New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) (No 3)

[2015] NSWLEC 145

Land and Environment Court

New South Wales

Medium Neutral Citation:	New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) (No 3) [2015] NSWLEC 145
Hearing dates:	17, 18 August 2015
Date of orders:	04 September 2015
Decision date:	04 September 2015
Jurisdiction:	Class 3
Before:	Pain J
Decision:	See paragraph [53]
Catchwords:	ABORIGINAL – aboriginal land rights claim – remitter from Court of Appeal – whether part of claimed Crown land required for essential public purpose of drainage
Legislation Cited:	Aboriginal Land Rights Act 1983 ss 36, 42B Conveyancing Act 1919 s 88K Local Government Act 1993 ss 59A, 733
Cases Cited:	Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800 Coffs Harbour and District Local Aboriginal Land Council v Minister administering the Crown Lands Act [2013] NSWLEC 216; (2013) 199 LGERA 372 Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 180; (2006) 149 LGERA 162 Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 68 Housing Commissioner (NSW) v Falconer [1981] 1 NSWLR 547 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] [2001] NSWCA 28; (2001) 50 NSWLR 665 Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289; (2009) 168 LGERA 71 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 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 Act [2014] NSWCA 377; (2014) 88 NSWLR 125 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) [2013] NSWLEC 148; (2013) 198 LGERA 122 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) (No 2) [2015] NSWLEC 71 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Newcastle Post Office Claim) [2014] NSWLEC 72; (2014) 204 LGERA 1 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 New South Wales Aboriginal Land Council v Minister for Natural Resources (The Tredega Claim) (1986) 59 LGRA 318 NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18 Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 20; (2001) 113 LGERA 163 Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 72 LGRA 149
Category:	Principal judgment
Parties:	New South Wales Aboriginal Land Council (First Applicant) Worimi Local Aboriginal Land Council (Second Applicant) Minister Administering the Crown Lands Act (Respondent)
Representation:	Counsel: Mr M Wright (Applicants) Ms V McWilliam (Respondent)   Solicitors: Chalk & Fitzgerald (Applicants) Crown Solicitor’s Office (Respondent)
File Number(s):	30913 of 2010

Judgment

Remitter from Court of Appeal – Crown land claim under Aboriginal Lands Rights Act

1. These proceedings have been remitted by the Court of Appeal following New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2014] NSWCA 377; (2014) 88 NSWLR 125. The Court of Appeal directed that the Land and Environment Court “consider and determine any outstanding issues raised by the application filed on 12 November 2010”.

2. I thank Acting Commissioner Davis for her further assistance in this matter.

3. Consistent with my decision in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) (No 2) [2015] NSWLEC 71, the remaining issues to be determined are:

1. Whether part of the claimed land was needed or likely to be needed for an essential public purpose (within the meaning of s 36(1)(c) of the Aboriginal Land Rights Act1983 (NSW) (ALR Act) of drainage overflow; and if so,

2. whether in accordance with s 36(5A) of the ALR Act any essential public purpose would be met if the claim were to be granted in whole subject to the imposition of a condition and the nature of any such condition; and

3. the form of any consequential orders.

4. On 24 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 ALR Act. The land is lot 3542 in DP 1044499 (the claimed land). On 18 January 2010, New South Wales Aboriginal Land Council (NSWALC) (Applicant) lodged ALC 23901 over the same land. The area of the claimed land is 7.791 hectares.

5. At issue is whether the Court should grant the Crown land lot 3542 sought in land claim ALC 19559 subject to an easement as provided for under s 36(5A) of the ALR Act generally in accordance with an area indicated on a map attached to a facsimile from Mr Loomes council officer dated 28 November 2002 to the Department of Lands. The map shows a 10 m wide access corridor on the western side of lot 392 and a semicircle with a 30 m radius from the southern boundary of lot 392. A council stormwater detention basin is located on lot 392.

Aboriginal Land Rights Act 1983

6. Relevant sections of the ALR Act follow:

36   Claims to Crown lands

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

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

…

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

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

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

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

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

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

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

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

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

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

…

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

(6) An Aboriginal Land Council may appeal to the Court against a refusal under subsection (5) (b) of a claim made by it.

(7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council.

…

42B Appropriation or resumption of Aboriginal land

Despite anything in any Act, land vested in an Aboriginal Land Council must not be appropriated or resumed except by an Act of Parliament.

7. The date of the claim the subject of these proceedings is 24 August 2009. That is the relevant date to assess whether the part of the Crown land claimed was needed or likely to be needed for an essential public purpose, per New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 at 691F. The Minister Administering the Crown Lands Act (the Minister) bears the onus of proving the Crown land is not claimable under s 36(7) of the ALR Act including the establishment of preliminary facts and inferences to the satisfaction of the court: Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 (Bathurst (CA)) at [202] per Basten JA.

8. The ALR Act is remedial and beneficial legislation enacted to address the injustice and loss suffered by Aboriginal people through losing their land after white settlement by giving their representatives rights in Crown land: Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157 per Kirby P; Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 20; (2001) 113 LGERA 163 at [97]-[98] (Wanaruah); Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 180; (2006) 149 LGERA 162 at [14]-[15]. Given that beneficial purpose, exceptions to the right to claim Crown land should be narrowly construed: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] [2001] NSWCA 28; (2001) 50 NSWLR 665 (Maroota No 2 (CA)) at [53]-[54] per Spigelman CJ; NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18 at [21] and [25] per Mason P with whom Tobias JA agreed.

9. A lengthy chronology of the dealings with the land was outlined in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act(Nelson Bay) [2013] NSWLEC 148; (2013) 198 LGERA 122 (Nelson Bay (No 1)) at [14]-[85]. This will be referred to as needed later in the judgment.

Additional evidence relevant to drainage

10. The parties relied on volumes 1, 4 and 5 of the Minister’s tender bundle, which formed part of exhibit 1 at first instance.

11. Following representations by Port Stephens Council (the Council) over several years, on 20 December 1971 the Department of Lands (the Department) recommended that the Council be required to accept subject to conditions a permissive occupancy for an area of 100 feet by 100 feet withdrawn from lot 354 for the purposes of drainage.

12. The Minister of Lands approved the grant of a permissive occupancy to the Council from 25 August 1973 for the purpose of drainage of stormwater. The Council’s permissive occupancy was excised from the permissive occupancy over lot 354 of Mr K Rakus and Mrs V Rakus and given the new lot number 392. The approval attached a survey map dated 29 September 1972 showing the area of the permissive occupancy of 2,667 m². Lot 392 adjoins Tallean Road for a distance of 9.145 m. The permissive occupancy was subject to standard and special conditions. Special condition (b) provided:

(b) Should the area, the subject of this Permissive Occupancy prove inadequate for the suitable seepage of stormwater discharging onto the area, the tenant will be required to excavate a seepage sump of such dimensions that will ensure suitable seepage. Should such a drainage sump be required to be excavated, the tenant shall erect a 6’ high chain wire fence with a suitable number of barbed wire strands on top. No excavated material shall be removed from the site.

13. On 14 March 1974 the Council wrote to a developer Wandanian Limited concerning a compensation claim brought against the Council by Mr K Rakus for damage caused by stormwater overflow onto the claimed land. Mr K and Mrs V Rakus then held a permissive occupancy over the land. The Council stated Wandanian should bear the responsibility as that damage would have been avoided if Wandanian had promptly carried out its obligation of constructing a soakage pit.

14. On 9 November 1994 Mr K Rakus wrote to the Department asking to purchase lots 354 and 392. He stated that “[p]ortion 392 was excised from the area about the 24 August 1973 for the purpose of drainage. It is understood that it is no longer required for this purpose”.

15. On 24 March 1995 the Department asked relevant authorities, including the Council, to comment on Mr K Rakus’ sale proposal. The Council replied to the Department by letter dated 22 August 1995 which stated:

Council is in receipt of your [the Department’s] letter dated 24 March concerning P.O. 1983/83 and P.O 1973/28 and their possible alienation. Portion 392 held by Council is a stormwater retention basin and as such must have a discharge point in extreme wet conditions.

Your Office and Mr Rakus have been aware of this in the past and Council requests the need for a discharge flow path to be considered prior to any alienation.

…

Please accept the late information from Council.

16. On 6 July 2002 Aboriginal Land Claim (ALC) 6754 was lodged over lot 354. In its letter to the Department dated 7 November 2002 the Council objected to ALC 6754:

Further to your [the Department’s] letter of 12 August 2002 requesting Council advice in relation to the land the subject of this claim (namely Lot 254 DP 753204 being part Reserve 56146 from Sale or Lease Generally Notified 11 May 1923 held under Permissive Occupancy 1986/83 Newcastle), Council makes the following comments:

While Council does not have any drainage infrastructure on this land, the adjacent land (on which Council’s drainage detention pond is situated) uses a small part of this land as an overflow from the detention pond. Council requests that its legal right to drain overflow onto the subject land from the detention pond road be maintained.

The area is not considered as being required for future recreational use based on the location, topography and access to the site. Council already has in place extensive land banks of public open space within this catchment to meet future community needs.

17. A facsimile from Mr Loomes council officer dated 28 November 2002 to Mr Dowse, departmental officer, identified an instance when the detention pond overflowed:

The detention pond overflowed in 1990 (I think) and eroded up to 2m deep to the western side [sic] of the lease land. The soil was carried onto the flat land at the bottom of the steep land and spread out over the ground for about a 30 radius [sic]. We used a dozer to push some of it back into the eroded areas and hauled in more sand for the higher end up near Tareebin Rd.

I think we should retain a 10 m strip along the western boundary to the lease and a 30m radius of land at the bottom of the slope incase [sic] the pond overflows and erodes a gully again.

Attached to the facsimile was a map of lots 354 and 392, and adjoining properties, on which a 10 m wide strip and a semicircle with a 30 m radius that Mr Loomes had recommended the Council retain was hand drawn (the basis of the area of the easement sought in this claim).

18. Landcom expressed interest in developing lot 354 between 1998 and 2002. On 30 August 2002 Landcom advised in relation to 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".

19. On 4 September 2002 lot 354 was divided into lots 3541 and 3542 (claimed land), with 3541 being used for electricity substation purposes.

20. On 21 October 2003 the Land Access Hunter region manager of the Department wrote to the Aboriginal Land Claim Investigations Unit recommending that ALC 6754 be refused. That document attached a map marked diagram “C” of lots 354 and 392, and adjoining properties, which showed in blue hatching the 10 m wide strip and a semicircle with a 30 m radius identified by Mr Loomes. The Department addressed ALC 6754 in the context of drainage overflow and stated (bold in original):

Port Stephens Council advised that a drainage detention pond mentioned in Criteria 3 overflows onto the area shown by blue hatch, Diagram “C”.

Field inspection verified that the drainage pond is an important piece of infrastructure adjacent to a large residential area to the north.

Use of the additional land as an overflow is not authorised & a survey is required to define boundary of site.

The pond is sited on top of a sandhill and any overflow naturally moves down slope. Substantial amounts of water are involved & remedial work re gully erosion etc has been carried out on the land in the past.

Council is concerned that ongoing use of the drainage pond could be threatened unless it is authorised to use the land affected by overflows and effect remedial works when required.

The land was identified in about 1990 as an area of concern for council but if it was retained in Crown ownership was not considered to be a problem. The advent of a land claim has brought the matter to a head.

In light of available information, it is accepted that a small area of land is needed for drainage overflow and this part of the claim should be refused accordingly.

The issue of conditional grant (ie creation of easement) can be investigated further by ALC Investigations if the case for essential need is considered proven. However, in light of recommendations to refuse claim under other criteria, the creation of an easement (or addition to PO 1973/28 Newcastle) could be pursued at District Office level.

Under this criteria, the land shown by brown colour & blue hatch, Diagram “C” is not claimable.

21. In March 2009 the position of Department of Environment and Climate Change (DECC) concerning inclusion of the claimed land in the adjoining Tomaree National Park was that it preferred “the land to be transferred”. Subsequently, the Department and DECC agreed that the land would not be included in Tomaree National Park subject to the Department entering into a conservation agreement.

22. On 24 August 2009 WLALC lodged ALC 19559 (current claim) over lot 3542. On 8 December 2009 the Minister refused ALC 6754.

23. 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".

24. On 20 May 2010 the an officer within the Department wrote internally to the Aboriginal Land Claim Investigations Unit in the Department recommending that the current claim, ALC 19559, be refused. That document attached a map marked diagram “A” that showed in blue hatching the 10 m wide strip and a semicircle with a 30 m radius identified by Mr Loomes, see above par 17. Concerning drainage, the Authority stated (bold in original):

(ii) The part shown by blue shading – Port Stephens Shire Council

Council has advised that a drainage detention pond constructed within Lot 392 DP753204 and serving ‘Salamander Estate’ residential subdivision to the north of the claim land, overflows and encroaches on Lot 3542.

Development of Lot 3542 would jeopardise Council’s ability to adequately maintain the detention pond, drainage overflow area and associated remedial works. Consequently Council will require an ‘Easement to Drain variable width’ for protection of infrastructure located on Lot 392.

It is considered a need or likely need for an essential public purpose of drainage (detention pond and overflow) has been demonstrated, notwithstanding the easement acquisition by Port Stephens Council remains to be finalised by Maitland District Office.

Under this criteria, the land shown by blue shading at Diagram “A”, is not claimable.

25. On 18 January 2010 the NSWALC lodged ALC 23901 over the same land as ALC 19559. On 16 July 2010 the Minister refused ALC 19559 and ALC 23901.

26. The Applicants relied on a document entitled “Sale of Crown Land – Submission for Approval in Principle Under Delegation 2D.1.1” which was exhibited to the affidavit of Mr Wood (exhibit 3), acting senior manager at the Department, affirmed 22 September 2011. The submission recommended the sale of lot 3542 and was signed by Mr Wood on 24 August 2009 and recommended for approval by Mr Veitch, Departmental programme manager commercial who signed on 28 September 2009. The submission relevantly stated (bold in original):

Analysis:

The site analysis prepared by The Planning Group reinforces issues raised in the land assessment and ERM [Environmental Resources Management] report: -

…

stormwater design to include containment of potential runoff from any future development;

…

Option 1(a) – Direct Private Treaty Sale to Adjoining Landholder

… rezoning of the amalgamated parcels provides low density residential development opportunity, the added or enhancement value being significantly increased as:-

…

rezoning will increase site potential twofold, including added benefit of a developer being able to dedicate open space in lieu of Section 94 Open Space monetary contribution. The open space areas have added advantage of providing storm water retention basins and fringe conservation areas.

estimated likely yield is increased from 30 to 75 low density residential allotments considering the issues of storm water retention, asset protection zones, threatened species and supplementary koala habitat may be incorporated in an approved Plan of Management (PoM).

27. 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".

28. The Applicants relied on the affidavit of Mr Future, secretary of Christmas Bush Property Management Pty Limited, sworn 4 September 2011. Around 21 July 2004 Mr K Rakus and Mrs V Rakus sold the land comprising lot 3551 adjoining the claimed land to Christmas Bush with settlement proposed on 21 July 2005. In the following years Mr Future expressed to the Department Christmas Bush’s interest in purchasing the claimed land. Mr Future understood from his meeting with the Department on 3 March 2010 that the Department had agreed to sell the claimed land to Christmas Bush for $1.1 million. Mr Future received a letter on 1 November 2010 from the Department stating that if there was no appeal of the Aboriginal land claims or further claims then contracts for the purchase of the claimed land could be exchanged. The Applicants relied on the cross-examination of Mr Future at first instance (TS 22/04/13, p 61.39-62.30):

Q. You’re aware also of course that there is a drainage lake or pond owned by the council known as portion 392, towards the north of the claimed land?

A. Yep.

Q. In your negotiations with the Department of Lands in 2009 was it ever suggested to you that any part of the claimed land, being portion 3542, adjacent to the council’s retention pond would be withheld from the sale because it was required for drainage overflow?

A. We knew that that piece of land would possibly have always been required, but on discussion with one of the engineers—

Q. Sorry, could you please answer my question?

A. Okay.

Q. When you were negotiating with the Department of Lands for the purchase of portion 3542 did anybody from the Department of Lands suggest to you that any part of port 3542 would be reserved from sale, taken out of the sale, because it was needed for drainage overflow in that location?

A. Only that it was already taken out.

Q. That’s the existing portion 392?

A. Yeah.

Q. Did anyone from the Department of Lands suggest to you that an easement would be proposed over that area of land for drainage before purchase?

A. No.

Q. As you understood your negotiations with the Department of Lands, and as ultimately reflected in the contract that you agreed to and paid the deposit in relation to, Christmas Bush was purchasing portion 3542 entirely unencumbered, wasn’t it?

A. That’s right.

Q. The purchase you agreed to pay no doubt was calculated on that basis, wasn’t it?

A. That’s correct.

Q. Unconditional sale was something that was necessary to Christmas Bush so that it would be free in the future to develop a proposal for the combined development of portion 3542 with portion 3551. That’s right, isn’t it?

A. That’s right.

29. The Minister read in part the affidavits of Mr P Rakus affirmed 14 September 2011, Mr K Rakus affirmed 22 September 2011 and Mrs V Rakus sworn 22 September 2011. Mr P Rakus stated that there is a gate entrance from Tallean Road to the claimed land, which leads down to the Council’s fenced drain area. The gate entrance has two locks, one held by him and the other by the Council. Mr K Rakus and Mrs V Rakus gave evidence of a flood in the 1970s which caused the detention pond on lot 392 to flood and carry sand over to their garden. They received compensation for the resulting damage. Mr K Rakus’ affidavit annexed a photograph showing higher land above the claimed land and the location of detention pond on lot 392.

Minister’s submissions

30. The Minister submitted that the view of the executive government of whether land is needed or likely to be needed for an essential public purpose is determinative, per Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 (Deerubbin (No 1)) per Meagher JA at 252C. The Minister formed the view that part of the land was required for drainage as expressed in the refusal of Claim 6754 in December 2009. The need of the Council to use part of the land for a drainage purpose in the event of a failure of the stormwater detention basin on lot 392 is identified by the facsimile from Mr Loomes council officer dated 28 November 2002 inter alia. There is no evidence that at the date of claim the drainage of the land had changed so that an overflow was no longer required. The level of government with responsibility for drainage was the Council as required under s 59A of the Local Government Act 1993 (NSW) (the LG Act)

31. If necessary to further inquire into the views of the executive the documents in evidence establish that part of the land was needed or likely to be needed for the essential public purpose of drainage. There is evidence spanning from 1972 to 2002 regarding the need to accommodate drainage overflow on the claimed land from the neighbouring stormwater retention basin on lot 392 held by the Council. (This includes a detailed outline of the part of the land that is required, as shown in Mr Loomes’ facsimile). There is sufficient evidence to establish the size of the easement required by the Council for the essential public purpose of drainage.

32. The distinction between what was needed and what was likely to be needed turns on whether or not a decision concerning the use of the land has been made: Maroota No 2 (CA) at [50]. “Needed” means “required or wanted” and does not require the Court to “second guess” the decisions of the Executive as to the future of the land: Deerubbin (No 1) at 254D per Handley and Powell JJA; at 252C per Meagher JA.

33. “Likely” means a “real and not remote chance”: Maroota No 2 (CA) at [57]. The stormwater detention pond requires maintenance and, if inadequate, needs an overflow point so that the land required for the easement is therefore essential. No steps to achieve the public purpose were required while the overflow land was Crown land so used with the acquiescence of the Minister of Lands and the Rakus’ who held the permissive occupancy. The Council benefitted from a longstanding implied right to drain onto the identified area.

34. The intended sale by the Department of the claimed land to a third party, Christmas Bush, in an unconditional sale does not contradict the need or likely need for part of the claimed land for drainage flow. Under a private sale a council retains a statutory ability to require the creation of an easement before land is developed under s 88K of the (Conveyancing Act 1919 (NSW)) and may also compulsorily acquire land for the purpose of an easement. Under s 42B of the ALR Act the council cannot acquire the land for this or any other purpose once transferred to the Applicants.

Applicants’ submissions

35. The meaning of “public purpose” was identified in New South Wales Aboriginal Land Council v Minister for Natural Resources (TheTredega Claim) (1986) 59 LGRA 318. “Essential” means necessary or indispensable, fundamental per Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 72 LGRA 149. What is essential depends on the circumstances (Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289; (2009) 168 LGERA 71 (Illawarra (CA)) per Basten JA at [65]; Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800 per Sheahan J at [107]-[108]; Pain J in Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 68 (O'Haras Creek) at [113]; and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Newcastle Post Office Claim) [2014] NSWLEC 72; (2014) 204 LGERA 1 per Pepper J at [193]). “Needed” means “required” (Deerubbin (No 1) per Handley and Powell JJA at 254D. See also Coffs Harbour and District Local Aboriginal Land Council v Minister administering the Crown Lands Act [2013] NSWLEC 216; (2013) 199 LGERA 372 per Craig J at [15]) and must be reasonable (Wanaruah per Lloyd J at [16]).

36. The Minister cannot submit that drainage was an essential public purpose when, at the same time as refusing the land claim on that basis, the Department was progressing an unconditional sale to a private developer with no regard to that essential public purpose. That behaviour does not confirm the need or likely need that the land was required by the government of the day.

37. The only document independent of the land claim process on which the Minister relies is a letter dated 22 August 1995 from the Council to the Department in relation to the proposed alienation of the claimed land. The highest that letter goes is a request that "the need for a discharge flow path to be considered prior to alienation". Advising the Department that it should consider a matter prior to alienation is not a statement of need or likely need by the Council or the government of the day. In any event, that document predates the claim by some 14 years. There is no evidence it was ever acted on by the Department, or that the need for the land was pursued by the Council. There is no evidence any officer of the Council has even visited the land in that period. By the date of claim the Department did not consider it was either needed or likely to be needed.

38. The only other relevant document is a submission dated 7 November 2002 from the Council in response to the earlier land claim (ALC 6754) lodged on 9 July 2002. The area of interest was then identified on a mud map drawn by an officer in the Council (whose position is unstated) and forwarded by facsimile dated 28 November 2002. From the coversheet for the facsimile it appears that there was no survey or scientific basis for the area required, but was rather a rushed submission in response to an ALC. The basis for the Council's interest in 2002 is unclear. On its face it appears premised on a desire to protect an existing "legal right to drain overflow". There was however, no such existing right to drain to the claimed land. There was however such a right in relation to the adjoining land (lot 392) where the Council held a permissive occupancy for drainage. Furthermore, the facsimile refers to drainage from the "detention pond road", a reference which is unexplained. The fact that the Council may have been mistaken about the basis of its interest, may explain why the Department in the end ignored its interest. It may also explain why the Council never pursued it.

39. The Minister does not point to any other Council document or action in the seven years between 2002 and the date of claim. Indeed, there is no evidence the Council took a single step to progress its alleged interest in the area. There is no evidence the Council ever formally resolved that the land was needed for drainage or even formally identified that the area was so required. This is despite interest in the disposal of the land over that time variously to Landcom, the National Parks and Wildlife Service and Christmas Bush.

40. If there are concerns about potential liability for flooding of the claimed land, s 733(1) of the LG Act exempts a council from liability for anything done or omitted to be done in good faith by a council as it relates to the likelihood of land being flooded inter alia.

Crown land not “needed” or “likely to be needed” for an essential public purpose

41. “Public purpose” is not defined in the ALR Act. A purpose of the administration of government is a “public purpose”, as identified in The Tredega Claim at 331 by Stein J. The authorities concerning the meaning of “essential public purpose”, “need” and “likely need” were reviewed extensively by me in O'Hara's Creek at [111]-[118]. To be considered “essential” a public purpose must be more than highly desirable per Illawarra (CA) at [32] per Hodgson JA and Maroota No 2 (CA) at [55]. “Likely” means “a real and not remote chance” rather than the lesser threshold of “more probable than not” per Maroota No 2 (CA) Spigelman CJ (Powell and Heydon JJA concurring) at [57]. “Needed” means required or wanted. The distinction between “needed” and “likely to be needed” turned on whether or not a decision concerning use of the land had in fact been made, per Spigelman CJ at [50].

42. Whether land is “needed” or “likely to be needed” for an essential public purpose is a question of fact: Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 per Basten JA at [60]-[61]. Given the relatively limited evidence available as few documents are before the Court on the issue of drainage it is useful to set out the requirements of proof as stated by Basten JA in Bathurst CA at [202]

In this context, inferences are also matters as to which a burden of proof may arise. Accordingly, in the present case, the Minister, bearing the burden of satisfying the trial judge of the ultimate fact, namely that the lands were not claimable Crown lands, also bore the burden of establishing such primary facts and inferences as must be drawn therefrom in order for his decision to be upheld. …

43. The provision and management of infrastructure such as drainage qualifies as a public purpose given it is a purpose of the administration of government. In this case the need for the use of the land for drainage relied on by the Minister as an essential public purpose is the responsibility of the relevant local council under the LG Act. Local government exists separately to and is a creature of the State government. In O'Hara's Creek at [126] I questioned whether the Minister could rely on the objectives of a local council in the absence of a necessary indication of what the manager of the Crown land in issue, at least at the departmental level of management and/or the Executive, intended for the claimed land in that matter. The Executive through the Department manages and makes decisions about Crown land. I stated:

… In these circumstances while action and interest by BHSC [Baulkham Hills Shire Council] are part of the history of consideration of land use there was no ability on the part of BHSC to ensure any particular use of the land was undertaken. Its interests or views could only be acted upon if Lands eventually adopted those views in its own right or there was an Executive Government level decision supporting them. As discussed in authorities referred to at par 143 onwards concerning appropriate level of government activity, authorities have focussed on State government actions. This may reflect the facts in those cases but the simple reality is that crown land is controlled by the Crown manifested in State government entities not local government entities. As Maroota No 2 (CA) and other cases identify, the relevant likely need must be the view of the government of the day and that must be State government as the manager of Crown land. BHSC’s actions cannot therefore be relied upon to establish the view of the State government of whether there was likely to be a need for one or more EPPs. Those actions can inform the formation of the State government’s views only.

44. Accepting that the provision of drainage is a public purpose which is the responsibility of the Council, the next issue to arise is whether this public purpose was demonstrated to be essential and needed or likely to be needed in the hands of the Department and/or the Minister as the controller of the land. I found in O'Hara’s Creek at [113] that whether a public purpose is essential depends on the circumstances of a case, here the evidence before me. As identified in O'Hara’s Creek at [114] the consideration of essentiality and need or likely need generally requires consideration of the same facts as the essentiality of a public purpose is informed by the need or likely need for it.

45. As the chronology of events set out above at par 11-27 shows, lot 392 was created in August 1973 for the purpose of providing a permissive occupancy to the Council to construct a detention pond to collect stormwater from the residential area above and to the north of the claimed land. A Council officer wrote to the Department in the early 1970s about the need for use of the area of land of lot 354 now sought for a drainage easement for possible overflow. Two overflow episodes onto lot 354 are referred to in the evidence. One was in the 1970s after the creation of lot 392 for a detention basin according to the Rakus’ evidence. One was possibly in the 1990s, as referred to in the facsimile from council officer Mr Loomes to the Department dated 28 November 2002. The Council’s need for part of the land for drainage is identified in the Department’s recommendation for refusal of ALC 6754 in October 2003 to the Minister adopted by him on 8 December 2009. These reasons are essentially repeated in the reasons for refusal of the present ALC 19559 in May 2010.

46. The Applicant submitted that the need had to be reasonable per Wanaruah at [16]. Given that substantial overflow events have occurred at least twice albeit over several decades and given the topography and geology of the higher land above the claimed land as depicted in the photograph in evidence (par 29) by the Minister the Council’s need or likely need for the land appears reasonable.

47. Deerubbin (No 1) stated that the Executive’s view that Crown land was needed for an essential public purpose was conclusive of that need. This was submitted by the Minister to mean that the reasons expressed in the Department’s recommendation of October 2003 adopted by him when refusing the earlier ALC 6754 on 8 December 2009 was conclusive that part of the claimed land was needed or likely to be needed for drainage. The reasons stated in relation to drainage are identified above in par 20 and refer to the Council identifying the overflow on the claimed land, a field inspection confirmed the topography and the large residential subdivision to the north, the sandy soils in the area including lot 392 and that the area of concern was identified in about 1990. It was also noted that use of the additional land as an overflow is not authorised and a survey is required to define the site boundary. As there was no suggestion to the contrary that need or likely need continued according to the Minister.

44. According to Deerubbin (No 1) I should not second guess the Executive’s opinion. As the Minister bears the onus of proof of establishing Crown land is not claimable this requires the Minister to demonstrate that the view the land was needed or likely to be needed for the essential public purpose of drainage in 2003 continued at the departmental and/or Executive level at the date of this claim on 24 August 2009.

45. Had the evidence just referred to been the only evidence before me I consider the Minister would have discharged the onus of proof of establishing the land was needed or likely to be needed for the essential public purpose of drainage at the date of the claim. The criticisms of the Applicants in par 38 and 39 of the submissions by the Council to the Department as lacking in detail, not supported by a survey and being based on a mistaken assumption about legal rights do not undermine the essential need of the land for drainage as a matter of fact. However further events occurred within the Department after 2003.

46. In the months leading up to the date of the claim on 24 August 2009 officers in the Department were negotiating the unconditional sale (meaning no easement on part of the land) of the whole of lot 3542 to a private company Christmas Bush. That company wrote for a second time expressing interest in purchasing the land on 7 May 2008 (see chronology in Nelson Bay (No 1) at [51]. The Department then engaged a consultant planning firm to advise on redevelopment options which reported in July 2008, as referred to in the chronology in Nelson Bay (No 1) at [52], [53]. The departmental minute recommending an unconditional sale to Christmas Bush was dated 24 August 2009 (the date of this claim) signed by Mr Wood departmental officer and his supervisor Mr Veitch on 28 August 2009. An extract from that minute is set out in par 26 and identifies sale by private treaty to the adjoining neighbour as the preferred option. The trajectory towards the sale to that neighbour Christmas Bush was confirmed after the date of claim when the Minister’s delegate approved the sale on 8 February 2010. While events after the date of claim are not generally able to be considered, where these confirm a foresight not a hindsight it is acceptable to consider them as found in Housing Commissioner (NSW) v Falconer [1981] 1 NSWLR 547 by Hope JA at 558B. This evidence does confirm a foresight and can be considered for that reason.

47. The oral evidence of Mr Future, secretary of Christmas Bush, set out above in par 28 and relied on by the Applicants confirmed the sale was unconditional. No mention was made to Mr Future of the need for part of the land for drainage overflow. The actions of the departmental officers in approving the unconditional sale so close to the date of the claim are not consistent with the view that the land must be sold subject to an easement for drainage, and are inconsistent with a finding that the Department and ultimately the Minister’s delegate considered the land was needed or likely to be needed for drainage at the date of claim.

48. I must determine the case on the evidence before me. Assertions as to why it was not necessary for an easement to be in place as part of a conditional sale to Christmas Bush because s 88K of the Conveyancing Act can be availed of by the Council does not assist in identifying the view within the Department about the use of the land in issue in the context of the proposed sale. I note that s 42B of the ALR Act does not permit the appropriation or resumption of land vested in an aboriginal land council except by an Act of Parliament. If this land is transferred to the Applicants the Council cannot use s 88K powers to obtain an easement.

49. The Minister has not discharged the onus of proof of establishing that part of the Crown land was not claimable at the date of the claim of 24 August 2009. Accordingly the claimed land should be transferred to one of the Applicants. I will confer with the parties as to the precise terms of the order the Court should make before finalising it.

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Decision last updated: 15 September 2015