New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay)

[2013] NSWLEC 148

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) [2013] NSWLEC 148

Hearing dates:

23 - 24 and 26 April 2013

Decision date:

11 September 2013

Jurisdiction:

Class 3

Before:

Pain J

Decision:

1. The application is dismissed.

2. Costs reserved.

Catchwords:

ABORIGINAL - land claim - claimable Crown lands - occupation of Crown land reserved for future public requirements under permissive occupancy for poultry farming not lawful under Crown Lands Act - Minister can rely on Carltona principle in relation to the formation of an opinion that Crown land needed or likely to be needed as residential land - Minister formed an opinion that the land was needed or likely to be needed as residential land - Crown land not claimable

Legislation Cited:

Aboriginal Land Rights Act 1983 s 36, s 243
Crown Lands Act 1989 s 6, s 7, s 10, s 33, s 35, s 87, s 91, s 155, s 180
Crown Lands Consolidation Act 1913 s 28, s 29, s 136K
Crown Lands (Continued Tenures) Act 1989
Environmental Planning and Assessment Act 1979
Environmental Planning Policy No 44 - Koala Habitat Protection
Forestry Act 1916 s 4, s 27, s 30I, First Schedule
Local Government Act 1919 s 132
Local Government Act 1993 s 555
National Parks and Wildlife Act 1974 s 113, s 116, s 117, s 119, s 131, s 132, s 132C, s 136, Sch 13 Pt 2
Port Stephens Local Environmental Plan 2000 cl 12, cl 41, cl 42, cl 50
State Environmental Planning Policy No 44 - Koala Habitat Protection

Cases Cited:

Awabakal Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 124 (Awabakal)
Baloglow v Konstantinidis [2001] NSWCA 451
Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130
Buckingham v Ryder [2007] NSWLEC 458
Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54
Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 162; (2006) 149 LGERA 162
Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 68
Griffith Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2008) NSWLEC 108 (Hillston)
Housing Commission (NSW) v Falconer [1981] 1 NSWLR 547
La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 (La Perouse)
Meehan v Jones [1982] HCA 52; (1982) 149 CLR 571
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 (Bathurst)
Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665 (Maroota)
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352; (2009) 171 LGERA 56 (Berowra CA)
Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council (Tongarra Gap No 1) [2009] NSWCA 289; (2009) 168 LGERA 71
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 (Nambucca CA)
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee) [2012] NSWCA 358; (2012) 194 LGERA
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (Winbar [No 3]) (1988) 14 NSWLR 685
NSW Aboriginal Land Council v Minister Administering Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18 (Wagga CA)
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [2008] NSWLEC 13 (Nambucca (No 2))
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 241 (Berowra LEC)
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 1; (2012) 186 LGERA 323 (Goomallee LEC)
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Limbri) [2013] NSWLEC 67; (2013) 193 LGERA 424
Taluja v Australian International Academy of Education Ltd [2011] NSWCA 416
Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 20; (2001) 113 LGERA 163 (Wanaruah)

Texts Cited:

Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, 5th ed (2013) Thomson Reuters

Category:

Principal judgment

Parties:

New South Wales Aboriginal Land Council and Worimi Local Aboriginal Land Council (Applicants)
Minister Administering the Crown Lands Act (Respondent)

Representation:

Mr M Wright (Applicant)
Ms V McWilliam (Respondent)
Crown Solicitor's Office (Applicant)
Chalk & Fitzgerald (Respondent)

File Number(s):

30913 of 2010

Judgment

Aboriginal land claim over Crown land

1. On 20 August 2009, Worimi Local Aboriginal Land Council (WLALC) (Applicant) lodged Aboriginal Land Claim (ALC) 19559 in relation to land at Nelson Bay pursuant to s 36(3) of the Aboriginal Land Rights Act 1983 (ALR Act). The land is lot 3542 in DP 1044499 (claimed land). On 18 January 2010, New South Wales Aboriginal Land Council (NSWALC) (Applicant) lodged ALC 23901 over the same land. The area of land is 7.791 hectares.

1. The Minister refused ALC 19559 and ALC 23901 on 16 July 2010. The Applicants commenced these appeal proceedings against that refusal on 10 November 2010 as enabled by s 36(6) of the ALR Act. I thank Acting Commissioner Davis for her assistance in this matter.

1. A permissive occupancy (1986/83 Newcastle) was held by Karol and Valda Rakus over the claimed land for the purposes of "Bee & Poultry Farm & Garden", commencing 1 January 1987 and continuing to this day. At the time permissive occupancy 1986/83 was granted to Mr and Mrs Rakus, the claimed land was lot 354 in DP 753204, the subject of reservation R72017 for Future Public Requirements, notified in the Government Gazette on 30 August 1946. Other claims have been made over the claimed land. Claim 6754 was lodged over lot 354 in DP 753204. Lot 354 has since been divided into lots 3541 and 3542 in DP 1044499 registered on 4 September 2002.

1. Lot 3542 is adjacent and to the north of lot 3551 which is owned by Christmas Bush Pty Ltd. Tomaree National Park lies to the east of lot 3542. Land owned by Mr and Mrs Rakus, lot 3552, is to the south west of lot 3542. Lot 3541 is to the west of lot 3542 and has been acquired by Energy Australia.

1. The overarching issue is whether the claimed land was claimable Crown land under s 36(1) of the ALR Act and can be transferred to the Applicants under s 36(5) of the ALR Act. By Statement of Issues filed on 11 February 2011, the Minister asserts the claimed land was not claimable Crown land for the following reasons:

(a)   The land was lawfully used or occupied (s 36(1)(b) of the ALR Act).

(b)   The land was, in the opinion of a Crown Lands Minister, needed or likely to be needed as residential lands (s 36(1)(b1) of the ALR Act).

(c)   The land was needed, or likely to be needed, for the essential public purposes of conservation, electricity (in part) and drainage (in part) (s 36(1)(c) of the ALR Act).

Legislation

1. Section 36(1) of the ALR Act defines claimable Crown lands. These include lands that (relevantly):

...

(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 ...

1. Sections 36(5) and (5A) of the ALR Act provide:

(5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall:

(a) if the Crown Lands Minister is satisfied that:

(i) the whole of the lands claimed is claimable Crown lands, or

(ii) part only of the lands claimed is claimable Crown lands,

grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be, or

(b) if the Crown Lands Minister is satisfied that:

(i) the whole of the lands claimed is not claimable Crown lands, or

(ii) part of the lands claimed is not claimable Crown lands,

refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require.

(5A) Where, under subsection (5), a Crown Lands Minister is not satisfied that the whole or part of the lands claimed is claimable Crown lands because the lands are needed, or likely to be needed, for an essential public purpose, but that the need for the lands for the public purpose would be met if the claim were to be granted in whole or in part subject to the imposition of a condition (whether by way of covenant or easement or in any other form) relating to the use of the lands, the Crown Lands Minister may, notwithstanding that subsection, where the condition is agreed to by the Aboriginal Land Council making the claim, grant the claim under that subsection subject to the imposition of the condition.

1. Section 36(7) of the ALR Act 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 to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council.

1. Section 6 of the Crown Lands Act 1989 (the CL Act) provides:

Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence reservation or dedication or other dealing is authorised by this Act...

1. The ALR Act is remedial and beneficial legislation. The exceptions to "claimable Crown land" are required to be "construed narrowly": Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665 (Maroota) per Spigelman CJ at [53] - [54]; NSW Aboriginal Land Council v Minister Administering Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18 (Wagga CA) per Mason P at [21] and [25] with whom Tobias JA agreed.

1. The Minister bears the onus of establishing on the balance of probabilities that the claimed land is not claimable Crown land per Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 (Bathurst) per Basten JA at [202]; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (Winbar [No 3]) (1988) 14 NSWLR 685 at 692D-693D.

1. The relevant date for determining whether land is claimable Crown land is the date that the claim is lodged: Winbar [No 3] at 691F-G per Hope JA. The parties agree the relevant date of claim is 20 August 2009, the date of lodgment of ALC 19559.

1. A chronology of the principal events provided by the Applicants and modified for this judgment follows.

Chronology

1. On 30 August 1946 the claimed land was part of Reservation 72017 for Future Public Requirements (Vol 1 Tab 1).

1. On 1 March 1967 Mr and Mrs Rakus obtained a special lease for "bee and poultry farm and garden (vegetable and nursery)" over lot 354 (Vol 1 Tab 78, p 127).

1. On 15 October 1969 the purpose of the Rakus' special lease was changed to "grazing only" (Karol Rakus, Tabs 5, 6).

1. On 21 February 1973 part of land the subject of the Rakus' special lease was acquired so Port Stephens could have a drain (Lot 392) (Karol Rakus [13]).

1. On 4 January 1985 Mr Rakus sought to convert the special lease to a conditional purchase (Karol Rakus affidavit, Tab 14, p.40 and Tab 15, p 41).

1. On 15 January 1985 the Department of Lands (the Department) refused the application for conversion of the special lease to a conditional purchase. The refusal stated that the claimed land "has been identified as being required for future residential subdivision and development." (Vol 1, Tab 51, p 79).

1. On 31 December 1986 the special lease to Mr and Mrs Rakus for "grazing" expired (Vol 1 Tab 78, p 127).

1. On 5 January 1987 permissive occupancy 1986/83 for "bee and poultry farm and garden" was granted to Mr and Mrs Rakus over Lot 354 (Valda Rakus affidavit at [19] and [20]).

1. In 1990 Mr and Mrs Rakus advised the Department that poultry sheds were "removed from the Crown land some time ago." Mr Rakus "stopped farming chickens" years earlier (Vol 1 Tab 74, p.112; Karol Rakus affidavit at [45]; Pierre Rakus affidavit at [29]). Mr and Mrs Rakus also stopped bee keeping on the claimed land around 1990 (Karol Rakus affidavit at [42]; Valda Rakus affidavit at [30]-[31]).

1. On 18 December 1991 and 18 November 1992 the Department granted permission to Mr and Mrs Rakus "to cultivate Christmas bush" on the claimed land (Vol 1, Tab 62, p 96; Vol 1, Tab 68, p 104).

1. On 9 November 1994 Mr and Mrs Rakus applied to buy the claimed land, primarily to intensify the tending and training of horses. The sale did not proceed (Karol Rakus affidavit Tab 17, p 44).

1. On 18 August 1997 Licence PP8913 under s 131 of the National Parks and Wildlife Act 1974 held by Mr and Mrs Rakus expired (Karol Rakus affidavit Tab 29, p 63).

1. On 11 August 2000 a draft land assessment was conducted of Crown land at Nelson Bay Road, Nelson Bay (Vol 2, Tab 36, p 399 - 449. Mapping Area 5, p 415).

1. On 15 September 2000 a Landcom submission was made on the draft land assessment which attached the report prepared by Environmental Resources Management Australia Pty Ltd (ERM Report) at the request of Landcom (Vol 2, Tab 39, p 457 - 467).

1. On 31 December 2001 a Department memorandum notes in relation to mapping areas 1 and 5 of the draft land assessment that "Landcom withdrew interest in both parcels following additional assessment of the conservation value of the land by Centre for Natural Resources ecologists on behalf of DLWC Hunter Region." (Vol 3, Tab 33, p 170).

1. On 18 March 2002 the final land assessment identified suitable land uses for mapping area 5 as "Environmental Protection (regional significance); Nature Conservation (regional significance); Recreation (natural)." (Vol 3, Tab 45, p 309).

1. On 6 July 2002 ALC 6754 was lodged over Lot 354 DP 753204 (Vol 3, Tab 8, p 471).

1. On 27 August 2002 a field inspection described most of lot 354 as "virgin bushland." The "previous use" for training of horses is also referred to (Vol 3 Tab 89 p 488).

1. On 30 August 2002 Landcom advised in relation to ALC 6753 and ALC 6754 that "none of these sites has potential for residential development and as such Landcom has no objection to the granting of these claims" (Vol 3, Tab 83, p 477).

1. DP 1044499 lot 3542 (claimed land) and lot 3541 were registered on 4 September 2002. Lot 3541 to be acquired for electricity substation purposes.

1. On 11 November 2002 Cabinet endorsed the vacant Crown land review and noted on-going assessment (supplementary bundle, p 6 - 7).

1. On 14 April 03 a minute re Rakus states the intention to put the claimed land in Tomaree National Park apart from the land to be acquired by Energy Australia.

1. On 19 March 2004 Energy Australia compulsorily acquired part of former lot 354 (lot 3541 DP 1044499) (Vol 4 tab 33).

1. On 21 July 2004 Mr and Mrs Rakus sold the land adjoining the claimed land (lot 3551) to Christmas Bush Pty Ltd with settlement proposed on 21 July 2005 (Karol Rakus affidavit at [17]; Frank Future affidavit at [3]).

1. On 25 June 2005 Mr Rakus made an offer to purchase the claimed land (Karol Rakus affidavit Tab 20, p 50).

1. On 6 July 2005 Christmas Bush Pty Ltd entered into a horse agistment agreement with Ms Crawford over the claimed land and lot 3551 (Future affidavit at [16], and Tab 2, p 42 - 43).

1. On 21 July 2005 the settlement of the sale of lot 3551 from Mr and Mrs Rakus to Christmas Bush Pty Ltd occurred (Karol Rakus [17]; Frank Future [3]).

1. In September 2005 the Department objected to the claimed land being added to adjoining national park "unless DEC [Department of Environment and Conservation] can substantiate the essential natural resource values of the site and demonstrate the need for this site." The claimed land was identified by the Department as a potential urban expansion development site (Vol 4, Tab 55, p 157).

1. On 6 October 2005 the Department advised DEC that it wished to retain the claimed land and requested DEC to "substantiate the essential natural resource values of the site, and demonstrate the need for it to be added to Tomaree NP." (Vol 4, Tab 56, p 168).

1. On 2 June 2006 the Minister for the Environment wrote to the Minister for Lands noting in relation to the claimed land that "the [DoL] Region has indicated that lands should retain the reserve" and "DEC has not been able to resolve the issue with DoL at an officer level." (supplementary bundle, p 2 and p 8)

1. On 6 September 2006 the Department rejected the offer from Mr Rakus to purchase the claimed land (Karol Rakus affidavit Tab 21, p 51).

1. In October 2006 the Department of Planning in the Lower Hunter Regional Strategy identified the future need for housing. The claimed land is zoned rural/resource land (Vol 4., Tab 66).

1. On 24 April 2007 the Port Stephens Council adopted the Community Settlement and Infrastructure Strategy (Vol 4., Tab 73, p 435).

1. On 2 July 2007 Mr Future wrote to Mr Wood at the Department to advise of Christmas Bush Pty Ltd's "interest in acquiring the adjoining Crown reserve if it is available" (Vol 4, Tab 43, p 106).

1. On 28 December 2007 the Minister for Lands wrote to the Director-General, Department of Premier and Cabinet noting that the forest agreements required Crown land to be included in National Parks unless there were major constraints or they are unsuitable for declaration as informal or formal reserves (supplementary bundle p 9).

1. On 29 February 2008 Mr and Mrs Rakus wrote to the Department to inquire whether it was selling the claimed land (Vol 5, Tab 2, p 3).

1. On 3 April 2008 the Department advised Mr and Mrs Rakus that the claimed land was not for sale as it was being investigated as conservation land (Karol Rakus affidavit Tab 22, p 52).

1. On 7 May 2008 Christmas Bush Pty Ltd again wrote to the Department seeking to purchase the claimed land (Future affidavit Tab 9, p 192). There were also emails between Mr Tapper, Mr Veitch and Mr Southall engaging The Planning Group (TPG) to assess redevelopment potential (Vol 5, Tab 12).

1. On 9 July 2008 the Department briefed TPG to identify options for the claimed land.

1. In July 2008 the report by TPG titled "Site analysis and potential development options assessment" (TPG report) indicates that about 80 per cent of the land contained vegetation which was described as degraded and not suitable for inclusion in Tomaree National Park. It also notes that the site was zoned 1(a) - Rural Agriculture "A". Prohibited uses included "urban housing". Also included was a summary of the local environmental plan which restricts uses to rural zoning (Vol 5, Tab 15, p 75 and 86).

1. On 5 August 2008 the Department of Commerce proposed by telephone acquiring part of the claimed land in relation to a proposal for an ambulance site (Wood affidavit [15]).

1. On 13 August 2008 the Department went to Propell National Valuers for valuation.

1. On 22 August 2008 the valuation report by Propell National Valuers was prepared. It includes constraints, development potential, likely yield and conclusion (Vol 5, Tab 18).

1. On 1 September 2008 Mr Veitch advised Ms Robinson that he had received a private sale application and placed the claimed land on the "2008-2009 sale programs", expecting about a $1m return. This was discovered in the contest of previous ALC 6754.

1. On 30 September 2008 Mr Wood received a letter dated 23 September 2008 from the Department of Commerce in relation to the proposal for an ambulance site on the claimed land (Wood affidavit [16]).

1. On 13 October 2008 Mr Veitch hand wrote a note to Mr Wood instructing refusal of the proposal for an ambulance site on the claimed land since the claimed land was being investigated for disposition as a residential development site (Wood affidavit [17]).

1. On 4 May 2009 Mr Wood wrote a letter refusing the proposal for an ambulance site on the claimed land since the land had been identified for a residential development. An email was sent on 4 May 2009 to the Department of Commerce formalising the refusal (Wood affidavit [17]-[18]).

1. On 17 March 2009 the position of the Department was that the claimed land was "required for urban expansion given the lack of vacant land in region and large areas of land already in DECC [Department of Environment and Climate Change] estate in the near vicinity." The position of DECC was that it preferred "the land to be transferred. Required for under-target forest ecosystems." DECC and the Department agreed that the claimed land would not be included in Tomaree National Park subject to the Department entering into a conservation agreement (Vol 5, Tab 22, p 173).

1. On 13 July 2009 DECC notes that the position in relation to claimed land was that the claimed land remain with the Department subject to the Department entering into a conservation agreement (supplementary bundle p 20).

1. On 12 August 2009 Mr Tapper prepared a first draft of Sale of Crown Land Submission for Approval in Principle Under Delegation 1D.1.2. In relation to the option of rezoning for urban residential development it states (Vol 5, Tab 26, p.185, Tab 45):

"The provision of this analysis was withdrawn due to the potentially lengthy timeframes associated with resolving the outstanding Aboriginal land claim and the rezoning /LEP amendment requirements by Port Stephens Council. The regions sale contribution requires an early December 2009 completion date, thus it is not possible to achieve the SD&M Program's deadline for 2009/2010."

1. On 20 August 2009 ALC 19559 was lodged by Worimi LALC (ATB Tab 6, p 32).

1. On 24 August 2009 Mr Wood signed the Sale of Crown Land Submission for Approval in Principle Under Delegation 1D.1.2. The option requiring a rezoning of the land for urban residential development was "disregarded" because the timeframe to action that would not meet 2009/2010 financial year timelines (Wood affidavit at [22], and Tab 15, p 32 - 37).

1. On 28 August 2009 Mr Veitch signed the Sale of Crown Land Submission for Approval in Principle Under Delegation 1D.1.2 (Wood affidavit at [22], and Tab 15, p 32 - 37).

1. On 24 September 2009 Christmas Bush Pty Ltd formally offered the Department $1,000,000 to buy the claimed land (Future affidavit at [43] and Tab 12, p 238).

1. In October 2009 Mr Phillips emailed Mr Edghill, Manager, Aboriginal Land Claim Investigations, regarding an early determination of land claim 6754. Approval in principle was granted to proceed with alienation actions.

1. On 1 December 2009 Mr Wood emailed the Aboriginal Land Claim Investigations Unit requesting that "the claim be processed as a matter of urgency for the Minister's early determination." He noted that "Sale proceeds in the order of $1 million is included in LPMA Crown land sales commitment to Treasury for 2009/10." He also stated that he "...would appreciate any action you can initiate to speed the process, particularly in the light that Treasury is expecting the sale income this financial year." (Wood affidavit Tab 16, p 39).

1. On 8 December 2009 the Minister refused ALC 6753 and ALC 6754 (Vol 5, Tab 36, p 216).

1. On 10 December 2009 Mr Veitch stated that he is "unable to finalise" any sale until he had the "Minister's delegate approval to the in-principal [sic] sale." (Vol 5, Tab 40, p 223).

1. On 10 January 2010 ALC 23901 was lodged by the NSWALC (ATB Tab 6, p 34).

1. On 28 January 2010 Mr Future prepared the first draft of a business plan for the proposed residential development on the company and the land (Future affidavit at [44]; Tab 13).

1. On 8 February 2010 the Minister's Delegate approved a private treaty sale as the preferred option for the claimed land, with open market sale as the second option. The document states that the "rezoning option" was "disregarded" because of 2009/2010 financial year sale timelines. A direct sale to the adjoining landowner was preferred: "... providing the Crown with fair market return within a constrained timeframe at virtually no risk" (Vol 5, Tab 45, p. 269 - 270).

1. On 19 February 2010 the Department notified Christmas Bush Pty Ltd that it had exclusive negotiation rights to negotiate a purchase price over the claimed land (Wood affidavit Tab 19).

1. On 3 March 2010 Christmas Bush Pty Ltd and the Department agreed to $1.1m purchase price (Wood affidavit, [29] - [30]; Tabs 20 - 21).

1. On 10 March 2010 Christmas Bush Pty Ltd advised the Department that it was having difficulty raising funds for a sale and needed an extension of time to settle on the property (Vol 5, Tab 57, p 313).

1. On 1 April 2010, the Department advised Christmas Bush Pty Ltd that there could no extension until 7 October 2010, because:

"NSW Treasury has been advised that sale of the subject will settle on 4th June 2010. Consequently, Treasury is expecting transfer of sale funds to be completed within the current financial year."

1. The Department also advised Christmas Bush Pty Ltd that if it could not secure adequate finance, the Department would consider a public sale for the claimed land (Vol 5, Tab 58, p 315).

1. On 5 April 2010 an internal Department email shows that the delayed sale rendered the expected income as "'income foregone' for the purposes of our annual 2009-2010 target." (Vol 5, Tab 60, p 317).

1. On 22 June 2010 the Department reiterated the claimed land was "Treasury identified income" (Wood affidavit Tab 25).

1. On 16 July 2010 Minister refused ALC 19559 and ALC 23901 (Vol 5, Tab 69).

1. On 10 November 2010 the Class 3 appeal was commenced.

1. On 16 November 2010 the Department indicated that no exchange of contracts could occur due to the further land claims (Vol 5, Tab 74, p 360).

1. On 25 January 2011 the Department of Planning confirmed that the claimed land was not identified in the Lower Hunter Regional Strategy as required for residential purposes and not subject to any Planning proposal for a rezoning. The claimed land is "not identified to meet dwelling projections for the Port Stephens LGA "(ATB Tab 8).

Issues Addressed

1. The following is a summary of the Minister's issues which will be addressed in this matter:

(a)   The permissive occupancy granted over the claimed land, which has been reserved for future public requirements, was lawful. (Issue 1)

(b)   Alternatively, the use by the Rakus family was authorised by the National Parks and Wildlife Service and was therefore lawful. (Issue 2)

(c)   As at August 2009, the evidence supports the actual opinion being held at the appropriate Government level at the material date that the claimed land was likely to be needed for residential purposes. At the very least, the evidence supports a trajectory towards the necessary political will, and that is sufficient to establish the ground of refusal. (Issue 3)

(d)   The Cabinet documents in evidence also demonstrate that at the material date the claimed land was required for environmental conservation. (Issue 4)

(e)   The evidence clearly establishes that a 30 m wide access way for electricity purposes and a pendulum shaped drainage flow path are required over the claimed land. (Issue 5)

Issue 1 - Lawfulness of the Permissive Occupancy

Evidence

1. Affidavit evidence read on behalf of the Minister included Mr Karol Rakus filed 23 September 2011, Mrs Valda Rakus filed 23 September 2011, David Rakus filed 16 September 2011, Pierre Rakus filed 16 September 2011. David and Pierre are Mr and Mrs Rakus' sons. These affidavits concerned in large part the activity conducted on the claimed land by the Rakus family over an extended period. Mr David Rakus and Mr Pierre Rakus were also cross-examined.

1. Mr and Mrs Rakus have paid annual fees to the Department every year they have had a special lease or permissive occupancy over the claimed land (Karol Rakus [47] - [48]; Valda Rakus [45]). The rent paid in January 2011 was approximately $930. Each year Council rates were also paid for the claimed land (Karol Rakus [49] - [50]; Valda Rakus [46]). Public liability insurance has been paid for the claimed land (Valda Rakus [47]). A copy of the certificate of insurance (annexure C) and the receipt of payment for the insurance (annexure D) were attached to Valda Rakus' affidavit.

1. A three acre garden existed across the claimed land and lot 3552 (Karol Rakus [37]), photographs of which were attached to Mr Rakus' affidavit (tab 31). Chickens were on the claimed land and lot 3551 for approximately 27 years, photos of which were attached to Mr Karol Rakus' affidavit (Karol Rakus [43], tab 33). Mr Rakus stopped farming chickens approximately 20 years ago (Karol Rakus [45]). David Rakus states that his parents had a large garden across lot 3552 and the claimed land from around 1973 until approximately 1980 (David Rakus [8]). David Rakus worked in the garden (David Rakus [11]). David Rakus states that his parents built up their poultry business over the years and by approximately 1980 there were five chicken sheds across lot 3552 and the claimed land (David Rakus [13]).

Minister's submissions

1. The Court should conclude that at the date of claim there was regular lawful physical activity on the land, the land was treated as occupied by a visible if small presence of beehives, a water meter sign and upkeep of the land through cutting of fire trails and occupation was evidenced by the permissive occupancy and the payment of necessary rent, rates and insurance. The Minister accepted that the use and occupation must have a lawful basis which is not inferred from the mere absence of prohibition under s 155 of the CL Act. Where there is lawful use or occupation then ancillary uses such as walking over the land are part of that lawful use.

1. As Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee) [2012] NSWCA 358; (2012) 194 LGERA 1 was handed down by the Court of Appeal before the hearing of this matter but after evidence had been filed the Minister advised that not all the activities referred to in the affidavits were relied on, in particular horse agistment. Poultry farming and market gardening were also not relied on by the Minister as those business activities were not operating on the land at the claim date. The activities relied on to establish lawful use or occupation of the claimed land pursuant to the permissive occupancy were the seasonal harvesting of Christmas bush, walking and driving over the land, bee keeping and the payment of rates, fees, charges and insurance by Mr and Mrs Rakus.

1. The first issue that arises is whether the permissive occupancy was issued lawfully. The Minister submitted that where the use of land is restricted to a particular purpose, the use for some other unrelated purpose is not authorised: Goomallee at [37]. In order to assess the validity of the grant of the licence (or permissive occupancy), regard should be had to the terms of the reservation: Goomallee per Basten JA at [26].

1. Following the Court of Appeal reasoning in Goomallee, the question is whether the terms of the reservation "for future public requirements" excluded the grant of the permissive occupancy. The Minister in oral argument submitted that there are four steps in determining the lawfulness of the permissive occupancy, which are:

(1)   to look at the terms of the reservation and ascertaining the purpose of the reservation, which in this instance is for future public requirements;

(2)   assess what that purpose restrains;

(3)   look at the nature of the grant which in this instance is a permissive occupancy; and

(4)   whether these activities are ancillary to, in furtherance of or in relation to the purpose of the reservation.

1. The reservation did not exclude the purpose for which the permissive occupancy was issued, and accordingly the grant of the permissive occupancy was lawful.

1. In Goomallee, the land under consideration was reserved for "public recreation". The question was whether the Minister had power to grant a grazing licence over such land. The Court of Appeal found that the grant of the licence was unlawful because it did not fulfil the purpose of public recreation. By contrast, the reservation here is for future public requirements. These are the only terms of restraint on the granting of the permissive occupancy. Until those future public requirements are determined, such a reservation does not restrain in any way the purpose for which leases or permissive occupancies may be granted in the meantime. That is a complete answer to the question of lawfulness of the permissive occupancy.

1. Support for that position is also found in the conditions of the permissive occupancy. The terms of the permissive occupancy not the activities permitted are relevant. The Court must ascertain whether the terms are ancillary to, in furtherance of or in relation to the purpose of the reservation. Conditions in the permissive occupancy relevant to this assertion (Vol. 1, Tab 56) were:

...

(3) The Permissive Occupancy is terminable at will by the Minister.

...

(5) The tenant shall pay all rates and taxes and all fees and charges...during the currency of the Permissive Occupancy.

...

(8) All rights conferred upon the public in the terms of any reservation in regard to the premises are reserved.

(9) The tenants shall not interfere with the rights of the public to the use of any roads, streets, lanes or tracks within the premises.

...

(11) The tenant shall not use the premises or any part thereof for residence or permit any form of residential occupation therein.

(20) All persons duly authorized shall have full right to enter upon the land at any time within reasonable hours, for the purpose of cutting and removing timber or products without interference, and the tenant shall, if fencing the boundaries, provide convenient gateways or openings where required for this purposes...

...

(32) The tenant shall throughout the currency of the occupancy effectually destroy or cause to be destroyed all or any of the following on the land occupied .... [a number of weeds are then listed] ...

(33) The tenant shall take effective steps to keep the land free from foxes, rabbits, and other noxious animals during the currency of the occupancy.

1. Firstly, cl 32 and cl 33 required Mr and Mrs Rakus to generally maintain the claimed land, such as ensuring that the claimed land was kept free of noxious weeds and animals. Clause 20 envisages the fencing of the boundaries. Such requirements are ancillary to maintaining and preserving the claimed land for the future, including for future public requirements. Secondly, the conditions of the permissive occupancy provide that the occupancy is not exclusive (the public may still access the property to the extent that is lawful). This is consistent with the maintenance of the claimed land for future public requirements. Thirdly, Mr and Mrs Rakus were responsible for paying all rates, taxes, fees and charges over the claimed land, which ensured that the land remained in a fit state for whatever public purpose was determined in due course, and was not a drain on public moneys.

Alternative position on lawfulness of permissive occupancy

1. The Minister submitted that if the Court is minded to reject the lawfulness of the permissive occupancy as a whole, the Court must look at the individual activities in the permissive occupancy in order to read it down if possible. This proposition was based on the general principles applicable to contracts, recalling that the permissive occupancy was a contract between the owner of the land and Mr and Mrs Rakus. Contractual documents should be construed with a view to validity.

1. Accordingly the Minister submitted that where there is a construction of the reservation that permits lawfulness of the grant of the permissive occupancy, it should be preferred. Such an approach does not detract from the general position that the ALR Act is remedial and beneficial legislation or that exceptions to "claimable Crown land" should be construed narrowly (Maroota at [53]-[54]) as the terms of a reservation are not part of the ALR Act.

Applicants' submissions

1. The relevant principles for determining the validity of the granting of an interest over land reserved under Crown Lands legislation were considered by the Court of Appeal in Goomallee.

1. The natural meaning of the phrase "future public requirements" anticipates the setting aside of land for future public purposes, as opposed to committing it to a current private use. It does not encompass "bee and poultry farm and garden" or "to cultivate Christmas bush". The purpose of a reservation for future public requirements is the beneficial setting aside of land for the needs of the people as a whole or the community that will be or come hereafter, pending the identification of its appropriate future use or uses. This setting aside is of immediate benefit. Bee keeping, poultry farming or market gardening by a private property owner, do not involve use of the land for the identified public purpose stated in the public reservation: Goomallee at [23]. They were purposes that were not authorised by the terms of the reservation and were for a "different purpose" to that authorised by the terms of the reservation. They are purposes entirely independent of the purpose for which the reserve was created and were, therefore, not authorised by it.

1. This approach is reinforced by a consideration of the history of legislation in NSW in relation to the reservation from alienation of lands likely to be required for public needs in the future. That history confirms that from the outset, the making of a reservation for public purposes did not permit the occupation of the reserved land by any private person for any private purpose, relying on Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54 Windeyer J at 71-72 who cited a dispatch from Earl Bathurst, Secretary of State for the Colonies to Governor Brisbane dated 1 January 1825 which, his Honour observed, formed the first formal statement of a general policy and the prototype of all future enactments.

1. The Applicants also submitted that the language of s 28 in the Crown Lands Consolidation Act 1913 (CLC Act) is to be contrasted with s 29 of that Act which allowed for a reservation from sale, lease or licence at large, without the identification of a public purpose. Consistently with the approach in s 28 of the CLC Act, under the CL Act a "reserve for future public requirements" is a reserve for a "public purpose". Section 87 of the CL Act authorises the Minister to reserve land "from sale, lease or licence or for future public requirements or other public purpose."

1. The Applicants also submitted that the structure of the CL Act suggests that a reservation of land for future public requirements is a setting aside of the land for a future (public) use, as opposed to authorising present (private) uses. This is because central to the scheme of the CL Act is the proper assessment of Crown land in that s 10 provides that the objects of the Act are to ensure that Crown land is managed for the benefit of the people of NSW and in particular to provide for "(a) a proper assessment of Crown land". Part 3 of the CL Act provides for the assessment of Crown land. Under s 91(1) of the CL Act land is not able to be reserved unless the Minister is satisfied that the land has been assessed under Pt 3. The only exception is where the Minister exercises the power to waive a land assessment pursuant to s 91(2)(b). However, no assessment is required if the reservation is from sale or for future public requirements: s 91(2)(a). It follows from the structure of the CL Act that land might be set aside for future public requirements pending an assessment of the capabilities of the land and the identification of future suitable uses pursuant to s 91(2)(b) and s 33 of the CL Act. The effect of the reservation for future public requirements would be to protect the land while such assessment occurs.

1. The setting aside of land for a future use by reserving it for future public requirements constitutes a significant restriction on the manner in which the land can be used. This was recognised in Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 162; (2006) 149 LGERA 162 at [79] where I observed that a reserve for future public requirements was not managed for recreation because that was "not its current purpose". Similarly, in Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 68 (O'Haras Creek) I accepted a submission by the applicant at [154] that land which was reserved for future public requirements does not encompass recreation purposes, and use of land for those purposes was not authorised by the CLC Act or the CL Act.

1. A reserve for future public requirements does restrain the purpose for which leases or permissive occupancies may be granted pending the identification of the public purpose and is a specific public purpose. The setting aside of land for future public requirements may serve the public interest of preventing present uses of land which may be detrimental pending the identification of future uses (if any). Allowing any use in the meantime as the Minister contends does not serve that purpose.

1. The Minister's position that the conditions of the permissive occupancy support that approach impermissibly seek to define a power by reference to "permitted activity" rather than purpose: Goomallee per Basten JA at [26]. A permissive occupancy for "bee and poultry farm and garden" is not for, or ancillary to, a reserve for future public requirements. The type of licence or permissive occupancy which might be considered ancillary to a reserve for future public requirements would include a licence for site investigation or a licence for surveying, as part of the identification of future public requirements. It does not include the use of the land for private purposes unrelated to the identification of future public requirements.

1. The obligations in the permissive occupancy to control noxious weeds and removal of feral animals are aimed at regulating the agricultural purpose authorised by the permissive occupancy. They are not independent land management obligations. The Minister's submissions attempt to isolate and mischaracterise a number of clauses in the permissive occupancy and to find authority in an otherwise invalid grant for a use of the land for purposes contrary to the reservation. The approach falls into the error identified in Goomallee at [22] of asking, "retrospectively after the exercise of both powers, whether they can be 'reconciled' by a test of 'compatibility'".

The Minister's alternative position is incorrect

1. The issue is not one of contractual interpretation. The issue is the exercise of legislative power, in circumstances where there was a restriction on the power to issue interests for purposes different from the reserved purpose. The guiding principles are those set out in Goomallee. In response to this argument the Minister submitted that contractual interpretation is part of the Court's task, whether the terms of the permissive occupancy are lawful requires a construction of what the permissive occupancy allows. The Court is able to read down the permissive occupancy so that it allows certain lawful activity if it finds (contrary to the Minister's submissions) that the totality of what was granted under the permissive occupancy was not lawful, having regard to Goomallee.

Use and occupation of Crown land not lawful

1. All of the primary submissions made by the parties above were raised before me in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Limbri) [2013] NSWLEC 67; (2013) 193 LGERA 424. In both Limbri and this case the reservation of Crown land was/is for future public requirements and the permissive occupancy permitted private activities. In Limbri the purpose of the permissive occupancy was grazing. Here it is bee and poultry farm and garden. Limbri required, as does this matter, a close consideration of Goomallee in the Court of Appeal. Given the great similarity between this case and Limbri, including the parties' primary arguments, my reasoning in Limbri should apply here.

1. The relevant principles in Goomallee were correctly summarised in the Applicants' submissions as follows:

(1)   The relevant test for determining whether there is a valid exercise of power in issuing a licence is whether the licence is for, or is ancillary to, the purpose for which the land is reserved: see New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 1; (2012) 186 LGERA 323 (Goomallee LEC) per Biscoe J at [50(a)] and [51] and Goomallee per Basten JA (with whom Beazley, McColl, and Macfarlan JJA agreed) at [23], [31]-[32] and [38].

(2)   Where the use of land is restricted to a particular purpose, the use for some other unrelated purpose is not authorised: Goomallee per Basten JA (with whom Beazley, McColl, and Macfarlan JJA agreed) at [37].

(3)   An assumption that there is a power "to grant a licence for a purpose other than the purpose of the reservation" is "misconceived": Goomallee per Basten JA at [22]. Accordingly, the Court of Appeal held (at [23]) that there was no error in the approach of the trial judge that:

(4) "land reserved from sale could not be the subject of the power of sale contained in s 34. It could, however, be the subject of the exercise of other powers so long as those powers were exercised for the public purpose stated in the reservation, namely public recreation, or for some purpose incidental thereto. All other purposes were excluded."

(5)   The scope of the power to grant the licence does not depend on the use of the land, actual or potential, under the licence. Rather, it depends "on the terms of the restraint imposed by the reservation" at [26] of Goomallee. As noted in Goomallee by Basten JA at [26] "To define a power by reference to purpose is a quite different exercise to defining a power by reference to permitted activity."

(6)    "A prospective identification of the availability of a power, taking into account the current status of the land at the time the power is to be exercised is preferable to asking, retrospectively after the exercise of both powers, whether they can be 'reconciled' by a test of 'compatibility'": see Goomallee per Basten JA (with whom Beazley, McColl and Macfarlan JJA agreed) at [22].

1. The Minister's submissions focussed on [26] in Basten JA's judgment, referred to above in the summary of principles.

1. The key finding in Limbri was that the proper construction of the scheme for the management of Crown land in the CLC Act and the CL Act suggests that the reservation of land for future public requirements is a reservation for a public purpose which is a current purpose. It is not a purpose that will eventuate in the future (at [75]). The exercise of the statutory power for the use of Crown land is restrained by a reservation of land for a purpose. The grant of a licence for private grazing purposes is not in accordance with, incidental to and unrelated and independent of the purpose of a reservation of lands for future public requirements (at [89]). These findings suggested that private grazing is not permissible because of the restraint created by the reservation for a public purpose (at [87]). That is contrary to the Minister's argument that a reservation for future public requirements does not restrain in any way the purpose for which a permissive occupancy may be granted until the future public requirement is determined. In Limbri I accepted the argument made by the Applicants in this case as summarised in the submissions above at par 101, 102 and 104. Support for this approach is found in historical references to the management of Crown land as identified in Rutledge, as the Applicants submitted; also see Limbri at [77] - [79].

1. Part 3 of the CL Act provides for the assessment of Crown land before it is reserved for a purpose except in the case of land reserved from sale or for future public requirements. The Applicants submitted at par 104 -105 this regime supports the findings that the reservation of land for future public requirements is to protect the land while such assessment occurs, as I also found in Limbri at [82].

1. Therefore, in the circumstances of this case, the granting of the permissive occupancy to Mr and Mrs Rakus for "Bee & Poultry Farm & Garden" was not lawful because it is not permissible under the restraint created by the reservation. Bee keeping, poultry farm and gardening are activities for private purposes. Granting a permissive occupancy for those purposes was impermissible because the current public purpose of the reservation restrains such grants.

1. The Minister submitted, in this case and in Limbri, that the grant of the permissive occupancy and the licence for the purpose of grazing was ancillary to, incidental to or in furtherance of the reservation of the lands for future public requirements. As I held in Limbri at [92], while Goomallee did not consider this precise argument, a number of observations by Basten JA suggest that it cannot be correct. The stated purpose of the permissive occupancy and licence in Limbri is grazing, similar to findings in Goomallee referred to by the Applicants. The licence in Goomallee also had a number of land management provisions relating to weed and feral animal control but that was not considered to alter its overall purpose of grazing at [28]. I accepted in Limbri at [92] that whether such conditions did alter its overall purpose or were ancillary to that purpose was not expressly before the Court of Appeal but it is relevant to observe that is the thrust of Basten JA's consideration at [28]. His Honour there held that the licence permitted grazing and not any other purpose and identified a number of clauses in the licence similar to those in Limbri. His Honour concluded that the licence was for the private purposes of the grazier at [28].

1. As I discussed in Limbri at [93], and as identified by the Applicants' submissions (par 108) an important part of the reasoning in Goomallee dealt with the Minister's submission that the appropriate test was whether the use for grazing was inconsistent with the purpose of the reservation for public recreation. This argument was not accepted by Basten JA at [25] - [27] on the basis that it was not appropriate to identify the scope of the power to grant the licence by the use of the land under the licence. The power depended on the terms of the restraint imposed by the reservation. Those terms did not refer to the manner in which the land could be used but the purpose. That suggests another reason why, applying the reasoning in Goomallee to this part of the Minister's case, it does not succeed. As the Applicants submitted, this argument of the Minister essentially requires that impermissible approach to be taken. That Goomallee was considering a reserve for public recreation does not suggest the reasoning does not apply to a reserve for future public requirements given that both are a public purpose at [93].

1. The Minister focussed on individual conditions of the permissive occupancy being the requirement to maintain the claimed land so that it was kept free of noxious weeds and animals, fencing the land and paying all rates, taxes, fees and charges over the land to justify the grant of the permissive occupancy as ancillary to, incidental to or in furtherance of the reservation of the land for future public requirements. That the occupancy was not exclusive according to its terms was also argued to be consistent with the maintenance of the claimed land for future public requirements. This descends into the impermissible approach disavowed in Goomallee at [26] by focussing on activities carried out on the land as opposed to the purpose to which those activities are directed. As the Applicants submitted these activities are not independent land management obligations but serve the purpose of the permissive occupancy.

1. I agree with the Applicants' submission that by seeking to categorise the permissive occupancy as being for the purpose of maintenance, the Minister's submissions ignore that upon a holistic construction of the permissive occupancy its purpose is for "bee and poultry farm & garden" and its other provisions encourage activities which were not directed towards either land management or the maintenance of the land.

1. On the assumption that it is permissible to look at individual conditions and the activities these give rise to, as the Applicants submitted, "bee and poultry farm and garden" purposes and the subsidiary activities were likely to compromise any future use of the land by the public by altering the qualities of the land, its soil and its vegetation. The Department's land assessment report finalised in 2002 identified the options for the land as for environmental protection, nature conservation and recreation (natural). As the Applicants submitted, the fact that there was subsequently interest in the use of the land for conservation purposes by DECC, but that use was opposed by the Department because of the disturbed condition of the land, emphasises that point. The placement of a large number of chickens on the land, the construction of sheds, and market gardens and by inference the use of associated fertilisers and pesticides, does not maintain the status quo of the land. The Minister's assertion that the land remained in a fit state for whatever public purpose was determined in due course is not supported by the evidence of the market garden requiring cleared land for example.

1. The Applicants submitted that the fact that the permissive occupancy was non-exclusive does not demonstrate maintenance of the claimed land, contrary to the Minister's submission. I agree with the Applicants there is no correlation between these concepts so this submission carries no weight.

1. The Applicants also submitted that the fact that that rates were paid by Mr Rakus over a long period does not assist the Minister. In the absence of the permissive occupancy, the claimed land would have been exempt from the payment of rates (s 132(1)(g) of the Local Government Act 1919 (as at 5 June 1987) provided that land owned by the Crown was exempt from the payment of rates except where it was held under a lease for private purposes which was defined in s 4 to include a licence) (s 555 of the Local Government Act 1993 is to the same effect). It was the issuing of the permissive occupancy that removed the exemption. Assuming rates were the principal expenditure obligation under the permissive occupancy there would have been no drain on public moneys of this kind if the permissive occupancy did not exist. As I held in Limbri at [94] the payment of rent under a permissive occupancy is a neutral factor, as is the payment of rates for the reason given above.

1. In the circumstances of this case the grant of the permissive occupancy for the purpose of "Bee and Poultry Farm & Garden" was not ancillary to, incidental to or in furtherance of the reservation of the land for future public requirements because the purpose is similarly private in nature and therefore not permissible given the restraint of the reservation.

Alternative position on lawfulness of permissive occupancy

1. The Minister argued in the alternative that private law principles developed in the context of contract law should be applied to the consideration of the permissive occupancy. The authorities relied on by the Minister were all directed to circumstances concerning a private law contract. These principles and authorities were to the effect that the "Court should be astute to adopt a construction which will preserve the validity of the contract..." (Meehan v Jones [1982] HCA 52; (1982) 149 CLR 571 at 589 per Mason J; Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 at 132, per Kirby P). Similarly, in Baloglow v Konstantinidis [2001] NSWCA 451 it was stated at [136]:

If there is an apparent concluded agreement the law will strive to maintain its validity, see Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd[1968] HCA 8; (1968) 118 CLR 429 at 436-7 and York Air Conditioning and Refrigeration (A'Asia) Pty Ltd v The Commonwealth[1949] HCA 23; (1949) 80 CLR 11 at 26.

1. The Minister also relied on Taluja v Australian International Academy of Education Ltd [2011] NSWCA 416 at [70] where Young JA held that a construction of invalidity of a lease (in that case for uncertainty) should be avoided "particularly in a case where the tenant has been in active possession for a number of years and has paid rent."

1. Permissive occupancies over Crown land, permitted by s 136K of the CLC Act, were granted on such terms and conditions as the Minister considered fit and were terminable at will. The CL Act makes no provision for permissive occupancies and these continue in force under the Crown Lands (Continued Tenures) Act 1989. The very different nature of permissive occupancies compared to private contracts is identified in the Applicants' submissions in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 161 per McHugh JA. His Honour stated that these were not a lease or occupation licence but a personal licence. Where the owner of land is the Crown and the mechanism by which Crown land can be used or occupied is provided for by statute it is arguable that different principles to contract law apply. Such an interest does not equate to a lease.

1. As the Applicants submitted, Goomallee identifies principles which must be applied to the consideration of permissive occupancies. In the absence of any authority or authoritative legal text which supports the Minister's position I am unable to identify any legal basis for applying private law contract principles to the construction of permissive occupancies on the basis that individual activities might be permissible. It follows that I do not accept the Minister's alternative argument.

1. The Minister is not successful in discharging the onus of proof of lawful use and occupation in issue 1.

Issue 2 - Lawfulness under the National Parks and Wildlife Act (Christmas Bush harvesting)

1. If the Court finds that the permissive occupancy is unlawful, then the Minister submitted that the harvesting of Christmas Bush over the claimed land by the Rakus family was permitted by the National Parks and Wildlife Service (NPWS) and was lawful. The evidence establishes that this was continuing at the date of the claim.

Crown Lands Act 1989 (as at the date of claim)

1. Section 7 of the CL Act provided:

This Act shall not be construed so as to affect the operation of a provision of any other Act which:

(a) makes special provision for any particular kind of Crown land, or

(b) authorises Crown land to be disposed of or dealt with in any manner inconsistent with this Act.

1. Section 155 of the CL Act relevantly provided:

(1) A person shall not, without lawful authority:

(a) reside on public land,

...

(c) graze stock on public land,

...

(e)clear, dig up or cultivate public land,

(f)enclose public land (other than a road or watercourse to which section 63 applies),

...

National Parks and Wildlife Act 1974

1. The legislation as in force when licences were issued and also at the claim date (August 2009) is identified where necessary.

Part 8 - Native plants

1. Section 113 of the National Parks and Wildlife Act 1974 (NPW Act) provided:

In this Part:

Christmas Bush means the native plant named Ceratopetalum gummiferum.

private land includes land leased from the Crown, or which is in the course of alienation by the Crown under any Act.

1. Section 116 of the NPW Act provided:

116 Restriction as to licences under Forestry Act 1916

(1) Notwithstanding anything in this Act or the Forestry Act 1916, but subject to subsection (2):

(a) the Forestry Commission shall not issue a licence for the removal of any protected native plant from any State forest, timber reserve or Crown land, and

(b) any such licence shall cease to be operative while it relates to any protected native plant.

(2) The Forestry Commission may, in accordance with the Forestry Act 1916, authorise the removal of any protected native plant from a State forest, timber reserve or Crown land if:

(a) the authorisation is subject to a condition that the removal is to be undertaken in accordance with any relevant flora plan of management in force under section 115A of this Act, or

(b) the Forestry Commission is of the opinion that the plant would be damaged or destroyed in the taking of timber, products or forest materials under, or in the carrying out of any activity authorised by, the Forestry Act 1916.

(subsection (2) introduced in 2002)

1. Section 117 of the NPW Act provided:

117 Restriction on picking or possession of native plant

(1) A person shall not pick or have in the person's possession a protected native plant.

...

(3) A person shall not be convicted of an offence arising under subsection (1) if the person proves that:

...

(b) the protected native plant was picked by the person:

(i) under and in accordance with or by virtue of the authority conferred by a licence issued under section 131 or 132C or a licence issued under the Forestry Act 1916, or

...

1. Section 132C was inserted into subsection (3)(b)(i) in 2002.

Part 9 - Licensing in respect of fauna, native plants and threatened species

1. Section 119 of the NPW Act provided:

In this Part:

private land includes land leased from the Crown, or which is in the course of alienation by the Crown under any Act.

1. Section 131 of the NPW Act provided:

131 Licence to pick protected native plants

(1) The Director-General [authorised officer up to 2008] may issue a licence authorising a person to pick the protected native plants specified therein.

(2) Despite subsection (1), a licence must not be issued under this section that authorises the picking of a plant of a threatened species unless the plant has been grown in accordance with a licence issued in under [sic] section 132.

...

(subsection (2) inserted in 2001)

1. Section 132 of the NPW Act provided:

132 Licence to grow native plants for sale

The Director-General [authorised officer up to 2008] may issue a licence authorising an owner or occupier of private land to grow upon that private land, or part thereof specified in the licence, protected native plants for the purposes of sale.

1. Section 136 provided:

136 Licences do not authorise entry etc

Where, had this Act not been enacted:

(a) the consent or permission of any person would have been required for entering any lands or doing any act on or in respect of any lands, the issue of a licence under this Part does not authorise the entering of those lands, or the doing of that act on those lands, without that consent or permission, or

(b) the doing of an act on or in respect of any lands would have been unlawful, the issue of a licence under this Part does not authorise the doing of that act.

Schedule 13 - Protected native species

1. Protected native plants are defined as those listed in Schedule 13 of the NPW Act. Christmas Bush is listed in Part 2 Group 1.

Forestry Act 1916 (as at claim date)

Part 1A - Preliminary

1. Section 4 of the Forestry Act 1916, which was repealed after the date of claim, provided:

Crown-timber lands means:

(a) land within a State forest or flora reserve,

(b) Crown lands, whether or not held under a lease or licence from the Crown and whether or not included in a timber reserve, and

...

but does not include:

(d) any Crown lands the subject of a tenure from the Crown specified or described in the First Schedule if the land the subject of that tenure has an area of 2 hectares or less, or

...

Products means:

(a) products of trees or shrubs, and

(b) vegetable growth (other than timber), of economic value.

...

Timber includes trees of any age or description, whether growing or dead.

...

Timber reserve means land temporarily reserved, before or after the commencement of this Act, for forestry purposes.

Tree means a tree of any description and includes a sapling and a seedling of a tree.

...

Part 3 - Provisions relating to the taking of timber, products and forest materials

1. Section 27 provided:

(1) A person who:

(a) on any Crown-timber lands:

(i) cuts, strips, obtains, removes, destroys or damages any timber, or

(ii) digs for, extracts, obtains, removes, destroys or damages any products, or

(iii) causes or knowingly suffers any of the things referred to in subparagraph (i) or (ii) to be done, or

...

is guilty of an offence and liable to a penalty not exceeding 50 penalty units or to imprisonment for a period not exceeding 6 months, or to both such penalty and imprisonment and where in the commission of the offence any tree is destroyed or damaged to an additional penalty not exceeding $10 for each such tree.

(2) Without limiting the generality of subsection (1), the provisions of that subsection have effect in respect of Crown-timber lands notwithstanding the provisions of this or any other Act or any terms or conditions subject to which any tenure of the Crown-timber lands is held, and where any such terms or conditions require the taking or destruction of any timber or products those terms and conditions shall be construed as imposing that requirement subject to the holder of the tenure obtaining a timber licence, products licence or clearing licence.

...

1. Section 30I provided:

Taking of small quantities of timber etc from certain lands

(1) The commission may, otherwise than by the issue of a timber licence, products licence or forest materials licence, authorise a person, in such manner and on such terms and conditions as may be determined by the commission:

(a) to take timber, products or forest materials (not having a value in excess of $400 or such other amount as may be prescribed) on or from land within a State forest, other than land set apart as a flora reserve, or

(b) to take timber or products (not having a value in excess of $400 or such other amount as may be prescribed) on or from Crown lands.

...

Evidence

1. Clause 19 of the permissive occupancy provided:

The tenant shall not interfere with any trees or saplings on the land occupied, by ringbarking or otherwise except under permits issued under the provisions of the Forestry Act and Regulations thereunder.

1. On 25 October 1965 a special lease was granted by the Department of Lands to Mr Rakus to cultivate Christmas Bush inter alia (Vol 1, Tab 4). A condition of the harvesting of Christmas Bush on the claimed land was notified on 19 May 1967 (Vol 1, Tab 5, p 8). The change of use from bee and poultry farm and garden to grazing was gazetted on 15 December 1969 with Christmas Bush harvesting continuing (Vol 1, Tab 8). On 18 December 1991 the Department granted permission to Mr and Mrs Rakus "to cultivate Christmas bush" on the claimed land until 25 December 1991 subject to them first obtaining the appropriate licence from NPWS (Vol 1, Tab 62, p.96). A Department of Lands file note on 26 October 1992 regarding Mr Rakus seeking to renew his licence to pick Christmas Bush states that since the Christmas Bush is picked not cultivated, it is not necessary to amend the licence and there are no objections to picking Christmas Bush for the duration of the permissive occupancy subject to obtaining the appropriate licence from NPWS (Vol 1, tab 67). On 18 November 1992 the Department granted permission to Mr and Mrs Rakus "to cultivate Christmas bush" on the claimed land subject to them first obtaining the appropriate licence from NPWS (Vol 1, Tab 68, p.104)

1. NPWS granted an annual licence to Mr and Mrs Rakus to cultivate Christmas Bush on the claimed land on 18 December 1991 (exhibit 2, Tab 29), 9 December 1993. I note that the licence does not state which section it was granted under but uses the language of s 131. (Vol 1, Tab 70). NPWS granted similar licences under s 132 of the NPW Act on 4 May 1994 (Vol 1, Tab 72), 14 November 1995. I note that the licence does not state which section it was granted under but uses the language of s 131 (Vol 1, Tab 86), and 19 November 1996 under s 131 and s 132 (Vol 1, Tab 88, copy at exhibit 2 Tab 29).

1. Mr Rakus stated that sometime after 1997 he went to see NPWS to apply for an annual Christmas Bush licence and understood from the conversation he had there that he did not need a licence to cultivate Christmas Bush on his land anymore (affidavit [33]). Pierre Rakus affirmed in cross-examination that he cut Christmas Bush on the claimed land in 2008 to 2010 of December each year and derived income from this (Pierre Rakus [17] - [24], TS 46).

Minister's submissions

1. NPWS issued a yearly permit from 1991 to 1997 and then ongoing permission from 1997 for Christmas Bush cutting. NPWS gave express permission for that activity as authorised under s 131(1) of the NPW Act. The lawfulness of that activity was unaffected by the operation of s 7 of the CL Act.

1. Christmas Bush and private land are defined in s 113 of the NPW Act. Section 116 of the NPW Act reveals that the Forestry Act does not apply. Section 117 states that a person shall not pick or have in his possession a protected native plant unless inter alia that authority is conferred by a licence issued under s 131. Section 131 empowers the Director-General to issue a licence authorising a person to pick specified protected native plants. Protected native plants include Christmas Bush pursuant to Sch 13, Pt 2 of the NPW Act.

1. If the Court did not favour the above construction, the Minister submitted that the Forestry Act still does not apply having regard to the objects of that Act which includes "to provide for the dedication, reservation, control, and use of State forests, timber reserves, and Crown lands for forestry and other purposes". Christmas Bush is not a tree for the purposes of the Forestry Act because it does not have one main woody stem. Extracts of the Macquarie Dictionary and Buckingham v Ryder [2007] NSWLEC 458 at [24] were referred to in order to so submit.

1. In response to the Applicants' argument that Pierre Rakus could not harvest Christmas Bush on behalf of Mr and Mrs Rakus as the holders of the authority, the Minister submitted that this argument fundamentally misunderstands agency and assignment. Clause 6 of the permissive occupancy prevents assignment of possession, sell or transfer the permissive occupancy but this does not mean that Pierre Rakus could not harvest Christmas Bush on his parents' behalf. There is no evidence that the interest was assigned and no authority has been cited for the proposition that agency is unlawful.

Applicants' submissions

1. The cutting of Christmas Bush on the claimed land was unlawful because it required authority under the Forestry Act which was not obtained. The claimed land was "Crown-timber lands" as defined in s 4 of the Forestry Act as including Crown lands not included in a "timber reserve". The definition of Crown-timber lands excluded land the subject of certain tenures identified in the First Schedule of the Forestry Act (including permissive occupancies and licences under the CL Act), but that exclusion only operated where the land the subject of the tenure was two hectares or less. The land the subject of the permissive occupancy was 8.864 ha at the time it was issued. It remains 7.791 ha at the dates of claim.

1. Section 27(1) of the Forestry Act made it an offence if a person "cuts, strips, obtains, removes, destroys or damages any timber". "Timber" was defined in s 4 to include "trees of any age or description, whether growing or dead". Christmas Bush is a "tree" for the purposes of the Forestry Act. It grows to approximately 10 metres in height (photographs of Christmas Bush at Pierre Rakus affidavit Annexure B, p 6 - 20). Section 27(1) of the Forestry Act also made it an offence if a person "digs for, extracts, obtains, removes, destroys or damages any products". "Products" is defined in s 4 as "products of trees or shrubs" and "vegetable growth (other than timber)." It is a defence under s 27(3) to the removal of timber or "products" if the person holds a timber licence or a products licence issued by the Forestry Commission. Section 27(2) of the Forestry Act also supports this construction.

1. Clause 19 of the permissive occupancy is consistent with the Forestry Commission being responsible for the management of timber resources on Crown-timber lands. The terms of s 116 of the NPW Act anticipate the dual operation of the Forestry Act, in relation to the cutting of native plants from certain lands. The Minister's reliance on s 131 of the NPW Act is also misconceived for numerous reasons.

1. In any event, the cutting of Christmas Bush was not carried out by Mr and Mrs Rakus at the date of claim. It was an activity undertaken by Pierre Rakus and is a source of his income. Mr and Mrs Rakus indicated that they ceased all involvement in the few years leading up to the dates of claim (Karol Rakus affidavit at [36]; Valda Rakus affidavit at [39]). Pierre Rakus' actions were on his own behalf and not on behalf of Mr and Mrs Rakus. The only income associated with Christmas Bush sales are his tax returns for the 2009 and 2010 financial years (Pierre Rakus affidavit at [23] and [24]. Annexure D, pp 20-48).

Christmas bush harvesting not lawful at the date of claim

1. The Minister relied on the granting of permission under the NPW Act for the harvesting of Christmas Bush as a basis for lawful use of the claimed land. At the date of claim in August 2009 there is no evidence that any permission was issued for that activity under the NPW Act. Mr Rakus held an annual licence under s 131 and/or s 132 from 1991 to 1997. Christmas Bush was identified at all relevant times as a protected native plant under the NPW Act in Sch 13. It is an offence to pick a protected native plant under s 117(1) unless the person picking the protected native plant holds a licence issued under s 131 or s 132 of the NPW Act (or a licence under the Forestry Act). Section 131 then provided that the Director General may issue a licence authorising a person to pick specified protected native plants but cannot issue such a licence unless the plant has been grown in accordance with a licence issued under s 132.

1. All that is known from the evidence of Mr Rakus is that he understood he was told by an officer of the NPWS that he did not need a licence in 1997. It is not clear why he was so informed. As the Applicants submitted, Mr and Mrs Rakus have not held a licence under s 131 of the NPW Act since 18 August 1997 (Licence PP8913 expired on 18 August 1997: Karol Rakus affidavit Tab 29, p 63). As at the date of claim Mr and Mrs Rakus were not operating under any written authority or permission under the NPW Act. Pierre Rakus has never held an authority under the NPW Act.

1. The Applicants also pointed to changes in s 131 of the NPW Act since 2001. Section 131 of the NPW Act was amended since Mr and Mrs Rakus held a licence so that it only applied to native plants grown pursuant to a licence issued under s 132 on "private land". Private land is defined in s 119 as including "land leased from the Crown, or which is in the course of alienation by the Crown under any Act" however it is not stated to include permissive occupancies or licences. There is no evidence that Mr and Mrs Rakus held a licence pursuant to s 132 since 2001. For the reasons given by the Applicants the taking of Christmas Bush as at the date of claim was not permitted.

1. The Applicants also made submissions concerning the interaction of the CL Act and the NPW Act to the effect that s 131 of the NPW Act (assuming a licence was issued under it at the date of claim, contrary to my finding above) cannot authorise activity on Crown land not otherwise authorised by s 7 of the CL Act. I agree. As the Applicants submitted, s 136 of the NPW Act supports that submission. Section 131 of the NPW Act only provides authorisation for the taking of native plants in circumstances where such takings are otherwise prohibited under s 117. Section 131 does not displace the CL Act in relation to use, occupation or entry onto Crown land. Section 136(a) of the NPW Act provides that an issuing of a licence "does not authorise entering of" the lands if a permission was required. Section 136(b) of the NPW Act provides that a licence does not authorise an activity which would otherwise be unlawful.

1. A licence issued pursuant to s 131 of the NPW Act is not covered by s 7 of the CL Act which states:

7 Relationship with other Acts

This Act shall not be construed so as to affect the operation of a provision of any other Act which:

(a) makes special provision for any particular kind of Crown land, or

(b) authorises Crown land to be disposed of or dealt with in any manner inconsistent with this Act.

1. Section 131 does not make "special provision for any particular kind of Crown land". It also does not authorise "Crown land to be disposed of or dealt with in a manner inconsistent" with the CL Act.

1. It is not therefore necessary to determine whether authorisation was required under the Forestry Act as well as the NPW Act, as the Applicants also submitted. If I had to, I would be inclined to agree with the Minister's submissions that authority under the Forestry Act is not required in addition to a licence under s 131 or 132 of the NPW Act. The terms of s 116 supports that construction as the Minister submitted.

1. The further issue raised by the Applicants was that Mr and Mrs Rakus, the holders of annual licences between 1991 and 1997, were not clearing Christmas bush at the date of claim and the Minister cannot rely on that activity as undertaken by one of their sons. I agree with the Applicants' submission that the terms of s 117 of the NPW Act suggest that only the person authorised to pick a protected native plant is not guilty of an offence. It is difficult to see how agency can work in such a statutory scheme given that the absence of a licence to pick gives rise to an offence. However, in light of my first finding above I do not need to resolve this issue.

1. The Minister is not successful in relation to issue 2.

Issue 3 - Likely to be needed for residential use (s 36(1)(b1)

1. The Minister also submitted that the land was likely to be needed for residential use at the date of claim.

Evidence

1. The chronology at par 14 - 85 provides an outline of the events relevant to this ground. The history of the land is identified in the bundle of documents tendered (Minister's volumes 1 - 5 and the Applicants' bundle). A land assessment, as provided for in s 35 of the CL Act, was conducted from August 2000 to March 2002 and concluded that suitable uses for the land in mapping area 5 where the claimed land is located were environmental protection, nature conservation and recreation. The claimed land has been zoned under the Port Stephens Local Environmental Plan 2000 (LEP) for rural use at all relevant times. Landcom had wanted to proceed with investigations into development proposals for the residential subdivision of the claimed land in a letter to Mr Wood dated 21 September 1998 (vol 2, tab 2). On 30 August 2002 Landcom advised in relation to ALC 6753 and 6754 that "none of these sites has potential for residential development and as such Landcom has no objection to the granting of these claims" (Vol 3, Tab 83, p 477).

1. Interest in buying the claimed land was expressed to the Department by Christmas Bush Pty Ltd and Mr Rakus from 2005 to 2010. The Department obtained the TPG report titled "Site analysis and potential development options assessment" dated July 2008. This identified three options for use of the claimed land of continued rural zoning, low density residential zoning and environmental protection. A valuation report from Propell was obtained by the Department in August 2008. Mr Veitch of the Department placed the claimed land on the 2008-2009 sale program in September 2008. In August 2009 Mr Tapper, land development officer 5/6, commercial Crown Lands Division, Maitland, prepared a Sale of Crown Land Submission for Approval in Principle under delegation 1D.1.2. stating the land sale would be in the 2009-2010 program. ALC 19559 was lodged. The submission was signed by Mr Wood (Team Leader, Commercial Crown Lands Division, Central Coast/Hunter Region) on 24 August 2009 and by Mr Veitch (Programme Manager Commercial Central Coast/Hunter Region) on 28 August 2009. It was sent to Mr Phillips (Regional Manager, Central Coast/Hunter Region) who approved in principle alienation actions on 8 October 2009. On 8 February 2010 the Minister's then delegate (Mr Graham Harding) approved a private treaty sale as the preferred option for the disposal of the claimed land, with open market sale as the second option. A sale to Christmas Bush Pty Ltd was agreed. The Minister refused ALC 19559 and ALC 23901 on 26 July 2010. The sale did not proceed when knowledge of these land claims became known.

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.

1. In Berowra CA the Minister sought to rely on the managing director of Landcom as an authorised agent forming by inference the necessary opinion under s 36(1)(b1). That person was not within the Minister's department. The conclusion of the trial judge that the Carltona principle did not apply to that person was upheld in the Court of Appeal. The exercise of ministerial delegation and operation of the Carltona principle was considered by Basten JA at [56] - [70] recognising that the principle applied in many different ways. At [60] his Honour referred to Peko-Wallsend at 37-38 where Mason J stated at 38:

The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him.

1. Basten JA identified in Berowra CA at [63] that it had been accepted in Nambucca (No 2) that the Minister need not hold the opinion personally but it was sufficient if a relevant officer within the Minister's department, having an appropriate degree of seniority, held the relevant opinion. Basten JA identified that as the power of delegation does not arise under the ALR Act as the Crown Lands Minister does not administer that Act, the delegation power is under s 180 of the CL Act, at [64]. At [65] Basten JA identified that a matter which could arise but was not debated before the Court was the construction of s 180 of the CL Act as that section did not confer power on the Crown Lands Minister to delegate the holding of an opinion under the ALR Act. No power of delegation is conferred on the Crown Lands Minister in relation to the holding of an opinion under the ALR Act.

1. Macfarlan JA in Berowra CA at [128] stated that whether the legislative intent was that the relevant opinion referred to in s 36(1)(b1) must be formed by the Minister personally was the starting point of statutory construction, identifying also the application of the Carltona principle where departmental officers' actions are relied on. An obiter view was expressed at [133]:

...There is not in my view any reason why the authority [from the Minister] need take any particular form (such as, that it be in writing) to be effective. The point of significance to this case is that if the relevant Government officer is outside the minister's department, some basis for inferring or finding a conferral of authority, other than the departmental structure, must be found. None existed in the present case. ...

1. I see no reason to depart from my reasoning in Hillston that the Minister need not have personally formed the opinion under subsection (1)(b1). To the extent this issue was considered in obiter in Berowra CA the findings of Basten and McFarlan JJA that a Crown Lands Minister can rely on the actions of departmental officers to discharge his or her onus of proof set out above support my finding. Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, 5th ed (2013) Thomson Reuters, states at [6.150] that "Carltona is essentially an interpretive principle, which can therefore be overcome by express words or by implication." There are no express words or words giving rise to an implication in the ALR Act or the CL Act that overcome the application of the Carltona principle. Further, the practical necessity for such an approach is highlighted in Nambucca CA by Basten JA at [34] where he observed that a Crown Lands Minister has no knowledge of if or when a land claim might be made to inform him of the necessity of delegating the function of forming his or her opinion under s 36(1)(b1) of the ALR Act. As already identified in par 244, in Berowra CA Basten JA at [65] further observed (in obiter) that there was no statutory mechanism allowing for delegation of the subsection (1)(b1) function under the ALR Act by the Crown Lands Minister under s 180 of the CL Act. If the Applicants' case is accepted, the Minister could rarely if ever rely on subsection (b1). Even adopting a beneficial approach to the construction of the ALR Act, that outcome cannot be what Parliament intended in including subsection (1)(b1) in s 36.

1. The Carltona principle applies to the carrying out of Ministerial functions by departmental officers based on recognition of the necessity for those powers and functions to be carried out by departmental officers. This principle is well entrenched in Australian law as recognised in Peko-Wallsend. The challenges which the Minister may face in discharging that onus are highlighted by the last sentence of Basten JA's findings in Nambucca CA at [35] above.

1. A Crown Lands Minister can also rely on explicit delegations held under the CL Act by officers of the Department, as identified in the Minister's submissions, as part of a factual matrix the Minister may rely on in order to establish that the relevant opinion that the land was needed or likely to be needed as referred to in s 36(1)(b1) was held by a departmental officer or officers with relevant powers and functions delegated under the CL Act. Here, the Minister relies on exercise of the power of sale of Crown land under s 34 of the CL Act.

1. It is open to the Minister to demonstrate that the necessary opinion that the claimed land was likely to be needed as residential land was held by an officer or officers in the Department at the claim date. It remains to be determined whether the Minister has discharged the onus of proof of doing so. There is no express opinion of an officer of the Department referring to s 36(1)(b1) stating expressly that the land is needed or likely to be needed for residential land. In light of the observations above that there is no provision for delegation of powers of the Crown Lands Minister under the ALR Act to be delegated that is not surprising. The question whether the requisite opinion existed by inference is a question of fact to be determined by the circumstances relevant to when the claim was made (Nambucca (No 2) per Jagot J at [72]; Nambucca CA Basten JA at [33] and Hillston at [94]).

1. It is useful to return to Nambucca (2009) where Basten JA stated at [36], [37] and [40]:

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].

...

40 Some care must be taken in transferring language used in one factual context to another. ... 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.

1. The Minister relied on Tongarra Gap (No 1) where the Court of Appeal (Hodgson, McColl and Basten JJA) considered the question of whether land was needed or likely to be needed for an essential public purpose under s 36(1)(c), there nature conservation. That subsection does not refer to the existence of a subjective opinion of a Minister and is not as directly applicable as Nambucca CA where the Court of Appeal was required to directly consider subparagraph (b1).

1. In Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 20; (2001) 113 LGERA 163 (Wanaruah) the Minister refused part of the land claim because it was needed or likely to be needed for residential lands under s 36(1)(b1). The land was zoned residential, however this was held not to be conclusive of need or likely need on its own (at [14]). Lloyd J held that:

... the evidence regarding LandCom's view relating to the subject land does not demonstrate a clear opinion that the subject land was likely to be needed as residential land at any particular time in the future. The executive government in 1983 had specifically deferred any further activity leading to development of the land; and nearly 10 years later, at the date of the claim, there was no indication that the residential development plan was ever going to be implemented. LandCom did not undertake any further planning in relation to the land and refused to contribute to construction of fire roads, which indicates a deliberate "hands off" policy. I conclude that the relevant authority of the executive government, LandCom, did not hold an opinion that the land was likely to be needed at any reasonably foreseeable time in the future.

1. In Awabakal Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 124 (Awabakal) s 36(1)(b1) was relied on by the Minister in resisting a land claim. I held that the evidence as a whole did give rise to the inference that an opinion was formed on behalf of the Minister at the relevant time that land was needed for residential development. Prior to the date of claim, an officer acting directly on behalf of the Minister agreed to "commit the area to Landcom use", at [24] and [60]. The claimed land had been "identified and listed in the Department of Planning's Lower Hunter Urban Development program" and was largely zoned residential at [23].

1. In Nambucca (No 2) a development application for residential development had been lodged "on behalf of the Minister" and been approved subject to conditions. The development application had not lapsed prior to the claim being lodged. Jagot J held (at [108]) that the development application was not a presumptive answer as to whether there was an opinion that land was needed or likely to be needed as residential land. The factors that contributed to the conclusion that the relevant opinion was not held included that the Department was aware the land had significant constraints, there were other parcels of land available for development, and the land had been taken off the homesites program (Nambucca (No 2) per Jagot J at [109] - [120]).

1. In Hillston I held that there was no evidence which gave rise to the inference that an opinion was formed by anyone within the Department acting under delegation that the claimed land was needed or likely to be needed for residential use (at [126] - [128]). The claimed land was largely zoned non-urban (at [16]). The evidence suggested only that the council believed that it required more land to satisfy future demand for residential development in Hillston and considered that the claimed land was suitable for that purpose. Over 17 years it took steps to acquire the claimed land and other lands in Hillston (at [115]). The Department on behalf of the Minister did not initiate any action to dispose of the claimed land. Rather it acquiesced in what the Council sought. There was no evidence that the council's desire to acquire the land resulted from a need for it to meet future demand for residential development in Hillston (at [116]). Further there was no evidence that the Minister or his Department had the same intention or desire as the council in relation to future use of the claimed land or that anyone formed the particular opinion that the land was needed or likely to be needed for that purpose (at [117]).

1. In Berowra CA (at first instance New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 241 (Berowra LEC)) the land was zoned for urban residential purposes, at [55]). Landcom had an interest in the claimed land and an ecological sustainable development study was conducted. Subsequently some of the land was zoned open space, Landcom withdrew its interest in some of the land and some of the land was returned to the Department of Land and Water Conservation for dedication as public reserve (at [72]). The Minister for Lands was not involved in decisions about the land until after the land claims were made (at [141]). The Court of Appeal (Hodgson, Basten and Macfarlan JJA) dismissed the appeal against the finding at first instance that no opinion existed at the date of claim that the land was needed or likely to be needed for residential land (at [99]).

1. The Applicants' submission that likely need for residential land should be objectively determined as a means of testing whether the relevant opinion was held is contrary to the wording of subsection (1)(b1) and Nambucca in the Court of Appeal at [63] where Basten JA held that what is required is a finding of whether the existence of an opinion could be inferred from a consideration of the facts. I observe that it can appear a fine line in the cases outlined above between considering the objective facts informing the existence of a subjective opinion rather than (impermissibly) considering as a matter of fact whether there is objectively a need for residential land. It is trite but necessary to observe that each case must be considered on its own facts.

1. As Jagot J observed in Nambucca (No 2) at [106], there is no statutory process at state government level required for the development of Crown land as residential land in contrast, for example, to the creation of a national park. For local government the Environmental Planning and Assessment Act 1979 provides a process for zoning of land for certain purposes such as residential and its identification in environmental planning instruments. There is therefore no precise statutory process by which to assess the actions suggesting formation of the relevant opinion by a particular person or persons having relevant authority within the Department. That is a question of fact that must be determined on the evidence. For the Minister to succeed the Court must be satisfied that under the Carltona principle an officer or officers carrying out relevant departmental functions to sell the claimed land held the opinion that the land was likely to be needed for residential land in August 2009. Likely means a real or not remote chance of the land being required (needed or wanted) for residential land.

1. The Minister relied on the actions of various officers, Messrs Tapper, Wood, Veitch and Phillips, in pursuing a sale of the claimed land up to and during August 2009 with the expectation that the land would be developed for residential purposes. The various steps taken by officers in the Department in relation to the claimed land and their seniority is outlined in their affidavits and summarised above at par 168, 170, 171, 188, 190 -192. Powers under s 34 (sale of Crown land inter alia) and s 36(1) (imposition of conditions in a contract of sale) of the CL Act have been delegated as outlined in the Minister's submissions above at par 232 including Part 2D.1.1, Part 3D.1.1 and 1D.1.2. All officers held delegations of functions under s 34 of the CL Act. The limit on the formal delegation of the decision to sell Crown land placed that function at the level of Regional Manager CL NSW, Mr Phillips at the date of claim (and later Mr Harding, after the date of claim).

1. The Minister can rely on the actions of Messrs Tapper, Wood, Veitch and Phillips in light of their respective increasingly senior roles before and very shortly after the date of claim in August 2009. The Applicants submitted that the officers' actions pursuant to delegations could not be enlarged to form an opinion about the reasons why the land is being sold but given my conclusion above in relation to delegation and that the Carltona principle operates I consider that they can. The departmental officers were carrying out functions under the CL Act. Provided they are sufficiently senior, their actions can give rise to an inference of the holding of an opinion on the Minister's behalf. The obiter comments of Macfarlan JA in Berowra CA at [133] suggest that provided officers are acting in accordance with their duties in the Department, whether they are acting under a specific delegation is not necessarily material to whether they are acting with requisite authority. In this case the disposal of the land by way of sale leading up to the date of claim results in the focus on the delegations related to that function under s 34 of the CL Act.

1. The approach from Mr Future to the Department in 2007 about a sale of the land to his company, the earliest approach being in 2005, related to development of the land for residential use. That is clear from Mr Future's affidavit which identifies his intentions to develop the land for residential purposes. Mr Wood in a file note prepared in 2007 of a conversation with Mr Future about the disposal of lot 3542 noted that Landcom was interested in a joint venture and the Council considered rezoning was appropriate. The history of Landcom's interest in the land is identified in the evidence. Having had some interest during the period 1998 - 2002, Landcom did not have any further interest in developing the land after 2002.

1. Mr Veitch stated in a departmental email in September 2008 that the urban expansion of Nelson Bay was being monitored and he considered the claimed land had been earmarked by both the council and a private developer as being required for urban development as part of the urban expansion of Nelson Bay. I infer that Mr Veitch meant residential development. The purchase of the claimed land for an ambulance site was rejected by the Department in May 2009 because the land was under investigation for disposition as a residential development site according to Mr Veitch and Mr Wood. The same view about the potential use of the land, expressed as urban expansion, was identified to DEC in March 2009 and on several other earlier occasions when these departments were negotiating about the appropriate use of the land.

1. The Sale of Crown Land Submission recommending sale of the claimed land by private treaty prepared in about August 2009 by Mr Tapper accepted the ERM report identifying that:

Preferred Land Use - in consideration of the aforementioned factors, it is evident that urban development is a justifiable and appropriate land use. Residential development of Lot 3542, being one of the last remaining recognised regional residential sites at Nelson Bay, will assist in meeting settlement outcomes contained within government's Lower Hunter Regional Strategy document.

1. This was signed by Mr Wood on 24 August 2009 a few days after the land claim was lodged on 20 August 2009. Broadly speaking events after the land claim date are not to be considered relevant, although there are recognised exceptions to that (see Housing Commission (NSW) v Falconer [1981] 1 NSWLR 547 at 558B per Hope JA). Where actions are very close to the claim date and taken without knowledge of the land claim, as in this case, they can be considered as relevant. Mr Veitch signed the memorandum on 28 August 2009. The process for disposal of the land by sale was largely contemporaneous with the land claim. Mr Phillips who held the relevant delegation to approve the sale of the land under s 34 did not formally approve the sale in August 2009 by signing the memorandum because he was aware of outstanding earlier land claims. That the final decision to sell the land was made by Mr Harding, General Manager, after the date of claim on 8 February 2010 does not alter the evidence of whether or not at the date of claim the inference arises that the relevant opinion was held by Messrs Tapper, Wood, Veitch and Phillips.

1. Mr Veitch, Programme Manager Commercial Central Coast/Hunter Region, and Mr Wood, Team Leader Commercial Crown Lands Division Central Coast/Hunter Region, expressed views about the likelihood that the land would be used for a residential development site and for urban development or expansion near Nelson Bay before the claim date. As the Minister submitted, there is no basis for ignoring these statements because the words urban expansion rather than residential development were used. I discuss further why this is so in later paragraphs in relation to Christmas Bush Pty Ltd.

1. Given the clear statements of opinion on several occasions in the Department's files about the potential for use of the land for urban development and its likely need for the expansion of Nelson Bay meaning, I infer, residential development, there is less need to consider than in other cases I have reviewed above the objective circumstances relevant to assessing whether an opinion had been formed. That observation is pertinent to the Applicants' extensive submissions on the evidence summarised above at par 204 - 228. These were directed essentially to the Council's position in relation to the claimed land and the actions of Christmas Bush Pty Ltd. The Applicants submitted that there could be no inference that an opinion was formed as the land was not zoned for residential use, not identified in any relevant Council or State level planning strategies for residential use at the claim date and the disposal was to raise revenue with no guarantee the land would be used for residential land as the planned sale to Christmas Bush Pty Ltd was unconditional.

1. As the Applicants submitted, the circumstances of this matter differ from those in Awabakal as the claimed land here was not identified in any residential lands strategy or planning instrument such as the LEP at local (council) level or the Lower Hunter Regional strategy or other regional (Department of Planning/Minister for Planning) level document. The relevant documents are identified above at par 226 - 227. Development of the land for residential use required a rezoning application to the Council and none was made by the claim date by anybody. Mr Broyd states that he supported the development of the claimed land for residential purposes because of the highly limited land supply within the Port Stephens area (Broyd affidavit [20](a)). At the time of first meeting with Mr Future in 2007 Mr Broyd held the view, and still holds the view, that the claimed land should be considered under the relevant planning laws and policy framework for potential residential development purposes (Broyd affidavit [25]). The Minister submitted that this was affirmed in cross-examination and re-examination. While that is correct, I consider his position after cross-examination was neutral in that he did not provide an opinion on the likelihood of the land being rezoned for residential use. It was possible the land would be considered for that use at some stage in the future.

1. The fact that a local government body, a council, (see Hillston) or Landcom (Berowra LEC per Sheahan J at [139]-[141]) held an opinion that land was needed or likely to be needed for residential land is insufficient to discharge the Minister's onus under subsection (1)(b1). In this case the Applicants relied on the absence of interest by the Council in the claimed land for residential use at the claim date to support its position. That the claimed land is not identified in the Lower Hunter Regional Strategy or the Council's Community Settlement and Infrastructure Strategy dated April 2007 can be noted but I do not think takes the matter any further for the Applicants. I consider this approach potentially strays into second guessing the opinion of the departmental officers. As already identified, the Court's role in relation to subsection (1)(b1) is not to determine objectively whether the land was needed or likely to be needed for residential land. The evidence suggests the consideration of the claimed land by the Department was at a local rather than the wider council area or regional level.

1. The proposed sale to Christmas Bush Pty Ltd was unconditional. As the Minister submitted, whether more protection could have been provided in the contract of sale to ensure use of the land for urban development (debateable given that it was not then zoned for that purpose) or the permissibility of such development under relevant planning instruments are not relevant to the existence of the opinion being held in the Department by relevant senior officers.

1. That the sale process to Christmas Bush Pty Ltd suggested that a motivation in the Department was a sale within a particular financial year to ensure a return to the NSW Treasury in accordance with advice to that effect given by the Department does not undermine the inference of the formation of the relevant opinion. The reason a private sale to the neighbouring owner was preferred was the likelihood of a good return because the prospective purchaser was interested in residential development of the land. Mr Wood confirmed in oral evidence that the TPG report and the Propell report were prepared to value the land by identifying what would constitute the highest return to the State. On the basis that the land would not be rezoned for residential use before sale the highest return was to the neighbouring owner, who was prepared to pay a premium in recognition of its development potential. As the Minister submitted, that a disposal process is by private sale is irrelevant to the question of whether an opinion was formed by departmental officers.

1. The intention of a private development company Christmas Bush Pty Ltd to develop the land for residential development alone does not assist in determining whether an officer in the Department held the necessary opinion that the land was needed for residential land. That fact informs the circumstances surrounding the decision-making in the Department. The evidence discloses that the reason why Christmas Bush Pty Ltd was interested in purchasing the land was the possibility of developing the land for residential purposes in conjunction with land the company owned next door. I infer that caused officers in the Department to consider what the options for the land were. Christmas Bush Pty Ltd's interest does inform the use of the term urban expansion in the Sale of Crown Land Submission prepared by Departmental officers as intending to refer to residential development. I do not agree that so concluding is inconsistent with the correct approach that exceptions to claimable Crown land be narrowly construed as the Applicants submitted. While urban uses can theoretically include commercial, industrial and recreation uses, in the circumstances of this case, which reflect a largely localised consideration of lot 3542 in Nelson Bay by the Department, urban development encompasses residential use in particular.

1. The commercial interest in the land of the neighbouring land owner enabled the Department to obtain a good return for the land. That they concluded a private sale to the neighbouring landowner was preferable I do not consider undermines the existence of an opinion being held at the relevant date. As the Minister submitted, that the sale process pursued was intended to obtain maximum return in a short time frame does not affect whether the relevant opinion should be inferred to be held by departmental officers.

1. I consider the Minister has discharged her onus of proof on the balance of probabilities that the evidence gives rise to the inference that the opinion that the claimed land was likely to be needed for residential land was held by relevant officers in the Department at the date of claim. The exception in s 36(1)(b1) applies and the land is not claimable Crown land. This appeal, which relates to two land claims, should be dismissed in light of that finding.

1. It is unnecessary to consider the remainder of issues (4 and 5) based on essential public purpose identified by the Minister. The application will be dismissed and costs reserved.

Orders

1. The Court makes the following orders:

(1)   The application is dismissed.

(2)   Costs reserved.

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Amendments

04 February 2014 - typographical error

Amended paragraphs: 187

Decision last updated: 04 February 2014