New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act - Waverton Bowling Club

[2022] NSWLEC 130

Land and Environment Court

New South Wales

Medium Neutral Citation:

New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act – Waverton Bowling Club [2022] NSWLEC 130

Hearing dates:

11, 12 and 13 July 2022

Date of orders:

03 November 2022

Decision date:

03 November 2022

Jurisdiction:

Class 3

Before:

Duggan J

Decision:

See paragraphs [78]-[80]

Catchwords:

ABORIGINAL LAND RIGHTS – ss 36(1)(b) and 36(1)(c) of Aboriginal Land Rights Act 1983 (NSW) – whether claimed land was lawfully used or occupied – whether claimed land was needed or likely to be needed for essential public purpose of public recreation – claimed land reserved for Community and Sporting Club Facilities – licences for access and site investigation held by local council – appeal upheld

Legislation Cited:

Aboriginal Land Rights Act 1983 (NSW)

Crown Land Management Act 2016 (NSW)

Crown Land Management Regulations 2018 (NSW)

Cases Cited:

Deerubbin Local Aboriginal Land Council v Minister Administering Crown Lands Act (2012) 211 LGERA 100

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

Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379

Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] (2001) 113 LGERA 148

Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (2008) 237 CLR 285

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

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Newcastle Post Office Claim) (2014) 204 LGERA 1

Category:

Principal judgment

Parties:

New South Wales Aboriginal Land Council (Applicant)
Minister Administering the Crown Land Management Act (Respondent)

Representation:

Counsel:
M Wright SC (Applicant)
R White (Respondent)

Solicitors:
Chalk & Behrendt (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2021/110801

Publication restriction:

No

Judgment

Nature of proceedings

1. In these proceedings, the New South Wales Aboriginal Land Council (the Applicant) filed an appeal pursuant to s 36(6) of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) in respect of a refusal by the Minister Administering the Crown Land Management Act 2016 (NSW) (the Minister or the Respondent) of two land claims:

1. Aboriginal Land Claim 51010 lodged on 30 April 2020 (the First Claim); and

2. Aboriginal Land Claim 52497 lodged on 6 November 2020 (the Second Claim)

3. (together, the Claims).

2. I have been assisted in the hearing of this matter and in the preparation of this judgment by Acting Commissioner Megan Davis.

3. The land the subject of the Claims is comprised of Lot 1205 in Deposited Plan 752067 (the Claimed Land), as depicted below, and is located in Waverton, in the Parish of Willoughby and the North Sydney Local Government Area.

Figure 1: Image depicting the Claimed Land outlined in yellow

4. On 23 December 2020, the Applicant was advised by a delegate of the Minister that the Claims had been refused for the following reasons:

Following assessment of the Claims, I am satisfied that when the Claims were made the land was not claimable Crown land. The relevant land [was] lawfully used and occupied by North Sydney Council, known as the former Waverton Bowling Club and needed for the essential public purpose of public recreation.

In the circumstances of this case, as a delegate of the Minister Administering the Crown Land Management Act 2016 for the purposes of determining claims under the Aboriginal Land Rights Act 1983, I am required to refuse the Claims.

5. The Applicant commenced the appeals by Class 3 application on 21 April 2021 seeking an order that the Claimed Land be transferred in fee simple to the Metropolitan Local Aboriginal Land Council.

Facts

6. The parties tendered as evidence a Statement of Agreed Facts dated 7 June 2022, from which the following is extracted:

The Claimed Land

5.   The Claimed Land is located in the Parish of Willoughby, County of Cumberland, in the North Sydney Local Government Area.

6.    On 12 November 1943, the Claimed Land was vested in the Crown under the David Berry Hospital Act 1906 (NSW) and dedicated for public recreation (NSW Government Gazette, 12 November 1943, Folio 2003).

7.    On 15 September 1967, the 1943 dedication was revoked (NSW Government Gazette, 15 September 1967, Folio 3399).

8.    On 13 October 1967, the Claimed Land was demised to the Trustees of Waverton Bowling and Recreation Club (“WBRC”) under Special Lease 1961-110 Metropolitan (“SpL 1961-110”) for the purpose of “Recreation and erection of buildings (clubhouse)” (NSW Government Gazette, 13 October 1967, Folio 3761). The term of SpL 1961-110 was for 39 years from 16 September 1967 to 31 December 2006.

9. On 29 June 2007, the Claimed Land was vested in the State Property Authority (now Property NSW) pursuant to State Property Authority Order (No 2) 2007, made under s. 19 of the State Property Authority Act 2006 (NSW) (now Property NSW Act 2006 (NSW)) (NSW Government Gazette, 29 June 2007). The vesting took effect from 1 July 2007.

10. On 28 August 2009, the Claimed Land was declared Crown Land pursuant to s. 138 of the Crown Lands Act 1989 (NSW) (“CLA”) (NSW Government Gazette, 28 August 2009, Folio 4890).

11. On 28 August 2009, the Claimed Land was reserved for Community and Sporting Club Facilities (Reserve 1021488) pursuant to s. 87 of the CLA (NSW Government Gazette, 28 August 2009, Folio 4890).

12.    On 22 April 2013, the Minister administering the Crown Lands Act 1989 granted a licence (Licence 510740) to the North Sydney Club pursuant to s. 34A of the CLA. Licence 510470 was for the purposes of “Bowling Club (5122m2), Sporting (5122m2), Occupation”.

13.    On 6 February 2019, Jirsch Sutherland Insolvency Solutions was appointed as Joint and Several Liquidators for the North Sydney Club.

14. On 6 May 2019, the Minister (through their delegate) granted North Sydney Council Licence 605758 pursuant to s 2.20 of the Crown Land Management Act 2016 (NSW) (“CLM Act”). The purpose of Licence 605758 was for “Access, Site Investigation – Preliminary site risk assessment and review of Waverton Bowling Club Site” (“First NSC Licence”). The term of the First NSW Licence was from 1 May 2019 until 31 October 2019.

15. On 29 October 2019, the Minister (through their delegate) granted North Sydney Council Licence 613670 pursuant to s. 2.20 of the CLM Act. The purpose of Licence 613670 was for “Access, Site Investigation (Preliminary site risk assessment and review)” (“Second NSC Licence”). The term of the Second NSC Licence was from 1 November 2019 to 31 October 2020.

16. On 5 November 2020, the Minister (through their delegate) granted North Sydney Council Licence 624315 pursuant to s 2.20 of the CLM Act. The purpose of Licence 624315 was for “Access, Site Investigation” (“Third NSC Licence”). The term of the Third NSC Licence was from 1 November 2020 until 31 October 2021.

17.    At the date ALC 51010 and ALC 52497 were lodged:

a. the Claimed Land was reserved as Reserve 1021488 for Community and Sporting Club Facilities pursuant to Part 5, Div 3 of the CLA. By operation of cl 17 of Sch 7 of the CLM Act, R 1021488 was taken to have been reserved under the CLM Act.

b.    the State of New South Wales was the registered proprietor of the Claimed Land.

c. No trustee has been appointed to R 1021488.

7. As depicted in Figure 1, the Claimed Land adjoins a large area of open space being Waverton Park which comprises Crown Reserves:

1. R500178 for Public Recreation (reserve trust manager North Sydney Council);

2. R87002 for Public Recreation (reserve trust manager North Sydney Council); and

3. R500285 for Public Recreation (management devolved to North Sydney Council).

8. Waverton Park is also part of a large continuous area of open space which includes Carradah Park (R1004268 for Public Recreation and Community Purposes and managed by North Sydney Council) and Balls Head Reserve (R88999 for Public Recreation).

Issues for determination

9. The primary issue for determination in these proceedings is whether the Claimed Land is claimable Crown Land within the meaning of s 36(1) of the ALR Act which provides:

36   Claims to Crown lands

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

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

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

(b)   are not lawfully used or occupied,

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

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

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

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

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

10. In this case, it was agreed between the parties that the only relevant consideration under s 36(1) were those matters raised in s 36(1)(b) and (c) being whether the Claimed Land was at the relevant claim dates lawfully used or occupied or whether at either of the claim dates the Claimed Land was not needed nor likely to be needed for an essential public purpose. As to these elements the Respondent contended that: at the date of the claim the Claimed Land was lawfully occupied by North Sydney Council (the Council) and/or members of the public; and that as at the date of the claim the Claimed Land was either needed or was likely to be needed for open space for public recreation which was an essential public purpose for the purposes of the ALR Act.

11. The Respondent bears the onus of establishing that the Claimed Land was not claimable Crown Land at the date of the claim.

Lawful use and occupation

12. The Respondent contends that the Claimed Land was lawfully used and occupied by both (or either) the Council pursuant to a number of licences granted to it and to members of the general public pursuant to their right to access the Claimed Land.

Relevant legal principles

13. The phrase “lawfully used or occupied” is not a composite phrase but rather is to be understood by separate consideration of the words “used” and “occupied”; that is, either a lawful use or a lawful occupation of the land.

14. There must be an actual use or occupation of the land, being a use in fact to more than a notional or nominal degree. A use that is limited, casual or sporadic may be insufficient: Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379 at [161] (Bathurst) and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 241 at [143] (Berowra).

15. As observed in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (2008) 237 CLR 285 (Wagga) at [69]:

…recurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land. And a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land.

16. The qualification of “lawful” to the word “use” must have been introduced “to distinguish between cases where a person uses the land without any lawful right to do so (the trespasser or squatter) and the person who enjoys a licence or permit which, while not constituting that person an occupier, renders his use a lawful one”. The concept of “lawful” is not concerned with “nice distinctions of town planning laws” but rather whether the user of the particular Crown Land is legally authorised: Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 (Tweed Byron).

Evidence

17. The evidence in this matter comprised a large volume of documentary material together with affidavit evidence.

18. Evidence was adduced as to the Council’s use and occupation of the Claimed Land comprising:

1. Copies of the Licences referred to at [6(14), (15) and (16)] above;

2. The building inspection report referred to at (1) of the Licence and undertaken pursuant to the Licence. This report was prepared by WEBFM dated 29 May 2019. It comprised a visual assessment. For the purposes of preparing this report a visual inspection of the building was undertaken; and

3. The site investigation report undertaken pursuant to the Licence at (1). This report was prepared by Golder Associates dated 25 September 2019. For the purposes of preparing this report an inspection of the site was completed on 22 August 2019 with “follow up” inspections on 2 and 19 September 2019.

19. In addition, Mr Robert Emerson, the Council’s Director for Open Space and Environmental Services deposed in his affidavit as to the maintenance works undertaken by the Council on the Claimed Land comprising the following:

25.   Since May 2019 to date, the Council has incurred costs to maintain the WBRC.

26.   The Council engaged Envirolands Landscape Contractors to mow all parks and reserves under its care and control throughout 2020. This included mowing the greens on the WBRC.

27.   General maintenance was also carried out one to two times per month on site, with two or three Council staff within my team inspecting the WBRC to identify risks and resolve any hazards, maintaining the garden bed plantings and ornamental trees, removing weeds, removing litter and sweeping the pathways within the site grounds.

28.    On the following dates in late 2019 to 2020, Council staff or third party contractors conducted the following maintenance and repairs on the WBRC:

a. 16 December 2019 (cap off leaking hose tap - Keith Hurdis Plumbing);

b. 7 January 2020 (mowing of grounds - Envirolands Landscape Contractors);

c. 20 January 2020 (mowing of grounds - Envirolands Landscape Contractors);

d. 12 February 2020 (mowing of grounds - Envirolands Landscape Contractors);

e. 24 February 2020 (replace broken window - Council Staff);

f. 27 February 2020 (grounds maintenance - Council Maintenance team);

g. 3 March 2020 (mowing of grounds - Envirolands Landscape Contractors);

h. 3 March 2020 (grounds maintenance - Council Maintenance team);

i. 25 March 2020 (mowing of grounds - Envirolands Landscape Contractors);

j. 10 April 2020 (mowing of grounds - Envirolands landscape Contractors);

k. 28 April 2020 (grounds maintenance - Council Maintenance team);

I. 27 May 2020 (mowing of grounds - Envirolands Landscape Contractors);

m. 10 June 2020 (mowing of grounds - Envirolands Landscape Contractors);

n. 11 June 2020 (grounds maintenance - Council Maintenance team);

o. 25 June 2020 (grounds maintenance - Council Maintenance team);

p. 9 July 2020 (mowing of grounds - Envirolands Landscape Contractors);

q. 4 August 2020 (grounds maintenance - Council Maintenance team);

r. 21 August 2020 (mowing of grounds - Envirolands Landscape Contractors);

s. 1 September 2020 (repairs to existing shade structure, securing four posts and cables removing and disposing of one post - Triton Group Pty Ltd);

t. 15 September 2020 (mowing of grounds - Envirolands landscape Contractors);

u. 28 September 2020 (mowing of grounds - Envirolands landscape Contractors);

v. 28 September 2020 (grounds maintenance - Council Maintenance team);

w. 7 October 2020 (grounds maintenance - Council Maintenance team);

x. 12 October 2020 (mowing of grounds - Envirolands Landscape Contractors);

y. 21 October 2020 (mowing of grounds - Envirolands Landscape Contractors);

z. 29 October 2020 (grounds maintenance - Council Maintenance Team);

aa.  3 November 2020 (grounds maintenance - Council Maintenance team); and

bb.  5 November 2020 (grounds maintenance- Envirolands Landscape Contractors).

29.   Various invoices were provided to Council for the works done on the WBRC (Tab 18 of Exhibit RE- 1). I note that Envirolands Landscape Contractors did not issue separate invoices for work done on each separate site, but rather issued a single invoice for all mowing done on sites at the direction of the Council.

20. As to the use and occupation by members of the general public affidavits of local residents were read deposing as to observations of the use of persons of the greens of the bowling club for passive and active recreation. Evidence was also adduced from Mr Emerson that he opened the bowling greens to members of the public on 17 May 2019. The club building was not used by members of the general public.

Respondent’s submissions

21. The Respondent contends that the Court would be satisfied on the evidence that the Council and/or the public lawfully used and occupied the Claimed Land.

22. The nature of the user of the Council relied upon was:

1. By reason of the Licences granted to the Council, LN 613670 and RN 624315 (the Second NSC Licence and the Third NSC Licence) which existed at the claim dates the Council had a lawful right to occupy the Claimed Land and was in actual occupation of it;

2. In addition, the Council was using the Claimed Land for purposes ancillary to the Licences or consistent with them and the reserve purpose and was, therefore, using it lawfully;

3. The actual uses included:

1. Inspection of the interior and exterior of the premises;

2. Securing the clubhouse;

3. Undertaking regular and frequent maintenance of the grounds including: mowing; weeding; planting; removing litter and sweeping; and

4. Council became responsible for the day-to-day care and maintenance of the Claimed Land (including the clubhouse) by operation of the Licences.

23. The nature of the user of members of the public relied upon were:

1. The public accessed the Claimed Land and used it for recreational purposes; and

2. The Claimed Land was reserved for the purpose of community and sporting club facilities and the use by the members of the public was consistent with or in furtherance or incidental to the reserve purpose and thereby lawful.

Applicant’s submissions

24. The Applicant submitted that the Council’s use and occupation of the Claimed Land was either not evident in fact, in that there is no evidence of the Council undertaking any relevant use or occupation other than sporadic mowing of the Claimed Land and no other maintenance, and to the extent that there was evidence that the Council did anything that would comprise a use of the Claimed Land such use was, on the evidence, a nominal use in fact.

25. Further, even if the Claimed Land was in fact used by the Council in any relevant sense such use was not lawful. Neither Licence authorised the Council to use the Claimed Land for any purpose other than the purpose specified in the Licence. The evidence discloses that the authorised use of carrying out site investigations had been undertaken and completed upon dates prior to the claim dates and did not continue. Any other use is not a lawful use.

26. As to the use by members of the public such use was not lawful. The public had no right to use the Claimed Land at all. The use of the Claimed Land was not in furtherance of the reserve purpose as use for passive or active recreation was not relevantly the use of the Claimed Land for the purposes of community and sporting club facilities, being the relevant reserve purpose of Reserve 1021488. Further, the access to the Claimed Land was facilitated by the Council and not the Respondent where the Council had no power or authority to permit access to the Claimed Land by the members of the public.

24. In either case, the use or occupation by either the Council or the public was not relevant to a use or occupation in fact sufficient to satisfy s 36(1) or if it were sufficient, it was not a lawful use within the meaning of the ALR Act.

Findings on lawful use and occupation

28. To the extent that the Respondent contends that the Council’s use of the Claimed Land relies upon the authority conferred by the Licences, there are two relevant Licences which were in force, one at each of the claim dates being the Second NSC Licence and the Third NSC Licence. Whilst the exact wording had altered slightly in each licence the parties agreed that the purpose of each of the Licences was the same at each relevant claim date, namely 30 April 2020 and 6 November 2020. The stated purpose for each licence as recited at points 15 and 16 at [6] above being generally access for site investigation.

29. The Licence relevant to the First Claim date was granted on 29 October 2019 pursuant to s 5.3 of the Crown Land Management Act2016 (NSW) (CLM Act). The Licence relevant to the Second Claim date was granted on 5 November 2020 pursuant to s 2.20 of the CLM Act. In each circumstance the Crown had the power to grant a licence consistent with the provisions of the CLM Act. The power to grant such licences was provided for in pt 2 of that Act which included s 2.20 which provided:

2.20   Short-term licences over dedicated or reserved Crown land

(1)   The regulations may make provision for or with respect to the following concerning short-term licences over dedicated or reserved Crown land—

(a)   any purposes for which the licences may be granted (prescribed purpose),

(b)   any conditions to which the licences are subject (prescribed condition),

(c)   the maximum term for which licences may be granted (prescribed maximum term).

(2) The Minister may grant a short-term licence over dedicated or reserved Crown land for any prescribed purpose.

(3)   A short-term licence may be granted even if the purpose for which it is granted is inconsistent with the purposes for which the Crown land is dedicated or reserved.

(4)   A short-term licence may be granted subject to conditions specified by the Minister and is also subject to any prescribed conditions.

(5)   A short-term licence may not be granted for any purpose for which an authority, permit, lease or licence may be granted under the Fisheries Management Act 1994.

(6)   A short-term licence ceases to have effect when the prescribed maximum term after it is granted expires, unless it is revoked sooner by the Minister or is granted for a shorter term.

(7)   Sections 2.18 and 2.19 do not limit the circumstances in which short-term licences can be granted under this section.

30. The Crown Land Management Regulations 2018 (NSW) (CLM Regs) relevantly for the purposes of these proceedings made provision for the granting of short-term licences in cl 31 in the following terms:

31   Short-term licences over dedicated or reserved Crown land

(1) Each of the following purposes is prescribed as a purpose for which a short-term licence may be granted under section 2.20 of the Act—

…

(h)   environmental protection, conservation or restoration or environmental studies,

…

(v) site investigations,

…

(2) In addition to any other condition to which a short-term licence granted under section 2.20 of the Act is subject, the condition that the relationship of landlord and tenant is not created between the parties is also prescribed.

(3) The period of one year is prescribed as the maximum term for which a short-term licence may be granted under section 2.20 of the Act (including any further term available under an option or holding over provision).

31. Each of the Licences made express provision in item 4 of Sch 1 for the permitted use to be for the purpose of site investigation. To the extent that it referred to “access” such access can only be taken to be access for the purpose of site investigation as there is no general power to grant a licensee “access” in a general unlimited sense. To construe this reference otherwise would be to construe the licence as operating beyond power.

32. In each Licence the following relevant conditions were imposed:

5.   You must not use the land specified in the licensed area except for the purpose(s) authorised by this licence as set out in Item 4 of Schedule 1.

6.   You shall comply with all the special conditions set out in Schedule 2.

…

9.   You shall keep the said licensed area and buildings on the licensed area clean and tidy and all papers and other rubbish shall be collected and removed. You shall control noxious weeds. You shall immediately repair and make good, damage occasioned by Your use of the licensed area.

…

16.   All improvements, erections and fixtures ("Improvements") now or hereafter to be erected on the licensed area are acknowledged by You to be absolute property of the Minister, but You shall maintain and repair such Improvements during the period of this licence to the same condition that the Improvements were in on the date that this Licence commenced.

17.   You shall not sublet, assign or otherwise deal with this Licence or the licensed area.

…

23.   You must not carry out any works in or on the licensed area without the Minister's written approval (which may be conditioned).

33. The evidence discloses that the Council did undertake site investigations comprising an assessment of the building condition; a site risk assessment comprising a preliminary contamination site investigation referred to at [17] above. Each of these reports were completed on a date prior to the First Claim date. No further investigation works were undertaken on or after the First Claim date. There is no evidence to suggest that further or other investigations were required to complete any necessary or desired site investigations. Therefore, as a matter of fact, as at the First Claim date the purpose of the Licence, namely site investigation had been completed. On the available evidence no further access to the Claimed Land was required to facilitate this purpose.

34. Based upon this finding, I accept the submission of the Applicant that the evidence discloses that apart from the uses and occupation necessary to facilitate the site investigations comprising the building report and the site risk assessment report any use or occupation undertaken by the Council on the Claimed Land were not related to site investigation.

35. The evidence discloses that the Council, once the Licence had been granted, sought to utilise the Claimed Land for a secondary purpose unrelated to the Licence purpose. This secondary unrelated purpose being to provide access to the public for recreation. There is no evidence that the Council sought nor obtained permission for such use. This secondary purpose is distinct from the site investigations. Such distinction of purpose is evident in the email of the Council’s Director, Open Space and Environmental Services, Mr Emerson dated 14 May 2019 wherein he wrote (emphasis added):

Sent: Tuesday, 14 May 2019 12:23 PM

To: Ken Gouldthorp 

Subject: Waverton Bowling Club

Hello Ken,

Just a quick update.

We have taken possession of the keys today for the club house and the crown lands people after some hassling have engaged a contractor we met today on site to remove the large amount of rubbish on site over the rest of this week.

We have a building condition report being undertaken latter (sic) in the week and David Manson has conducted a site risk assessment of the grounds and whilst there are some minor hazards that need to be seen to, we will open the grounds to the public at the end of the week (site isn't very secure so people are already accessing the grounds).

Our insurers have been notified of the new property lease under councils (sic) care and control and we have engaged a contractor to undertake fairly basic grounds maintenance until we determine the sites (sic) future

When you have some spare time we can go for an inspection of the building and grounds.

Regards Rob

36. From the evidence I am satisfied that all work on the site including grounds maintenance and the like (if such work in fact occurred on the Claimed Land) from at least the end of May 2019 (being a date prior to the First Claim date) was undertaken not for the purposes of the Licence use, namely site investigation, but to facilitate the use of the Claimed Land by the public. Such use by the Council was not authorised by the Licence and, therefore, any use or occupation as a consequence of the opening of the Claimed Land to the public was not a lawful use of the Claimed Land.

37. Further, to the extent that the Council undertook any work on the Claimed Land by way of maintenance, whilst such work may have been provided for in the conditions of the Licence, the work was not undertaken in performance of the Licence but rather in furtherance of the otherwise unlawful use by the Council to permit access to the public and was, therefore, not a lawful use or occupation of the Claimed Land.

38. However, even if I am incorrect in characterising the Council’s maintenance of the grounds as being in furtherance of a use other than a use permitted under the Licence, I would not characterise it as anything other than a nominal use of the Claimed Land. The totality of the evidence relating to works undertaken by the Council upon the Claimed Land was that of Mr Emerson in his affidavit at [25]-[29]. At [26]-[27] he relevantly deposed:

26.   The Council engaged Envirolands Landscape Contractors to mow all parks and reserves under its care and control throughout 2020. This included mowing the greens on the WBRC.

27.   General maintenance was also carried out one to two times per month on site, with two or three Council staff within my team inspecting the WBRC to identify risks and resolve any hazards, maintaining the garden bed plantings and ornamental trees, removing weeds, removing litter and sweeping the pathways within the site grounds.

39. From an examination of the mowing invoices, it is impossible to ascertain the dates or frequency of any mowing undertaken on the Claimed Land. However, I am prepared to accept on the balance of probabilities that the Claimed Land was mown from time to time as it appears in the photographs that formed part of the evidence that the grass was not overgrown indicating some regularity of cutting. However, the frequency of such mowing is unknown from the evidence. Whilst Mr Emerson has listed some mowing events these appear to merely be the dates upon which the Council was invoiced for mowing services “For the grass cutting of parks and reserves” as a general invoiced item. Even if this is accepted, taken at its highest the evidence indicates that the grass was cut 6 times between the date the Council was granted the First NSC Licence in May 2019 and the First Claim date (a period of almost a year) and an additional 8 mows between the First and Second Claim dates.

40. As to the assertion of monthly maintenance the evidence from the diaries of the workmen (Exhibit D) upon which Mr Emerson relied to make this assertion do not support his characterisation. There is no reference in the diaries to work on the Claimed Land, rather the diary entries appear more likely to indicate work on other sites (including the road reserve) in the general location of the Claimed Land. To the extent that he gave evidence that he instructed the Council’s staff to make a record of each occasion they did work on the Claimed Land the lack of such reference in the diary indicates that the regular maintenance to which he deposed was an overstatement. Further, no evidence was called by any person who was said to have undertaken the work to support his construction of the diary entries. He did contend that he had gone through the diary entries with the Council’s staff prior to swearing his affidavit but absent some indication of what that conversation in fact was or whether the contention in the affidavit was supported by them renders such statements of little assistance in ascertaining the meaning of the diary entries.

41. As to the physical works excluding the outdoor maintenance the only other works were to “cap off” of a leaking hose tap and the replacement of a broken window. Neither of which works were authorised by the Licence as no consent for the works had been obtained pursuant to the Licence conditions.

42. For each of those reasons, I am not satisfied on the evidence on the balance of probabilities that the Council was relevantly lawfully using or occupying the Claimed Land, in that the use or occupation was authorised by the Licence upon which the Respondent relied to give authority for the Council’s use or occupation of the Claimed Land at either of the claim dates.

43. As to the use or occupation by the public, such use was facilitated in part by the Council opening the grounds. That opening to the public was not lawful and any access relied upon pursuant to the Council’s actions cannot relevantly be a lawful use of the Claimed Land.

44. To the extent that the public took advantage of the lack of a barrier and not the Council’s actions to access the Claimed Land so as to use it for passive and active recreation such use was not a use otherwise permitted as a lawful use. The Respondent contended that such use was lawful in that it was a use by the public consistent with the reservation of the Claimed Land. The reservation was made by publication in the Government Gazette on 28 August 2009 at Folio 4890 for the stated purpose of “Community and Sporting Club Facilities”. None of those terms are defined in any relevant legislative instrument and are to be given their ordinary meaning. The reference to “facilities” given its meaning and context must be construed as a reference to something being provided beyond a parcel of land being made available for general use by the community. The Macquarie online dictionary defines facilities as the plural form of the noun “facility” and the term facility is relevantly defined as meaning:

1. something that makes possible the easier performance of any action; advantage: transport facilities; to afford someone every facility for doing something….8. a building or complex of buildings, designed for a specific purpose, as for the holding of sporting contests, launching of rockets, etc….

45. The facilities that were provided on the Claimed Land were the bowling greens and the clubhouse. There is no evidence that the clubhouse was used by members of the public. To the extent that the bowling greens were used they were used for general recreation not for the specific undertaking of the sport for which the facilities were designed namely lawn bowls or lawn bowling competitions. Further, the members of the public were accessing the Claimed Land as individuals rather than as part of a sporting club. Accordingly, even if the access by members of the public was undertaken other than by the purported permission of the Council the use of the Claimed Land by those members of the public was not lawful as it was not undertaken in furtherance of the reserve purpose.

46. To the extent it was contended that the Council (as distinct from members of the public) were using the Claimed Land for the reserve purpose by permitting members of the public to access the Claimed Land and use it for general recreation, for the same reasons as outlined at [43]-[45] I find such use was not for the reserve purpose.

47. For the reasons outlined above, I find that the Claimed Land was, at each of the claim dates, claimable Crown Land within the meaning of s 36(1)(b) as the Claimed Land was not lawfully used or occupied.

Was the claimed land likely to be needed for an essential public purpose of public recreation?

48. The Respondent contended that the Claimed Land was likely to be needed for the essential public purpose as “public recreation”, in particular the continued provision of open space and community facilities within the built-up area of Sydney and the North Sydney Local Government Area in particular.

Relevant legal principles

49. The relevant legal principles governing the determination of whether land was at the relevant time needed for an essential public purpose within the meaning of s 36(1)(c) of the ALR Act were conveniently articulated by Pepper J in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Newcastle Post Office Claim) (2014) 204 LGERA 1 at [187]-[196], which summary I adopt, as follows:

187   First, the question of whether land is needed or likely to be needed for an essential public purpose as at the date of the claim is a question of fact (Winbar at 691G-692A; 271 per Hope JA and Dorrigo at [10](1) per Jagot J).

188 Second, the concept of “needed” in s 36(1)(c) of the ALRA means “required or wanted” (Castlereagh at 254D; 104 per Handley and Powell JJA).

189   Third, the need for land must be a reasonable need (Wanaruah Local Aboriginal Land Council v Minister Administering Crown Lands Act (2001) 113 LGERA 163 (Wanaruah) at [16]-[17] per Lloyd J; New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act (the Tuncurry claim) (2008) 159 LGERA 400 at [42] per Lloyd J and Daruk Local Aboriginal Land Council v Minister Administering Crown Lands Act (No 2) [the Londonderry claim] (1995) 89 LGERA 194 at 204 per Bignold J).

190   Fourth, the Court may come to a different conclusion concerning whether or not the land is needed than that reached by the Executive (Minister Administering Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 (Nambucca CA) at [40] per Basten JA).

191   Fifth, “essential” means “necessary” or “indispensable” (NSW Aboriginal Land Council v Minister for Natural Resources (The Tredega Claim) (1986) 59 LGRA 318 (Tredega) at 331-332 per Stein J). The concept “sets a high standard” and involves a “significant restriction” on the exception from claimable Crown lands. The reference to “essential” ensures that it “is not enough that the public purpose to be served is ‘desirable’ or even that it is ‘highly desirable’”, rather it must be “essential” (Illawarra at [32](2) per Hodgson JA, Maroota at [55] per Spigelman CJ, Dorrigo at [10](3) per Jagot J, Deerubbin Local Aboriginal Land Council v Minister Administering Crown Lands Act [2012] NSWLEC 68 (O’Hara’s Creek) at [111] per Pain J).

192   Sixth, a “public” purpose is one that is normally carried out by the Government, or is regarded as a governmental function (La Perouse Local Aboriginal Land Council v Minister Administering Crown Lands Act (1991) 74 LGRA 176 (La Perouse) at 183 per Bannon J). To constitute such a purpose, it must have connotations of the “community, state or nation as a whole” (Tredega at 331). A “purpose” may be defined as “the object in view or the object for which something is done” (Tredega at 331 per Stein J). It follows that “public” may be distinguished from “private” (Tredega at 331).

193   Seventh, what will constitute an essential public purpose in some circumstances may not be sufficient in others (Illawarra at [65] per Basten JA; Batemans Bay Local Aboriginal Land Council v Minister Administering Crown Lands Act [2007] NSWLEC 800 (Batemans Bay) at [107]-[108] per Sheahan J, Dorrigo at [34] and [48] and O’Hara’s Creek at [113]). However, the mere fact that the Government undertakes the activity does not, of itself, make it an “essential public purpose” (La Perouse at 183).

194   Eighth, normally it is expected that steps would be taken to achieve an essential public purpose before the date of the claim if it was “essential” (Batemans Bay at [110] per Sheahan J). Thus evidence of varying purposes over time suggests that the land is not needed for an essential public purpose for the purposes of s 36(1)(c). And unresolved, changing or conflicting proposals militate against the land being needed or likely to be needed for an essential public purpose (Castlereagh at 254F; 104 and O’Hara’s Creek at [161] and [166]).

195 Ninth, it is irrelevant in determining whether or not s 36(1)(c) of the ALRA has been satisfied whether the essential public purpose could have been achieved in some other way (Castlereagh at 252C; 102 per Meagher JA and 253E; 103 per Handley and Powell JJA).

196   Finally, it should be observed that a wide range of purposes have been regarded as essential public purposes: coastal protection and public access to the shoreline (Coffs Harbour and District Local Aboriginal Land Council v Minister Administering Crown Lands Act (2013) 199 LGERA 372); the provision of trigonometric stations and power lines (Wanaruah); the provision of drainage and sewerage infrastructure (Darkinjung Local Aboriginal Land Council v Minister Administering Crown Lands Act (2006) 149 LGERA 162 (Darkinjung)); nature conservation (Illawarra); public access and recreation with respect to tidal waters (Worimi Local Aboriginal Land Council v Minister Administering Crown Lands Act (1991) 72 LGRA 149); National Parks (Maroota); and cemeteries (Deerubbin Local Aboriginal Land Council v Minister Administering Crown Lands Act (1997) 95 LGERA 353).

50. Where it is contended that there is a “likely” need for the essential public purposes, as opposed to an actual need, such need must be a real or not remote chance: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council[No 2] (2001) 113 LGERA 148 at [57] (Maroota).

Chronology of evidence

51. The Respondent adduced evidence of the Council’s studies and strategic planning documents relating to the demand for and the provision of open space in the North Sydney Local Government Area. The evidence disclosed that the Council commissioned a Recreational Needs Study in 2005 that identified that the “existing network of parks and reserves in North Sydney does not fully meet the recreational needs of the existing population, and does not have the capacity to absorb the recreational needs and demands of new populations”: Open Space Provision Strategy at Exhibit 4 Folio 2. The Council’s studies and strategic planning documents and policies develop strategies to address this deficiency and cater for future demand.

52. Relevant documentary evidence from the Respondent’s records relating to the Claimed Land was also tendered.

53. The parties agreed on a chronology relating to the relevant events in the proceedings. The relevant part of that chronology that related to the evidence of actions taken relating to the future use of the Claimed Land comprised the following:

Date

Description

13 February 2019

North Sydney Council wrote to the Department administering the Crown Land Management Act (the Department), making a formal request for North Sydney Council to become the Crown Reserve Manager of the Claimed Land.

28 February 2019

The Department wrote to North Sydney Council, in response to its letter of 13 February 2019, indicating that due to the NSW State Election 2019 Caretaker Conventions, the department was unable to consider the request to be appointed Crown Land Manager for the Claimed Land.

The Department encouraged North Sydney Council to apply for a licence on the Claimed Land.

1 August 2019

The Department advised Vel Vooks of Sabe Events and Mike Prescott of the North Shore Bridge Club that it is “is undertaking a review of the above site and your interest is acknowledged. I am not in a position to indicate a timeframe at this stage,…”

2 October 2019

The DoE advised the Department it did not need to use the Claimed Land for a temporary school.

8 October 2019

Senior Group Leader, Property and Projects in the Department prepared a Land Allocation Assessment Tool in relation to the Claimed Land.

16 October 2019

Departmental ‘Meeting Brief’ includes details of a need of Claimed Land for public recreation.

17 October 2019

James Murray (A/Group Director Regional Services) in the Department notes of meeting with local MP detailing need for claimed land for public recreation.

27 October 2019 on or around

Internal Department email noted that an officer of the Department met with Felicity Wilson MP earlier that week.

28 October 2019

The North Sydney Council prepared a report to the Council’s General Manager regarding a Council meeting on 24 June 2019 and the intended actions of Council in relation to the Claimed Land.

March 2020

Document entitled ‘Former Waverton Bowling club – Proposed Road Map March 2020’ was prepared in relation to the Claimed Land

16 March 2020

The Department wrote to Property NSW asking for the Claimed Land to be removed from the Vesting Order.

4 March 2019

The Department advised Mr Whalan that “the department is undertaking an internal process to determine the most suitable future use and management model of the site.”

May 2019

The North Sydney Council prepared a Community Engagement Strategy for the Claimed Land.

13 May 2019

The Department advised Helen L’Orange that it “is still determining the most suitable future use of the site in accordance with the principles of the Crown Land Management and objects of the Crown Land Management Act 2016…”

17 May 2019

The Department advised Mr Henry, that it “is still determining the most suitable future use of the site in accordance with the principles of the Crown Land Management and the objects of the Crown Land Management Act 2016.”

10 July 2019 on or about

The Department of Education (DoE) met with the North Sydney Council and the Department and expressed their interest in using the Claimed Land as a temporary School.

12 July 2019

The Department memo notes that the North Sydney Council are continuing their due diligence and community engagement in relation to the Claimed Land.

20 January 2021

The Department advised Alessandro Pierangeli in relation to the Claimed Land that:

“The review and assessment which is being undertaken by Crown Lands (the Department) will inform the future use of the site. In the meantime, the Department is not able to permit use of the site or authorise occupation until the assessment process has concluded.”

15 April 2020

The Department advised Alessandro Pierangeli that “Crown Lands is currently undertaking a review of the above site and your interest is acknowledged. I am not in a position to indicate a timeframe at this stage, however, the Department will be in contact with you when there is an update.”

17 April 2020

The Department advised NSW NBN Projects that “Crown Lands is currently undertaking a review of this [sic] site. At this stage it is not known if the structure will remain. I’m not able to provide a timeframe for the review…”

30 April 2020

ALC51010 lodged with the Registrar of the Aboriginal Land Rights Act 1983.

12 May 2020

DPIE Project Plan – Waverton Bowling Club Future Use and Management Plan.

18 May 2020

Mark Billham sent an email to the Department’s Aboriginal Land Claim Investigation Unit (ALCIU) providing a summary of the Claimed Land and noting an initial view of the ALCIU.

30 June 2020

Felicity Wilson MP forwarded to the Minister an enquiry in relation to the Claimed Land on behalf of a member of the Knox Rugby Club. The enquiry noted “I’ve noticed that the Waverton Bowling Club has fallen into disuse, and would like to see if there’s further information I could obtain about the intended use of the space going forward.”

27 July 2020

The Minister wrote to Felicity Wilson MP in relation to a representation in relation to the potential for Lot 1205 being used to accommodate Knox Rugby Club noting that an Aboriginal land claim had been lodged over the site and it was prioritised as the “Department has been contacted by a number of parties expressing their interest in the future occupation of the site.” It added:

“Should the site be made available for alternative use of occupation after the determination of the land claim, it will be subject to community consultation and likely, the completion of a competitive process to select a future manager or occupant.”

54. On or about early May 2020 the Department of Planning and Environment approved “Project Plan: Waverton Bowling Club Future Use and Management” (Project Plan). The purpose of the Project Plan was identified as:

1.1 Purpose of this document

The purpose of this Project Plan is to outline:

•   the approach for determining the future use of Crown land formerly occupied by the Waverton Bowling Club

•   the methodology for selecting an appropriate model for managing the land in the future

•   the competitive process to be undertaken to either appoint a Crown Land Manager or allocate a lease over the land

The Project Plan:

•   summarises the key underlying project considerations

•   identifies key stakeholders and opportunities for community engagement

•   the steps to be undertaken to manage this project

•   provides a baseline for the measurement of progress

•   identifies risks associated with the project and the proposed mitigation measures.

55. The Objectives of the Project Plan were identified as:

2.2 Objectives

The project seeks to:

•   Ensure the department understands what the broad community values about the land, and how it would like to see the land used;

•   Explore the potential of the land to contribute to the Sydney Green Grid;

•   Finalise a Land Assessment and Land Allocation decision which deliver the objectives of the Crown Land Strategic Plan (taking into account the above considerations);

•   Ensure the reserve purpose is appropriate to optimise the use of the land;

•   Subject to the Land Allocation Decision, provide an open, contestable process for all parties interested in managing the land to apply to be either a Crown Land Manager or Crown tenant; and,

•   Ensure the land is managed in the best interests of the people of New South Wales.

56. The Project Plan identified a staged approach to consider the future use options and “alternative models” available for management of the Claimed Land. The stages included: Land Assessment; Land Allocation Decision; Expressions of Interest; Request for Proposals (optional); and Community Engagement.

57. Events occurring after the Project Plan referred to above were relevantly after the First Claim date, however, there is no evidence that the stages referred to in the Project Plan were progressed or that action was taken with respect to further the Project Plan.

Respondent’s submissions

58. As can be deduced from the evidence whilst no final decision had been made as to the future use of the Claimed Land the evidence indicates that as at the claim dates the Claimed Land was likely to be needed for the essential public purpose of public recreation.

59. Whether the need for such an essential public purpose was likely is one to be determined as a matter of objective fact having regard to the totality of the evidence. In this case, the evidence suggests that the only serious contender for the use of the Claimed Land was the Council, all others who had expressed interest had not provided a serious substantial case such as the Council so those uses would be disregarded as fanciful whereas the Council’s case was well researched and forceful and should be regarded as a real chance or possibility.

60. Notwithstanding that a final decision had not been made at the claim dates and that the State Government Project Plan indicated that further work was required to be undertaken prior to a decision being made, it was likely that the Claimed Land would be so needed as is evidenced by the “trajectory” that the Council’s actions were taking with a strong likelihood of it being successful in the Claimed Land being identified for such use by the Council as opposed to any of the other nominated potential available uses. The relevant question is not whether the “trajectory” had, at the claim date reached the level of the relevant State Government instrumentality but rather, as was stated in Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council (2009) 168 LGERA 71 at [35] (emphasis added):

…The question of whether land was needed must be decided with reference to what the Government requires, and that of course means a requirement at the level of executive Government. However, where the question is whether the land is likely to be needed, it is a question as to whether it is likely that there will in the future be a Government requirement; and if this is addressed by considering whether there is a trajectory at the relevant time, this need not then be a trajectory existing at the appropriate Government level, but only a trajectory towards a requirement at the appropriate Government level.

61. In this case, the work done by the Council evidences the trajectory towards a requirement at the appropriate government level that indicated a likelihood that the Claimed Land would be needed for the essential public purpose of public recreation.

62. Further, the Applicant’s focus on whether or not the Minister had made a decision at the claim dates as to the future intended use of the Claimed Land is the wrong focus. Consistent with the authorities, no decision needed to have been made at the time by the Minister as to whether the Claimed Land was needed for an essential public purpose of public recreation. The issue is whether, at each of the claim dates, the Claimed Land was likely to be needed for that purpose. This may be demonstrated by a trajectory towards a requirement at the appropriate government level. It was, therefore, not necessary for the Minister to have determined at the claim dates that the Claimed Land was likely to be required for such purposes.

63. In any event, there is evidence that, at the claim dates, there was a trajectory that makes it likely that there would in due course be a requirement for the Claimed Land to be used for public recreation. That trajectory was to be found in the work of Council. It was evident that Council considered, based on its recreational needs study, and the results of stakeholder engagement, that the Claimed Land was likely to be so needed and was working to persuade the Minister of that. The process conducted by Council prior to the claim dates amounts to much more than a mere process of investigation. Council had reached the view that the Claimed Land was needed, or was likely to be needed, for public recreation. It was irrelevant to this question that there was no “concrete proposal” in place or that the Minister had not yet determined that the Claimed Land was needed, or likely to be needed, for public recreation. The trajectory for such a determination in the future, based on that identified need or likely need, clearly existed as at the claim dates.

Applicant’s submissions

64. It is accepted that as a general proposition “public recreation” can be an essential public purpose. However, whether that is the case in any particular instance depends on the circumstances and the type of recreation at issue. The essentiality of the recreational need cannot be assessed if the recreational activity at issue is not first specifically identified: see Deerubbin Local Aboriginal Land Council v Minister Administering Crown Lands Act (2012) 211 LGERA 100 (O’Hara’s Creek) per Pain J at [76] and [154]. Nor is it appropriate to simply equate “public recreation” with “open space”. “Open Space” is a broad planning concept. As Pain J noted in O’Hara’s Creek (at [155]) that “[o]pen space is a broad term which may or may not include land uses that could be classified as an EPP [essential public purpose]”.

65. On the evidence in this case, the Court should not be satisfied that the Claimed Land was needed or likely to be needed for the essential public purpose of recreation for the following reasons:

1. As at the date of claim, Lot 1205 was reserved Crown Land which was under the control of the Minister. Under the CLM Act it was the responsibility of the Minister to identify the future use to which the Claimed Land was to be put, not the Council: see also O’Hara’s Creek per Pain J at [124]-[126] and [146]-[149].

2. Far from there being a concrete proposal “at a senior level if not Ministerial level by the date of claim” here there was no proposal before the Minister, or any level of his Department, that the Claimed Land be used for any identifiable purpose.

3. At around the time of both dates of the Claims, the Government did not know what it was going to do with the Claimed Land. All that had occurred was that the Department had decided not to proceed with a proposal to make the Council the reserve trustee in favour of implementing the Project Plan which was a multi-staged process for identifying a future use of the Claimed Land.

4. The Project Plan was designed to ensure a broad range of uses and management options could be raised and considered. After the Waverton Bowling Club closed, numerous requests were made by private bodies seeking to use the site. The Project Plan left open the potential for the Claimed Land being leased to private entities for up to 40 years. The range of uses which were open for consideration included many which could not be regarded as either recreation, public recreation or an “essential public purpose” within the meaning of s 36(1)(c) of the ALR Act.

5. In the absence of any specific future use being identified, the Court is not in a position to assess whether any intended future use is in fact “public recreation” or whether it is an “essential public purpose”.

6. The mere putting in place of a process to investigate a preferred future use does not establish that as at the date of claim the Claimed Land was needed or likely to be needed by the Government for an essential public purpose.

7. As at the dates of claim while the process by which a future use was to be determined had been identified, it had not commenced. No one could know what the outcome of the process would be, let alone the likelihood of the Minister agreeing to any recommendation which might come out of it.

8. The fact that no decision had been made and the future use was only being investigated is consistent with the Department’s responses to the numerous parties who had made enquiries about the use of the Claimed Land.

9. Having consistently told the public that the future use of the Claimed Land was still to be determined by the Minister’s Department, and the timing of a decision was unknown, the contention from the Minister in these proceedings that a different reality existed in order to defeat an Aboriginal land claim, and that the Claimed Land was needed or likely to be needed by the Council for the essential public purpose of public recreation is untenable and should be rejected.

Findings on essential public purpose

66. In this case, the Respondent contends that the Claimed Land was or was likely to be needed for the essential public purpose of open space and public recreation. To demonstrate this need or likely need it relies upon the evidence of the Council. It is submitted that upon such evidence the Court would be satisfied that there was a real chance or possibility that the Claimed Land would be given over to meet that identified need as a trajectory towards that provision had been reached at the relevant claim dates. For the reasons that follow, I am unable to be satisfied on the evidence that the Claimed Land was or was likely to be needed for the essential public purpose of open space for public recreation.

67. I accept that the Council had a genuine desire to obtain the Claimed Land for the purpose of adding it to the existing extensive parklands known as Waverton Park for use as open space. To this end, the Council had embarked upon a course of action to bring this desire to fruition through: making representations to the relevant government departments; lobbying the local member; engaging in public consultation; undertaking site investigation; and opening the site for casual use by members of the public. However, I also accept that the desire at the Local Government level alone is not the appropriate test for determining whether there was a need or a likely need for the Claimed Land for an essential public purpose. The question is whether that desire had been translated into a likelihood that the Claimed Land would be given over to an essential public purpose, in this case, open space.

66. Having regard to the totality of the evidence I am unable to be satisfied on the balance of probabilities that the Claimed Land, as at either of the claim dates, would have a real chance or possibility to become open space. What the evidence discloses is that the State Government was in the early stages of determining the appropriate use of the Claimed Land. Such potential land uses included other uses permissible in the present land zoning such as open space but equally included other community uses that may not qualify as an essential public purpose such as: club, hospitality, commercial and sporting uses. Further, investigations also included the potential for uses that would include a change to the zoning and reserve purposes. This broad range of options that were being considered indicate that the State Government were at the embryonic stages of consideration rather than having moved far down a track of narrowing the potential choices of land uses.

67. On the evidence in this case, the decision as to the uses to which the Claimed Land was likely to be put had not been determined such that on the balance of probabilities, I am unable to determine that it was likely to be for an essential public purpose as open space for public recreation.

68. To the extent that the Respondent relies upon a trajectory in the sense that the Council’s submissions had created a momentum such that I would find on the balance of probabilities that its submission was more likely to be accepted than any other submission I cannot accept such submission. First, whilst the Council’s efforts were acknowledged by the State Government on matters such as community consultation, they were considered an inadequate proxy for any consultation that would inform the necessary considerations that would be undertaken to inform an appropriate decision-making as to the appropriate land use. As was observed in the Project Plan at Folio 984:

Council’s targeted consultation is insufficient to gauge the broader community’s views on future use of the land. It only invited community comment on recreational uses proposed by a limited number of pre-identified stakeholders.

71. Further, there was no evidence from Council’s own recreational needs studies (or other planning documents) that identified a specific demand or need in the specific Waverton locality. In addition, notwithstanding the limited and targeted consultation process, Council’s own processes indicated that there were elements within its own community supportive of uses other than open space – including approaches being made through the local member. The process, once engaged, was likely to bring all such competing (and potentially conflicting) voices into the conversation – which was then required to be considered and a decision made.

72. The actions taken by the Council were taken by it to support its own interest in making its application and not in furtherance of any State Government assessment of land use or management. The actions of the Council were independent of the landowner and cannot be viewed as part of the land use assessment of the State Government. With inadequate community consultation I cannot be satisfied that the full range of community views have been canvassed such that the appropriate range of uses for the Claimed Land have been identified such that I could be satisfied that commercial uses of the Claimed Land could be discounted in favour of the Council’s proposal.

73. It was also submitted that there was very little interest shown by other users such that the Court would be satisfied as a matter of fact that the Council’s submission would gain favour over any other competitor. The criticism of the other interested parties is the lack of detail in their expressed interest as compared to that of Council’s. This criticism is difficult to accept. The detail of Council’s submission is largely comprised of documents attached to the affidavit of Mr Emerson prepared for these proceedings. Similar enquiries do not seem to have been made of the other interested parties such that a real comparison could be made.

74. Further, there had been no formal call for expression of interest or some other process where the provision of detailed business plans or documents would be expected to be provided. The criticism made by the Respondent in the circumstances is not compelling. The evidence discloses that there was clear interest by other parties, including private clubs and commercial enterprises, in the Claimed Land and that such interest remained current. There is no evidence to permit a finding that such interest was treated less seriously or less attractively than the interest of the Council. Rather, the Project Plan discloses at Folio 982 that it was appropriate that, as an objective, the Project Plan seek to:

Subject to the Land Allocation Decision, provide an open, contestable process for all parties interested in managing the land to apply to be either a Crown Land Manager or Crown tenant…

75. Whilst the Project Plan had not been implemented at the claim dates, nor had it received Ministerial endorsement, it evinces the lack of any momentum of any particular land use proposal in the pool of available uses. Rather than the Council’s proposal representing a trajectory towards a requirement at the appropriate government level – all proposals were at the relevant claim date remaining on a level footing, each equally available, equally certain/uncertain and would remain so until the identified necessary investigations and consideration had been undertaken by the Government to enable it to determine what it (as opposed to the Council) required.

76. The evidence is such that the only available finding is that the decision-making process relating to the future use of the Claimed Land was in its infancy. The process was being formulated to enable sufficient information to be gathered for an informed decision to be made. As at the claim dates that process had not progressed in any meaningful way such that a finding could be made that any specific land use was likely, whether taking into account a trajectory towards such a decision or a more concrete proposal.

77. Accordingly, I am not satisfied that the Respondent has satisfied its onus that the Claimed Land, at either of the claim dates, was not claimable Crown Land within the meaning of s 36(1)(c) of the ALR Act.

Conclusion and orders

78. For the reasons outlined above, I find that at each of the claim dates the Claimed Land was claimable Crown Land within the meaning of s 36 of the ALR Act.

79. The Court Orders that:

1. The Appeal is upheld;

2. The Respondent transfer Lot 1205 DP 752067 in fee simple to Metropolitan Aboriginal Land Council;

3. The Respondent do all things necessary to enable the transfer of the Claimed Land in accordance with order (2) within six (6) months of the date of these orders;

4. The exhibits are returned; and

5. No order as to costs.

80. The Court directs that the parties are to collect the exhibits from my Associate within 14 days of the making of these orders.

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Decision last updated: 03 November 2022