Gandangara Local Aboriginal Land Council v Sutherland Shire Council

[2003] NSWLEC 37

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Land and Environment Court

of New South Wales

CITATION:	Gandangara Local Aboriginal Land Council v Sutherland Shire Council [2003] NSWLEC 37
PARTIES:	APPLICANT Gandangara Local Aboriginal Land Council RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	40047 of 2002
CORAM:	Pearlman J
KEY ISSUES:	Compulsory Acquisition of Land :- local aboriginal land council - acquisition rather than appropriation or resumption
LEGISLATION CITED:	Aboriginal Land Rights Act 1983 s 40, s 42 Land Acquisition (Just Terms Compensation) Act 1991 s 4, s 5 Sutherland Shire Local Environmental Plan 2000 cl 63(1)
CASES CITED:
DATES OF HEARING:	16/12/2002
EX TEMPORE JUDGMENT DATE :	12/16/2002
LEGAL REPRESENTATIVES:	APPLICANT Mr P W Larkin (Barrister) SOLICITORS Henrietta J Dean RESPONDENT Mr P J Duffy (Solicitor) SOLICITORS Sutherland Shire Council

JUDGMENT:

40047 of 2002

Pearlman J

16 December 2002

GANDANGARA LOCAL ABORIGINAL LAND COUNCIL

Applicant
v

SUTHERLAND SHIRE COUNCIL

Respondent

Judgment

Introduction

1 The parties in these Class 4 proceedings seek the making of orders by consent. I am prepared to make those orders but it is appropriate that I furnish my reasons for doing so having regard to the fact that the circumstances of this case are unique.

2 The situation is that the applicant, Gandangara Local Aboriginal Land Council (“the Land Council”), is the owner of certain land at Alfords Point in the shire of Sutherland. Under the Sutherland Shire Local Environmental Plan 2000 (“the LEP”) that land is within the 6(a) Public Recreation zone.

3 By letter from Ms Dean, the solicitor for the Land Council, the Land Council gave notice to the Sutherland Shire Council (“Sutherland Council”) that it requested Sutherland Council to acquire the land pursuant to cl 63(1) of the LEP. Clause 63(1), which is in conventional terms, applies (pursuant to cl 61) to land zoned 6(a) Public Recreation. Clause 63(1) provides as follows:

63(1) The owner of land in the 6(a) Public Recreation zone may request the Council to acquire the land. The request must be in writing. On receipt of the request, the Council shall acquire the land.

4 It was pointed out by Mr Duffy, the solicitor for Sutherland Council, that there is a history in relation to the land and that Sutherland Council considered it appropriate in the light of that history and in the light of all the circumstances to go through the compulsory acquisition process in relation to the land. However, that position is complicated by the provisions of s 42 of the Aboriginal Land Rights Act 1983 (“the Land Rights Act”) which provides as follows:

42 Notwithstanding anything in any Act, lands vested in Aboriginal Land Council shall not be appropriated or resumed except by an Act of Parliament.

5 It was put to me by Mr Larkin, appearing for the Land Council, and I accept, that on its proper construction, s 42 must refer to a disposal of land by some compulsory process without the agreement of the owner because it refers land being “appropriated” or “resumed”.

6 This is not such a case. Here it is the request of the owner to the Sutherland Council that puts in train the process under the Land Acquisition (Just Terms Compensation) Act 1991 (“Just Terms Act”). There is no element here of lands being “appropriated” or “resumed” from the Land Council in any sort of compulsory way without its agreement. Rather, the acquisition of the land by Sutherland Council would fall under s 40 of the Land Rights Act which permits a local aboriginal land council to dispose of land in accordance with div 4 pt 6 of that Act.

7 The other matter that is relevant is s 5 of the Just Terms Act. That section provides that the Just Terms Act applies to the acquisition of land (by agreement or compulsory process) by an authority of the State which is authorised to acquire the land by compulsory process.

8 As Mr Larkin pointed out, what is contemplated here is an “acquisition”. That expression is defined in s 4 of the Just Terms Act to be “an acquisition of land or of any interest in land”. The land is to be acquired by Sutherland Council which is clearly an authority of the State. The specific “authorisation” is cl 63 of the LEP, whereby Sutherland Council is authorised to acquire the land by compulsory process, that being a compulsory process under the Just Terms Act.

9 In all those circumstances, it seems to me that the process, which the parties contemplate and to which they have agreed, does fit within the relevant legislation. Notice has been given to Sutherland Council by an owner compelling Sutherland Council to acquire land. It is a compulsory acquisition pursuant to the Just Terms Act. The owner happens to be a local aboriginal land council but the disposal of the land is not an “appropriation” or “resumption”. It is rather a disposal by the Land Council which it is empowered to do.

10 In all those circumstances, I am prepared to make the orders in the form sought in the short minutes which I sign for identification. I make by consent orders in the terms of those short minutes.