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

[2014] NSWLEC 72

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 (Newcastle Post Office Claim) [2014] NSWLEC 72

Hearing dates:

4 and 5 March 2013

Decision date:

05 June 2014

Jurisdiction:

Class 3

Before:

Pepper J

Decision:

Appeal upheld. Orders for transfer of land. Each party to pay their own costs.

Catchwords:

ABORIGINAL LAND RIGHTS: whether land is claimable Crown land as at the date of the claim - whether the claimed land was "able to be lawfully sold or leased" - whether the claimed land was "lawfully used or occupied" - whether the claimed land was "needed" "for an essential public purpose" - appeal upheld.

STATUTORY INTERPRETATION: proper construction of s 138(1) of the Crown Lands Act 1989.

Legislation Cited:

Aboriginal Land Rights Act 1983, ss 3, 36, 136

Crown Lands Act 1989, ss 3, 6, 34(1), 138, 185(1)

Crown Lands Consolidation Act 1913, ss 5, s 6(2), 25A

Heritage Act 1977, s 34(1)

Newcastle City Centre Local Environment Plan 2008, cl 46, Sch 5

Cases Cited:

Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800

Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305

Coffs Harbour and District Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2013] NSWLEC 216; (2013) 199 LGERA 372

Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 297 ALR 190

Darkinjung Local Aboriginal Land Council v Minister Administering Crown Lands Act [2006] NSWLEC 180; (2006) 149 LGERA 162

Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140

Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act [No 2] [the Londonderry claim] (1995) 89 LGERA 194

Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 68

Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 95 LGERA 353

Dorrigo Plateau Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 653; (2007) 155 LGERA 307

Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459

Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547; (1981) 50 LGERA 334

La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 5; (2012) 187 LGERA 46

La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176

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 Illawarra Local Aboriginal Land Council [2011] NSWCA 127; (2011) 182 LGERA 133

Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359; (2012) 193 LGERA 276

Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106

Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285

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

Mogo Local Aboriginal Land Council v Eurobodalla Shire Council (2001) 54 NSWLR 15

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18

New South Wales Aboriginal Land Council v The Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the Tuncurry claim) [2008] NSWLEC 168; (2008) 159 LGERA 400

New South Wales Aboriginal Land Council v Minister for Natural Resources (the Tredega Claim) (1986) 59 LGRA 318

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144

Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 306 ALR 547

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 Crown Lands Act (1991) 72 LGRA 149

Category:

Principal judgment

Parties:

New South Wales Aboriginal Land Council (Applicant)
Minister Administering The Crown Lands Act (Respondent)

Representation:

S Pritchard SC with H Pintos-Lopez (Applicant)
A Stewart (Respondent)
Chalk and Fitzgerald (Applicant)
NSW Crown Solicitor's Office (Respondent)

File Number(s):

31055 of 2011

INDEX

Topic	Paragraph
An Aboriginal Land Claim is Made Over the Former Newcastle Post Office	[1]
Statutory Framework and Fundamental Legal Principles Applicable to the Determination of the Appeal	[15]
Issues for Determination	[27]
The Evidence of the Parties	[30]
Was the Claimed Land Able to be Sold or Leased Within the Meaning of s 36(1)(a) of the ALRA?	[107]
The Decision in Gandangara	[115]
Submissions of the Parties	[122]
The Proper Construction of s 138 of the CLA Means the Claimed Land is Able to be Lawfully Sold or Leased	[132]
Was the Land Lawfully Used or Occupied Within the Meaning of s 136(1)(b)?	[153]
Applicable Legal Principles	[153]
Minister's Submissions	[165]
The Claimed Land Was Not Lawfully Used or Occupied	[170]
Was the Land Needed or Likely to be Needed for an Essential Public Purpose Under s 36(1)(c)?	[185]
Applicable Legal Principles	[185]
The Minister's Submissions	[197]
Was the Claimed Land "Needed"?	[201]
Were the Asserted Purposes "Public Purposes"?	[207]
Were the Asserted Public Purposes "Essential" Public Purposes?	[217]
The Claimed Land Was Not Needed for an Essential Public Purpose	[230]
Conclusion and Orders	[233]

Judgment

An Aboriginal Land Claim is Made Over the Former Newcastle Post Office

1. In the centre of Newcastle, on the corner of Hunter and Bolton Streets (Lot 103, DP 758769) sits the former Newcastle post office. It was constructed, according to a Conservation Management Plan prepared by EJE Heritage for the Land and Property Management Authority in 2010, in the early 1900s in the Federation Academic Classical style of architecture. It was built during an era of "economic buoyancy" and "lavish expenditure on public buildings in New South Wales".

1. The former post office is two storeys with an additional basement below street level and an upper mezzanine level. It is constructed in fine grain sandstone, consisting of ashlar blocks and numerous carved classical elements, including Doric columns on the ground floor and Ionic columns on the first floor.

1. Following Federation, the State postal service was transferred to the Commonwealth on 1 March 1901, and the land vested in the Commonwealth from that date. Ultimately, it was granted to the Commonwealth in fee simple on 7 November 1969, and on 8 May 1987 the Australian Postal Commission became the registered proprietor of the land.

1. The former post office has been described as "a magnificent structure which signifies the importance of Newcastle at the turn of the century". Hence on 9 October 2000, the Minister for Urban Affairs and Planning directed that the building be listed on the State Heritage Register pursuant to s 34(1)(a) of the Heritage Act 1977.

1. In May 2001, however, Australia Post moved out of the building to new premises and the building became vacant.

1. Australia Post sold the building to private investors (Van New International Pty Ltd, or "Van New") for $1.88 million on 27 August 2003. Although Van New intended to convert the building into an upmarket bar, restaurant and function centre, no development eventuated and the building continued to be left vacant.

1. As a consequence, the ravages of years of desuetude and neglect caused the building to, in the words of the local State member of Parliament, the Hon Jodi McKay MP (then Minister for, amongst other things, Tourism and Newcastle), in June 2010, revert to a state of "significant decay and vandalism". Photos of the building contained in the Conservation Management Plan are a testament to its current state of disrepair: parts of the building have collapsed internally; masonry has cracked; paint has peeled; graffiti has been scrawled; windows have broken; there is damage in some parts of the building caused by water inundation; and elsewhere pigeons roost and vermin nest. A veritable Satis House located in the heart of Newcastle's central business district.

1. In May 2010, the land was purchased by private treaty by the Minister Administering the Crown Lands Act ("the Minister") for $4.25 million, following the property being passed-in at auction. The land was transferred to the State on 2 July 2010. The respondent to these proceedings, the Minister, claims that the reason for the purchase was to save the building for heritage purposes and to develop and use it in a public/private partnership.

1. On 30 June 2011 Aboriginal land claim 35845 ("the land claim") was lodged by the applicant, the New South Wales Aboriginal Land Council ("the ALC"), over the land, on behalf of the Awabakal Local Aboriginal Land Council.

1. The Minister for Primary Industries refused the land claim on 31 August 2011 on the grounds that:

(a) The land had been purchased by the State of New South Wales from freehold interests and therefore is not able to be lawfully sold or leased under the Crown Lands Act 1989; and

(b) The land was needed, or likely to be needed, for the essential public progress of community purposes, heritage purposes, urban services, regional requirements and tourism facilities and services

1. The ALC commenced an appeal against the refusal in Class 3 of this Court's jurisdiction on 18 November 2011.

1. By Statement of Issues dated 27 July 2012, the Minister identified the issues to be determined in the appeal as:

1. Whether as at 30 June 2011 ("the date of claim"), the land subject to Aboriginal Land Claim 35845 ("the subject land") was not claimable Crown land within the meaning of s 36(1)(a) of the Aboriginal Land Rights Act 1983 (NSW) ("ALRA") on the ground that it could not be lawfully sold or leased under the Crown Lands Act 1989 (NSW).

2. Whether, as at the date of claim, the subject land was not claimable Crown land within the meaning of s 36(1)(b) of the ALRA on the ground that it was lawfully used and occupied.

3. Whether, as at the date of claim, the subject land was not claimable Crown land within the meaning of s 36(1)(c) of the ALRA on the ground that it was needed or likely to be needed for the essential public purposes of community purposes, heritage purposes, urban services, regional requirements and tourism facilities and services.

1. There can be no doubt that to the people of Newcastle the former post office is an iconic building to which considerable historic significance is attached. However, I have determined that under the terms of the ALRA the land is claimable Crown land and that therefore the appeal must be upheld.

1. During the course of the hearing and the preparation of these reasons, I was assisted by Acting Commissioner Davis, whose contribution I gratefully acknowledge.

Statutory Framework and Fundamental Legal Principles Applicable to the Determination of the Appeal

1. The purposes of the Aboriginal Land Rights Act 1983 ("the ALRA") are contained in s 3 and are stated to be:

3 Purpose of Act

The purposes of this Act are as follows:

(a) to provide land rights for Aboriginal persons in New South Wales,

(b) to provide for representative Aboriginal Land Councils in New South Wales,

(c) to vest land in those Councils,

(d) to provide for the acquisition of land, and the management of land and other assets and investments, by or for those Councils and the allocation of funds to and by those Councils,

(e) to provide for the provision of community benefit schemes by or on behalf of those Councils.

1. As is reflected in s 3 and as is explicitly recognised in the Preamble to the ALRA, the Act is intended to provide a means to remedy the past dispossession of Indigenous persons in New South Wales (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 at 194 per Stein J) ("Education Building").

1. Thus as Kirby P observed in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 (at 157):

The Aboriginal Land Rights Act 1983 is beneficial and remedial legislation. Clearly, it was enacted to give important rights in Crown land to the representatives of the Aboriginal people. By common acknowledgment, such people have suffered substantial injustice and loss consequent upon the deprivation of their land following the settlement of Australia.

1. Similar sentiments were expressed in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106 (at 117 per Sheller JA) ("Nowra Brickworks (No 1)") and Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665 (at [54] per Spigelman CJ) ("Maroota").

1. By reason of the beneficial and remedial nature of the legislation, it follows that exceptions to the right to claim land should be narrowly construed (Maroota at [53]).

1. Section 36(1) of the ALRA states what is "claimable Crown lands" for the purpose of the Act. It relevantly provides:

36 Claims to Crown Lands

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

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

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

(b) are not lawfully used or occupied,

...

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

1. The appeal to this Court from the refusal to grant the land claim under s 36(6) of the ALRA is an appeal de novo, and the Court has available to it all of the functions and discretions of the decision-maker (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 251D per Meagher JA ("Castlereagh") and Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2011] NSWCA 127; (2011) 182 LGERA 133 at [61] per Sackville AJA) ("Illawarra No 2")).

1. Pursuant to s 36(7) of the ALRA, the Minister has the legal and evidentiary burden of satisfying the Court that the claimed land is not "claimable Crown lands" (Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 at [202] per Basten JA ("Bathurst")).

1. If the Minister establishes any one of the exclusions to "claimable Crown lands" it will serve to defeat the claim and the appeal will fail.

1. If the Minister fails to discharge his onus, the appeal will succeed and the land must be transferred to the ALC (New South Wales Aboriginal Land Council v The Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 at 692D-693D ("Winbar")).

1. The relevant date for determining whether land is "claimable Crown lands" is the date the claim was lodged. Therefore, not only is the Minister required to assess the claim on the facts existing as at the date of the claim (Winbar at 691F-G), on appeal the Court must do the same (Winbar at 692C and Dorrigo Plateau Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 653; (2007) 155 LGERA 307 at [9] and [44] per Jagot J ("Dorrigo")).

1. The Court may take into account post-claim evidence in determining whether, as at the date of the claim, the land was claimable Crown land (Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359; (2012) 193 LGERA 276 at [19] ("Malabar Police Station CA")). For example, the Court can consider whether, as at the date of the claim, it was likely that the land would be needed for an essential public purpose. But such evidence is relevant only if it is probative of the objective likelihood assessed in prospect as at the date of the claim. That is to say, such evidence may be used "not to prove a hindsight, but to confirm a foresight" (Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547; (1981) 50 LGRA 334 at 558B). Put another way, it is impermissible to reason backwards on the assumption that later events will occur (Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289; (2009) 168 LGERA 71 at [77] per Basten JA ("Illawarra")).

Issues for Determination

1. By agreement between the parties, the issues for determination in this appeal may be stated as, first, whether as at the date of the claim, the claimed land was able to be sold or leased within the meaning of s 36(1)(a) of the ALRA. This gives rise to the following consequential questions:

(a) whether the claimed land was Crown land within the meaning of s 3 of the Crown Lands Act 1989 ("the CLA");

(b) whether the land was able to be lawfully sold or leased within the meaning of s 36(1)(a) of the ALRA having regard to ss 34(1) and 138(1)(b) of the CLA; and

(c) if it was, whether a declaration pursuant to s 138(1) of the CLA was necessary in order for the claimed land to be sold or leased.

1. Second, whether, as at the date of the claim, the claimed land was not "lawfully used or occupied" within the meaning of s 36(1)(b) of the ALRA, having regard to the test for determining whether the land was "lawfully used or occupied" and the relevant acts, facts, matters and circumstances in respect of the use of the claimed land as at that date.

1. Third, whether, as at the date of the claim, the claimed land was neither "needed, nor likely to be needed, for an essential public purpose" within the meaning of s 36(1)(c) of the ALRA:

(a)   because the land was needed for community purposes; heritage purposes; urban services; regional requirements; or tourism facilities and services;

(b) if it was so needed for any of these purposes, whether any of them amounted to a "public purpose" under the ALRA; and

(c) if they did, whether the public purpose was an "essential" public purpose under the ALRA.

The Evidence of the Parties

1. The evidence of the parties was contained in five folders of documents (the Minister's tender bundle comprising three volumes and the ALC's two volume bundle), two affidavits filed on behalf of the Minister (Mr Graham Harding, sworn 18 July 2012 and Mr Scott Mullen, sworn 20 July 2012) and an agreed chronology.

1. Notwithstanding the general rule that the Court does not consider the history of the land before the claim date, in this instance, in order to determine the land claim it is necessary to explore in detail the events both immediately prior to the sale of the land to the Minister and post the acquisition of the land by the State. While many of the events themselves were not in dispute, the inferences that the Court was invited to draw from this factual background was a source of controversy between the parties.

1. In September 2004, the NSW Treasury produced a Heritage Asset Management Guideline. The Guideline noted that "a substantial part of the government agencies' heritage assets comprises property", including buildings, and that the best way of maintaining these assets was to "maintain a viable and living use" (p 2). This was because "unoccupied property will deteriorate rapidly and become a target for vandals." Accordingly, it was important that heritage property controlled by State entities "be secured, properly maintained" and occupied.

1. In 2008 the Newcastle City Centre Local Environment Plan 2008 was promulgated ("the LEP"). Clause 46 of the LEP expressly concerned heritage conservation, with the objectives of:

46 Heritage Conservation

(1) Objectives

The objectives of this clause are:

(a) to conserve the environmental heritage of Newcastle city centre, and

(b) to conserve the heritage significance of heritage items and heritage conservation areas including associated fabric, settings and views, and

(c) to conserve archaeological sites, and

(d) to conserve places of Aboriginal heritage significance

1. Schedule 5 of the LEP listed various heritage items of State-wide significance, one of which was the former Newcastle post office the subject of the present land claim.

1. In March 2009, the Hunter Development Corporation published the Newcastle City Centre Renewal Report to NSW Government. The Report identified the need for "catalytic projects to attract jobs, services and investment" to the city centre. In respect of heritage, it recorded that there were "heritage buildings in varying degrees of preparedness" and that there was "widespread recognition of the importance to retain references to the city's history", but that "the cost to restore some of the buildings is by no means insignificant".

1. On 7 April 2009, the Director-General of the Department of Lands briefed the Minister on the former status of the Newcastle post office, noting that the building had been left vacant since the sale to Van New and "continues to deteriorate".

1. In a letter to Mr Warwick Watkins, the Chief Executive of the Land and Property Management Authority ("LPMA") dated 22 April 2010, the City of Newcastle requested the formalisation of discussions to consider "options" and "funding" for the transfer of the property to the State in order to "restore this important building for the benefit of the city".

1. A similar letter was written several days later on 29 April 2010 by the Hon Jodi McKay MP to the Hon Tony Kelly MLC, the Minister for Planning, Infrastructure and Lands, but in somewhat more urgent terms. The Minister for Planning responded on 13 May 2010, stating that he was seeking advice on the matter.

1. Subsequently, on behalf of the State, Mr Watkins entered into pre-auction negotiations for the purchase of the property. Following the failure to realise the reserve at an auction on 20 May 2010, the negotiations continued.

1. On 21 May 2010, an LPMA memorandum recommended that the Chief Executive of that agency, as a delegate of the Minister, and empowered by s 135 of the CLA to acquire land for any public purpose, approve the acquisition of the land for $4.25 million. Suitable public purposes "could be community purposes, heritage purposes, urban services, regional requirements and tourism facilities and services." The memorandum noted that there was intense community interest in the site; that public ownership and redevelopment was integral to the protection and promotion of the heritage and cultural values of the whole precinct; that it was "essential that the building be returned to public ownership for future use and redevelopment for community uses to meet the changing regional and urban development requirements of the City of Newcastle"; and that the former post office had been identified as playing an important role in achieving the objectives of the goal of revitalising Newcastle, "particularly in relation to creating a more active and vibrant town centre".

1. On 21 May 2010, the contract for sale for the former Newcastle post office was signed.

1. In June 2010, the LPMA released a Brief for Condition Assessment for Newcastle Post Office in preparation for the redevelopment of the site (p 6). The Brief was commissioned by the LPMA to be a comprehensive condition assessment of the former post office. The Brief noted that "there [was] intense community interest in the site and a strong desire within the community to see it returned to the people of Newcastle for community related functions" (p 3). The scope of the work included, amongst other things, to understand the condition of the building; to identify any contamination or hazardous materials issues; to address any immediate liability issues; and to undertake urgent works where the existing condition may be illegal (p 6).

1. In a letter dated 21 June 2010 from the Hon Jodi McKay MP to the Federal Minister for Environment Protection, Heritage and the Arts, an estimate of $730,000 was given to restore the building fabric to waterproof it and $2 million to complete internal works to enable areas of the building to be let to tenants. A request was made to the Commonwealth to fund the cost of these preliminary works.

1. On 1 July 2010, the Minister for Lands relevantly approved recommendations in an earlier LPMA minute that, "for the avoidance of doubt", the land be formally declared to be Crown land under the provisions of the CLA (emphasis in original):

5 RECOMMENDATIONS

5.1 Subject to settlement of the purchase of lot 103 DP758769 by the Minister for Lands on behalf of the Crown, the Minister:

(a) declare lot 103 DP758769 to be Crown Land under section 138 of the Crown Lands Act, 1989;

(b) determine that lot 103 DP 758769 has been acquired for and is needed on a continual basis for the essential public purposes of community purposes, heritage purposes, urban services, regional requirements and tourism facilities and services;

(c) approve, in principle, the granting of a licence to occupy lot 103 DP758769 for site investigation and assessment and because of the circumstances no fee/rent should apply;

(d) agrees to exercise his power under Section 91(2)(b) of the Crown Lands Act 1989 to waive the requirement that a land assessment be carried out in respect of the proposal to reserve lot 103 DP758769 for the public purposes of community purposes, heritage purposes, urban services, regional requirements and tourism facilities and services on the basis that it is in the public interest to do so and that, in reserving the land, due regard has been made to the principles of Crown Land Management;

(e) reserve lot 103 DP758769 for the public purposes of community purposes, heritage purposes, urban services, regional requirements and tourism facilities and services under section 87 of the Crown Lands Act 1989 ...

1. Settlement occurred on 2 July 2010, with the "State of New South Wales" listed as the registered proprietor on the certificate of title.

1. In early July 2010, CMF Commercial ("CMF") was engaged by the LPMA to submit for the preparation of a scoping study for the former post office site. The Terms of Reference noted that (p 1):

The building is vacant and aesthetically in poor state of repair. The LPMA is desirous in entering into a partnership (potentially a head lessee arrangement) with an entity that will develop the property within the findings of the scoping study.

The LPMA has identified the need to engage an industry expert to prepare a scoping study as a precursor to a tender or expressions of interest program. This study will review the current functionality of the building and the suitability of the building for commercial & or retail use.

As we understand them, the terms of reference for the consultancy are to: -

1. Provide expert advice on possible options for the adaptive re-use of the building including advice on:

- Desirable commercial & community uses;

- The balance of uses and broad allocation of space for differing uses;

- The final character of any refurbishment or re-use;

- The location, use & treatment of public domain spaces;

- The treatment of heritage features; and

- Broad urban design and architectural principles and guidelines for any refurbishment.

2. Make recommendations that take into account the values of the site and area, its links to the CBD, the LPMA's goals for the site and the planning framework.

3. Assist in the engagement of the development sector to understand the feasibility of any identified outcomes.

4. Develop broad concept diagrams and guidelines to assist the community in understanding options for the adaptive reuse of the site and on which a call for proposals may be based.

5. Arrive at conclusions and recommendations with respect to the immediate and long term viability of any commercial activities that are identified by this report.

1. It was further noted that "a critical component of the study will be a formal Implementation Plan that identifies uses that could be adopted to achieve the LPMA's desired outcomes" (p 5).

1. An internal LPMA email dated 26 July 2010 painted a "grim picture" of some of the problems requiring immediate rectification at the former post office site. In particular, the electricity in the flooded basement was still connected and that until such time as it was disconnected, there "is to be no access to the building for safety reasons". Further, the erection of signage noting the hazards on the site was to be prioritised. Finally, it was noted that "break ins" could not be managed by the current security engaged by the LPMA, and that a meeting had been arranged with the local police.

1. The LPMA therefore increased security for the site by engaging SNP Security for a period of six months from 28 July 2010. Also on that day, the LPMA entered into a contract with Energy Australia to disconnect the electricity to the building.

1. On 30 July 2010, a licence was granted to APP Corporation Pty Ltd ("APP") by the LPMA to investigate and assess the site "as to the suitability of the land and improvements for the public purposes of community purposes, heritage purposes, urban services, regional requirements and tourism facilities and services" to be completed within eight weeks.

1. Approval was sought within the LPMA to undertake urgent works "to make the Newcastle Post Office safe and secure" on 2 August 2010. It was noted that the building had been unoccupied for at least seven years and that it was in a "poor condition"; was not weatherproof; presented a "fire/vermin risk"; and that the basement level was partially flooded. The approval went on to identify a number of significant concerns requiring immediate attention, including: the need for additional security; the removal of deteriorated asbestos; the continued supply of electricity to the building, which, because it could not be disconnected "via normal means", meant that Energy Australia would have to dig up the surrounding street area by hand due to the number of heritage items in the area; that the building was not weatherproofed; and that the water in the basement was "found to contain a high level of biological contamination". The following recommendations were therefore made:

3.3 To address the most urgent issues it is recommended that:

3.3.1 PPE be purchased for LPMA staff and those under LPMA escort and a decontamination facility be installed on site. Note that contractors and consultants will be required to provide their own PPE and will be required to comply with all OH&S requirements on site. Hazmat Services Pty Ltd will provide such for a total cost of $695 (excluding GST). Hazmat Services Pty Ltd will install a decontamination facility for an amount of $1,800 (excluding GST).

3.3.2 The contaminated waste be removed from the basement by Hazmat Services Pty Ltd for an upper fee limit of $15,000 (excluding GST). Note that the actual cost of works will depend on the volume of waste to be disposed. This cannot be quantified ahead of time. The upper fee limit has been based on an estimated quantity of waste.

3.3.3 The basement be cleaned and sanitised to prevent future contamination by Hazmat Services Pty Ltd for an upper fee limit of $10,000. The cost of this work will be confirmed once contaminated material has been removed from the work area.

3.3.4 Additional security to be provided by SNP Pty Ltd to appropriately secure the site as described above for an estimated cost of $16,000 (excluding GST) for six months. Note that the cost is dependant on call out rates. Allowance has been made for 3 call outs per week. This is considered appropriate given the location and history of use of the site.

3.3.5 AJ Eden be engaged to key locks and secure the site at an estimated cost of $1,000 (excluding GST). Note a firm estimate cannot be obtained until the site can be accessed.

3.3.6. Energy Australia be instructed to continue with the permanent disconnection of electricity supply to the site. Given the unknown location of the supply, the archaeological issues in excavating in the Bolton Street area and the need to undertake works by hand the costs of the works cannot be confirmed prior to the work being completed. Energy Australia has advised that they consider the works to be at the cost of the property owner. Energy Australia have provided a quote for $6254.60 (incl GST). Given the uncertainty a budget allowance of $15,000 has been requested.

3.3.7 Signage be erected on site including hazard warning signs (already installed as a legal requirement) and a general site sign noting LPMA ownership, no unauthorised access, PPE requirements and emergency contact details. Quotes are being sourced for this item. It is recommended that an upper limit of $3,000 (excluding GST) be approved.

3.3.8 Note that approval has previously been obtained for the inspection of the site by a qualified electrician to determine the state of the electricity supply. This work was completed for $2,500.

1. The total cost of implementing these recommendations was estimated to be $66,995. A notation by Mr Graham Harding, the General Manager of the LPMA, on the approval, and dated the same day, stated "note approval identifying source of funds with Project Business Case proposal for immediate works".

1. On 13 August 2010, Mr Harding sent a letter to Mr Brian Dirou (who had written to the LPMA to recommend that consideration be given to using the former post office building as a court facility) stating that because the building has been left vacant for so long, work was being undertaken to make the building safe to be entered and that the LPMA was "undertaking a planning exercise to investigate possible options for the reuse of the building." This would assist it in understanding "what possible future uses will be suitable and practical." Finally, the letter stated that because of the advanced state of planning for the new Justice Precinct in Newcastle, it was "not considered that reuse as a Court House will emerge as a favoured alternative."

1. In September 2010, a scoping study of the former post office was prepared for the LPMA by CMF. The aim of the study was to provide expert property advice on the building, possible uses for the site, market commentary, and commercial and community requirements. In short, the study was to provide expert advice on possible options for the adaptive reuse of the building that included advice on "the treatment of heritage features" (p 10). The study noted that the LPMA was desirous of entering into a partnership with an entity that will develop the property consistent with the findings of the study (p 10).

1. Under the heading "Development Partnership", the study stated that (p 71):

10.0 DEVELOPMENT PARTNERSHIP

 The aim of the LPMA is to seek out a developer who will undertake the capital works needed to attract and locate the types of tenants identified as suitable for this building.

 This developer may come in three forms:

 An owner (leaseholder) occupier;

 A developer/investor looking for a long term investment opportunity;

 A developer/promoter looking for a short term development opportunity.

 We expect the capital expenditure to bring the premises up to a letting proposition will be significant. Many of the works need to be sympathetic with the Heritage issues and the classical architecture of the building. This is likely to add to the cost of any development and or refurbishment.

 All development partners will be looking for a significant return on investment. In order to attract a suitable partner there is the need to provide plenty of tenure to allow the ammortisation of development/building costs and the opportunity to secure rental growth within the head lease.

1. In terms of head lease options, a 50 to 60 year head lease (where the lease was "viewed as effectively freehold") was recommended to be offered to any putative developer or owner/occupier in order to provide significant leasehold security for lenders and developers (p 72).

1. On 2 September 2010, APP wrote to the LPMA to provide an update on the scope of works undertaken on the land as at that date, including all urgent works. An initial site inspection on 15 July 2010, "revealed extensive areas of concern regarding the structural integrity of the building including risk to personal safety".

1. Later that month on 14 September 2010, IZZAT Consulting Engineers Pty Ltd ("IZZAT") identified a potentially significant safety and stability issue with the northern boundary retaining wall of the former post office. Further geotechnical site testing was recommended. Meanwhile, on 17 September 2010 SNP Security installed various security devices at the site.

1. APP wrote to the LPMA on 21 September 2010, in response to a request for additional services and urgent maintenance work at the site. These works included: seal penetrations to the roof; sealing the building; eradication of vermin; the removal and making safe of asbestos; and cleaning the excrement and mould. The total lump sum fee estimate for the works was $23,100.

1. The Conservation Management Plan referred to above was published in October 2010. The Executive Summary to the Plan noted that the building had become entirely redundant in terms of its original intended use and that an approach that conserved the original fabric of the building, particularly the external fabric, but allowed adaptive reuse should be considered (p 4). The particular use was not considered relevant "provided it did not impinge upon the character of, or remove significant original elements of the building" (p 4).

1. In the same month, a Condition Assessment Report prepared by APP for the LPMA was released. It noted that the building was "currently unoccupied and not in use" and that the authority was "leading the redevelopment of the site and commissioned a comprehensive condition assessment as a first step towards managing the future use of the building such that it is sensitively and adaptively reused and returned to public ownership" (p 6). It listed the works completed as at that date on the site since purchase by the LPMA and listed the ongoing works (pp 10 and 11).

1. A similar list was prepared by the LPMA in an internal memorandum on 14 October 2010:

ACTIVITIES COMPLETED SINCE PURCHASE

1. Disconnected Mains Power Supply for safety reasons.

2. Pump out and remove contaminated waste and from basement and first levels.

3. Construct clean and dirty decontamination zones for inspections.

4. Investigate and locate source of water flooding to basement.

5. Disconnect mains water supply to prevent further flooding of basement.

6. Investigative coring, analysis and design of remediation works to damaged portion of north retaining wall at adjoining property

7. Structural propping of garage (ex stables) to provide safe access for inspections.

8. Hazardous Materials Survey and Register completed. Document currently being used to prepare scope of works for tender to remediate and remove all asbestos and other hazardous materials.

9. Removal of graffiti and continued monitoring for future attacks

ACTIVITIES CURRENTLY UNDERWAY

1. Sealing windows and roof penetrations to make building water tight and prevent further ingress of pigeons and other vermin to commence Wednesday 13th October 2010.

2. Remediation works to north retaining wall to commence Thursday 14th October 2010.

3. Removal of pigeons and other vermin to commence Wednesday 20th October 2010.

4. Improvements to security such as installation of two Videofied Motion Viewer System cameras, bolstering doorways to restrict unauthorised access and extensions to the existing temporary fencing to be completed prior to the end of October 2010.

5. Asbestos and other hazardous materials to be removed. Contract due to start 1st week of November for 4 weeks approx.

6. Building to be cleaned of bird faeces and other loose debris immediately following asbestos removal. All open holes to flooring to be sealed.

7. Hazard Consultant to certify building clean to enable inspections without use of Hazardous Materials PPE.

8. Conservation Management Plan - Draft issued. Report to be finalised by Friday 22nd October.

9. Condition Assessment Document - Draft issued. Report to be finalised by Friday 22nd October.

10. Requests for Proposals process - commencing early November 2010.

1. The document also included a project timeline for requests for proposals to select a proponent to redevelop the site, commencing on 29 October 2010 and concluding in June 2011.

1. By this stage, newspaper articles began to appear concerning the remediation of the building and the proposed plan to seek adaptive reuse ideas, and to secure a tenant for the site.

1. On 20 October 2010, temporary fencing was installed for six months and extra barbed wire was affixed to the gate. This was fortuitous as a Hazardous Material Remediation Plan in respect of the former post office released by Hazmat Services the next day, recommended that, after a hazardous materials survey, general access to the site remain restricted until the hazardous material could be removed and the site remediated to enable safe access (p 1).

1. On 21 October 2010, Mr Paul Moses, a Project Manager at Crown Lands, emailed Mr Peter Jackson and Ms Belinda Boyce (also both at Crown Lands), stating that to "avoid any confusion", the LPMA was "undertaking 'emergency' repairs etc using our standard protocols for engaging with service providers in the lead up to putting the building to the market for further development and use under a long term lease".

1. A Structural Condition Audit by IZZAT commissioned by APP dated 28 October 2010, stated that the former post office had been found in a "deteriorated state due to some years of neglect" (p 1). It noted that there was one area, the roof top plant room, that had suffered extensive structural deterioration to the floor slab and supporting beams and that the roof just below the plant section required replacement. Moreover, the columns on the ground floor had deteriorated due to water penetration. It concluded by stating that some parts of the building could not be inspected due to the presence of asbestos, bird droppings and water. In summary, the building was unsafe and required "major remediation if it is to be preserved" (p 1).

1. In November 2010, the LPMA released its NSW Request for Proposals for the Redevelopment of the Former Newcastle Post Office ("the RFP"). The RFP recorded that (p 4):

The NSW State Government through the LPMA has purchased the Site and intends to facilitate its development so that it is sensitively and adaptively reused and returned to public ownership. It is envisaged that ultimately the building will cater for uses that meet the changing regional and urban development requirements of the City of Newcastle whilst being commercially viable. It is also intended that any re-use plans for the building be focused on attracting more visitors to the inner city area.

It is considered that the Site can be sympathetically redeveloped to build on its unique standing, location and heritage to provide for enhanced commercial, community and tourism uses in the CBD. It could potentially become home to a combination of cafés, shops, and restaurants and artistic and community space so that the Site again becomes the heart of the city.

1. The document went on to describe the site as containing approximately 2,010m² of internal floor space over four levels.

1. Shortly after the release of the RFP, on 13 November 2010, the Hon Jodi Mckay MP issued a press release referring to the RFP and noting the building's potential to be adapted for a range of different uses, including a "potential mix of business tenants, retail shops, restaurants, cafes, and art and exhibition spaces". The press release went on to state that "work is being undertaken to make the building safe, including the sealing of windows, removal of pests and contaminants and other critical repairs." The release concluded by saying that the RFP was "in line with the site's heritage status and provided a great opportunity for the private sector to be involved" in the revitalisation of the city centre of Newcastle.

1. On 28 October 2010, Mr Harding (from the LPMA) sent a briefing note to the Minister for Planning in relation to the RFP. It detailed the works that had been completed and the works that were either in progress, or soon to be completed:

2.3 The following works have been completed:

 Disconnection of mains power for safety reasons.

 Pump out and removal of contaminated liquid waste from inside the building.

 Disconnection of mains water supply to prevent further flooding of basement.

 Remediation works to a severely deteriorated section of the north retaining wall.

 Temporary propping of garage (former stables at NE corner of the property).

 Hazardous Materials Survey and Register completed.

 Sealing windows and roof penetrations to make building pest and water tight.

 Removal of graffiti.

 Improvements to security.

2.4 The following works are in progress or are soon to commence:

 Works to improve the stability of the retaining wall.

 Removal of pigeons and other vermin.

 Removal of asbestos and other hazardous materials from inside the building.

 Removal of bird faeces and other loose debris.

 All open holes to flooring to be sealed.

1. As to the "current situation", the briefing note stated that "it is intended that proposals be sought from the private sector to partner with the LPMA in the redevelopment of the site" and that this process was scheduled to commence in the second week of November 2010.

1. On 19 November 2010, following the building being secured and a hazardous materials assessment having been completed, the LPMA approved $116,255 for the removal of contaminated materials from the site and the tender by Hunter Tech Services Pty Ltd ("Hunter Tech Services") was accepted.

1. The RFP closed on 14 January 2011, with two responses having been received, one from the Samadi-Woodhead Group and one from Infinitus.

1. The Request for Proposals Evaluation Process and Methodology document dated 18 January 2011, reiterated in its "Introduction" the content of the RFP. The assessment criteria outlined in Attachment A included making the site of the former post office "a key point of visitation in Newcastle and as a tourist attraction". Another criterion was to "retain, conserve and reinforce the Site's heritage value".

1. A Scoring Evaluation Sheet listed as one of the criteria the extent to which the development proposal satisfied the project objectives, including providing a social and civic hub for the city centre; providing an economic basis for the site's ongoing function; and retaining and conserving the site's heritage value.

1. A licence was granted to JML Group Pty Ltd over the site on 21 January 2011 for the purpose of the "installation of temporary catch scaffolding".

1. On 24 January 2011, a temporary fence was installed to restrict unauthorised access to a garage located at the site.

1. A status report dated 31 January 2011 recorded a current expenditure of $365,000 and total committed funds of $587,000. Further discretionary works were estimated to cost in the "ball park" of $300-400,000. There was also a report on the ongoing problem of graffiti at the site.

1. Thus on 8 February 2011, the Minister for Lands approved a request for a further budget allocation of $620,000 for urgent repairs. On the same day, a letter was sent from the Minister for Lands to the Treasurer, stating the following:

In November 2010 requests for proposals for the redevelopment of the former Newcastle Post Office was advertised in the press, closing on 14 January 2011. The successful proponent will enter into a project development agreement and lease with LPMA to redevelop this iconic building in a way that provides for a commercially viable amenity for the people of Newcastle. It is intended to pass the cost of redevelopment and building risk to the private sector.

The acquisition of the building was funded by increasing the Crown lands sales within the Land Development Working Account, which would also be used to fund the urgent repair work required. This effectively means that this building would have been acquired at no additional cost to the State Budget, while simultaneously protecting the building and its heritage for future generations and for public use sanctioned by the Government.

The Land Development Working Account was until recently classified by Treasury as a public trading enterprise. Following the amalgamation of the Treasury TOES entities that cover the Crown Lands estate your approval to increase the capital works authorisation limits for the Land and Property Management Authority in 2010-11 will be required. Accordingly I seek your approval to increase the capital works authorisation limit for the Land and Property Management Authority by $4.25 million to cover the purchase cost of the building and an increase of $620,000 in the LPMA Controlled Net Cost of Services in respect to the urgent building repairs.

1. On 14 February 2011, Hunter Tech Services, who had been contracted to remove asbestos and other hazardous material from the former post office site, rendered an invoice for the work undertaken by them to date. Similarly, on 28 February 2011, Hazmat Services issued a bill for the removal of the ceiling lining from the garage of the building (the work was carried out on 3 and 4 February 2011).

1. In March 2011 works undertaken on the site included pest control and plumbing.

1. On 7 April 2011, Mr Paul Robinson of the LPMA wrote to the Samadi-Woodhead Group advising them that the LPMA would not be negotiating with them further under the RFP. The Samadi-Woodhead Group had proposed a six star boutique hotel and casino. But the Group had been advised that the casino component was prohibited and it had been asked to submit another proposal, which it had declined to do.

1. Fencing was installed by ATF Services Pty Ltd on 19 April 2011.

1. IZZAT issued a Supplementary Condition Report From Further Investigations on the site on 28 April 2011.The Report covered areas not previously investigated due to "OH&S issues", but that now could be, because the "asbestos had been sealed". An invoice was rendered for the work for $8,500 on 30 April 2011. As at 9 December 2011, the Report was the "most recent work" that IZZAT had carried out at the site.

1. Roof and rainwater remediation was carried out by NH Cummings & Son Pty Ltd on 30 April 2011.

1. Then in May 2011, the University of Newcastle expressed interest in the development and use of the building for its Alumni Association. In an affidavit sworn 10 July 2012, Mr Scott Mullen, a Project Manager with the Department of Trade and Investment (into which the LPMA was later subsumed), deposed to meeting with members of the Alumni Association and taking various University representatives on a number of tours of the site.

1. Then, on 27 May 2011 Dr Richard Sheldrake, the Director-General of the Department of Primary Industries, wrote to Mr Chris Eccles, the Director-General of Premier and Cabinet, attaching a document concerning the purchase of the Newcastle post office. The letter referred to the following issues of concern:

1. It does not appear that formal approval to purchase was obtained.

2. It does not appear that the purchase was approved by the Budget Committee.

3. From the information provided it appears that the capital works authorisation limits for the Land and Property Management Authority in 2010-11 may have been exceeded during the purchase and no written approval from the Treasurer can be located.

1. In a document attached to the letter, the following timeline for the purchase of the post office and the incurring of $555,000 of restoration works was set out:

May 2010	CE, LPMA, claims to have obtained verbal approval from NSW Treasurer and Minister for Hunter & Tourism (refer MIN 10/6830/1 for the purchase. The source of funds was not named.
July 2010	LPMA paid $4.25m for Newcastle Post Office using funds from Company 91, which is the Crown Leasehold Entity (CLE). Money held by the CLE belongs to Treasury. Bob Costello has advised that the Account @ this time was under control of CE.
Sept 2010/May 2011	Paid Contractors $555k from Company 92 Land Development Working Account for work on Post Office
Jan/Feb 2011	Bob Costello, CFO of LPMA, Warwick Watkins, CE of LPMA, (and Minister Kelly) signed letter requesting that Minister Kelly sign letter to Treasurer. Letter to Treasurer asked for approval for $4.25m plus $600k to be paid from Company 92, Land Development Working Account (LDWA).
May 2011 (25th)	Received email from Ian Holt that a signed reply from the Treasurer cannot be located, and that approvals should not be sought from the current Treasurer.
May 2011	Currently Company 91 has incurred the original $4.25m cost, and it is unlikely Company 92, LDWA, can sell enough property in this financial year to cover this amount.

1. Also attached was a minute seeking the Treasurer's approval to increase the LPMA capital works authorisation limits by $4.25 million in 2010/2011 in order to purchase the post office, as well as accounting for $1.6 million to meet the cost of urgent building repairs. The "Background" to the minute stated that:

The Treasurer's approval is required to increase the capital works authorisation limit for LPMA to cover the purchase cost as well as address the accounting arrangements for the cost of urgent repairs.

1. Between 23 May and 28 June 2011, various works were undertaken on the site and various invoices were rendered. These included:

(a)   SNP Security opening and closing the alarms at the site;

(b)   invoices from APP in respect of "rectification works";

(c)   an invoice from Hazmat Services for a site visit and asbestos analysis undertaken in April of that year;

(d)   an invoice from Abstract Signs for the design and installation of a street sign; and

(e)   Fumapest Services Pty Ltd ("Fumapest") rendered an invoice for "bird removal".

1. On 29 June 2011 Mr Brian Kennaugh, President of the Alumni of the University of Newcastle, wrote to Mr Harding at the LPMA expressing an interest in initiating discussions with Crown Lands for the "use and development of the former Newcastle Post Office". The Alumni wished to "explore a range of ways the building [the former post office] could be used as a University of Newcastle Alumni House for graduate and community use, and the concept of developing a Centre of Leadership". It was noted that a Memorandum of Understanding ("MOU") with Crown Lands could be signed "to begin negotiations for a long term lease for the site and the building."

1. The next day, on 30 June 2011, the Aboriginal land claim was lodged.

1. A briefing note was sent on 13 July 2011 from Mr Harding to the Minister, seeking approval to enter into an MOU with the University of Newcastle with the intent of developing and negotiating a private treaty long term lease agreement. It described the proposal from the Alumni as not only wanting to develop the building as a Centre of Leadership, but to also allow community use of the building and site. The note advised the Minister that negotiations with Samadi-Woodhead Group had been discontinued and that "there is still a substantial cost to bring the building up to a level suitable for occupation".

1. The Minister signed the briefing note on 27 July 2011. At the bottom of the note is a handwritten annotation dated 26 July 2011 that states that, "this recommendation only approves discussions to occur between the parties. It is not an MOU which is binding". A further undated annotation states: "proceeding exploring commercial options for NPO".

1. Between 19 and 30 July 2011, SNP Security opened and closed the alarms on the site four times on four separate days.

1. On 2 August 2011, Mr Mullen sent a memorandum to Mr Ian Ritchie, the Senior Project Officer, Aboriginal Land Claims, at Crown Lands, concerning the activities and works that had been completed on the site from July 2010 to August 2011. These included "to remediate and make safe and watertight various parts of the building". In terms of the redevelopment planning, from July 2010 to November 2010, he noted that "CMF Consulting provided a report on planning and development opportunities that was included in the RFP". With respect to the RFP from November 2010 to April 2011, he stated the following: "preparation and issuing of RFP including advertising, Probity Audit, assessment and interviews with successful proponent".

1. A Ministerial briefing note was prepared on 8 August 2011 in respect of the land claim. It recommended that the claim be refused. Attached to the briefing note was the letter from Mr Mullen dated 2 August 2011. On 25 August 2011, the Minister signed the briefing note.

1. On 30 August 2011, Voyo Cleaning Services removed and cleaned rubbish, weeds and leaf matter from the site.

1. The land claim was formally refused by the Minister on 31 August 2011.

1. On 13 October 2011, an email exchange took place between Dr Sheldrake and Ms Renata Brooks, the Deputy Director-General of the Department of Primary Industries, which stated the following:

Renata

Not sure whether we discussed this but this was brought to my attention shortly after picking up CLD responsibilities. GH is on top of the issue. Can u get a brief prepared addressing Min Office issues pls. There is a brief in the system prepared in about May. The key issue is it was purchased without Buudget [sic] Cttes kowledge [sic] or without the former LPMAs capital budget limit being adjusted upward by Treas (and LPMA went over there [sic] capital allocation).

Kind regards

Richard

1. On 25 October 2011, a note, written pursuant to a request from the Minister on the status of the former post office, including "works undertaken and total cost to date / status of aboriginal land claim / future use options", stated the following:

Background:

The NSW State Government purchased the former Newcastle Post Office in July 2010. The background for the purchase and associated information is found in the Ministers Approval document MIN10/4054/1 dated 1 July 2010. The building was purchased for the sum of $4,250,000.00 plus GST.

The building, at the time of purchase had been vacant for over ten years, and was in extremely poor state of repair. External consultants were engaged to undertake a condition assessment of the property and manage a programme of urgent works to secure the building from further deterioration, remove hazardous materials including asbestos, and make it watertight. There is still a substantial cost to bring the building up to a level suitable for occupation. The costs to date for this works [sic] and the RFP process described below are $616,129.00 with a recurrent costs of $1000 per month for ongoing security of the site.

An RFP was prepared and issued to the market in November 2010 but failed to secure a conforming response. The process for the RFP is defined in General Manager's Approval DOC10/098655.

In May 2011 Crown Lands received a request from the Executive Committee of Alumni, University of Newcastle expressing interest in the use and development of the site and the building. Approval to enter into Private Treaty negotiations with the University of Newcastle was subsequently granted and is found in the Ministers Approval document PMIN11/274/2. ...

1. A Technical Due Diligence Report on Newcastle Post Office written for the University of Newcastle in January 2012, noted that "the building is currently unoccupied and is in a poor state of condition" (p 5) and that "the site has now been vacant for a considerable period and time and the building is in poor condition" (p 11).

1. The Minister also relied on an affidavit sworn by Mr Harding on 18 July 2012. To the extent not already recorded in the factual recitation above, Mr Harding deposed to the following matters:

(a)   that he was personally involved in the process that resulted in the purchase of the Newcastle Post Office;

(b)   that Mr Warrick Watkins, the previous Chief Executive Officer of the LPMA, was charged with the task of leading a "whole of government approach" for the revitalisation of the Newcastle Central Business District ("the CBD"). Mr Harding was the delegate of Mr Watkins to the board of the Hunter Development Corporation ("HDC") and reported directly to him. Mr Watkins was the Chief Executive Officer of the HDC. However, after the 2008 State election the HDC was merged into the LPMA and it was the LPMA that was thereafter involved in the Newcastle revitalisation project;

(c) that in his capacity as the General Manager of Crown Lands and as a board member of the HDC, he liaised closely with, and provided advice on and direction to, the Minister for the Hunter and her office regarding the revitalisation of Newcastle, including the purchase of the former post office;

(d)   that in or about May 2010 he recalled a telephone call from Mr Watkins wherein Mr Watkins said to him that Mr Watkins had received permission to purchase the post office. Mr Watkins told him that "the Treasurer has approved it";

(e)   that accordingly, the Newcastle Post Office was purchased for the State of New South Wales. However, after the purchase and before the post office could be put to its "ultimate use", significant works were required to be carried out to make it safe and secure. This was because the building was contaminated and was subject to weather and vermin intrusion; and

(f)   that he was charged with the overall responsibility to remediate the Newcastle post office site and to prepare the documentation for the RFP. The objective was to enter into a long term leasing arrangement with the successful private party.

1. Finally, and as referred to above, the Minister relied upon an affidavit sworn by Mr Mullen, who, in addition to the evidence already summarised above, gave the following evidence:

(a)   that prior to joining the Department of Trade and Investment, with the responsibility of overseeing the revitalisation of the former Newcastle post office site, he was a Senior Project Manager with APP. While employed at APP he was assigned as the Project Manager for the Newcastle post office project from July 2010 until April 2011;

(b)   APP was engaged by the LPMA to project manage the revitalisation of the Newcastle post office. This included the preparation by APP of a Condition Assessment Report. In order to prepare the Report, he engaged a number of consultants including EJE Architects, IZZAT, Hazmat Services, Aecom Services Engineers and BCA Consultant Services. He also engaged the building contractor R T Simpson and Sons Pty Ltd to effect building repairs, and Fumapest to remove pigeons from the site;

(c)   he attended the Newcastle post office site two to three times a week to facilitate access to, and tour with, the various consultants engaged by him. In addition, he conducted tours on the site with Mr Watkins, Mr Harding, the Hon Jodi McKay MP and a Newcastle Herald reporter and photographer;

(d)   the Newcastle post office was "virtually a derelict site" when he initially inspected it. There were a number of urgent maintenance and repair issues that were immediately identified and actioned prior to commencing any condition assessment for the Condition Assessment Report. These included:

(i)   an initial inspection by Hazmat;

(ii)   an inspection by IZZAT;

(iii)   the disconnection of electricity by Energy Australia of the main switchboard that was located in water in the basement;

(iv)   the engagement of H L Mullane Plumbing to liaise with Hunter Water to disconnect redundant fire hydrant services that had been identified as a source of leaking water; and

(v)   the removal of hazardous material from the building including asbestos by Hunter Tech Services (after a tender process);

(e)   the preparation of the Condition Assessment Report overlapped with the carrying out of the urgent repairs and maintenance. Its preparation consisted of various consultants attending the site over a three month period between July to October 2010;

(f)   he managed the RFP in November 2010, which involved tours of the building by various interested parties;

(g)   following an evaluation of the applications received pursuant to the RFP, it was determined that the process had not yielded a suitable proponent;

(h)   he then left APP to join the LPMA, where he was appointed project manager for the Newcastle post office project. As part of his role at LPMA, he was given the task of managing the ongoing repairs and maintenance of the site and finding a suitable proponent for it. This included testing anti-graffiti coatings applied to the sandstone walls; managing repairs to the exit door; repairing broken windows and engaging N H Cummings and Sons Pty Limited, a licenced plumber, to repair the roof sheeting and to detect the source of water leaking into the building; and

(i)   from the beginning of his involvement with the former Newcastle post office site, SNP Security Services had been monitoring the site. The site was fenced off and there was an electronic swipe system installed that monitored the entry and exit of all site visitors. He recalled that there was a logbook kept by APP that recorded visits to the site. He was responsible for formatting and maintaining the logbook when he was at APP. However, the logbook was not attached to his affidavit because he was not able to locate it.

1. Neither of the Minister's witnesses were cross-examined.

Was the Claimed Land Able to be Sold or Leased Within the Meaning of s 36(1)(a) of the ALRA?

1. At the core of the first issue is whether, as at the date of the claim, the land claimed was able to be lawfully sold or leased under the CLA. This is because, under s 36(1)(a) of the ALRA, if at the time of the claim, the land was not "able to be lawfully sold or leased" under the Crown Lands Consolidation Act 1913 ("the CLCA") it was not "claimable Crown land".

1. At this juncture it is convenient to have regard to statutory provisions framing the determination of the first issue.

1. The term "Crown land" is defined in s 3 of the Crown Lands Act 1989 ("the CLA") to mean:

"Crown land" means land that is vested in the Crown or was acquired under the Closer Settlement Acts as in force before their repeal, not in either case being:

(a) land dedicated for a public purpose, or

(b) land that has been sold or lawfully contracted to be sold and in respect of which the purchase price or other consideration for the sale has been received by the Crown.

1. Part 4 of the CLA is concerned with the sale and lease of Crown land. Section 34(1), contained in Div 1 of Pt 4, relevantly provides that:

34 Powers of Minister in relation to Crown land

(1) The Minister may, in such manner and subject to such terms and conditions as the Minister determines:

(a) sell, lease, exchange or otherwise dispose of or deal with Crown land, or

(b) grant easements or rights-of-way over, or licences or permits in respect of, Crown land,

on behalf of the Crown.

1. Importantly, it was not in dispute that the claimed land was vested in the State of New South Wales. Likewise, it was not a matter of controversy that there were no restrictions on title, and therefore, the claimed land was "vested in Her Majesty" within the meaning of s 36(1) of the ALRA and "vested in the Crown" and hence "Crown land" as defined in s 3(1) of the CLA.

1. The ALC submitted that by reason of s 34 of the CLA, the claimed land was able to be sold lawfully or leased by the Minister. No other provision of the CLA limited the operation of s 34 in the present circumstances, including s 138 of the Act.

1. Section 138(1) of the CLA provides that (emphasis added):

138 Certain land may be declared to be Crown land

(1) If any land was or is, before or after the commencement of this section:

(a) acquired by compulsory process for any public purpose and vested in a Minister of the Crown on behalf of the Crown by or under the authority of an Act,

(b) acquired by or on behalf of the Crown by gift or otherwise, or

(c) acquired by compulsory process and vested in a public authority, or otherwise acquired by or vested in a public authority, by or under the authority of an Act,

the Minister may, by notification in the Gazette, declare the land to be Crown land.

1. At no point has there been a declaration by notification in the Gazette that the claimed land was Crown land.

The Decision in Gandangara

1. Relying on Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459 (at 461C-G per Cole JA and 472C-G per Beazley JA), the Minister argued that because the claimed land had not been the subject of gazettal under s 138 of the CLA, even if it was otherwise "Crown land", it could not be lawfully sold or leased as "Crown Land", and hence cl 36(1)(a) of the ALRA was not satisfied and the land was not "claimable Crown Land" under that Act.

1. In Gandangara, a similar issue arose in relation to land dealt with under s 25A of the now repealed CLCA. In that case the land was originally Crown land acquired by the Commonwealth for defence purposes in 1913. In 1984 it was purchased pursuant to a deed conveying it to "Her Majesty Queen Elizabeth II in fee simple in the right of the State of New South Wales as Crown lands within the meaning of the Crown Lands Consolidation Act 1913". The Court of Appeal held that this was sufficient to vest the land in Her Majesty under the CLCA and that this met the requirement of "Crown lands" as defined in s 5 of the CLCA (at 461B-D per Cole JA and 472F per Beazley JA, with whom Studdert AJA agreed at 474G).

1. The next question was, however, whether the claimed land could be "lawfully sold or leased" within the meaning of s 36(1)(a) of the ALRA. The Minister submitted it could not rely on s 25A of the CLCA. Similar to the contention raised in the present case, the Minister argued in Gandangara that because there had been no notification in the Gazette, the land could not be sold or leased under the CLCA because it had not been declared to be Crown Land.

1. Section 25A of the CLCA was in the following terms (emphasis added):

Notwithstanding the provisions of any other Act it shall be lawful for the Minister in respect of any land that before or after the commencement of the Crown Lands and Other Acts (Reserves) Amendment Act, 1974, was or is -

(a) appropriated or resumed for any public purpose and vested in a Minister of the Crown on behalf of Her Majesty by or under the authority of any Statute or acquired by or on behalf of the Crown by gift or otherwise; or

(b) appropriated or resumed and vested in a public authority, or otherwise acquired by or vested in a public authority, by or under the authority of any Statute,

by notification published in the Gazette to declare that the land may be dealt with as if it had been acquired under the Closer Settlement Acts or as Crown land within the meaning of this Act, and upon the publication of the notification in the Gazette the land may be so dealt with.

1. Cole JA relied on s 6(2) of the CLCA, which relevantly stated that Crown land could not be sold or leased unless the sale or lease was authorised by the CLCA.

1. He then analysed the CLCA and concluded that unless there has been a notification in the Gazette authorising the sale or lease of the land, which there had not, it could not be sold or leased, and therefore, it was not "claimable Crown land" under the ALRA (at 464A). Under his Honour's analysis, s 25A of the CLCA was not relevant.

1. Beazley JA (and Studdert AJA, by agreement) arrived at the same conclusion, but by different statutory means. Her Honour held that s 25A of the Act applied to the land as Crown land. Accordingly, the land, "acquired by the Crown", could not be sold or leased unless there had been the requisite notification in the Gazette (at 473F-474A). As reacquired Crown land, the land fell within s 25A of the CLCA and notification was required before the remaining provision of the CLCA relating to sale or lease applied (at 474C-D).

Submissions of the Parties

1. In the present appeal, the Minister noted that the definition of "Crown lands" has remained essentially the same in the CLCA and the CLA (see ss 5 and 3(1) respectively) and s 6(2) was replicated in s 6 of the CLA.

1. Thus s 6 of the CLA states:

6 Crown land to be dealt with subject to this Act etc

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 or the Crown Lands (Continued Tenures) Act 1989.

1. Whereas section 6(2) of the CLCA stated that "Crown lands shall not be sold, leased, dedicated or reserved or otherwise dealt with unless the sale, lease, dedication or reservation or other dealing is authorised by this Act."

1. Under the CLCA, "Crown lands" was defined in s 5(1) to mean "lands vested in His Majesty and not permanently dedicated to any public purpose or lawfully contracted to be sold under the Crown Lands Act."

1. The CLCA was repealed and replaced with the CLA (s 185(1) and Sch 7 of the CLA). Item 21(1) of Sch 8 of the CLA provides that any reference to the CLCA is now taken to be a reference to the CLA. Hence the reference in s 36(1)(a) of the ALRA to the CLCA must be taken to be a reference to the CLA.

1. According to the Minister, any differences between the wording contained in s 25A of the CLCA and s 138 of the CLA were not material.

1. The first issue was therefore stated by the Minister to be whether land described in s 138(1)(b) of the CLA can be lawfully sold or leased if it has not been the subject of a notice under that provision even if it is otherwise "Crown land" as defined in s 3(1) of that Act.

1. According to the Minister, when regard is had to the reasoning in Gandangara and the terms of s 138 of the CLA, it cannot.

1. The ALC, by contrast, submitted, first, that construed properly it was clear that s 138(1) of the CLA was not intended to apply to the facts of the present case, namely, where the circumstances of the acquisition are such that the land had already vested in the Crown because it had vested in the "State of New South Wales" and hence already met the definition of "Crown land" in s 3(1) of the CLA. Second, the differences in the wording between ss 25A of the CLCA and 138 of the CLA were not immaterial and Gandangara was distinguishable. And third, and in any event, Gandangara ought not be followed in light of the subsequent unanimous decision in Mogo Local Aboriginal Land Council v Eurobodalla Shire Council (2001) 54 NSWLR 15 ("Mogo").

1. Each submission is analysed in further detail below.

The Proper Construction of s 138 of the CLA Means the Claimed Land is Able to be Lawfully Sold or Leased

1. The principles of statutory construction are well established. They were set out recently in the joint judgment of the High Court in Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 297 ALR 190 (at [47], quoted in Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305 at [46], footnotes omitted):

47. As French CJ, Hayne, Crennan, Bell and Gageler JJ said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd: "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text". Context and purpose are also important. In Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross French CJ and Hayne J said:

"The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' ... That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'." (emphasis of French CJ and Hayne J)

1. Given that the claimed land has been vested in the State of New South Wales, a plain reading of the definition of "Crown land" in s 3(1) of the CLA means that the claimed land is "Crown land" as defined "in that Act".

1. But "Crown land" must be dealt with subject to the CLA and cannot be dealt with unless the dealing is authorised by that Act (s 6) or, any other enactment (s 7). This includes ss 34 and 138 of the CLA and s 36(1) of the ALRA.

1. Section 34 of the CLA clearly states that the claimed land is able to be sold or leased for the purposes of s 36(1)(a) of the ALRA. No legislative fetter is present in that provision on the power of the Minister to deal with land that is "Crown Land".

1. At issue, therefore, is whether the failure by the Minister to declare the land acquired by him to be Crown land by notification in the Gazette precludes the claimed land being "Crown land" for the purpose of s 36(1)(a) of the ALRA. Put another way, does the absence of gazettal pursuant to s 138(1) of the CLA mean that land which otherwise satisfies the definition of "Crown land" in s 3 of the CLA and is, therefore, Crown Land, is not land that is "lawfully" able to be sold or leased as required by s 36(1)(a) of the ALRA?

1. The reasoning in Gandangara, would appear to demand an answer favouring the Minister.

1. However, the reasoning in Gandangara is difficult to reconcile with the later Court of Appeal decision of Mogo. In that case, land was vested in fee simple in a local government authority in 1979. In 1981 notices were gazetted under s 25A of the CLCA declaring that the land could be dealt with as Crown land under that Act and an entry on the certificate of title noted that the land had become Crown land. A claim under the ALRA was rejected on the basis that the land was not claimable Crown land under s 36(1)(a) of that Act.

1. The Court held that the effect of the declaration under s 25A of the CLCA was that the land could be dealt with as Crown land, but that it did not become Crown land and, therefore, claimable Crown land under the ALRA. Consequently, the entry on the certificate of title was made in error and rectification was ordered.

1. As Giles JA noted (at [33]-[34], with whom Hodgson JA and Rolfe AJA agreed at [60] and [61] respectively):

33. The essential contest was whether the first declaration of 10 July 1981 had the effect that lot 8 became Crown land, or whether it had the effect that lot 8 could be dealt with as Crown land although not Crown land. In contending for the former view the land council then argued that, being Crown land, lot 8 became vested in Her Majesty in accordance with the definition of Crown land in the Crown Lands Consolidation Act and consequently the shire council was divested of its (limited) interest as holder of an estate in fee simple.

34. In my opinion, s 25A of the Crown Lands Consolidation Act as it stood in 1981 was quite clear. It applied to land which had not been acquired under the Closer Settlement Act 1904 and was not Crown land within the meaning of the Crown Lands Consolidation Act. As was said by Beazley JA, with whose reasons Studdert A-JA agreed, in Gandangara Local Aboriginal Land Councilv Minister Administering the Crown Lands Act (1997) 41 NSWLR 459 at 473, it provided a mechanism by which land not falling within the definition of Crown land could be dealt with as Crown land. The declaration which it empowered did not purport to alter the ownership of the land or the body in which it was vested. Indeed, the declaration did not purport to deal with the land at all - it only declared that the land could be dealt with and authorised the dealing. The way the land could be dealt with was as if it had been acquired under the Closer Settlement Act or as Crown land within the meaning of the Crown Lands Consolidation Act. The absence of a straightforward declaration that, relevantly, the land should become Crown land is stark, and is emphasised by the language of the immediately preceding s 25 of the Crown Lands Consolidation Act by which on the revocation of the dedication of Crown land for failure of the dedicated purpose the land "shall forthwith be vested in His Majesty and shall become Crown lands within the meaning of this Act".

1. There is ample evidence of the state of disrepair on the land as at the date of the claim. Reports detailing the plethora of problems associated with the site abound in the evidence both before and after the claim date. What was not described in text was depicted in photographs, which, although not taken as at the date of the claim, were consistent with the damage subsequently reported in the Technical Due Diligence Report on Newcastle Post Office (dated January 2012 and commissioned by the University of Newcastle), and supported the inference that the condition of the land they recorded had not materially changed as at the claim date.

1. Furthermore, and consistent with the conclusion reached above, while not determinative, the material before the Court is replete with statements acknowledging that the building was, even after the claim date, unoccupied and unused. While this was certainly because the building remained in a state of disrepair and continued to be hazardous to human safety, it does not alter the land's fundamental characteristic as being vacant.

1. Fourth, and for the sake of completeness, to the extent that the Minister relied upon visits by various consultants, contractors, security guards employees of the LPMA (Mr Harding and Mr Mullen) and potential proponents, viewed either individually or collectively, these activities were transitory in nature and could not properly be regarded as recurring physical acts on the land sufficient to constitute conduct amounting to actual use or possession of the land by reason of some degree of permanence or continuity.

1. Nor were the visits an incident of making the land serve some purpose. Rather, as the ALC submitted, and which I accept, the visits were acts to prepare the claimed land to be leased for a possible future use or uses that had yet to be determined (see, for example, the letter written by Mr Harding to Mr Dirou dated 13 August 2010). Again, this is not sufficient for the purposes of s 36(1)(b) of the ALRA.

1. I therefore do not find that as at the date of the claim, the claimed land was lawfully used or occupied pursuant to s 36(1)(b) of the ALRA.

Was the Land Needed or Likely to be Needed for an Essential Public Purpose Under s 36(1)(c)?

Applicable Legal Principles

1. Again it is convenient to articulate the applicable legal principles governing whether the claimed land was, at the relevant time, needed or was likely to be needed for an essential public purpose within the meaning of s 36(1)(c) of the ALRA. There was common ground between the parties in this regard.

1. Having said this, because of a concession by the Minister that the claimed land was needed as at the date of the claim for an essential purpose, and not that the land was "likely to be needed", it is not necessary to set out how that phrase has been interpreted in the authorities.

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

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

1. Third, the need for land must be a reasonable need (Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 20; (2001) 113 LGERA 163 at [16]-[17] per Lloyd J ("Wanaruah"); New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act(the Tuncurry claim) [2008] NSWLEC 168; (2008) 159 LGERA 400 at [42] per Lloyd J and Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act[No 2] [the Londonderry claim] (1995) 89 LGERA 194 at 204 per Bignold J).

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

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

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

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

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

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

1. Finally, it should be observed that a wide range of purposes have been regarded as essential public purposes: coastal protection and public access to the shoreline (Coffs Harbour and District Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2013] NSWLEC 216; (2013) 199 LGERA 372; the provision of trigonometric stations and power lines (Wanaruah); the provision of drainage and sewerage infrastructure (Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 180; (2006) 149 LGERA 162 ("Darkinjung")); nature conservation (Illawarra); public access and recreation with respect to tidal waters (Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 72 LGRA 149); national parks (Maroota); and cemeteries (Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 95 LGERA 353).

The Minister's Submissions

1. The Minister formally refused the claim on 31 August 2011 on the basis that the land was needed or was likely to be needed for the essential public purpose of community services, heritage purposes, urban services, regional requirements and tourism facilities and services. The land was expressly purchased for these reasons.

1. It was the Minister's position that as at the date of the claim, the land was needed primarily for heritage purposes and that the Minister for Lands had approved the decision to purchase the land for this purpose approximately one year before the claim was lodged. In the intervening period, the land was prepared to enable this purpose to be realised. The further identified purposes of community services, urban services, regional requirements and tourism facilities and services, were both purposes and uses that fulfilled the overarching heritage purpose.

1. Put another way, the Minister claimed that there was a decision at an appropriate Government level that the land was needed for heritage and associated purposes, and that the land was subsequently purchased and that costly remediation was undertaken in order to attain this purpose. That is to say, the ministerial action supporting the purchase demonstrated the requisite need in the sense that the site was wanted. The envisaged public/private partnership to be developed through the RFP process was an acceptable vehicle for fulfilling the public purpose as evidenced by the Guidelines for Privately Financed Projects published by the NSW Treasury in September 2004.

1. Having regard to the well documented and recognised heritage value of the Newcastle post office, and the demonstrated public interest in heritage conservation (as documented in the Heritage Asset Management Guideline also issued by the NSW Treasury and the LEP), the Minister argued that there could be "little doubt" that, in particular, the heritage purpose for which the land was purchased and remediated met the requisite degree of essentiality. In particular, the Minister submitted that the Government's intervention in purchasing the land was in response to the public call to preserve and conserve the site and to return it to public ownership, and that this demonstrated the essentiality of the public purpose.

Was the Claimed Land "Needed"?

1. The Minister relied on the LPMA minute dated 1 July 2010, and approved by the Minister, to demonstrate that the land was needed, in the sense of required or wanted, for the purposes asserted by the Minister, including for heritage purposes.

1. But the minute cannot, alone, provide sufficient evidence of need given the absence of any factual material supporting the statement of opinion contained within it, or any other material attached to it that might have informed the Minister of the asserted need at the time approval was granted. In other words, on the evidence before the Court it was not an opinion formed reasonably on the available material. I agree with the submission of the ALC that, especially in light of the objects of the ALRA, it can hardly have been the objective intention of Parliament that land can be rendered non-claimable under the Act by such a recitation, particularly a recitation in such broad, generalised and formulaic terms.

1. Even assuming that the Minister reasonably held this opinion as at the claim date, this is not, in any event, necessarily determinative of the issue (Nambucca CA at [40] per Bathurst JA). The Court is entitled to reach a different conclusion from that reached by the relevant governmental officer.

1. In my opinion, however, the requisite need (in the sense of "wanted", rather than "required") is demonstrated when regard is had to material such as: the Newcastle City Centre Renewal Report to the NSW Government; the letter to the LPMA dated 22 April 2010 from the City of Newcastle; the LPMA memorandum dated 21 May 2010; the RFP (which refers to the public purchase of the site "so that it is sensitively and adaptively reused...to build on its unique...heritage"); CMF's Terms of Reference for the preparation of a scoping study for the land dated July 2010; the 30 July 2010 licence granted to APP by the LPMA; the September 2010 scoping study; the press release issued by the Hon Jodi McKay MP on 13 November 2010 (stating that the RFP was "in line with the site's heritage status"); the Request for Proposals Evaluation Process and Methodology dated 18 January 2011 (including the Scoring Evaluation Sheet); and the approval by the Minister for Lands on 8 February 2011 of a request for a further budget allocation.

1. Again, the ALC relied on the fact that the evidence suggested that the claimed land was acquired without the required formal approval of the Budget Committee. But as discussed above, even if there was no approval as at the date of the purchase, the fact remains that as at the date of the claim, retrospective authorisation had been given.

1. But having concluded that the claimed land was wanted by the Minister, this does not, as will become apparent below, mean that the land was needed by him for an essential public purpose. As a matter of fact, I have found that it was not.

Were the Asserted Purposes "Public Purposes"?

1. Although the Minister's asserted purposes and uses of the claimed land were framed in the language of a public purpose ("community", "heritage", "urban", "regional" and "tourism"), I agree with the ALC that the evidence establishes that proposed uses of the land as at the date of the claim were for private, and not public, purposes. To the extent that Government was contemplating possible public or community uses in the future informing a present public purpose, these were too remote and speculative to be relevant.

1. In the present appeal, the evidence demonstrated, in my view, that as at the date of the claim the Government envisaged that the Newcastle post office would be redeveloped for private use, albeit with ownership being publicly retained. The private uses considered were those of retail and hospitality. While the public would undoubtedly benefit from the development, the claimed land was nevertheless needed for what was essentially a private purpose. This is evident in the Terms of Reference for the CMF scoping study ("to review the current functionality of the building and the suitability of the building for commercial & or retail use"); the September 2010 scoping study by CMF (which noted that the LPMA wanted to enter into a partnership with an entity - a "developer/investor" that would develop the property. A 50 to 60 year head lease that was "effectively freehold" was envisaged); the Conservation Management Plan published in October 2010, that advocated a development approach that conserved the heritage of the building but that considered the particular use to which the building was put to be irrelevant; the internal memorandum prepared by the LPMA on 14 October 2010, that provided a project timeline for the RFP in order to select a proponent for the site; various newspaper articles concerning the proposed redevelopment of the site; the RFP process; the press release by the Hon Jodi McKay MP dated 13 November 2010; the 28 October 2010 briefing note from Mr Harding to the Minister for Planning in relation to the RFP; the Request for Proposals Evaluation Process and Methodology dated 18 January 2011; the letter sent to the Treasurer from the Minister for Lands dated 8 February 2011; the 7 April 2011 letter from Mr Robinson of the LPMA to the Samadi-Woodhead Group; the expression of interest by the University of Newcastle in May 2011 and again on 29 June 2011.

1. The post-claim evidence is consistent with the private character of the purpose giving rise to the claimed need. This includes, for example, the MOU with the University of Newcastle with the intent of developing and negotiating a private treaty long term lease agreement; the briefing note signed by the Minister on 27 July 2011, which expressly noted that the MOU was not binding and with the added notation stating, "proceeding exploring commercial options with NPO"; the memorandum from Mr Mullen at the LPMA to Mr Ritchie on 2 August 2011; and the 25 October 2011 briefing note.

1. It is also consistent, in my opinion, with the evidence of Mr Harding to the effect that he was charged with the overall responsibility of remediating the Newcastle post office site and preparing the RFP documentation with the objective of entering into a long term leasing arrangement with a private party.

1. The overwhelming weight of the evidence compels the conclusion that land was to be used for the purpose of private redevelopment and not community, tourism, regional, urban, or even heritage uses. Put another way, the Government did not envisage actually using the land for these uses, rather, it envisaged using the land for private commercial purposes that it hoped would ultimately attract these uses.

1. Even the asserted desire to acquire the claimed land for the purpose of heritage conservation served a private and not public purpose. There was no proposal to use the land for heritage purposes, for example, a museum. There was, however, a continuing proposal that the site be leased on a long term basis to a private party. That the redevelopment contemplated the conservation of the heritage fabric of the building by a private proponent is not, in my opinion, sufficient to establish the public nature of the purpose. At all times the Government was seeking expressions of interest from private entities as to mainly commercial activities, private or public, that could occur in a refurbished building that was already protected under the Heritage Act and the LEP.

1. This is not to say that public purposes may not be served by private interests. They may. But "not every private facility which the community uses can be considered as having a public purpose" (Darkinjung at [139] per Pain J). This is because, as has been observed by Pain J in Darkinjung, the logical corollary would be that every land use identified by a Government as desirable in its strategic planning would arguably be a public purpose (at [139]). Where private activity is providing essential public infrastructure then the requisite nexus may be obvious, but that is not the case here, where the foreshadowed private commercial retail and hospitality activity, even if occurring on public land, is for a private purpose, "given that retail activity generally is 'private' in nature" (at [139]). Indeed, drawing upon the observation of Bannon J in La Perouse, Pain J went so far as to state that in her view, "urban development generally is not an activity that equates to public purpose" (at [140]).

1. In this appeal, the envisaged uses serve private rather than public purposes. They are not for the administration of the government of the State; they are not to provide public infrastructure by private developers (for example, sewer lines as in Darkinjung). The envisaged uses are more analogous to the provision of a neighbourhood shopping centre with loosely specified adjunct community facilities and services (Darkinjung), or urban land development (La Perouse), neither of which have been held to be for a public purpose.

1. Properly characterised, therefore, the purpose giving rise to the need for the claimed land is that of private commercial development. This is not, in my view, a public purpose.

1. Reinforcing this conclusion was the highly generalised expression of the purposes by the Minister not only in the evidential material before the Court, but also in the Minister's written and oral submissions. This is discussed further below.

Were the Asserted Public Purposes "Essential" Public Purposes?

1. Assuming, contrary to my finding above that the claimed purposes are public purposes in the relevant statutory sense, are these purposes "essential" public purposes within the meaning of the ALRA? In my opinion, having regard to the high threshold necessary to satisfy the requisite 'essentiality', they are not.

1. The evidence does not establish that the land was, as at the date of the claim, necessary or indispensable for the asserted public purposes. On the contrary, it confirms that although the Minister wanted the claimed land to be retained for the broad purposes of community, urban, regional, tourism, and in particular, heritage, purposes, to do so was not essential. That is to say, the desire to publicly own the land for these reasons did not elevate these aims such that they demonstrated relevant need in the sense of being a requirement for an essential public purpose.

1. Leaving aside unsupported aspirational statements contained in the documents, there was scant persuasive evidence of any necessity to retain the land for community, urban, regional, or tourism purposes (either facilities or services) and the Minister has not discharged his onus in this regard.

1. Having regard to the evidence before the Court, the same conclusion may be drawn with respect to heritage as an essential public purpose.

1. Although, as noted above, it is irrelevant to any determination under s 36(1)(c) of the ALRA whether the asserted essential public purpose could have been achieved in some other way, in this instance, the fact that there is nothing in the Heritage Act or the LEP that requires public ownership in order to achieve conservation of items of State significant heritage belies the non-essentiality of the public purpose. In other words, the fact that the claimed land was listed under that Act and was considered to be of State significance does not, as the Minister suggested, of itself, give rise to an inference that the acquisition of the land by the Government was for an essential purpose. There is nothing in the objects of the Heritage Act that demand that the conservation of the State's heritage is to be achieved through particular land uses or through public ownership of items statutorily designated as having heritage value or significance. On the contrary, under both the Heritage Act and the LEP restrictions can be imposed on both private and public landowners and proponents alike.

1. The Minister specifically relied upon the 21 May 2010 LPMA memorandum recommending that the Chief Executive Officer of that body acquire the land for a public purpose that could include "community purposes, heritage purposes, urban services, regional requirements and tourism facilities and services". The memorandum noted that public ownership and redevelopment was seen as "integral" in ensuring the successful promotion of the heritage and cultural values of the entire precinct and that the LPMA was of the view that it was essential that the building be returned to public ownership for future use and redevelopment of community uses. He also relied on the 1 July 2010 minute. Neither statement is, however, determinative, nor, in my opinion, compelling.

1. By way of illustration, in La Perouse the Minister refused part of a claim under the ALRA because the land was needed for the essential public purpose of future residential land development to be undertaken by a government body, namely, the Land Commission. The Minister claimed that the development might not be appropriately undertaken by a private developer. The Court upheld the land claim on the basis that the Minister had failed to prove that land was needed for an essential public purpose, as distinct from being merely suitable or desired for the purpose of future residential development (at 183 per Bannon J).

1. In the present case, the concern stated in the memorandum dated 21 May 2010 (and recurring in subsequent documentation) appeared to be the obverse of that in La Perouse, viz, that absent public ownership of the former Newcastle post office, an appropriate adaptive reuse of the building conserving its heritage status would not be possible. But while it may be desirable, or even highly desirable, that the former Newcastle post office be publicly owned to protect the essential heritage characteristics of the building, it does not follow, and nor does the preponderance of the evidence establish, that the Government's retention of the site serves an indispensable public purpose.

1. Further, and as stated above, the abstract and plenary nature of the public purposes relied upon by the Minister is strongly suggestive of an absence of essentiality. As at the date of the claim there was, to reiterate, no evidence of any concrete proposal to use the land for community, heritage, urban, regional or tourism purposes, nor was there any evidence demonstrating why the claimed land was, as a matter of necessity, needed to further these purposes.

1. Stated at such a high level of generality, the broadly asserted public purposes do not permit the Court to determine whether the purposes were necessary or indispensable. The Court has previously treated with caution alternative and potentially competing unspecified public purposes by a governmental entity (Darkinjung at [145] and O'Hara's Creek at [161]), suggesting as it does, an absence of essentiality. In the present appeal, it is not difficult to conceive of scenarios where the need for urban services are not harmonious with a need for tourism facilities or regional requirements. Similarly, use of the land for community purposes may readily conflict with a need for tourism facilities.

1. There is, moreover, considerable force in the submission by the ALC that the Minister has conflated public purposes in relation to how the land is used, or in this case redeveloped, and needing the land for an essential public purpose. The evidence discloses that the Government sought to give effect to the asserted public purposes in the manner in which the land was envisaged to be developed (see the 21 May 2010 memorandum, the minute of 1 July 2010, the RFP documents, the press releases by the Hon Jodi McKay MP, various briefing notes and memoranda and the University of Newcastle negotiations). But this evidence does not equate to material establishing that the land was needed for any particular essential public purpose. As stated above, using land (even if public land) for private purposes (in this case commercial development) that delivers a public benefit (be it heritage protection, the provision of tourism services or community facilities) does not mean that the private purpose gives effect to a necessary or indispensable public purpose.

1. In particular, the evidence discloses that the Government had no specific land use in mind (other than some broad concept of commercial redevelopment) from the time of the RFP to the date of the claim, if not to the date of the appeal. During the RFP process the LPMA provided little or no guidance to potential proponents (other than rejecting a casino) of how the land should be developed or what activities would be permitted on it. This indicates that the public purposes contended for by the Minister were not "essential". The expressions of interest from the University of Newcastle, rose no higher than the MOU which was stated to be not binding and which did not preclude the Government exploring other commercial options.

1. For the reasons given above, I therefore do not find that as at the date of the claim, the asserted public purposes constituted essential public purposes within the meaning of s 36(1)(c) of the ALRA.

The Claimed Land Was Not Needed for an Essential Public Purpose

1. To the extent that it is necessary to say so, it follows that I do not find that the claimed land was needed for any of the asserted purposes, which were neither public nor essential in the relevant sense.

1. The evidence plainly indicates that as at the date of the claim, no particular purpose had been decided upon by the Government. Proposals were being sought from private, and largely commercial, entities as to the use of the land, but no specific proposal (or purpose, for that matter) had been settled upon. Thus no steps had been taken to use the land for any of the asserted purposes and there was nothing demonstrating that the land was needed as at the claim date for a public purpose, let alone an essential public purpose. That is to say, the multitude of land uses described by the Government in the documents it relied upon were not demonstrated to be needed as an essential public purpose as at the date of the claim.

1. I therefore do not find that as at the date of the claim, the land was needed for an essential public purpose within the meaning of s 36(1)(c) of the ALRA.

Conclusion and Orders

1. Accordingly, I find that the Minister has not discharged his onus of proving that the claimed land is not claimable crown land under s 36(1)(a) of the ALRA and has, therefore, not discharged the requirements of s 36(7) of that Act. Consequently, the appeal must be upheld and the orders for transfer made.

1. The orders of the Court are therefore as follows:

(1)   appeal allowed;

(2)   the land the subject of Aboriginal land claim 35845 being Lot 3, DP758769 be transferred to Awabakal Local Aboriginal Land Council in fee simple within three months;

(3)   each party to pay its own costs; and

(4)   the exhibits are to be returned.

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Amendments

23 June 2014 - changed 'public' to 'private'

Amended paragraphs: 213

Decision last updated: 23 June 2014