1989 D Benson, Senior Plant Ecologist, Royal Botanical Gardens, "Comment on Crown Land in Nelson and Castle Hill Study Areas" report including O'Haras Creek 7 August 1989
(NPWS)
I Brown, Senior Ranger, NPWS Invitation to O'Haras Creek Discovery Day on 26 August 1989 8 August 1989 Letter from F Caterson, Member for The Hills to P Kenyon, Society for Growing Australian Plants noting any proposed Reserve at O'Haras Creek, would be better placed in the hands of BHSC as opposed to the NPWS. 15 August 1989 Letter from T Whelan, Administrator, Mt Druitt LALC (aka Deerubbin) to Registrar, NSW Aboriginal Land Rights Act 1983 lodging ALC 3465 (#1866) 20 August 1989 Letter from N Perkins, Registrar, NSW Aboriginal Land Rights Act 1983 to I Causley, Minister for Natural Resources re ALCs (#1839 - 1874) acknowledging claim. POST-CLAIM Circa August 1989 Metropolitan Lands Office Document re ALCs 3438 - 3473. 25 August 1989 Minister for Natural Resources wrote to the Member for the Hills noting Lands was undertaking its LAPP covering O'Haras Creek, being a capabilities study. 30 August 1989
(NPWS)
Letter from NPWS to BHSC attaching a reference statement for nature reserve proposal and indicating inter alia that it was "considering" dedication of the area, and that "recreation use is not encouraged." 7 September 1989 Letter from T Moore, Minister for Environment to P Kenyon, Secretary, The Society for Growing Australian Plants stating that the NPWS considers the Crown lands over O'Haras Creek "warrants conservation" and has "significant potential for natural area recreation" but that nature reserve status was not appropriate. Rather, "natural area recreation under control of the local council would be the more desirable alternative." 11 September 1989
(NPWS)
Lands wrote to the NPWS saying, "No decision will be made regarding future use and management of this Crown land until the Land Assessment Study has been completed." 23 October 1989 Society for Growing Australian Plants wrote to the Minister for the Environment doubting that BHSC had "any genuine interest" in flora and fauna, or the experience or resources to protect the land from damage. 7 November 1989 Memorandum from Administration Manager to Shire Engineer, notes that BHSC resolved to support the setting aside of the majority of the NPWS nature reserve area, but it considered "any further action should be deferred until completion of the [LAPP] Study." 1 - 21 December 1989 Minister for the Environment notes any action on the nature reserve initially depends on responses to the reference statement. 8 February 1990
(Department of Housing)
Exhibit 7 (ATB) tab 30
Letter from Department of Housing to Metropolitan Lands Office re ALCs. The Department stated that it is investigating the potential of all Crown land holdings in the Ku-ring-gai area and requested a two month extension to indicate its position on all land claims. 7 March 1990 Letter from BHSC's shire clerk to Lands promoting "open space" in the Shire, "pre-planning a range of active and passive recreation areas." The importance of open space linkages was also recognised as a means of protecting flora and fauna. 9 March 1990
(DMR)
Applicant and Minister rely on this document
Exhibit A (ATB) tab 32
Letter from N Pickard, Minister for Minerals and Energy to T Moore, Minister for the Environment objecting to the NPWS nature reserve proposal on the basis the area was wholly within PEL 260 and as it wanted the area available for future soil extraction. A technical assessment indicated that the proposal would affect current soil extraction operation of Kemp Soil and an area identified as having potential for soil extraction. 27 March 1990
(DMR)
Exhibit 6 (ATB) tab 79
Letter from Department of Minerals and Energy to Metropolitan Lands Office re ALCs 3462, 3463 and 3465 - 3470 - no objection. 19 June 1990
7 August 1990
(NPWS)
Letter from T Moore, Minister for the Environment to K Rozzoli, Speaker and Member for Hawkesbury stating that NPWS was awaiting several Departmental responses on its proposal, notably "the Department of Lands", which was contingent on its LAPP. The Minister for the Environment had no information on when the Study would be available. 3 July 1990 BHSC had a meeting regarding 15 ALCs lodged (including 3465). It recommended objecting to them and to "adopt" and "develop" the bushland reserve corridor concept. 9 July 1990
(Department of Housing)
Exhibit 7 (ATB) tab 37
Letter from Department of Housing to Lands re 11 ALCs including ALC 3465, states "An analysis of each of the claims referred to above indicates that the claimed land is to a substantial extent, directly identified in the audit and/or falls within valleys in between or adjoining such areas where there may be a need for use in relation to urban development ... Accordingly, the Department of Housing recommends against the granting of the above claims ... on the basis that these lands are needed or likely to be needed as residential land." 25 July 1990 A Lands officer reports "bush degradation and abuse from trail bikes and four wheel drive vehicles" in the subject area.
The Minister objected to eight pre-claim documents relied on by the Applicant on the grounds that these were irrelevant because they referred to other land claims, or were not relevant to the matters in issue or were correspondence from a community representative that could not be probative of government intention or policy (exhibit A (Applicant's Tender Bundle (ATB)) tabs 11, 12, 13, 14, 18, 20, 22, and 23). I agree that some of the documents should not be read (ATB tab 11, 15 September 1986, tab 13, 26 March 1987 and tab 14, 7 August 1987 for the reasons given by the Minister. The documents at ATB tab 20 and tab 22 should also not be read as these are representations from a community representative that could not be probative of government intention or policy. I will allow in the letter dated 30 September 1986 (ATB tab 12) from DMR referring to the land being within PEL 260 as it relates to land claims on immediately adjoining land and therefore has relevance. I will allow in ATB tab 18 dated 11 February 1988 which identifies that Lands' 1985 LAPP had not been completed as it is relevant. I will also allow in the Lands' memorandum concerning Department of Housing's interest in land subject of LAPP dated 3 May 1989 (ATB tab 23) as that is relevant.
Objections to post-claim documents are dealt with below at par 93 to 108. As I did not allow a number of these to be relied on they have not been included in the chronology of documents above.
Minister's submissions
Governmental action before the date of the claim
Several government departments and agencies actively considered the use of the claimed land in the period before 15 August 1989. The prime mover was BHSC to which Lands, NPWS and the Department of Environment and Conservation deferred in relation to their planning functions relevant to the claimed land.
NPWS's referencing of nature reserve proposal
NPWS conducted a significant review of the area covered by the claimed land on 21 July 1970 and recommended the establishment of a reserve over O'Haras Creek for conservation of wildlife, flora and "the intangible of aesthetics" and to provide corridors of forest between residential areas. The NPWS issued a reference regarding the proposed O'Haras Creek nature reserve to other departments, informing them that the area possesses considerable nature conservation value. In 1975 the National Trust highlighted the general area of the claimed land as an area of scenic preservation.
BHSC's recognition of conservation value
In June 1983 BHSC published its Rural Lands Study (RLS) as part of the process of developing a LEP. The O'Haras Creek area was regarded as an exceptional holding due to its size and location and as being an area of conservation value according to the NPWS. The RLS noted the presence of wet and dry sclerophyll rainforest, two wetlands "having conservation value as water fowl habitats", and large "areas of natural vegetation along tributaries of Cattai Creek" which "also warrant preservation for both their scenic quality and in acting as wildlife corridors". The RLS proposed the creation of environmental protection zones in accordance with NPWS' recommendation, namely 7(d) scenic protection and 7(e) escarpment protection. The RLS also recorded the National Trust's view that the O'Haras Creek catchment area was important as a wildlife corridor and for recreational use. In relation to rezoning, the RLS recommended that the two hectare zoning boundary for rural residential development be extended off Porters Road to include ridgetop lands in Cadwells and Nyari Roads. In its response to the RLS the NPWS agreed with creation of these zones.
Lands' suggestion of mixed urban fringe park and conservation usage in context of RLS
Lands instructed its staff to prepare a review and report of the RLS as a matter of urgency. Mr Read, Senior Surveyor, and Mr Paterson, Land Inspector, prepared a report (the Read Paterson report) which recommended that the Crown Lands Office "concur in the protection of the O'Haras Creek catchment area" and that Lands should confer with BHSC to examine comments made regarding each specific area before the zone boundaries are "firmed up" and prior to the reservation of areas for future public requirements and public recreation. It suggested the Crown Lands Office approve a mixed urban fringe park and conservation usage and that the environmental protection zones should be in accordance with the RLS and not the NPWS recommendations.
Porters/Nyari Road rezoning (1985 - 1987)
The RLS recommended that the two hectare zoning boundary for rural residential land development be extended off Porters Road to include ridgetop lands in Cadwells and Nyari Roads. This and the Read Patterson report proved to be the catalysts for the revision of BHSC's proposal for the use of the O'Haras Creek area for conservation only. On 20 January 1986 BHSC told Lands that it would not "proceed with the proposal to zone sensitive areas using an environmental protection zone as previously proposed in the [RLS]". Lands stated that it would like to participate in the preparation of a draft LEP to allow two hectare development or a density zoning yielding the same number of lots, but that it would prefer that rezoning proposals were deferred until Lands completed its study under the LAPP for all Crown land within the shire. A LAPP was announced on 24 March 1986 and a draft emerged after the date of the claim (15 August 1989) but was never completed.
BHSC notified Lands that it had purchased a substantial tract of land within the Nyari Road, Porters Road and Cadwell Road area (south of the claimed land) for the purpose of developing the land for rural residential allotments (Porters/Nyari Road subdivision). BHSC noted that the parcel of Crown land to the north (which included part of the claimed land, Lots 306, 387 and a small portion of Lot 385) (the northern subdivision proposal) was also identified for a future semi-rural residential area and that both parcels had "a capacity to take an additional 180 allotments of land". The northern subdivision proposal alone had the "potential of being developed as 100 allotments". The Pistol Club land was within the northern subdivision proposal.
Between May and June 1986, Lands and BHSC discussed the preparation of a draft LEP to rezone the Porters Road area for rural home sites. Lands indicated that the Lands Office would undertake the proposed rural subdivision of Porters Road, if approved. On 12 August 1986 BHSC sent to Lands a draft LEP which dealt with the Porters Road area (both subdivision proposals) as the draft DCP 85. The draft LEP amended interim development order (IDO) No 118 and proposed zoning the subdivision area as rural 1 (c1) small holdings to allow a range of uses compatible with rural residential development including protecting environmentally sensitive land, particularly escarpments and steep slopes, and encouraging dedication of land below the escarpment for open space purposes.
In mid March 1987 the NPWS, Lands, and the Department of Environment and Planning informally agreed that "planning of land in Crown ownership and portion 307 in BHSC ownership be deferred" pending further studies by the Department of Environment and Planning and NPWS and for discussion of "Council's open space needs" (see entry in chronology for 17 March 1987). On 24 September 1987 the Minister for Lands announced that rezoning of Crown lands adjoining Porters Road, Kenthurst would be deferred, citing discussions between Lands, NPWS and the Department of Environment and Conservation. Accordingly on 15 December 1987 BHSC passed resolutions regarding the draft DCP 85 and draft LEP resolving that the zoning of the northern section of the Porters Road area "be deferred pending the results of further investigations in the area". The deferred area included the Pistol Club, all of Lot 306 and those parts of Lots 387 and 385 closest to Porters Road (the northern subdivision proposal).
BHSC issued an amended DCP before 14 April 1988 which was to be accompanied by the preparation of "plans for the open space area" to "address the issue of public access".
BHSC's and Lands' reserve for public recreation/preservation of fauna and flora/open space (1987 - 1989)
On 1 September 1987 BHSC approved its chief town planner's report issued in August 1987 entitled "Proposed Public Reserve - O'Hara's Creek Area". It advocated the creation of a public reserve over the area (which extended beyond the claimed land) to proceed in conjunction with the discussion of the draft LEP for the Porters Road subdivision. On 15 October 1987 Lands recorded that BHSC sought a public reserve for recreation of part or all of the Crown lands around O'Haras Creek.
Mr Read, Senior Surveyor of Lands, engaged in a series of meetings with BHSC in 1989 to discuss the possibility of establishing a reserve for public recreation and the promotion of the study and preservation of fauna and flora over the valley floor and escarpment areas in both Crown and BHSC lands (Porters/Nyari Road and Area A lands). In oral submissions the Minister's counsel submitted that commencing the LAPP in 1989 was in the context of Area B and the impact of BHSC open space proposal. Lands had already determined that the area would be used for a reserve for public recreation and the promotion of the study and preservation of native fauna and flora.
NPWS' change in position and support for a mixed purpose
NPWS continued to oppose plans to develop the main ridge at the end of Porters Road for rural residential housing but indicated it was not pursuing a detailed investigation of the O'Haras Creek area due to resource constraints. This continued for a period between 1987 and 1989. In 1987 NPWS deferred to the planning leadership of BHSC, stated that creation of a nature reserve was not appropriate and supported the use of the land for the mixed purpose of "natural area" recreation and conservation. (See chronology entries for 24 September 1988 (Minister for Environment's response to a question posed in question time), 23 November 1988 (NPWS note from J Whitehouse to Minister for the Environment) and 22 March 1989 (letters from the Minister for Environment, T Moore to K Rozzoli and F Caterson)).
BHSC's and NPWS' renewed push for nature reserve proposal (early 1989)
Simultaneously with its negotiations with Lands over the creation of a Reservation for Public Recreation and the promotion of the Study and Preservation of Nature Fauna and Flora, BHSC was pursuing the establishment of a nature reserve over O'Haras Creek. In August 1987 and July 1989 BHSC expressed support for a nature reserve at O'Haras Creek. By early 1989 NPWS was again pushing for the creation of a nature reserve and on 5 February 1989 approved the referencing of a 500ha area of land as the O'Haras Creek Nature Reserve. (I note the Minister relies on the document at RTB tab 67 p 403 which is in the chronology at 25 March 1989.) The reference statement was prepared on 17 May 1989. On 30 August 1989 the NPWS commenced referencing a nature reserve proposal to other land use agencies.
Open space
The Minister tendered a number of documents relating to open space planning at the Sydney region level. The documents included the Sydney Region Outline Plan 1970 - 2000 which identified open space requirements for the Sydney region catering for general recreation demand. Major regional open spaces are identified as contributing to the visual character and active recreational opportunities of the region. The Sydney Region Open Space Survey November 1975 defines the term open space as meaning all land held in public ownership for use as parks, gardens, sports grounds and other active recreation areas. The 1982 Open Space Survey of Open space in the Sydney Region refers to issues in planning for open space. Sydney Regional Environmental Plan No 19: Rouse Hill Development Area at 3.5.7 refers to conservation, special uses, open space and recreation.
At the date of claim the DCP on open space identified an area for that purpose (p 325) around the rural residential area (loosely Area A) and there was a possibility that an area beyond that into part of Area B could be used for open space.
Community agitation for a nature reserve
Community organisations, such as Kenthurst Progress Association and Society for Growing Australian Plants, wrote submissions (between 1987 to 1989) in support of a nature reserve and opposed the northern subdivision proposal. In 1987 the National Trust urged BHSC to undertake a local environmental study prior to determining zoning of the area.
Legal standard
Nature conservation is an EPP under s 36(1)(c). Section 36A is a legislative confirmation of this proposition: Maroota No 2 (CA) at [5]. Recreation has been accepted as an EPP under the ALR Act per Worimi Local Aboriginal Land Council v The Minister (1991) 72 LGRA 149 at 163. To be essential a public purpose must display an element of necessity or indispensability or must be material and important (New South Wales Aboriginal Land Council v Minister for Natural Resources (The Tredega Claim) (1986) 59 LGRA 318 at 331 - 332; Worimi at 163; La Perouse Local Aboriginal Land Council v Minister Administering Crown Lands Act (1991) 74 LGRA 176 at 183; Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act [1997] NSWLEC 93; (1997) 95 LGERA 353 at 361 (Maroota LEC) per Lloyd J. These authorities were approved in Maroota No 2 (CA) at [56]. Provision of open space or urban fringe park are EPPs.
Whether land is likely to be needed for an EPP is a question of fact (Illawarra No 1 (CA) at [39]; Winbar No 3 at 691 - 692). In Illawarra No 1 (CA) at [35] and [39] Hodgson and McColl JJA held that "likely to be needed" in s 36(1)(c) requires demonstration that at the time of the claim it was likely that a governmental requirement for the land would arise at some time in the future. "Likely to be needed" means there was a real or not remote chance that the land might be required for the nominated purpose in the future (Maroota No 2 (CA) at [56] and also accepted in Illawarra No 1 (CA) at [32] - [35]).
The requirement must have been shown to have existed at an appropriate government level, interpreted in Illawarra No 1 (CA) at [35] as the level of Executive Government. That phrase was undefined in Illawarra No 1 (CA), was not equated with a Cabinet decision and would have to be inferred from the facts of each case as identified by Basten JA at [97] - [98].
Application of legal standard
The four uses of Crown land relied on are uses for an EPP under s 36(1)(c) of the ALR Act. The existence of a likely need for the land for more than one EPP is sufficient evidence of an EPP under the likely need standard. The precise application and mix of these purposes in relation to parts of the claimed land and the relative priority that would come to exist between them at some future point is irrelevant (compare Illawarra No 1 (CA)). It is sufficient for the Court to determine whether, at the date of claim, firstly, that all of these were EPPs and, secondly, were manifested in governmental action. The purposes can be pursued simultaneously on the claimed land.
In relation to appropriate government level, the deferral of land use planning over the northern portion of the claimed land in 1985 occurred at the Ministerial level for Lands and NPWS/Department of Environment and Conservation. All other action occurred at the departmental or agency level or at the level of BHSC. This is adequate for s 36(1)(c) as these were the appropriate entities with carriage of the formulation and implementation of governmental policy in relation to the claimed land. BHSC's proposals for land use were in all material respects agreed to by Lands or NPWS. Prior to the date of the claim NPWS had expressly ceded any leadership role for land use planning over the claimed land to "local management". By 1987, it was willing to accept the use of the claimed land for recreation rather than conservation. In 1989, it revived work on its old nature reserve proposal, but this was not announced until after the date of claim.
BHSC and Lands took the most active role in land use planning. Both governmental actors developed and implemented through cooperative means a flexible approach to land use planning for Area B, incorporating conservation, recreation, open space and urban fringe park activities. The precise mix and application of this policy to specific parts of the claimed land had not been determined as at the date of claim.
The likely need for the claimed land was real or not remote. The evidence shows detailed and repeated considerations of the land use and a series of inter-departmental and inter-agency communications regarding the appropriate mix of EPP use. This is particularly evident after the publication of the RLS and in dealings between Lands and BHSC. The expressed need of the Department of Housing should be confined to the northern subdivision proposal area which includes the pistol club.
Applicant's submissions
The Applicant submitted that the Minister failed to discharge her onus because she failed to establish that, as at the date of claim:
a. There was any clear or sufficiently developed proposal regarding any of the three asserted "essential public purposes" [nature conservation; public recreation or open space] against which the question of "likely need" could properly be assessed; and;
b. If there was any such proposal and it related to an EPP (both of which are denied), it has not been demonstrated that the claimed land was likely to be needed for any of those purposes in the sense that "likely need" involves a real or substantial chance and not simply a remote chance or mere possibility.
The Minister's onus of proof should be exercised in the context that the events in question occurred 23 years ago. The Applicant submitted that there was never any "likely need" for a mixture of nature conservation and public recreation or indeed open space because there was no proposal and therefore there is nothing for the Court to assess in order to determine whether there is a real and not remote chance or "likely need".
Essential Public Purpose (EPP)
The Applicant submitted that essential means "necessary" or "indispensible": The Tredega Claim at 331 - 332 per Stein J; Worimi at 163; La Perouse at 183. The public purpose must be fundamental not "desirable" or "highly desirable": Illawarra No 1 (CA) at [32(2)] per Hodgson JA (with whom McColl JA agreed); See also Maroota No 2 (CA) at [55] per Spigelman CJ.
What may constitute an EPP in some circumstances may not in another: Illawarra No 1 (CA) at [65] per Basten JA; Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800 at [107] - [108] per Sheahan J; Dorrigo Plateau Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 653; (2007) 155 LGERA 307 at [34] and [48].
Normally it would be expected that "firm steps to have been taken by the government to achieve" a purpose before the date of claim if it was "essential": see for example Batemans Bay at [110] per Sheahan J.
Likely
The word "likely" in s 36(1)(c) means "a real or not remote chance": Maroota No 2 (CA) at [57] per Spigelman CJ; Illawarra Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2010] NSWLEC 124 at [54] per Sheahan J. The majority in Illawarra No 1 (CA) equated this requirement with a "substantial" chance: see Illawarra No 1 (CA) at [32(1)] per Hodgson JA.
Needed
The word "needed" in s 36(1)(c) means "required or wanted": Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 (Castlereagh) at 254D per Handley and Powell JJA. The plain meaning of "needed" includes an element of necessity, or if not absolute necessity, then at least an imperative call or demand: see Maroota (LEC) at 361 per Lloyd J. It is not sufficient merely to show that there was a desire or a demand for land for a particular purpose: see Maroota No 2 (CA) at [61] per Spigelman CJ; Illawarra Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 188; (2008) 161 LGERA 294 at [116] - [117] per Sheahan J; Any need for land must be a "reasonable" need: Wanaruah at [16] per Lloyd J.
The concept of "likely to be needed" involves an element of "reasonable futurity": see the judgments considering the phrase with regard to s 36(1)(b1) in Daruk Local Aboriginal Land Council v Minister Administering Crown Lands Act (No 2) [1995] NSWLEC 238; (1995) 89 LGERA 194 (Londonderry Claim) at 204 per Bignold J; Wanaruah at [17] per Lloyd J and Maroota (LEC) at 361 per Lloyd J.
Need determined according to relevant statutory scheme
The question whether land was needed, or likely to be needed "is essentially a question of the view held by the Government on the day when the claim was made": Castlereagh at 252C per Meagher JA, in dissent on other grounds. Importantly, however, the view of the Executive Government must be directed to the relevant question under s 36(1)(c), namely, whether the land was "needed" for that purpose: Castlereagh at 254D - F per Handley and Powell JJA. See also Birrigan Gargle Aboriginal Land Council v Minister Administering Crown Lands Act [1999] NSWLEC 12; (1999) 102 LGERA 33 at [60] per Bignold J. This may require having regard to a range of surrounding circumstances to determine what is being considered.
This necessarily requires consideration of the statutory schemes under which decisions are made or political will is manifested on behalf of the Government of NSW: see New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 241 (Berowra (LEC)) at [139] per Sheahan J; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352; (2009) 171 LGERA 56 (Berowra (CA)) at [152] per Macfarlan JA and at [81] - [82] per Basten JA; and Maroota No 2 (CA) per Spigelman CJ at [62] - [64]. See also Jerrinja at [121] per Jagot J.
While "likely" can invite consideration of the likelihood of a formal decision being made by the Executive Government in the absence of an actual decision (Illawarra No 1 (CA) at [35] per Hodgson JA (with whom McColl JA agreed)) the likely decision must still be that of the Executive Government (Maroota No 2 (CA) at [50] per Spigelman CJ; Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2011] NSWCA 127 (Illawarra No 2 (CA)) at [37] per Sackville AJA (with whom Whealy JA and Basten JA agreed)). Where the statutory scheme confers authority for a particular species of decision on a particular decision-maker, such as a Minister, it is the existence of or likelihood of a decision by that decision-maker which must be considered. Where there are competing or conflicting land uses, as a matter of practicality the resolution involves a level of political will at the level of Executive Government: see Maroota No 2 (CA) at [62] - [65] per Spigelman CJ; Illawarra No 1 (CA) at [106] per Basten JA.
The requirement that the likely need be expressed by the Executive Government in that context has been repeated in numerous cases: see Maroota No 2 (CA) at [60] - [63] per Spigelman CJ; Jerrinja at [121] - [122] per Jagot J; Illawarra (No 2) at [35] per Hodgson JA and at [63] per Basten JA. Indeed, in Jerrinja s 36(8) certificates were set aside because the briefing to the Minister ignored the law on this point.
Where land is required to be dealt with by way of reservation under the Crown Lands Consolidation Act 1913 (the CLC Act) it would be expected that the decision would be made by the Minister in accordance with that statute. It is against this background that the Minister's written submissions at par 84 - 88 regarding a "trajectory" need be considered.
Need for specific government intention
Tellingly, the Minister's submissions did not identify any specific proposal which is said to be the subject of the likely need for the claimed land. Instead the Minister asserts that at some unidentified point in the future the government of the day would determine that the claimed land was needed for an as yet undetermined mix of recreation, nature conservation open space or urban fringe park. The mechanism by which this may be achieved also remains unspecified and undetermined. In relation to this nebulous situation, the Minister submitted (see par 42 above) that it is simply sufficient to (a) identify a purpose; and (b) that it be "manifested in governmental action". There is no authority for the proposition that simply because there is an administrative action by a department in relation to land there is established a "likely need" for the purposes of ALR Act s 36(1)(c): see for example New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [2008] NSWLEC 13 at [93] per Jagot J.
The approach ignores the distinction between a "desire" in relation to the land by an agency or body and the likelihood of need determined in accordance with relevant statutory schemes which has been affirmed on numerous occasions or that action can be taken regardless of consideration of need. At any point of time in relation to the day to day management of all Crown land in the State there could be consideration in relation to land capabilities, potential uses, land suitability, all of which could generate activity by a department or agency. That is why s 36(1)(c) has been interpreted to provide content to the requirement of likely need and to require an expression of political will in the context of the statutory schemes under which the relevant decisions in relation to the land are made. The ALR Act would be put at nought if it were otherwise and ordinary administrative steps of considering options for Crown land were taken to be determinative of likely need.
The Minister's approach is premised on the proposition that there does not need to be a specific proposal in relation to the claimed land. However, in the absence of a "specific government intention" being identified the Court is not in a position to consider the matters relevant to determining whether land is not claimable by virtue of s 36(1)(c): a phrase used in Batemans Bay at [110] per Sheahan J. The Minister cannot identify the legislative scheme or the administrative steps necessary to bring it into existence, whether other departments are required to be notified or what their position may be. All of these matters are relevant to assessing likelihood. Similarly, it has no basis to assess whether the "likely need" is "reasonable", or has an element of reasonable futurity. These matters have been relevant to need and likelihood in other claims under the ALR Act.
It is also not possible for the Court to properly assess whether a grant of land can be made subject to conditions, and if so, what those conditions would be. The consideration of that possibility is a fundamental part of the remedial features of the ALR Act. Indeed, it is not possible to reconcile the proposition that a land claim can be defeated because of the possibility of a proposal being put forward within the terms of s 36(1)(c) or the scheme of the Act, particularly given that it is established that exceptions to "claimable Crown land" are to be construed narrowly.
Relevance of planning documents
It is also well-established that the fact that land is zoned for a particular purpose does not establish need: Wanaruah at [14]; Londonderry Claim at 204 per Bignold J; Darkinjung at [149] per Pain J; Dubbo Ga at 15 per Lloyd J; Berowra (LEC) at [119] per Sheahan J; Maroota No 2 (CA) at [24] and [73] per Spigelman CJ.
Significant weight is placed on the RLS by the Minister. The RLS was designed to assist with future planning decisions not determine them, as is highlighted by the fact that BHSC chose not to implement key proposals in the RLS. The RLS is directed to land assessment capability.
Both the 1985 LAPP and the 1989 LAPP were, like the RLS no more than land capabilities studies which could assist with future planning. The 1989 LAPP was carried out pursuant to Pt 3 of the Crown Lands Act 1989 (the CL Act). Section 30 of the CL Act only speaks in terms of "capabilities", "suitable uses" and where practicable "preferred use." It is well-established that the mere fact that land is "suitable" or has a "capacity" for a purpose does not establish need or likely need (Maroota No 2 (CA) at [73] per Spigelman CJ; Londonderry Claim at 204 per Bignold J; and Wanaruah at [14] per Lloyd J).
Relevance of multiple proposals
The Minister's submissions commence with a passage from Meagher JA's judgment in Castlereagh at 253. Those observations of Meagher JA were dissenting obiter dicta and were not as broad as the Minister implied in her submissions. Meagher JA's hypothetical related to circumstances where "land is said to be 'needed' for three different purposes by three different Ministers of the Crown". It does not describe the circumstances of this matter where there was no proposal by any relevant agency, let alone one put to a Minister for consideration.
Contrary to the Minister's written submissions (at par 1) the obiter of Meagher JA was not supported by Handley and Powell JJA who stated at 254D - F that the existence of conflicting purposes suggested by different agencies and fluctuating priorities from different departments in relation to any proposal to use land for a purpose are matters that point to land not being needed or likely to be needed for that purpose. This approach is consistent with that adopted in Maroota, both in this Court (Deerubbin Local Aboriginal Land Council v The Minister Administering The Crown Lands Act [1999] NSWLEC 82 at [85] per Bignold J) and in the Court of Appeal (Maroota No 2 (CA) at [65] per Spigelman CJ), where different proposals by different agencies were found to point against the land being needed for nature conservation proposals even where NPWS had developed a clear proposal for reservation. Also, as I observed in Darkinjung at [161], "A lengthy history of consideration of possible uses" including a particular purpose does not demonstrate need or likely need for that purpose.
1. No likely need - nature conservation
The Applicant submitted that the evidence shows that at the date of claim nature conservation was not regarded as an EPP and therefore the claimed land was not likely to be needed for nature conservation. The Applicant submitted that there was no decision by the Minister or Lands in relation to the future use of the land nor was there a "trajectory" of likely need of the claimed land for nature conservation and in the absence of a clear or specifically developed proposal or specific government intention, the Court is unable to determine whether there was a "likely need" for nature conservation.
The Applicant submitted that statutory constraints prevent the argument that BHSC was the "prime mover" in relation to the land it managed. Positioning BHSC as the "prime mover" and the body to which NPWS deferred in relation to the future of the claimed land ignores the relevant legislative schemes which direct how those bodies carry out their legislative functions. The Applicant submitted that at all times, from before the date of claim and after, NPWS maintained its independence and sought to apply its own statutory procedures. Here, BHSC had no decision-making authority over the land aside from functions in relation to land zoning and undertaking studies to support that zoning. The claimed land was under the control of the Minister administering the CLC Act. The relevant statutory authority that could reserve or dedicate the land for conservation purposes was Lands under the CLC Act and in this case there was no proposal put to the Executive Government at the date of claim: Maroota at [65] - [67] per Spigelman CJ. This required the Minister administering the CLC Act to take any action and no proposal was prepared by Lands to that effect. As at the date of claim any decisions in relation to the reservation of the land were required to be made pursuant to the CLC Act and likely need cannot be determined by reference to a body (BHSC) which has no decision-making power in relation to the land.
Due to the statutory constraints neither NPWS nor BHSC could take any unilateral action in relation to it. As at the date of claim, while the government policy was for a LAPP study to be carried out, there was no proposal put to the Executive Government at the date of claim as required under the National Parks and Wildlife Act 1974 (the NPW Act): see NPW Act s 49 and Interpretation Act 1987 s 14; Maroota at [65] - [67] per Spigelman CJ. A proposal is relevant to finding an EPP. The interest that Lands and BHSC had about the possibility of residential subdivisions as at the date of claim was still very much at the conceptual level, and was contingent upon the completion of the 1989 LAPP. As the Court does not have the content of that LAPP, which was finally completed in 1993, it is difficult for the Court to assess a likely need for nature conservation. The Applicant submitted that there was no "real or not remote" chance of such a proposal coming to fruition from BHSC.
Suitability and capability of the claimed land does not equate with "likely need". The fact that the claimed land was identified as suitable for different uses, or has capabilities for different uses, impacts upon the Court's consideration of no real or not remote chance. Here, the Applicant referred to the Department of Housing's interest in the potential capability for housing and the DMR's interest in the capability for petroleum extraction (post date of claim). These factors must impact on "likely need". Different proposals by different agencies were found to point against the land being needed for nature conservation proposals even where NPWS had developed a clear proposal for reservation.
No EPP
The facts do not establish that the government of the day considered the nature conservation of the claimed land to be an EPP. None of the evidence evinced an attitude that the claimed land was "necessary or indispensable" to conservation purposes. Instead there is indecision and ongoing investigation and the proactive pursuit of other inconsistent proposals such as residential development. There were numerous opportunities in the years prior to the date of claim for proposals to be developed and the land set aside for conservation. This was not pursued due to "other State-wide priorities," (RTB tab 39 p 345) and "other longstanding statewide priorities", (RTB tab 50 p 366, RTB tab 50 p 367) and because NPWS was "reluctant to seek a nature reserve over the area" (RTB tab 76 p 423).
2. No likely need - public recreation
No specific government intention
None of the claimed land was likely to be needed for recreation at the date of claim. At the date of claim there was no proposal at any level within Lands that any part of the land be reserved and therefore no basis to consider that the government of the day considered that the land was likely to be needed for the EPP of public recreation. This is evidenced by the fact that without any reservation or dedication of the land for recreation purposes, the use of the claimed land for recreation purposes was not authorised by the CLC Act or the CL Act. For the land reserved for future public requirements, leases and licences could not be issued for purposes not authorised by the reserve: see Bathurst at [179] - [180] and [180] - [183] per Tobias JA, at [80] per Ipp JA and at [239] per Basten JA referring to New South Wales v Commonwealth [1926] HCA 23; (1926) 38 CLR 74 at 91 per Isaacs J (dissenting as to the outcome but not in relation to that principle); Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 at 142 per Clarke JA; and Darkinjung at [79] per Pain J.
There was no evidence of any step being taken to allow lawful use of the claimed land either before the date of claim or otherwise. The Applicant submitted that following the date of claim the CL Act was enacted under which the land could not be reserved for recreational purposes without a land assessment. No such steps were taken. Indeed, at the date of claim there was no proposal at any level within Lands that any part of the land be reserved. The Minister's asserted "trajectory" is a trajectory to nowhere and a likely need for recreation has never been expressed in any government decision. In those circumstances, there was no basis to consider that the government of the day considered that the land was likely to be needed for the EPP of recreation.
No EPP
The Applicant submitted that the word "recreation" did not disclose the broad range of concepts that it can cover as it could refer to both public and private purposes, as well as discrete activities such as hunting, fishing, walking, shooting, the use of dirt bikes, the use of 4WD drive vehicles, and horse riding. Not all those activities will be EPPs.
The Applicant submitted that the Minister did not identify with sufficient specificity what the nature of the public recreation was other than at a very general level of active and passive recreation: see Lands' report on the RLS dated 30 March 1984. The references in that document were not specific to Area B and did not show need for any purpose. There was no detail or any particulars of what public recreation was considered. Lands supported a joint study with BHSC of possible bushland reserve networks but this was not undertaken and no plans of management were prepared. As a matter of practicality the Court cannot make a determination on likely need when it does not know what the proposal was.
The Applicant submitted that there was an absence of intention and statutory processes for example a land assessment under the CL Act. Properly construed, s 36(1)(c) cannot support the claim that, on the basis of the insufficient evidence provided, the Court could be satisfied that the claimed land was actually used or occupied to more than a notional degree.
3. No likely need - open space
The open space is limited to the penumbra around Area A and tied to the residential development proposal. The Applicant argued that "open space" was only a general descriptor of land in planning documents and the Minister's claim lacked sufficient specificity for its "essentiality" and "need" to be assessed: Maroota per Spigelman CJ at [55]. The Minister's assertion of a "trajectory" in relation to a likely need for open space suffered from the same difficulties as the assertion in relation to nature conservation and recreation which are set out above.
The Applicant submitted that Lands consistently and unambiguously indicated that no decisions would be made in relation to the claimed land. In the absence of any decision being made, and in the absence of the relevant studies being undertaken, there was no basis to determine that there was a likely need by the Government of the day for the land for any purpose, let alone open space.
A "trajectory" of likely need was not instigated as a consequence of the RLS but the RLS did not recommend the use of Area B for open space. In relation to Crown land generally it noted that the "rationalisation of such land warrants further study" (RTB tab 10 p 108). In no way does the RLS support a "trajectory". The 1984 response from Lands does not establish a likely need of the land for open space. It contained no more than a statement that it supported a "joint review" of Crown land "related to the concept of bushland and reserve network" in relation to all the land in the vast RLS study area: Letter from the Crown Solicitor's Office to Chalk & Fitzgerald dated 25 March 2011 ATB tab 78 p 736 par 4biii. The "trajectory" advanced goes nowhere. No open space proposal was ever adequately progressed by any department or agency, and certainly not Lands.
In the absence of any proposal being formulated before the date of claim, it is impossible to identify how an open space proposal was to be achieved, particularly in circumstances where Lands rejected and discredited BHSC's bushland open space plan, which itself relied on connecting lands now granted in land claims.
Further, the Applicant emphasised in its submissions that likely need must be assessed in the context of the relevant statutory scheme because whether the land was "likely to be needed" at the date of claim must be determined by considering whether government attention was focussed on the relevant question per Castlereagh. This submission was particularly directed to the creation of a nature reserve but that purpose is no longer directly relied on. Nevertheless any of the purposes relied on require a decision under a statute (the CL Act) in the first instance in order to be achieved.
The overall progress of the purposes relied on by the Minister in State government informed by local government processes needs to be considered in light of these findings. I have already discussed above (par 124 - 126) the limitations in placing reliance on local government actions in the context of State government land use decisions. While there were discussions between Lands, BHSC and possibly NPWS leading up to the date of claim this was in the context of land use assessment of the O'Haras Creek area including Area B. The RLS undertaken by BHSC concerned the assessment of land capability over a wide area in the northern part of the Shire. The introduction to the RLS noted that the report's conclusions (RTB tab 10 p 102):
... are put forward for comment from the public and the various relevant authorities. Many of the points raised in the report still require detailed discussion before any planning can be finalized although it is aimed to prepare new Local Environmental Plans for the area as soon as comment to this study is received.
See also the "Adopted Goals and Objectives" for the RLS at RTB tab 10 p 117.
As submitted by the Applicant the RLS is directed to land assessment for future planning decisions. It is the start of a process of that determination, not the final outcome. As the evidence identifies BHSC did not implement all of the proposals in the RLS and in particular considered the possibility of residential subdivision in some of the Porters/Nyari Road areas which had been previously identified for nature conservation.
The two LAPPs referred to in evidence (a 1985 process unfinished and a 1989 process recently commenced at the date of claim) were also aimed at the assessment of capabilities of the O'Haras Creek land and the identification of suitable uses for the land, as identified in the terms of reference referred to in Lands' documents commencing the process and later in s 30 of the CL Act which commenced in May 1990. The Applicant relied on a passage in Maroota No 2 (CA) at [73] per Spigelman CJ which is directly on point in the circumstances here. His Honour referred to the outcome of a land assessment as a bureaucratic process not an expression of political will. The identification of land as suitable for a particular use does not support whether it was likely to be needed at the date of claim as a real chance or possibility. The same observation applies to the facts in this case. Unlike Maroota however the second LAPP had only just commenced at the date of claim.
The facts of this case and the identification of EPPs manifested in governmental action relied on by the Minister suggest that a quite low threshold of governmental action satisfies likely need for an EPP, an approach not supported by the authorities. The recent history of the land use consideration for the area was largely by BHSC until effectively 1989 when Lands decided that it should undertake its own assessment with the commencement of a second LAPP. The NPWS reference proposal for a nature reserve commences within the agency in 1989 not long before the date of claim. At the date of claim there were no concrete proposals at a senior level within any department or agency and none at ministerial level committing to any consideration of the EPPs relied on in the Minister's case.
Individual EPPs
The Applicant's extensive submissions also dealt separately with each individual use proposed as an EPP summarised at par 68 - 83. Each potential use was canvassed in relation to the statutory scheme necessary to achieve it and how little or no progress was made in relation to that scheme as at the date of claim. This approach was criticised by the Minister in reply as not responsive to the Minister's case. As noted already in par 109 the Minister's case was hard to pin down in this regard. In any event, the Applicant's submissions focussing on each of the four possible EPPs is useful to consider as this highlights the necessary statutory steps, where these exist and what is required for implementation. Such assessment is relevant to the overall consideration of the Minister's case.
In relation to nature conservation, the Applicant's detailed written submissions referred to the statutory scheme for the dedication of nature reserves, s 49 of the NPW Act (then in force) required proclamation of these by the Governor. The Minister's case changed in the course of the hearing and the proposal for nature conservation relied on was Lands' proposed reserve for public recreation and the promotion of the study and preservation of native fauna and flora, not the NPWS nature reserve reference. The formal referencing proposed by NPWS was dated 30 August 1989, just after the claim. Any final Executive Government decision was likely to be contingent on the LAPP being conducted by Lands at the date of claim. NPWS' interest in the land for a nature reserve suggests it was considered to have conservation value but is not conclusive of the result of the necessary political process required for approval by the Executive Government under the NPW Act. Lands' reserve proposal included nature conservation as a reserve for the preservation of native fauna and flora. As submitted by the Applicant the history does not establish that in these circumstances nature conservation was an EPP for which there was a likely need at the date of claim.
In relation to public recreation, about which there is little evidence before the date of claim, the Applicant's submissions criticise the Minister's case for lack of detail such as the type of recreation proposed (summarised above at par 76). Lands' report on the RLS dated 30 March 1984 refers to "active and semi-active recreational pursuits" appropriate to bushland fringe" or "urban fringe areas". These references were not specific to the claimed land and did not show need for any purpose. Lands supported a joint study with BHSC of possible bushland reserve networks but no such study is in evidence. Consequently, as the Applicant correctly submitted, it is difficult to assess whether public recreation was an EPP and whether the evidence demonstrated a likely need at the date of claim. The Applicant also submitted that as the land was reserved for future public requirements, which does not encompass recreation purposes, the use of the claimed land was not authorised by the CLC Act or the later CL Act. Further the Applicant submitted that at the date of claim the LAPP was underway and there was no proposal for any form of public recreation under consideration, which is insufficient to establish likely need for an EPP at the date of claim. These submissions are accepted as they arise by inference from the facts.
In relation to open space, similar criticisms were made. The Minister relied on the actions and interest of BHSC in this regard. Open space is a broad term which may or may not include land uses that could be classified as an EPP. The Minister tendered numerous documents relating to regional planning (summarised in par 36) to demonstrate that open space provision is a legitimate planning consideration for government. That is not disputed. That general material does not assist in working out whether open space in these circumstances is an EPP for which there was a likely need at the claim date. The highest the case rises is the draft DCP showing open space around an area similar to Area A. Likely need for open space given the land capability assessment requirements of Lands before any decision could be made about land use has not been established by the Minister. Reliance on the RLS conducted by BHSC and subsequent planning documents prepared by BHSC does not satisfy the onus of proof of the Minister. The possibility of use of a further part of Area B beyond that identified in the DCP was also raised in oral submissions by the Minister but that is not sufficient to discharge the onus of proof the Minister bears in this case.
In relation to urban fringe park, there is very little evidence before the date of claim. It is undefined and is not a form of reservation provided for under the NPW Act. According to the Applicant only one document refers specifically to urban fringe park, RTB tab 19 p 295, being a letter dated 7 June 1984 from the Lands Office to BHSC, commenting on the RLS. The Applicant's submission that the concept of an urban fringe park was no more than that at the date of claim is correct. The Minister has not established this as an EPP for which there was a likely need at the date of claim.
The chronology contains a number of letters and submissions from local community organisations pressing for conservation of the O'Haras Creek area which material the Minister particularly emphasised in the bundle of documents. Apart from noting that material exists in evidence before the date of claim it can only be relevant as background information as there is no demonstrated connection between the community agitation and the actions of Lands in particular. To the extent there was any reference to the documents in this category by the parties (and some were objected to by the Minister), the purpose was largely to identify a particular departmental or ministerial view rather than the community expression of support.
Multiple conflicting purposes proposed
Part of the Applicant's case was that there were competing Department of Housing and DMR interests in the land at the date of claim which interests were incompatible with the EPPs proposed. There was no submission made that these interests amount to EPPs. These competing interests were in addition to the NPWS proposal for a nature reserve, a further competing interest according to the Applicant.
Both parties referred extensively to Castlereagh as supportive of their case on the question of competing interests, with the Minister's counsel quoting from the dissenting judgment of Meagher JA at 253 in par 1 of the written submissions. In that case there were competing public purposes (expansion of forestry, possible urban development and nature conservation) being pursued by different departments at the date of claim. Meagher JA stated that if land was needed for three different purposes by different Ministers that does not mean the land was not needed at all. A hierarchy of public purposes is irrelevant. Provided there was one EPP when a claim was made the Minister's onus of proof is satisfied. The parties disputed whether the majority (Handley and Powell JJA) agreed with this approach. Handley and Powell JJA held at 245D - F that "[t]he variety of public purposes suggested by different agencies, their lack of interest in the years before and after the claim, and the fluctuating priorities" provided ample evidence for the trial judge's findings that the purposes were not regarded as essential by the departments and need for those purposes not established. "Needed" in s 36(1)(c) meant "required".
The Minister argued in reply that the facts of this case are different because the multiple land uses relied on are all EPPs unlike in Castlereagh where forestry and urban development were not EPPs. That is not correct. It was found (at 254E) that the trial judge was not saying that the land uses were not EPPs in the abstract but that the land uses were not demonstrated to be needed as EPPs by the departments at the date of claim in the circumstances, a finding open to him. The Minister's case here is different in that the mixture of EPPs relied on are not necessarily competing if carried out in parallel (leaving aside whether public recreation and open space/urban fringe park can sit with nature conservation).
The observation of the majority in Castlereagh about fluctuating interests applies particularly to NPWS in this case given that a proposal in the 1970s for a nature reserve was not supported or pursued during the 1980s. Much of the correspondence in the 1980s from the Minister for the Environment and NPWS stated that while the O'Haras Creek area was considered to have conservation significance there were not funds or staff for further investigations (for example NPWS' memorandum dated 17 May 1989, Minister for the Environment's letter dated 15 July 1987 stating that NPWS had limited funds and could not investigate when a study would take place, NPWS' letter dated 21 August 1987 to the Four Wheel Drive Clubs Association and briefing note to the Minister for the Environment by NPWS dated 11 November 1987). Local management of the area was supported by NPWS until not long before the date of claim when the nature reserve reference process was commenced within NPWS. The change of attitude in NPWS is evidenced by the commencement of that reference and in post-claim documents of NPWS and the Minister for Environment dated 30 August 1989 and December 1989.
Department of Housing (Minister's facts (m), (n); Applicant's alternative facts (m), (n)) (see par 84 - 88 above)
In relation to interest at the date of claim from the Department of Housing, the Applicant put forward two facts ((m) and (n)) it asked the Court to find. The parties' submissions based on the limited evidence available are identified in par 85 - 88. The first fact was that any interest was confined to Area A only (the ridgetop lands). The second fact refers to post-claim material in 1993 (which I have held should not be relied on). The alternative findings of fact the Applicant contended for were that the Department's interest was over the whole of the land including Area B in light of the RLS. The Minister made extensive submissions summarised above in par 87 concerning the meaning of the various land capability maps attached to the RLS. As identified elsewhere that study was by BHSC not a State government agency and is directed to land capability. The general nature of the references to land with possible residential capability in the RLS supports the Applicant's factual contentions in that it is not possible to be conclusive that the only area of interest was Area A this far removed in time from the dates in question. The letter from the Department of Housing to Lands dated 23 July 1986, a note on Lands' files dated 22 March 1989 recording current interest in the claimed land as including housing and the Lands' memorandum dated 3 May 1989 further confirm the Department's general interest in the O'Haras Creek land the subject of the LAPP. The post-claim documents dated 8 February 1990 and 9 July 1990 further suggest Department of Housing's interest in the O'Haras Creek area, contrary to the Minister's submissions. I do not accept the Minister's submissions at par 88 above.
The Applicant relied on the existence of a competing interest from the Department of Housing for potential housing at the date of claim as evidence of conflict about potential uses of the land amongst State government departments, relying on the majority in Castlereagh. Castlereagh focussed on competing EPPs as that reflected the facts then before the court. Given my finding that the planning for the land was at a relatively preliminary stage at the date of claim, with the LAPP a necessary step to any decision about the use of the land by Lands or any other department or agency, whether the Department of Housing then had a competing interest in the land as an EPP is difficult to infer. Its interest is relevant however in identifying that there was potentially other departmental interest in the land which would have to be considered as part of the LAPP. If the post-claim documents I have allowed in up to the end of July 1990 are considered, in a letter dated 12 July 1990 from the Department of Housing to Lands a number of land claims including ALC 3465 are identified and it is stated that all of the areas included in the claims are on land with urban potential in a wider sense.
DMR's interest (Applicant's alternative facts)
The Applicant contended in its alternative facts that there was competing interest from the DMR at the date of claim based on soil extraction and PEL 260 (par 13 above). The pre-claim references to the interest of the DMR are few. The DMR's interest was recorded by BHSC in the RLS identified in par 89. A letter dated 30 September 1986 (exhibit A (ATB) tab 12) indicates that the DMR had an interest by virtue of PEL 260 in the immediately adjoining land subject to ALCs. The factual matters contended for by the Applicant in relation to DMR's interest in the land at the date of claim are supported by the documents in that the interests of the DMR are identified.
The post-claim letter dated 27 March 1990 from DMR to Lands states that there can be no objection to a land claim based on a known mineral resource or potential for use of such resource on the basis that is an EPP. The letter refers to mining lease 3462 and PEL 260 in the area of O'Haras Creek, which suggests in the separate LAPP that the DMR may have interests in land capability within its portfolio requiring consideration in that context.
While the possibility of conflicting State government interests is of less materiality than in cases such as Castlereagh because the level of decision-making about the land is at a more preliminary stage, I would simply observe that on the available evidence there was potential for conflicting demands for the land from the Department of Housing and the DMR which would be likely to come into play within the LAPP commenced in 1989.
The NPWS' reference proposal is to achieve nature conservation. While at a general level that is not necessarily a competing interest to the Lands' concept of a flora and fauna reserve, the two types of reserves cannot co-exist and are made through different mutually exclusive legislative mechanisms. In that sense they can be described as competing departmental interests in the same land. This provides further support for the Applicant's submissions that there were competing State government interests in the land at the date of claim. This raises additional doubt that the land was likely to be needed, meaning required, for the EPPs relied on at the date of claim.
Additional matter
A further matter suggesting the Applicant should succeed is found in the provisions of the ALR Act. Section 36(5A) provides that where a Crown Lands Minister is not satisfied that land is claimable Crown land because it is needed or likely to be needed for an EPP, if that need could be met if the claim were granted subject wholly or partly to the imposition of a condition, and the condition is consented to by the relevant applicant, the land claim may be granted subject to that condition. The Court can also exercise that power for the purposes of disposing of an appeal under ALR Act s 36(7). As the Applicant submitted, this provision cannot be availed of in this case because the uncertainty of the EPPs relied on means drafting conditions to enable their implementation in some way is not possible.
In conclusion
In light of all the above reasoning, I find there was not a sufficiently developed proposal regarding the mixture of purposes relied on by the Minister to establish that the claimed land was likely to be needed for any essential public purpose at the date of claim. The Minister has not satisfied the onus of proof that the land was not claimable Crown land at the date of claim. The appeal should be upheld. It is requested that the parties file, within a suitable period, orders which will give effect to the findings in this judgment to enable the transfer of the whole of the claimed land under s 36(7) of the ALR Act. Costs should be reserved.
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