Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council

[2009] NSWCA 151

New South Wales

Court of Appeal

CITATION:	MINISTER ADMINISTERING THE CROWN LANDS ACT v NEW SOUTH WALES ABORIGINAL LAND COUNCIL [2009] NSWCA 151
HEARING DATE(S):	6 May 2009
JUDGMENT DATE:	17 June 2009
JUDGMENT OF:	Beazley JA at 1; Tobias JA at 1; Basten JA at 7
DECISION:	(1) Dismiss the appeal from the judgment and orders of Jagot J in the Land and Environment Court delivered on 31 January 2008. (2) Order the appellant to pay the respondent’s costs of the appeal.

CATCHWORDS:	ABORIGINALS – land rights under legislation – New South Wales – Claim to Crown land – needed or likely to be needed as residential lands – proposed subdivision of Crown land for residential purposes – development application made – whether Crown Lands Minister held opinion at time of claim - ABORIGINALS – Aboriginal land claim – permissible use of evidence of events and conduct post-dating claim – whether such events and conduct irrelevant considerations - APPEAL – appeal from Land and Environment Court – right of appeal – when appeal lies – error of law – error in decision on a question of law – correct articulation of legal principle by trial judge – whether no other conclusion available upon basis of facts as found - WORDS AND PHRASES – “needed or likely to be needed”
LEGISLATION CITED:	Aboriginal Land Rights Act 1983 (NSW), s 36 Crown Lands Act 1989 (NSW), s 35 Environmental Planning and Assessment Act 1979 (NSW), s 91A Land and Environment Court Act 1979 (NSW), ss 37, 57
CATEGORY:	Principal judgment
CASES CITED:	Amaca Pty Ltd v Frost [2006] NSWCA 173; 67 NSWLR 635 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bankstown Municipal Council v Fripp [1919] HCA 41; 26 CLR 385 Housing Commission of New South Wales v Falconer (1981) 1 NSWLR 547 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; 50 NSWLR 665 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd [1953] HCA 22; 88 CLR 100 Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439
PARTIES:	Minister Administering the Crown Lands Act (Appellant) New South Wales Local Aboriginal Land Council (Respondent)
FILE NUMBER(S):	CA 40079/08
COUNSEL:	M J Leeming SC/C L Lenehan (Appellant) J E Griffiths SC/J E Lazarus (Respondent)
SOLICITORS:	Crown Solicitor (Appellant) Chalk and Fitzgerald (Respondent)

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 30568/06
LOWER COURT JUDICIAL OFFICER:	Jagot J
LOWER COURT DATE OF DECISION:	31 January 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [No 2] [2008] NSWLEC 13

CA 40079/08
LEC 30568/06

BEAZLEY JA
TOBIAS JA
BASTEN JA

17 June 2009

MINISTER ADMINISTERING THE CROWN LANDS ACT v NEW SOUTH WALES ABORIGINAL LAND COUNCIL

Headnote

During the early 1980s, the Nambucca Shire Council requested the release of Crown Land by the Crown Lands Minister in order to meet a perceived shortage of residential land in Nambucca Heads. Preliminary steps were taken with respect to various proposals, one of which involved an area described as "the Boronia Street Land", the nature of which required geotechnical investigations that were carried out during 1982 and 1983. The depression of the real estate market in 1984 led to a cessation of development activity between 1985 and 1988.

In order to meet short term demand, in May 1990 steps were taken with respect to the Boronia Street Land. The subdivision included four non-contiguous areas, two of two lots and two of three lots. A development application was lodged on 15 May 1990. On 20 September 1990 the Council granted consent to the development subject to conditions agreed with the Lands Department. On 22 October 1990 an Aboriginal land claim was lodged over an area that included all of the land within the proposed subdivision. The Minister for Lands refused the claim on 4 May 2006 on the basis that the land was not claimable Crown land within the meaning of the Aboriginal Land Rights Act 1983 (NSW).

The respondent appealed to the Land and Environment Court against the refusal by the Minister. Jagot J, assisted by an acting commissioner, upheld the appeal and ordered that the land be transferred to the Nambucca Local Aboriginal Land Council in fee simple. The Minister appealed to this Court from the decision of Jagot J.

The issues for determination on appeal were:

(i) whether upon the basis of facts as found by the trial judge, no conclusion was available to her Honour other than that the Minister had satisfied his burden of demonstrating that the lands were not claimable Crown lands by virtue of the Crown Lands Minister having held the opinion, at the date of the claim, that the Boronia Street Land was needed or was likely to be needed as residential lands; and

(ii) whether certain events occurring after the time of the claim were considerations irrelevant to the question of whether s 36(1)(b1) applied to the area of land claimed.

The Court held, dismissing the appeal:

In relation to (i)

(per Basten JA, Beazley and Tobias JJA agreeing)

1. Whilst inferences favourable to the Minister’s case might have been drawn by the trial judge on the basis of the evidentiary material, her Honour, having correctly articulated the relevant legal principles to be applied, was entitled to decline to draw such inferences, and to conclude accordingly that the formation of the requisite opinion had not been satisfactorily established: [10], [36]—[40], [61].

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 [2001] NSWCA 28; 50 NSWLR 665, considered.

2. Whether or not this Court would form the same view as the trial judge on the basis of facts as found is inconsequential to the question as to whether an error of law has been demonstrated: [6], [62].

Randwick Municipal Council v Manousaki (1988) 66 LGRA 330, referred to.

3. Evidence that is supportive of one test is not necessarily irrelevant to another test. The trial judge did not err in considering objective circumstances and drawing inferences accordingly, despite having properly rejected a construction of s 36(1)(b1) that involves an objective test: [63].

In relation to (ii)

(per Basten JA, Beazley and Tobias JJA agreeing)

4. The approach adopted by the trial judge in relation to evidence of post-claim conduct demonstrated careful attention to correct legal principle. In drawing inferences on the basis of such an approach, her Honour did not commit any error of law: [69]—[70].

Housing Commission of New South Wales v Falconer (1981) 1 NSWLR 547; Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; 50 NSWLR 665, referred to.

CA 40079/08
LEC 30568/06

BEAZLEY JA
TOBIAS JA
BASTEN JA

17 June 2009

MINISTER ADMINISTERING THE CROWN LANDS ACT v NEW SOUTH WALES ABORIGINAL LAND COUNCIL

Judgment

1 BEAZLEY AND TOBIAS JJA: We agree with the orders proposed by Basten JA and, subject to what we say below, generally with his Honour’s reasons.

2 Given that the Minister’s argument, as acknowledged by his Honour in the last sentence of [41] of his reasons with which we agree, was that on the findings of primary fact actually made by the primary judge, no conclusion was open or available other than that the Minister had satisfied his burden of demonstrating that the lands were not claimable Crown lands, it is unnecessary for us to adopt the obiter remarks of his Honour at [42] to [46] of his reasons.

3 There can be no doubt in our view that with regard to what was referred to as the Boronia Street land, the Minister failed to demonstrate that there was any question of law, let alone error of law, in her Honour’s decision with respect to that land. Basten JA’s reasoning at [61] to [63] provides a complete answer to the Minister’s contentions on that issue.

4 The Lackey Street lots we found more difficult given the contents of Mr Edward’s memorandum of 19 December 1990 referred to at [24] of Basten JA’s reasons. The handwritten comments and endorsements on the third page of that document by Mr Edward’s more senior officers and dated 20 December 1990 and 21 December 1990 respectively, were capable of providing the necessary opinion called for by s 36(1)(b1) of the Land Rights Act.

5 However, we agree with Basten JA at [65] of his reasons that her Honour expressly considered the position with respect to that part of the claimed lands. Furthermore, she discounted the force of the December 1990 memorandum at [118] of her reasons as Basten JA points out at [69]. Whether the inferences she drew in that paragraph from the evidence were right or wrong is not the question, as Basten JA notes at [70] of his reasons.

6 Even if her Honour’s finding of no relevant opinion with respect to the Lackey Street lots was perverse or unreasonable, it would not constitute an error of law. The relevant principles with respect to such errors are conveniently and comprehensively set out in the judgment of Clarke JA, with whom Hope and McHugh JJA agreed, in Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333-334. No error of law on the part of the primary judge of the nature there described was established by the Minister. His challenge to the decision of her Honour with respect to the Lackey Street lots in particular must therefore fail.

7 BASTEN JA: This appeal concerns one of a number of claims made under the Aboriginal Land Rights Act 1983 (NSW) (“the Land Rights Act”) in relation to land in and around the north coast township of Nambucca Heads. The claim was lodged with the Registrar, pursuant to s 36(4) of the Land Rights Act, on 22 November 1990. The claim was refused by letter to the Land Council dated 4 May 2006.

8 On 30 June 2006 the Land Council appealed against the refusal of the claim, pursuant to s 36(6) of the Land Rights Act. The appeal was heard in the Land and Environment Court (“the L&E Court”) by Jagot J, assisted and advised by Acting Commissioner Davis, in accordance with s 37(2) of the Land and Environment Court Act 1979 (NSW) (“the LEC Act”). Her Honour upheld the appeal and ordered that the land be transferred to the Nambucca Local Aboriginal Land Council in fee simple: see NSW Aboriginal Land Council v Minister Administering the Crown Lands Act[No. 2] [2008] NSWLEC 13.

9 The issues in dispute have been reduced over the course of the litigation, so that the Minister’s appeal is restricted to 10 lots proposed to be released as part of a residential subdivision. (The lots did not constitute a single contiguous area.) The only ground for rejecting the claim now relied upon is that, as at the date of claim, in the opinion of a Crown Lands Minister, the lands were needed or were likely to be needed as residential lands: see Land Rights Act, s 36(1)(b1). The burden of proving at least one limb of that criterion fell upon the Minister.

10 In addition to bearing that burden in the Court below, on the appeal the Minister needed to establish that a decision of the L&E Court on a question of law had been determined erroneously: LEC Act, s 57(1). As counsel for the Minister properly conceded, the relevant legal principles were correctly articulated by the primary judge in her reasons. In these circumstances, the Minister faced a difficult task in demonstrating that the L&E Court had erred in reaching a decision on a question of law, being the extent of the appellate jurisdiction conferred on this Court under s 57(1) of the LEC Act. These difficulties proved insuperable, with the result that the appeal must be dismissed.

Background

11 Before identifying the issues and arguments presented on the appeal, it is desirable to set out a general factual background to the land claim. However, it is necessary to avoid stating facts other than those found by the trial judge, or to state them in terms inconsistent with her Honour’s findings.

12 In large part the evidence was documentary. Apart from expert evidence, which played no significant role in her Honour’s findings, the only oral evidence was that of Mr P R Edwards, who, prior to his retirement, worked as a senior surveyor in the New South Wales Department of Lands. At the time of the events in question, he was stationed in the Lands Office at Grafton, which was responsible for an area on the north coast including Nambucca Shire. Because the events in question occurred between 17 and 20 years before the trial, his oral evidence did not add greatly to that which was recorded in the documents. With one limited exception, it was peripheral to the arguments on the appeal.

13 The documentary evidence showed that, at least from the early 1980s, the Nambucca Shire Council held the view that there was a shortage of residential land in Nambucca and requested the Crown Lands Minister to consider an immediate release of “serviced Crown land” to meet the shortfall: at [13]. Although steps were taken to respond to the Council’s request, by 1984 the real estate market was said to be “depressed” and various proposals were deferred: at [17]. Her Honour recorded that nothing appeared to have occurred between mid-1985 and 1988: at [20].

14 For present purposes, the key events commenced with a meeting between Mr Edwards and the Council in May 1990, which dealt with a number of matters, including an undertaking on the part of the Department “to prepare a strategy for release of a large tract of land near Mahogany and Forest Roads” to meet long-term demand: at [22]. Her Honour also noted that, to meet short-term demand, steps were taken with respect to a proposed residential subdivision of what was described as “the Boronia Street land”. Her Honour continued:

“The Regional Manager of the Grafton Lands Office signed the enclosed development application for the Boronia Street land (registered as DA 2273) dated 15 May 1990 on behalf of the Minister.”

15 The Boronia Street land was in fact an area including steep gullies and the subdivision included four non-contiguous areas, two of two lots and two of three lots. One of the three-lot areas was located at the end of Lackey Street. It was recognised that further works would be required to permit release of the lands and that concerns in relation to soil stability would need to be addressed. Under the Crown Lands Act 1989 (NSW), which had commenced on 1 May 1990, the Department was required to prepare a draft land assessment for public consultation prior to release of the lands: s 35.

16 Following the lodgement of the development application, there was correspondence between the Shire Council and the Lands Office as to the steps to be followed. As the Council noted, acting alone, it was not entitled to refuse the application, nor to impose conditions except by consent: Environmental Planning and Assessment Act 1979 (NSW) (“the EP&A Act”), s 91A. On 28 June 1990 the Council accordingly sought consent to a number of conditions which included the provision of reticulated water supply, connection to sewer mains and the construction of streets, with appropriate kerbing, gutters, drainage pits and related requirements. Lackey Street was a cul-de-sac ending with three of the proposed new lots and required the construction of a turning circle.

17 On 31 May 1990 the Council wrote to the regional office of the Soil Conservation Service seeking advice as to the suitability of the land for residential development. On 15 June 1990 the Soil Conservation Office responded in part as follows:

“An on-site inspection has identified class Ds land on all proposed Lots.
Class Ds land have very severe physical limitations to development because of slope constraints. It is generally recommended that these lands remain undisturbed, however a geotechnical survey may identify areas of land suitable for development. A geotechnical survey and report prepared by a qualified engineer should also evaluate the potential for any mass movement and detail any necessary requirements to ensure site stability.”

18 The Service then noted that a geotechnical evaluation had been undertaken in 1983 and that the report accompanied the development application. It noted that a site inspection of the two lots proposed for Excelsior Street revealed significant difficulties and advised that geotechnical work should be done.

19 The 1983 geotechnical report identified significant difficulties with the area generally and with specific sites. Its comments with respect to the Lackey Street lots should be noted. For present purposes, the upper part of Lackey Street may be described as forming a ‘Y’, with Small Street constituting the left hand arm of the ‘Y’. The three proposed lots ran from the top of Lackey Street round into the gap formed by the two arms of the ‘Y’. The geotechnical report stated:

“It is apparent that the end of Small Street is basically on fill material, which forms a poorly consolidated very steep bank down into Lot A. The uphill side of Small Street has no drainage system, and it appears that considerable quantities of water must be soaking into the ground along the cut line and percolating under the road.
This presents a potentially hazardous situation and renders the proposed location of Lot A unsuitable. Even Lot B could be endangered by a large slip unless remedial measures are undertaken to reduce the slope angle and to provide adequate drainage to Small Street.
It appears that the three lots at the end of Lackey Street could be better located by rotating them clockwise as indicated on the locality plan.”

20 On 20 September 1990, the Council gave consent to the development subject to conditions agreed with the Lands Department.

21 On 18 October 1990 Mr Edwards wrote to Kinhill Engineers Pty Ltd (“Kinhill”) inviting it to tender for a review of the engineering design with respect to the proposed release of residential land. Amongst other things, that letter required that the engineering design plans be redrawn “to exclude unwanted information (ie … Boronia Street subdivision)”. That exclusion, however, appeared not to include the Lackey Street lots, which were referred to at the end of the letter as being the subject of further information to be supplied.

22 On 22 October 1990, the land claim was lodged over an area which included all of the land within the proposed subdivision.

23 A body of evidence was also tendered with respect to steps taken after the lodgement of the claim. As will be discussed shortly, such material may be relevant to the extent that it discloses matters which were known at the date of the claim. Otherwise, such material may distract the Court from its consideration of the state of affairs as at the date of the claim, in accordance with the requirements of the Land Rights Act. (Whether the material was properly used was a ground of appeal.)

24 Subject to that qualification, it is convenient to note a number of documents which were referred to by the parties in the course of argument. First, Mr Edwards prepared a memorandum to his superiors dated 19 December 1990 seeking approval to engage Kinhill, as proposed in the letter of 18 October 1990. The memorandum referred to the proposed release of land at Mahogany and Forest Roads as directed to long-term demand and continued:

“In order to satisfy the immediate demand this office has been able to bring forward a small residential development as a stop-gap measure whilst work proceeds on the major project.
Basically two projects in one, the development proposes subdivision of Crown land at the northern end of Lee Street (5 lots) and the eastern end of Lackey Street (3 lots). Both sites are in close proximity and can effectively be undertaken by the one contractor.
The project is included on the Land Development Program (Project No. 1519). On-site construction works are proposed for June-August, 1991, with marketing planned for October, 1991.”

25 The memorandum noted that the land assessment process had been completed and that the assessments approved by the Assistant Director, Policy and Planning, “identify preferred land uses permitting the proposed use of lands for urban development”. The memorandum also noted:

“Only recently a whole range of Aboriginal land claims were lodged in respect to vacant Crown lands at Nambucca Heads, including the subject lands. It is apparent that the claims have been lodged in response to the identification of the sites in Land Assessment advertisements.
In this case, it would appear most unlikely the claims will be satisfied given that the Department’s intention to develop these lands for residential purposes was clearly demonstrated as far back as the early 1980s. As a result of the large number of claims lodged throughout the region, it could be up to six months before the subject claims are finalised.”

26 Despite Mr Edwards’ pessimistic view, the claims were not disposed of for more than 15 years. However, the principal relevance of the memorandum appears to have been the absence of reference to any of the land within the present claim other than the three lots at the eastern end of Lackey Street.

27 On 14 August 1991 Mr Edwards prepared a memorandum referring to work having been undertaken by Kinhill with respect to engineering survey and design for roads, drainage, sewer and water related to the development of “two small Crown subdivisions at Nambucca Heads (Lee Street – five lots, Lackey Street – two lots)”. After referring to the pending investigation of the land claims, Mr Edwards recommended that “negotiations commence with Nambucca Shire Council with the aim of securing a contribution from it towards the cost of upgrading Lackey Street. Without such contribution, the Lackey Street development is economically unviable.”

28 The documentation did not identify precisely when the Lackey Street proposal had been reduced from three to two lots, but such a decision appears to have been taken between December 1990 and 2 May 1991. On the latter date Mr Edwards wrote to the Shire Clerk noting that it had been decided to reduce the number of lots from three to two and increase the size of the remaining lots on account of the steep terrain. The reason given was the potential slip problem arising from the Small Street road batter, which had been identified in the geotechnical report.

29 On 23 July 1992 Mr Edwards wrote again to the Shire Clerk in response to a request for information as to the Department’s intentions to develop land at the north-eastern end of Lackey Street. The response referred to the land claims and “the Department’s commitment to the on-going residential development of land in the vicinity of Forest Road”. It concluded:

“An earlier proposal to establish two residential lots at the north-eastern end of Lackey Street was abandoned as a result of Council’s requirements for the upgrading of Lackey Street rendering such proposal uneconomic.”

30 The Land Rights Act provides that lands vested in the Crown are claimable Crown lands if, when the claim is made, they are “able to be lawfully sold or leased, or are reserved or dedicated for any purpose”: s 36(1)(a). To this statement, there are a number of exceptions, the only one relied upon in the present case being that set out in s 36(1)(b1), namely that the lands –

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

31 A land claim is required to be determined by the Crown Lands Minister who, if satisfied that the lands claimed are claimable Crown lands, must grant the claim and, if satisfied that they are not claimable, refuse the claim: s 36(5). A Land Council may appeal to the L&E Court against a refusal: s 36(6). The Act then provides:

“(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 ….”

32 It is clear that the proceedings in the L&E Court are a full reconsideration of the merit of the land claim, on the evidence presented before the Court. Although it is customary to refer to such hearings (as the Act does) as an “appeal”, it is in effect an exercise of original jurisdiction by the L&E Court. The burden of satisfying the Court that the lands are not claimable Crown lands lies on the Minister. He or she must therefore either negate the qualification to be found in the opening lines of the definition, together with par (a) of s 36(1), or bring the lands within one of the exceptions, which are stated negatively, in the subsequent paragraphs of s 36(1). In practical terms, it is sufficient to describe the Minister’s burden in the present case as being to satisfy the Court that the lands were within the description in par (b1).

33 The description in par (b1) is identified by reference to the opinion of a Crown Lands Minister. The use of a subjective criterion or precondition is well-understood in the context of judicial review proceedings: it limits the circumstances in which an application for judicial review can succeed. The opinion, rather than the underlying circumstances, becomes the criterion conditioning the exercise of power: see Bankstown Municipal Council v Fripp [1919] HCA 41; 26 CLR 385 at 403 (Isaacs and Rich JJ), referred to by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [130]. In the present case, however, the purpose of the requirement is different. When the Minister determines a claim under s 36(5), he or she must be satisfied that, at the time of the claim, the Minister (who may have been a predecessor) held an opinion as to the need or likely need for the lands as residential lands. It will not be for the Minister exercising the power under s 36(5), or the Court, exercising its power on appeal under s 36(7), to decide whether or not there was a need or likely need for the lands as residential lands, but only whether the Minister in office at the time of the claim held such an opinion.

34 In practice, it is rarely the case that the Minister forms such an opinion prior to the making of a land claim. Further, because, prior to the making of a land claim, there is no purpose in the Minister forming such an opinion, there is unlikely to be any indication of a Minister delegating the power to form such an opinion.

35 If it were necessary to find such a contemporaneous opinion held by the Minister, the Minister must have failed in the present case because there was no suggestion that his predecessor had formed the relevant opinion. The case, however, was not run on that basis. It was accepted on behalf of the Land Council that it would have been sufficient if the officer responsible for dealing with Crown lands in the Grafton area had held the relevant opinion. Precisely who that was does not appear to have been identified; rather, the parties appear to have proceeded on the basis that Mr Edwards’ opinion, at least when accepted by those in charge of the Regional Home Sites Program in the Department of Lands, would have been the relevant opinion. Mr Edwards did not, either in this affidavit, or in his oral evidence, express an opinion that he held when the claim was made, in terms of s 36(1)(b1). (The closest he came was the statement in the last paragraph of the letter at [25] above.) That appears not to have been treated as fatal to the Minister’s case either. Rather, the case appears to have proceeded on the basis that the Minister could succeed if he demonstrated to the satisfaction of the Court that someone in his Department at the date of claim would have held the relevant opinion, if asked.

36 There was no proposal at the relevant time that the lands should be used for any other purpose than as residential lands. Accordingly, the only remaining question was whether they were, in the Minister’s opinion at the relevant time, “needed or likely to be needed for that purpose”. Similar language is used in s 36(1)(c) of the Land Rights Act, in relation to “an essential public purpose”. There is no reason to suppose that the test in respect of these elements differs between the two provisions. As the trial judge noted, in Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 (“Deerubbin (No 1)”) at 254, Handley and Powell JJA noted that the word “needed” in s 36(1)(c) means “required”. This view was confirmed in Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; 50 NSWLR 665 (“Deerubbin (No 2)”) at [50]. Spigelman CJ noted that “need” meant no more than “required or wanted” and continued:

“The distinction between what was ‘needed’ and what was ‘likely to be needed’ turned, in the Appellant’s submission, on whether or not a decision concerning the use of the land had in fact been made. This is an acceptable distinction.”

37 His Honour then proceeded to consider the meaning of “likely” which, as has frequently been observed, can mean more probable than not or can have the less demanding connotation of “a real chance”, being something more than a remote chance or possibility: at [51]. His Honour noted that the beneficial purpose of the legislative scheme favoured a limited construction of the exceptions to claimable Crown lands, while reference to an “essential” public purpose gave the paragraph a different emphasis. His Honour concluded that because the scope of the public purposes was restrictively identified, the meaning of “likely”, should be accepted as satisfied by a real or not remote chance: at [57]. Although the separate identification of residential lands may imply that they would not of themselves constitute an essential public purpose for the use of land, the trial judge accepted that the same test should be applied in respect of the exception in par (b1) as in (c): that conclusion was not challenged on appeal.

38 The primary judge also accepted as relevant in respect of paragraph (b1) the comments in the joint judgment in Deerubbin (No 1) that the L&E Court in an appeal under the Land Rights Act, “would not be called upon to second guess, for example, a decision by the Executive Government that Sydney needed a second major airport, and that it should be located at Badgery’s Creek”. Their Honours continued:

“The only question for the Court in such a case would be whether a second airport for Sydney was an essential public purpose, and if so whether the particular land was needed, that is required or wanted, by the Executive Government for that purpose.”

39 At various stages in her reasons, the primary judge eschewed “second guessing” a decision by the Executive Government.

40 Some care must be taken in transferring language used in one factual context to another. Thus, as appeared in Deerubbin (No 2), a reference to the “Executive Government” might be unhelpful in circumstances where different agencies within the Government were pursuing different purposes. Similarly, if the objective question of need is that to be determined by the Court under par (c), as the relevant precondition to refusal of the claim, then it may not be “second guessing” the Government to reach a different conclusion from that apparently reached by the relevant officer. In relation to par (b1), however, so long as a relevant opinion has been properly formed, according to correct legal criteria, and the Court is satisfied of the existence of the opinion at the relevant time, that would be a sufficient basis for rejecting the claim. Accordingly, whatever the precise scope of the comments in Deerubbin (No 1) in relation to the exclusion in par (c), it is clearly apposite in relation to (b1) and was therefore applicable in the present case. As already noted, the critical question was whether the relevant opinion was held by a relevant person at the relevant time.

Issues on appeal

41 Pursuant to s 57 of the LEC Act, the Minister may appeal “against an order or decision … of the Court on a question of law”: s 57(1). Subject to one qualification regarding material generated after the date of the claim, the Minister was unable to identify a question of law upon which the primary judge had arguably made an erroneous decision. Furthermore, senior counsel for the Minister eschewed any argument that the fact-finding exercise was manifestly unreasonable: Tcpt, NSWCA, 06/05/09, p 20(5). (At least with respect to primary facts, such an argument would not in any event have been available.) Rather, the Minister’s argument was that on the findings of primary fact actually made by her Honour, no conclusion was available other than that the Minister had satisfied his burden of demonstrating that the lands were not claimable Crown lands.

42 In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156C-D, Glass JA stated:

“Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gaslight Co v Valuer-General (1940) 40 SR(NSW) 126 at 138 ….”

43 His Honour then explained why it was not open to the party bearing the burden of proof to argue a “no evidence point”. He stated at 156E:

“The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence.”

44 These passages, and the various equivalent expressions referred to in Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 and set out by Spigelman CJ in Amaca Pty Ltd v Frost [2006] NSWCA 173; 67 NSWLR 635 at [56], are ambivalent as to the proper approach to matters of inference. It is clear that Glass JA identified as the first stage, the exercise of “determining the facts by way of primary findings and inferences” at 156G. In reference to that stage, he stated that “the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, or as has been said, never be vulnerable to attack as an error of law by an applicant for compensation”. However, he concluded in relation to the third stage (of applying the law correctly stated to the facts found) at 157B:

“An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the [course] of employment, substantial interruption to journey, or failure to supply suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gaslight Co v Valuer-General (at 138 …). Accordingly this Court will not entertain unexplained perversity of result as a ground of intervention although it will correct perverse or unreasonable applications of law to the facts found.”

45 These carefully crafted propositions do not provide ready answers in all circumstances. In particular, the distinction proposed in the last sentence set out above, between “unexplained perversity of result” and “perverse or unreasonable applications of law to the facts found” may not always be available. For example, unexplained perversity of result may provide a basis for discerning perverse or unreasonable applications of law to the facts found: see, eg, The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd [1953] HCA 22; 88 CLR 100 at 118 (Dixon CJ, Williams, Webb and Fullagar JJ).

46 The present case illustrates the difficulty. If the nature of the opinion was not in dispute, whether or not the Minister actually held the opinion at a particular time might have been construed as a pure finding of fact, rather than an application of the law to the facts as found. If, on the other hand, the question was to identify and characterise the nature of the opinion in fact held by the Minister, questions of mixed law and fact may arise. One question might be whether the onus lay on the Minister to prove that the opinion said to have been held was of the kind required by law, or whether that was merely an application of the law to primary facts. However, because the trial judge was simply not satisfied that the critical inference should be drawn, these questions need not be resolved.

47 The reasoning of the primary judge addressed the following considerations:

(a) the making of the development application;

(b) the placement of the proposed development on the Department’s home sites program;

(c) the natural constraints of the land;

(d) the Council’s zoning of the land;

(e) the financial constraints on development, and

(f) the availability in the area of other Crown land for residential development.

48 It was not suggested that any of these factors was an irrelevant consideration in the sense that her Honour was precluded in accordance with the proper construction of the Land Rights Act from taking it into account. Rather, the complaint in respect of each matter was the weight given to the factor in forming a view as to the Minister’s opinion, leading, it was contended, to the conclusion that no other inference was available than that the Minister held an opinion at the date of claim that the land was needed or likely to be needed for residential purposes.

49 In the course of oral argument, counsel refined that submission on the basis of a necessary distinction between the Lackey Street lots and the remainder, generally described as the Boronia Street development. Because the latter was no longer on the home sites program as at the date of claim, counsel accepted that the Minister’s case with respect to that land must ultimately turn on an opinion that it was “likely to be needed” for residential lands. While the same opinion might have been available in relation to the Lackey Street lots, a stronger case was put in respect of that land, namely that no conclusion was available other than that the Minister held the opinion at the date of claim that the lots were “needed” for residential development. He accepted as a fall-back position that an opinion must have been held that the Lackey Street lots were “likely to be needed” for residential development.

50 With respect to the use by her Honour of the evidence that even the Lackey Street lots had been abandoned by 23 July 1992, the Minister objected that reliance on that information involved an impermissible use of hindsight.

51 It is convenient to consider each of the matters addressed by the primary judge in the order in which they are identified above.

(a) making of development application

52 Her Honour treated the making of an application to develop the land as a material factor to be taken into account, stating that “its significance will depend on the whole of the available evidence”: at [108]. She accepted that the application demonstrated more than a capacity for the land to be used for the proposed purpose, but did not necessarily establish the relevant opinion of the Minister for the purposes of s 36(1)(b1). In that context, her Honour noted that the covering letter which accompanied the application “anticipated that, subject to the necessary approvals, marketing of the 15 lots could occur early in 1991”. That statement was made in a context where much, but not all, of the “preliminary investigations and design work” had then been completed. As her Honour noted, these statements had to be taken in their relevant context: at [22] and [113]. Her Honour further noted that the grant of development consent did not bind the Minister to carrying out the development in circumstances where the conditions, imposed with the Minister’s agreement, required the construction of substantial road works: at [115].

(b) presence of project on Department’s Home Sites Program

53 Her Honour considered that the existence of the relevant opinion as to need or likely need should be addressed in light of the Department’s home sites program. This gave an indication as to the relative priority to be given to the expenditure of the limited resources available to the Department for this purpose: at [109]. Her Honour inferred from the letter of 18 October 1990 that the Boronia Street development had been removed from the program because of the nature of the land and the engineering works required to permit residential development: at [116] and [117]. The inference was clearly available and was not challenged. It is also clear that her Honour appreciated that, at the time of the claim, the Lackey Street lots remained on the program.

54 The potential constraints “by reason of topography and the many road frontages” were matters of which officers of the Department were well aware from the early 1980s: at [110]. It was clear from the letter accompanying the development application that further investigation would be necessary and indeed the letter to Kinhill’s of 18 October 1990 demonstrated that further investigation was being undertaken, although no longer in relation to the Boronia Street development. Concerns about the land had been confirmed by the Soil Conservation Service report to the Shire Council which, it was accepted, had been provided to the Lands Office and was referred to by her Honour at [114]. Her Honour continued:

“[116] The nature of the subdivision was also unusual. The majority of the land was too steep for residential development. Hence, the lots were in small groups fronting several of the surrounding roads. Civil engineering works for the whole subdivision thus could not be consolidated into one readily manageable area.
[117] I infer that the Department’s officers understood these difficulties at all times, and they explain the consolidation into one project of the three lots on Lackey Street with the five lots on Lee Street.”

55 These considerations were also dealt with by her Honour in relation to the final abandonment of Lackey Street, at [118], a matter which will be addressed below in respect of the use of post-claim decisions.

(d) zoning

56 The zoning of the land as residential was undertaken not by the Department, or at the request of the Department, but by the Council. Her Honour noted that the zoning did not preclude the Department and the Council using such land for other purposes: at [112].

57 Her Honour noted that the Department’s home sites program “had to be kept small due to limited resources”: at [109]. There were competing demands for those resources, including the major land release planned for Mahogany and Forest Roads: at [119]. The factors referred to above, and particularly the natural features of the land, requiring substantial road works, required a significant expenditure for a small return. Her Honour inferred that that was the reason that the Boronia Street subdivision was removed from the program: at [117]. Her Honour continued at [118]:

“By 14 August 1991 Mr Edwards also recorded that a financial contribution from the Council would be necessary for the upgrading of Lackey Street otherwise the development of the two lots would be unviable.”

58 That view, her Honour inferred, was known to the Department at the time of the claim. That inference was supported by evidence that the lots had earlier been removed from the home sites program (in 1985) because of “[p]erceived market conditions” which, her Honour noted, “were so important to the Department that they ensured the land remained off the program for two or more years”: at [111].

(f) availability of other Crown land

59 The availability of a large tract of land at Mahogany and Forest Roads reduced the likelihood of any need for either Boronia Street or, after that had been removed from the program, Lackey Street. Proposals for development of that larger tract of land also pre-dated the claim: at [119]. The development of that land supported the inference that the small yield of the claimed land, and particularly the three Lackey Street lots, was not needed or likely to be needed in the longer term. As the Department’s proposals expressly recognised, these lands were a stop-gap measure pending release of the larger tract. However, it was open to her Honour to treat the fact that years had passed after the identification of the claimed lands as potentially available for short-term release as a consideration diminishing the likelihood of the need for those lands in May 1990.

60 The Minister accepted that the culmination of her Honour’s reasoning, in failing to be satisfied that any relevant opinion of need or likely need had been made out, was found in the following passage at [123]:

“The making of the development application and obtaining of the development consent to the subdivision by the Department was a highly equivocal step made in circumstances where the Department was aware before the claim was made of: - (i) the significant difficulties the land presented for residential subdivision, (ii) the substantial costs likely to be involved, (iii) the marginal and awkward nature of the proposed subdivision, (iv) the very low yield the subdivision involved, (iv) [second time] the limited resources (both staff and financial) available to the Department, and (v) the availability of other areas zoned and available for far larger residential developments.”

61 The first criticism made by the Minister of this passage was that, far from rendering the development application “highly equivocal”, the fact that all the limitations and potential difficulties were known to officers of the Department before the application was made rendered it highly probative of the existence of the relevant statutory opinion. The short answer to this complaint is that, while that inference might well have been drawn, her Honour did not draw it. Her Honour took the view, which was open on the material before her, that the difficulties had not in fact been resolved and that it had not been established to her satisfaction that an opinion as to need had been formed when the difficulties were unresolved.

62 The Minister contended, no doubt with some force, that that uncertainty left open the availability of an opinion that there was at least a real chance that the claimed lands would be needed for residential lands. In her conclusion at [123] her Honour stated that the surrounding facts “do not support a finding of an opinion of a Crown lands Minister that the land or any part of the land was needed or likely to be needed as residential lands when the claim was made”. First, it is clear that her Honour expressly adverted to both an opinion of actual need and an opinion of likely need. Secondly, her Honour was not in terms concerned with the objective circumstances of need or likely need, but with the existence of an opinion held by the Minister or relevant officer at the relevant time. Thirdly, nobody, including Mr Edwards, said that they held such an opinion. Fourthly, the conduct of the departmental officers at the relevant time was ambivalent as to whether any such opinion was held. It was therefore open to her Honour not to be satisfied that such an opinion was held. Even if a relevant officer had averred that he or she held such an opinion at the relevant time, her Honour need not have accepted the statement as demonstrating on the balance of probabilities that such an opinion was held. Whether or not this Court would form the same view on the evidence is inconsequential: her Honour’s failure to be satisfied as to the existence of such an opinion demonstrates no error of law.

63 The second criticism asserted that the five (actually six) matters identified by her Honour would have been relevant to the objective question of whether there was a need or likely need, a test which her Honour had correctly, in the submission of the Minister, dismissed as erroneous at [75]. In that respect the Minister is undoubtedly correct. However, it does not follow that, in the absence of any direct evidence as to the holding of the relevant opinion, her Honour erred in taking account of such circumstantial evidence in seeking to identify whether such an opinion was probably held at the relevant time. Indeed, unless her Honour had taken such evidence into account, in the absence of any direct evidence that a particular officer held such an opinion, the Minister must have failed. Evidence which is supportive of one test is not necessarily irrelevant to another test. Her Honour correctly identified the test and was correct in looking to evidence of the objective circumstances and the inferences to be drawn from the contemporaneous documents as to those circumstances. The contention that her Honour erred in that respect is without substance.

64 Thirdly, the Minister contended that her Honour’s error was to fail to deal with the three Lackey Street lots, development of which had not been abandoned prior to the lodgement of the claim. This contention had two limbs. The first was that her Honour failed to deal with the Lackey Street lots as such; the second was that in dealing with them she relied upon post-claim conduct. Despite their inconsistency, both attacks were maintained. They must therefore be addressed individually.

65 In relation to the submission that her Honour failed to deal with the Lackey Street lots at all, the complaint is without substance. First, her Honour did separately identify those lots not once, but on several occasions, in the critical passage in her Honour’s reasons at [108]-[123]. Thus, her Honour noted that the Lackey Street lots had been consolidated into one “project” with five lots (not presently relevant) on Lee Street. At the same time the Department had removed the Boronia Street land from the home sites program: at [117]. Secondly, the Lackey Street lots were dealt with separately by reference to post-claim conduct, as will be discussed below: at [118]. Thirdly, in referring again to the “removal of the majority of the land from the home site program”, her Honour, at [122], expressly distinguished between the whole of the land and parts of the land. Fourthly, as already stated, in reaching her final conclusion she distinguished between “the land or any part of the land”: at [123].

66 For these reasons, there was no substance in the complaint that her Honour failed to deal with the Lackey Street land as raising potentially separate considerations to the remainder of the lands under claim.

Reliance on post-claim material

67 As a separate ground, the Minister complained that her Honour had had regard to events after the time of the claim, those being irrelevant considerations. Nevertheless, the submission acknowledged that her Honour had stated the relevant legal principle correctly, namely that “evidence of future events is admissible not to prove a hindsight, but to confirm a foresight”, being the language of Hope JA in Housing Commission of New South Wales v Falconer (1981) 1 NSWLR 547 at 558B, quoted with approval by Spigelman CJ in Deerubbin (No 2) at [69]-[74].

68 Falconer was a valuation case, and the comments made were specific to the circumstances with respect to the valuation of land. The basic principle does not involve exclusion of reference to later events as evidence to establish a situation at an earlier point in time. Numerous examples may be identified in different situations where that can legitimately occur. Two points of practical importance are to borne in mind. The first is that reliance on later evidence may distract attention from the point in time at which the relevant assessment must be made. Secondly, there are dangers in drawing inferences from later evidence, without close attention to the circumstances in which it arose. For example, knowledge that land has not in fact been used for the purpose for which it was said to have been needed some years earlier, may be the result of the effect of the land claim, and demonstrate nothing in relation to need. On the other hand, a lengthy and unexplained delay in disposing of a land claim may give rise to the inference that the Crown Lands Minister at the time of the claim had no firm opinion at all about the asserted need for the lands for residential use.

69 The fact that her Honour abjured “impermissible hindsight” renders it difficult to identify any erroneous determination of a question of law. Further, having identified the fact that the Lackey Street lots ultimately proved unviable and were abandoned, she continued at [118]:

“Although this evidence about the civil engineering works required to develop the Lackey Street lots post-dates the claim I do not accept that the relevant officers would have been unaware of the nature and potential cost of those works before the claim was made. The Council consulted with the Department about the conditions necessary for the subdivision to proceed before the claim was made. The Department must have considered the conditions and their potential implications at that time. The relevant officers within the Department must also have recognised the marginal nature of the development in all of the circumstances described above.”

70 This approach to the question of the Lackey Street lots and whether the need or likely need for them for residential lands had been established at the date of claim demonstrates careful attention to correct legal principle. All that happened, in truth, was that her Honour drew inferences contrary to those supported by the Minister.

71 It should also be noted that each of the matters raised by the Minister in this Court was not merely raised before her Honour but was expressly identified and addressed in the reasons, particularly at [81].

Conclusion

72 No error on a decision of law has been shown in respect of any issue concerning the application of s 36(1)(b1) of the Land Rights Act. It follows that the appeal must be dismissed with costs.

73 Accordingly, I propose the following orders:

(1) Dismiss the appeal from the judgment and orders of Jagot J in the Land and Environment Court delivered on 31 January 2008.

(2) Order the appellant to pay the respondent’s costs of the appeal.

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