NSW Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 - Helensburgh Police Station

[2020] NSWLEC 133

Land and Environment Court

New South Wales

Medium Neutral Citation:

NSW Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 – Helensburgh Police Station [2020] NSWLEC 133

Hearing dates:

23-24 June 2020

Decision date:

11 September 2020

Jurisdiction:

Class 3

Before:

Pain J

Decision:

See [157]-158] of judgment

Catchwords:

ABORIGINAL LAND RIGHTS – claim of Crown land – whether Helensburgh police station paddock lawfully used and/or occupied at date of claim in 2010

ABORIGINAL LAND RIGHTS – claim of Crown land – whether Helensburgh police station paddock lawfully used and/or occupied at date of claim in 2016

ABORIGINAL LAND RIGHTS – claim of Crown land – whether Helensburgh police station residence lawfully occupied at date of claim in 2016

Legislation Cited:

Aboriginal Land Rights Act 1983 (NSW) ss 3, 36

Crown Lands Act 1989 (NSW) ss 3, 6, 7, 10, Pt 5 (ss 78, 87), Pt 7 Div 5 (s 155), Sch 8 cl 1

Crown Land Management Act 2016 (NSW)

Cases Cited:

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

Housing Commissioner (NSW) v Falconer [1981] 1 NSWLR 547

La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 5

Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138

Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665; [2001] NSWCA 28

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

Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2014] NSWCA 69

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

Minister Administering the Crown Lands Act v NSWALC (2012) 84 NSWLR 219; [2012] NSWCA 358

Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154

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

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2014) 204 LGERA 1; [2014] NSWLEC 72

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2015) 215 LGERA 103; [2015] NSWCA 349

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Berrima) [2014] NSWLEC 188

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) (No 3) [2015] NSWLEC 145

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

NSW Aboriginal Land Council v Minister Administering The Crown Lands Act (2007) 157 LGERA 18; [2007] NSWCA 281

Texts Cited:

New South Wales Government Gazette No 704, 6 December 1902 at 87773, 87779

Category:

Principal judgment

Parties:

NSW Aboriginal Land Council (Applicant)
Minister Administering the Crown Land Management Act 2016 (Respondent)

Representation:

COUNSEL:
S Pritchard SC (Applicant)
R Graycar (Respondent)

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

File Number(s):

19/192801

Judgment

1. The Applicant, the New South Wales Aboriginal Land Council (NSW ALC) has filed an appeal under s 36(6) of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) in response to the refusal by the Minister Administering the Crown Lands Management Act 2016 (NSW) (Minister) of Aboriginal land claim (ALC) 28490, part ALC 42456 and part ALC 42492. These claims relate to Lot 995 DP 752033 consisting of the Helensburgh police station, the residence and a paddock in Helensburgh, in the Illawarra region of New South Wales. I thank Acting Commissioner Davis for her assistance in this matter.

2. The relevant ALCs are:

1. ALC 28490 lodged by the NSW ALC on 13 August 2010 over Lot 995;

2. Part ALC 42456 lodged on 15 December 2016 by the NSW ALC in respect of “all Reserves within the meaning of s 78 of the Crown Lands Act 1989 (NSW) within the boundary of the Wollongong City Local Government Area”, including Lot 995; and

3. Part ALC 42492 lodged on 19 December 2016 by the NSW ALC in respect of “all Reserves within the meaning of s 78 of the Crown Lands Act within the boundary of the Illawarra Local Aboriginal Land Council”, including Lot 995.

3. The claims were lodged by the NSW ALC on behalf of the Illawarra Local Aboriginal Land Council on 13 August 2010 (first date of claim) and on 15 December 2016 and 19 December 2016 (second and third dates of claim). Lot 995 is a long town block bounded by Boomerang Street, Waratah Street and Parkes Street Helensburgh. A demountable police station (the police station), an old heritage listed courthouse/residence (the residence) and a fenced paddock (the paddock) are located on it. The street address of Lot 995 is variously described in the evidence as “corner of Parkes Street and Waratah Street, Helensburgh”, “75 Parkes Street, Helensburgh” or “2 Waratah Street, Helensburgh” (paddock only).

4. The NSW ALC no longer presses the part of the appeal relating to the police station. The NSW ALC does not press the appeal in relation to the residence on the first date of claim. It presses the claims with respect to:

1. the paddock at the first date of claim (August 2010);

2. the paddock at the second and third dates of claim (December 2016); and

3. the residence at the second and third dates of claim (December 2016).

5. On 28 February 2019, the Minister wrote to the NSW ALC advising that ALC 28490, part ALC 42456 over Lot 995 and part ALC 42492 over Lot 995 were refused on the grounds that “when the Claims were made the land was not claimable Crown land as the land was lawfully used and occupied for police station (within the meaning of s 36(1)(b) of the ALRA [ALR Act]) and needed for the essential public purpose of Government purposes (police) as the Helensburgh Police Station.”

6. The Minister bears the onus of satisfying the Court that, at the dates of claim, those parts of Lot 995 the subject of the ALCs were lawfully used or lawfully occupied and therefore not claimable Crown lands within the meaning of s 36(1)(b) of the ALR Act (see Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 (Bathurst CA) at [202]). Generally, the circumstances relating to claimed land as at the date of a claim must be assessed to determine if Crown land is claimable. While events after the date of claim are not generally able to be considered, where these confirm a foresight not a hindsight it is acceptable to consider them, as found in Housing Commissioner (NSW) v Falconer [1981] 1 NSWLR 547 (Falconer) by Hope JA at 558B, cited in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) (No 3) [2015] NSWLEC 145 at [50].

Legislation

Aboriginal Land Rights Act1983(NSW)

7. Relevant sections of the ALR Act provide:

Part 1 Preliminary

…

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.

…

Part 2 Land Rights

…

Division 2 Claimable Crown lands

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—

…

(b)   are not lawfully used or occupied,

…

(2)   The New South Wales Aboriginal Land Council may make a claim for land on its own behalf or on behalf of one or more Local Aboriginal Land Councils.

(3)   One or more Local Aboriginal Land Councils may make a claim for land within its or their area or, with the approval of the Registrar, outside its or their area.

(4)   A claim under subsection (2) or (3)—

(a)   shall be in writing and, if a form for making such a claim has been prescribed, shall be in or to the effect of that form,

(b)   shall describe or specify the lands in respect of which it is made,

(b1)   (Repealed)

(c)   shall be lodged with the Registrar, who shall refer a copy thereof (together with a copy of any approval necessary under subsection (3)) to the Crown Lands Minister or, if there is more than one Crown Lands Minister, to each of them.

…

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

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

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

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

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

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

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

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

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

…

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

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

…

(10)   A transfer of lands pursuant to this section operates to revoke any dedication or reservation under the Crown Lands Consolidation Act 1913 to which the lands were subject immediately before the transfer.

…

(12)   A transfer of lands pursuant to this section is subject to the following—

(a)   any easements affecting the lands immediately before the transfer,

(b)   any condition imposed under subsection (5A),

…

(15)   Duty under the Duties Act 1997 is not payable in respect of a transfer of lands in accordance with this section.

…

Crown Lands Act 1989 (NSW)

8. The Crown Lands Act 1989 (NSW) (CL Act) has been repealed and replaced by the Crown Land Management Act 2016 (NSW). However, none of the provisions of the latter Act commenced operation prior to 2018 and thus the CL Act is still the relevant legislation to consider in relation to the date of the relevant claims (2010; 2016).

9. Relevant sections of the CL Act (now repealed) provide:

Part 1 Preliminary

…

3   Definitions

(1)   In this Act:

…

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.

Crown Lands Acts means:

(a) the Acts repealed by section 2 of the Crown Lands Act of 1884 (except Act 22 Victoria No 17 and Act 23 Victoria No 4),

(b)   the Acts repealed by the Crown Lands Consolidation Act 1913,

(c)   the Acts repealed by this Act,

(d)   the provisions of the Prickly-pear Act 1924 referred to in clause 5 (1) of Schedule 1 to the Prickly Pear Act 1987,

(e)   the provisions of the Crown Lands (Amendment) Act 1932 repealed by the Miscellaneous Acts (Crown Lands) Amendment Act 1989,

(f)   the Crown Lands (Continued Tenures) Act 1989, and

(g)   this Act.

…

public purpose, in relation to a provision of this Act, means any purpose for the time being declared by the Minister, by notification in the Gazette, to be a public purpose for the purposes of that provision.

…

(2)   Crown land does not cease to be Crown land just because of the creation in respect of it of a folio of the Register in the name of “The State of New South Wales”.

(3)   In this Act:

(a)   a reference to a function includes a reference to a power, authority and duty, and

(b)   a reference to the exercise of a function includes, in relation to a duty, a reference to the performance of the duty.

(4)   Notes included in this Act do not form part of this Act.

…

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.

7   Relationship with other Acts

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

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

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

…

10   Objects of Act

The objects of this Act are to ensure that Crown land is managed for the benefit of the people of New South Wales and in particular to provide for:

(a)   a proper assessment of Crown land,

(b)   the management of Crown land having regard to the principles of Crown land management contained in this Act,

(c)   the proper development and conservation of Crown land having regard to those principles,

(d)   the regulation of the conditions under which Crown land is permitted to be occupied, used, sold, leased, licensed or otherwise dealt with,

(e)   the reservation or dedication of Crown land for public purposes and the management and use of the reserved or dedicated land, and

(f)   the collection, recording and dissemination of information in relation to Crown land.

…

Part 5 Dedication and reservation of land

…

Division 3 Reservations

87 Power of Minister to reserve land

(1) The Minister may, by notification in the Gazette, reserve any Crown land from sale, lease or licence or for future public requirements or other public purpose.

(2)   The reservation takes effect on publication of the notification.

…

Part 7 Miscellaneous

…

Division 5 Protection of public land

155   Offences on public land

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

…

(c)   graze stock on public land,

…

…

10. Crown land is defined in s 3 of the CL Act to mean inter alia “land that is vested in the Crown… not being… land dedicated for a public purpose”. Part 5 (s 87) deals with dedication and reservation of land. Land reserved under Pt 5 is Crown land. The Helensburgh courthouse (now the residence) and police station were reserved from sale in the New South Wales Government Gazette on 6 December 1902 (R35425). Clause 1 of Sch 8 of the CL Act provides by way of transitional and savings provision that a dedication or reservation that was in force under a repealed Act immediately before its repeal has effect as if it had been made under the CL Act. That applies to enable the reservation made in 1902 to be treated as if it were made pursuant to the CL Act.

11. Notations on a search of the title of Lot 995 dated 12 July 2018 refer to R35425, and note that “the land is a reserve within the meaning of Pt 5 of the CL Act and there are restrictions on transfer and other dealings in the land under that Act, which may require consent of the Minister”.

Statement of agreed facts

12. The parties provided the Court with the following Statement of Agreed Facts (SOAF) which stated in part:

…

Lot 995: The Claimed Land

5.   Lot 995 is located at Helensburgh in the Parish of Heathcote, County of Cumberland.

6.   Lot 995 comprises a long town block bounded by Boomerang St, Waratah St and Parkes St.

7.   Lot 995 is fenced in two distinct sections:

a.   one section, approximately half of Lot 995, which contains two separate and distinct buildings:

i.an old court-house/residence erected in about 1902 (the residence);

ii.   a demountable police station erected sometime between 1961 and 1977 (the police station), as well as a garage;

b.a second section, the remaining half of Lot 995, being a fenced paddock (the paddock section).

8.   A marked up aerial image of Lot 995 indicating the distinct sections and the residence, police station and garage is Annexure 'A' to this Statement of Facts and Contentions. ¹

9.   In 1896, the original Helensburgh police station was built in Lukin Street, Helensburgh (Lot 81 DP 806991).

10.   On 6 December 1902, R35425 from sale for court-house and police station was notified.

11.   On a date unknown, but sometime between 1896 and 1961, police operations moved from the original police station in Lukin Street to Lot 995.

12.   Sometime between 1961 and 1977, the police station and garage were erected on Lot 995.

13.   In the late 1980s, the Helensburgh court-house was closed.

14. On 3 March 2010, the Regional Manager, South, by delegation 2D.1.1 under s 34(2) of the Crown Lands Act 1989 approved in principle the sale of Lot 995.

15.   On 25 March 2010, notice of the Minister's intention to revoke R35425 and to sell part of Lot 995 was advertised.

16.   On 22 June 2010, the paddock section was listed for sale.

17.   From around 2001 until July 2016, Sergeant Lawrence Drury resided in the residence.

18.   Since July 2016, the residence has been vacant.

19.   As at the first date of claim and second dates of claim, Lot 995 was the subject of R35425 from sale for court-house and police station.

20. As at the first date of claim and second dates of claim, Lot 995 was vested in the State of New South Wales. Notations on a search of the title of Lot 995 dated 12 July 2018 refer to R35425 and state that "the land is a reserve within the meaning of Pt 5 of the Crown Lands Act 1989 and there are restrictions on transfer and other dealings in the land under that Act, which may require consent of the Minister".

Evidence

13. The NSW ALC tendered: (i) the affidavit of Mr Terence Millott, a senior land rights officer at the NSW ALC, sworn 9 December 2019 (Exhibit A); and (ii) a bundle of documents for tender (Exhibit B).

14. The Minister tendered: (i) the court book (Exhibit 1); (ii) the SOAF (Exhibit 2); (iii) affidavits of Mr Lawrence Drury, Mr Gerard Stepien, Mr Heath Rhind, Mr Joseph Vella and Mr John Bowron (Exhibit 3); (iv) Exhibit GJS-1 to the affidavit of Mr Stepien, Executive Director (Property) of the Police Property Group in the New South Wales Police Force (NSW Police), affirmed 17 October 2019 (Exhibit 4); and (v) a bundle of documents for tender (Exhibit 5).

15. The evidence relied on by the Minister to establish use and/or occupation, and the NSW ALC to establish no use or occupation, will be considered in relation to each of the dates of claim as relevant to the paddock and the residence.

Paddock first date of claim (2010)

Minister’s evidence

Mr Drury

16. The Minister read the affidavit of Mr Drury sworn 22 October 2019. Mr Drury is a retired sergeant of NSW Police. Between 1996 and 2009 he was sergeant and plain clothes investigative detective based at Wollongong police station. Mr Drury deposed that when the previous occupier left the police residence at Helensburgh, NSW Police agreed to find a new resident, provided the incoming occupier was prepared to carry out some additional duties involving liaising with the Helensburgh community and representing the police in the community. Mr Drury was the successful applicant and moved into the residence. The Helensburgh police station did not have a sergeant allocated to it at that time which caused community concern. As the sergeant living in the residence, it was part of Mr Drury’s role to liaise with the community and address their concerns, including attending council meetings. In 2009 a sergeant position was re-established at Helensburgh and Mr Drury was offered the position. He worked there from 2009 until January 2014. From 2009 until his retirement in July 2016 (after taking leave between January 2014 and July 2016) he was the sergeant in charge of the Helensburgh police station. In that capacity Mr Drury was responsible for supervision of the police, allocating and monitoring jobs, operating the police station and attending to counter inquiries including reports of crime, accidents, neighborhood disputes and domestic incidents.

16. Regarding the use of the paddock, Mr Drury said that when he first came to Helensburgh in 2001 an arrangement was in place for a local girl to keep her horse in the paddock. This continued until about 2002 when she moved away and removed her horse. Soon afterwards another local lady arranged to keep her horse in the paddock which continued until 2003 or 2004. The paddock was vacant for several years until a local man called Mick approached Mr Drury in 2009 and asked to keep his horse in the paddock. Mr Drury agreed and asked that Mick look after the horse and pick up its manure. There was no cost to Mick, and the horse kept the grass down.

17. Concerning maintenance of the residence, Mr Drury said that he mowed the grass in the front and back yards of the residence and attended to other routine maintenance such as clearing gutters. On maintenance of the paddock, he said he repaired the gate and fence a few times after damage was caused by fallen branches. Mr Drury said he could also request that the police contractor attend to maintenance, which had to be authorised by administrative staff at Wollongong police station through a section of NSW Police called “Shared Services”.

18. In cross-examination, Mr Drury said he only knew the man he had an arrangement with regarding the paddock by the name of “Mick”. He accepted that references to someone named “Lawrie” in the affidavit of Mr Bowron were to himself. Counsel for the NSW ALC referred to Mick as Mr Bowron from then on. Mr Drury said that the shed in the paddock was probably built in around 2007 or 2008. He subsequently accepted that evidence given in his sworn affidavit that Mick started using the paddock in 2009 and built the shed after that time was more reliable. Mr Drury said the agreement between himself and Mr Bowron was verbal and that Mr Bowron was not asked to pay anything to keep his horse in the paddock. Mr Drury described the arrangement as a “common sense decision”. He could not point to any authority for how he came to have the agreement with Mr Bowron. He recalled Mr Bowron taking his horse out of the paddock for rides in Helensburgh and the surrounding national park. Mr Drury did not recall having a conversation with Mr Bowron in 2009 or 2010 about removing his horse because the paddock was going to be sold. Mr Drury said that there were times Mr Bowron took his horse out of the paddock to let the grass regrow.

19. Mr Drury said he was aware that an application was made to Wollongong City Council to subdivide Lot 995. He did not recall the paddock being advertised for sale in 2010 but accepted, when shown a listing from the Domain website, that the area advertised for sale was the paddock. Mr Drury was aware that the paddock was being prepared for sale in late 2009. He was not aware of any specific reason why it was going to be sold. He accepted that in June 2010 the paddock was not needed for the police station. Mr Drury did not recall a “For Sale” sign being put outside the paddock. When asked about the sale not proceeding due to an ALC he said that that did “ring a bell”.

20. Mr Drury accepted that the paddock was overgrown and had to be slashed at times. He could not recall whether this was the case in early 2010. He did not accept that the paddock was full of refuse or rubbish at the beginning of 2010. He accepted that there may have been fallen trees and other green waste. Mr Drury was taken to a quote dated 18 February 2010 for work including total scouring of the enclosed paddock (see below in [39]). Having been shown this quote, Mr Drury agreed it was safe to say there was no horse in the paddock from February 2010.

21. Mr Drury did not recall work being done involving blue metal being laid to prevent vehicles getting bogged, as outlined in the quote. He agreed that that work would be inconsistent with a horse being in the paddock. He recalled the installation of a Colorbond fence and new gates which he said were works done in preparation for the arrival of police horses. When shown a tax invoice for maintenance works completed in October 2010 identified as “SLASH VACANT BLOCK AT HELENSBURGH POLICE STATION” (see below in [55]) he accepted that the paddock was vacant at that time.

22. Regarding maintenance, Mr Drury agreed that any maintenance required on any part of the land had to be attended to by the police contractor via the administrative staff at the Wollongong police station and the shared services section. Mr Drury did not recall the Minister for Police entering a contract with United Group Ltd (UGL) for management of the police property portfolio. He admitted the name of that company did “ring a bell”.

23. He later said that Mr Bowron’s horse was in the paddock for 18 months prior to the arrival of police horses, and that the reason the horse had to be removed from the paddock was that the NSW Mounted Police asked to use the paddock for their purposes.

Mr Bowron

25. The Minister read the affidavit of Mr Bowron affirmed 18 October 2019. Mr Bowron, a crane driver based in Helensburgh, used to be the local Helensburgh butcher. He knew the sergeant of the Helensburgh police station, “Lawrie” Drury. In or about 2007 he had a conversation with Lawrie in which he told Lawrie that he needed somewhere to put his horse. Mr Bowron and Lawrie came to an agreement to keep the horse on the vacant, fenced area of land next to the police station. At that time the grass was quite high. Lawrie and Mr Bowron agreed that by eating the grass, the horse would help clean up the land.

26. Mr Bowron said to the best of his recollection the arrangement started in or around 2007 and lasted for close to four years. During that time Mr Bowron moved one horse out of the paddock and immediately put another horse in.

27. Mr Bowron said the arrangement he had with Lawrie ended when Lawrie told him to remove his horse from the paddock because NSW Mounted Police were going to put their own horses there.

28. In cross-examination, Mr Bowron said he kept horses from 1998 until around 2012. He kept a quarter horse that he would take to the Snowy Mountains every year in January for one week. When he first moved to Helensburgh in 1999 his horse was kept in a property in Narellan. Mr Bowron said he rode his horse in Helensburgh, in the national park and at the pony club in Helensburgh.

29. Mr Bowron described the paddock as a fenced off area adjacent to the police station waist high in grass. Mr Bowron said he built his own stable (shed) in the paddock, which was four poles and a roof, around six months after starting to use the paddock. Mr Bowron said putting his horse in the paddock was Mr Drury’s suggestion. He agreed that he did not pay for this arrangement or have an agreement in writing. Mr Bowron recalled the arrangement commencing in late 2007. When the arrangement commenced Mr Bowron said there was no water in the paddock and that he had to get a bathtub and make sure it was full for the horse every day. Mr Bowron said he visited three times a day.

30. When asked about the potential sale of the paddock, Mr Bowron was not aware of the paddock being listed for sale in 2010. He did not recall seeing a “For Sale” sign outside the paddock.

31. Mr Bowron did not agree that the paddock was at times overgrown. He said at times he had to hand feed his horse because there was not enough grass. He did not accept that the paddock was totally overgrown in February 2010. Having been shown a quote for works in the paddock (below in [39]), Mr Bowron accepted that his horse would have been removed for scouring of the paddock with a bobcat. Mr Bowron said that one third of the paddock was uninhabitable for any kind of animal as it was full of trees and blackberry bushes, and that he assumed this was the area of the paddock that a quote for works including scouring by bobcat referred to. Mr Bowron said no bobcat was in the paddock when his horse was there and that he was probably away with his horse if these works took place. He similarly agreed that works to install a new fence could not have happened when his horse was in the paddock. He did not recall being asked to remove his horse from the paddock so that work could be done. Having been shown correspondence indicating that the quote was accepted (below in [41]), Mr Bowron accepted that the work was carried out but said he was certain no blue metal was laid while his horse was in the paddock and that he did not see a bobcat doing work when his horse was there.

32. Mr Bowron agreed that from time-to-time he removed his horse from the paddock. He did not agree his horse was only in the paddock “on and off from time to time”. He said the horse was kept there full time but went out every Sunday and for one week each year. Mr Bowron was asked if he recalled slashing work being performed in October 2010. He said he recalled slashing work being done, presumably in October 2010, and his horse was not in the paddock on the day it was cleaned up. Mr Bowron accepted there was some rubbish in the paddock including logs, an old fence and bits of wire.

33. Mr Bowron said that to the best of his recollection he removed his horse from the paddock finally in 2013. He did remember being told police horses would be using the paddock. He did not recall when this conversation took place but said it may have been sometime around 2013.

NSW ALC’s evidence

Mr Millott

34. The NSW ALC read the affidavit of Mr Millott sworn 9 December 2019 (Exhibit A). Mr Millott is Senior Land Rights Officer at the NSW ALC. He lives in Helensburgh and has lived there since 1965. Mr Millott deposed that on a date around early August 2010 he observed a “For Sale” sign erected outside Lot 995 on the Boomerang Street frontage. Mr Millott’s wife was with him at the time and he took one photograph of the sign on his wife’s phone which he downloaded onto his work computer on 9 August 2010. On that same day Mr Millott said he downloaded a “Cadastral Records Enquiry Report” for Lot 995 from the Land Titles Office website and prepared an ALC over Lot 995. Mr Millott submitted the ALC to the Office of the Registrar on 9 August 2010. Mr Millott said he had not been able to locate the photograph of the “For Sale” sign that he took in August 2010.

Documentary evidence relied on by NSW ALC

35. The NSW ALC relied on the following documentary evidence in relation to the paddock at the first date of claim in August 2010.

36. An email sent from Mr Chris Irwin (Team Leader, Land Administration, Crown Lands Division) to Mr Alex Ilinsky (from the Land and Property Management Authority (LPMA)) on 23 October 2009 with the subject line “Surplus Police Site at Helensburgh” included the words “[t]here are no Aboriginal Land Claims affecting the area according to my records”.

37. A document prepared by the ALC Investigations Unit confirmed that at 30 October 2009 there was no ALC over Lot 995.

38. A “Statement of Environment Effects” (SEE) dated 16 February 2010 was prepared by Dennis Smith Surveys for a proposed two-lot subdivision of Lot 995 into Lot 500 and Lot 501. The SEE described proposed Lot 500 as including the residence, police station, a double brick garage and a driveway. Proposed Lot 501 was described as containing paddock type fencing, a small shed and some large trees.

39. A quote dated 18 February 2010 issued by Kraftsmen Property Maintenance to UGL on behalf of NSW Police for work at a property identified as “NSW Police Helensburgh” was obtained. The quote was for the following work:

We have been asked to submit a quotation at the above property consistent with the scope of works provided by Mr McCallum dated the 16^th February and information is as follows:

1.   Using a bobcat totally scour the enclosed paddock area to remove all vegetation and the is area [sic] at the moment is totally overgrown and all refuse will be removed from site.

-   $950.00 + GST

2.   Cut the grass in the area from the street to where the new gates are to be installed then supply and lay two tones [sic] of blue metal to prevent vehicles of being bogged.

-   $458.00 + GST

3.   Remove the existing low profile colourbond fence on the street frontage and supply and install a new 1.8 Meter high green colourbond fence approximately 48M long with all posts set in concrete.

-   $4360.00 + GST

Please note: Number 3 is optional and not included in the original specifications.

4.   Remove the existing arcweld fence on the driveway and supply and install a new 1.8M high green colour bond [sic] fence with all posts set in concrete.

-   $1805.00 + GST

5.   Supply and install two swinging gates in 1.8M high colourbond to match the fence at the entrance to the paddock with concrete pads on the ground to receive a drop bolt and provision for a chain and padlock lock system.

-   $1150.00 + GST

40. A consent form for Dennis Smith Surveys to make an application to Wollongong City Council to subdivide Lot 995 signed by the manager of Crown Land Strategic Development and Marketing on 24 February 2010 attached a survey plan of the proposed subdivision. The survey showed the proposed subdivision of Lot 995 into proposed Lot 500 (being that part of Lot 995 comprised of the residence and police station) and proposed Lot 501 (being that part of Lot 995 comprised of the paddock).

41. An email from Scott McCallum (UGL) to an individual identified as Anthony dated 2 March 2010 stated “[w]e’re pleased to accept your attached quote, items 1, 2, 4 & 5 only. Totalling $4363”. The quote referred to is identified in [39] above.

42. A document prepared by the LPMA titled “Crown Lands Division” dated 3 March 2010 detailed the consideration of approvals under the CL Act for the proposed disposal by UGL (acting for the Minister for Police) of the surplus police property at Lot 995, being reserved Crown lands occupied or used by NSW Police for policing purposes. The document recommended that the “sale, lease, granting of easements or other appropriate disposal functions” be approved in principle. Ken Sullivan, Regional Manager, approved this recommendation.

43. Emails exchanged between Mr Jarek Grygier (UGL) and Mr Ilinsky (LPMA) in late March and early April 2010 discussed marketing the Helensburgh paddock, with Mr Grygier stating “[w]hen can we start marketing Helensburgh – Police are anxious” on 7 April 2010. An email from Mr Grygier (UGL) to Mr Ilinsky (LPMA) confirmed that there had been no response on the Helensburgh property and suggested commencing advertising from 24 April 2010.

44. A screen capture of a search of the ALC database conducted on 12 April 2010 of whether Lot 995 was the subject of an ALC showed that “no records matched your search criteria”.

45. A document prepared by the LPMA dated 13 April 2010 confirmed the final approval to sell, lease, exchange or otherwise dispose of or deal with Lot 995.

46. An email sent from Mr Grygier (UGL) to Mr Ilinsky (LPMA) dated 17 April 2010 advised that “we plan to go to auction with this one. The contract will be subject to subdivision. I take it that we will need to revoke the reserve just prior to an exchange”. An email sent from Mr Ilinsky (LPMA) to Mr Grygier (UGL) dated 19 April 2010 advised that “final approvals to sell & for revocation of reserve for Part Lot 995 …was granted 13/4/2010”.

47. A document titled “Hazard Prompt Sheet” was prepared on 18 April 2010 by Kraftsmen Property Maintenance, relating to a job address identified as “NSW Police” at Waratah Street Helensburgh.

48. A tax invoice was issued by Kraftsmen Property Maintenance to NSW Police – Commercial on 20 April 2010 to “[a]ttend the Police Station at Helensburgh and carry out items 1, 2, 4 and 5 of Quotation 52263” (see quote extracted above in [39]).

49. An email sent from Mr Grygier (UGL) to Mr Ilinsky (LPMA) on 19 May 2010 advised that the “Helensburgh Police Holding Yard (Pt Lot 995)” (the paddock) was about to be marketed by agents. Mr Ilinsky (LPMA) responded later that day advising Mr Grygier (UGL) that as at that date, no ALC had been made over Lot 995.

50. A property report from the Domain website showed that 2 Waratah Street Helensburgh (the paddock), was listed for sale on 22 June 2010. Included in the property report were several photos of the paddock.

51. A tax invoice issued by MVS Valuers Australia Pty Ltd was issued to UGL on 23 July 2010 for valuation of “Proposed Lot 501/ Cnr Boomerang & Waratah Street, Helensburgh NSW 2508” (the paddock). The valuation amount was $925,000.

52. ALC 28490 was lodged by the NSW ALC over Lot 995 on 13 August 2010 (annexed to the affidavit of Mr Millott affirmed 9 December 2019). Mr Millott deposed that he prepared the claim after seeing a “For Sale” sign outside Lot 995 on the Boomerang Street frontage (summarised above in [34]).

53. An email was sent from Mr Grygier (UGL) to Mr Ian Lamont and Mr Ilinsky (LPMA) on 31 August 2010 which attached a file named “Amended Contract as at 27 August 2010”. In his email Mr Grygier informed the recipients that the attached document was “a contract for sale for Helensburgh”. The contract for the sale of land identified the property as “Part of 2 Waratah Street, Helensburgh”.

54. A printed copy of a screen capture of a search of the ALC database with the date 31 August 2010 handwritten on it showed that an ALC had been lodged on 13 August 2010, identified as ALC 28490.

55. A tax invoice issued by Landscape Solutions to “NSW Police C/- United Group Services Ltd” on 31 October 2010 identified maintenance works completed in October 2010 as “SLASH VACANT BLOCK AT HELENSBURGH POLICE STATION” (Exhibit 4, p 174).

Paddock second and third dates of claim (December 2016)

Minister’s evidence

Mr Drury

56. In his affidavit Mr Drury deposed that in or about 2011, he was approached by the NSW Mounted Police about using the paddock for police horses. Mr Drury told Mick to put his horse elsewhere so that the NSW Mounted Police could use the paddock. The paddock was used for police horses for a few years when they needed to convalesce.

57. In cross-examination, Mr Drury accepted that he was approached by the NSW Mounted Police for use of the paddock in 2011. He said his memory was that the reason he asked Mr Bowron to take his horse out of the paddock was because of the request of the NSW Mounted Police. He accepted that his recollection of that time was not particularly reliable. Mr Drury did not recall whether the police horses arrived in November 2011 or earlier. He was certain the horses were there sometime in 2011. Mr Drury was shown a quote from Jim’s Plumbing Services Pty Ltd (Jim’s Plumbing) (extracted below in [63]) for works to supply water to the bathtub. Mr Drury accepted that this meant it was not possible police horses were in the paddock before these preparatory works were undertaken in November 2011. He also suggested that before plumbing works took place, he filled the bathtub manually, but he could not accurately remember. Mr Drury accepted there were only ever one or two police horses in the paddock, being horses named “Gallant” and “Ritchie”.

Sergeant Rhind

58. The Minister read the affidavit of Sergeant Rhind affirmed 18 October 2019. Sergeant Rhind was leading Senior Constable at the Helensburgh police station between 2007 and 2009, then he worked as sergeant at the Helensburgh police station from November 2015 to June 2019. In his capacity as sergeant at the Helensburgh police station his responsibilities included the day-to-day running of the police station, management and supervision of staff, and liaising with the Helensburgh community.

59. Sergeant Rhind said the paddock was fenced throughout the time he worked at the Helensburgh police station. Horses that came and went may have been in the paddock. Sergeant Rhind did not have anything to do with the horses.

60. In cross examination, Sergeant Rhind said he was not aware of any horses being in the paddock when he returned to Helensburgh in November 2015. He was not able to say whether he knew if the last police horse was removed from the paddock in about July 2015.

Documentary evidence relied on by the Minister

61. The Minister relied on the following documentary evidence in relation to the paddock at the second and third dates of claim. A “Spelling Paddock Risk Assessment” prepared by the NSW Mounted Police dated 26 November 2011 included a risk assessment for up to two horses to be kept in the paddock on a casual basis and not for long periods. Under the heading “Water availability description” it had the words “Bathtub with a float system”. A second “Spelling Paddock Risk Assessment” was conducted on 12 January 2012 (reviewed on 1 January 2013).

62. “Spelling Paddock Quarterly Monitoring” records prepared by the NSW Mounted Police for the periods July to December 2013 and July to December 2014 reported a horse named Gallant being held in the paddock at Helensburgh. Records for the period July to December 2015 identified that a horse named Ritchie was collected from the paddock.

NSW ALC’s evidence

Documentary evidence relied on by NSW ALC

63. The following documentary evidence was relied on by the NSW ALC in relation to the paddock at the second and third dates of claim:

1. A quote issued by Jim’s Plumbing to UGL on 17 November 2011 for work at 2 Waratah Street (the paddock) “to supply water to the bath tub”.

2. An invoice issued by Jim’s Plumbing to UGL on 25 November 2011 for works described as “[c]arried out the quoted works to install water supply for the water trough in the paddock adjoining the station. As per quote approved 24/11”.

Residence second and third dates of claim (December 2016)

Minister’s evidence

Mr Drury

64. In his affidavit, Mr Drury said he began living in the residence in or around 2001 and continued to live there until his retirement in July 2016. Between January 2014 and his retirement in July 2016 Mr Drury took leave from work but continued to live in the residence.

65. In cross-examination, Mr Drury said he did not have any direct knowledge of there being asbestos and other hazardous substances in the residence but that he suspected that was the case. Mr Drury was referred to a “NSW Police Hazardous Materials Survey” (below in [75]) and agreed that on the basis of that survey, the residence contained asbestos and other hazardous materials including lead. He agreed that when he left the residence in July 2016 it was rundown and that it was unfit for purpose as a residence. Mr Drury agreed that the police station was rundown. He suspected it contained asbestos and other hazardous substances. He was aware that as at December 2015 NSW Police were investigating options for upgrading or replacing the demountable police station building and he agreed that it was not fit for purpose.

Sergeant Rhind

66. Concerning maintenance of the police station, in his affidavit Sergeant Rhind said NSW Police had a contract for maintenance and repairs of the police station with an external contractor. Sergeant Rhind would log the job with the district manager of Wollongong police district who would arrange a contractor to attend to the issue. Sergeant Rhind said that when he was working at Helensburgh from 2007-2009 Mr Drury lived in the residence. When he returned in November 2015, Mr Drury was still living there. Sergeant Rhind helped Mr Drury move out of the residence in July 2016. The residence was vacant after Mr Drury moved out. It has since been locked up apart from contractors attending from time-to-time, such as when the hot water system flooded and urgent maintenance was required. Sergeant Rhind did not recall how often the attendance of contractors occurred. The garage was used by Mr Drury for storage until he moved out. Sergeant Rhind did not recall it being used for storage after that time.

67. In cross-examination, Sergeant Rhind confirmed that Mr Drury was living in the residence when he returned to Helensburgh in late 2015.

68. Sergeant Rhind did not accept that the residence was unfit for purpose in July 2016 as a family was still living there. He was unable to make any comment on whether the residence contained asbestos or hazardous substances. When taken to the NSW Police Hazardous Materials Survey (below in [75]), he accepted, only by what was in front of him, that at the date of the inspection for the purpose of preparing it the residence contained asbestos and other hazardous substances including lead. Sergeant Rhind was not aware of any plans to upgrade the residence in December 2015 or July 2016.

Mr Vella

69. The Minister read the affidavit of Mr Vella affirmed 18 October 2019. Mr Vella is District Manager of the Wollongong police district, a role he has held since August 2005. He has overall management of several police stations including Helensburgh. This includes general oversight of the building facilities, administrative aspects of recruitment, and acting as a point of contact for maintenance matters.

Mr Stepien

70. The Minister read the affidavit of Mr Stepien sworn 17 October 2019. Mr Stepien is the Executive Director (Property) of the Police Property Group in NSW Police. On 31 March 2006 the Minister for Police entered into a contract with UGL for services including management of assets, properties and facilities, such as day-to-day property management services including both reactive and routine maintenance. This contract applied to the Helensburgh police station, the residence and the whole of the land. The contract was in effect until the commencement of a contract with Brookfield Johnson Controls Pty Ltd (now trading as BGIS Pty Ltd) in June 2013. This contract applied to the Helensburgh police station until around August 2017 when Property NSW (PNSW) took over certain residential property management services.

71. Mr Stepien annexed to his affidavit records of “reactive and routine maintenance” of the Helensburgh police station, residence and grounds. Tax invoices issued by ERM Business Energy to NSW Police for “electricity account” between November 2013 and November 2015 showed energy usage for the address 75 Parkes Street Helensburgh. The tax invoice dated 14 October 2013 for the period 11 July 2013 to 9 October 2013 showed average daily usage of 31.11kWh, total amount payable of $681.19. The tax invoice dated 12 January 2015 for the period 14 October 2014 to 6 January 2015 showed average daily usage of 23.07 kWh, total amount payable of $485.08.

72. A further tax invoice issued by ERM Business Energy for “electricity account” dated 5 May 2017 for the period 6 April 2017 to 5 May 2017 showed daily usage of 1,329.55 kWh. This bill was a consolidated electricity account for several police properties. The total amount payable for electricity usage at Helensburgh was $274.75.

73. GHD Pty Ltd (commissioned by UGL) issued a report on 19 June 2012 for NSW Police titled “Hazardous Building Material Inspections”, based on an inspection conducted on 22 May 2012.

74. Brookfield Global Integrated Solutions (Brookfield) prepared a “business case” for the upgrade of the Helensburgh police station in 2015. The document recommended an upgrade to the police station to align with modern policing needs.

75. The NSW Police Hazardous Materials Survey prepared by Brookfield for the Helensburgh police station and residence was based on an inspection conducted on 9 November 2016. Under the heading “Planning of Maintenance Refurbishment or Demolition Works” the report recommended that prior to any demolition or refurbishment, “all hazardous materials likely to be disturbed by those works should be removed”. A series of photographs annexed to the report showed parts of the police station and the residence suspected of containing hazardous materials including in the residence: asbestos cement sheeting eaves lining, asbestos cement sheeting wall and ceiling lining, asbestos fiber cement, and lead paint.

76. An “Account for property” issued on 15 February 2017 by Sydney Water to NSW Police for “Helensburgh Police Station Parkes St Helensburgh” for the period 14 November 2016 to February 2017 showed average daily usage of 0.33 kL.

77. Mr Stepien annexed spreadsheets described as summarising facilities management for the periods 2013-2016 and 2017-2019, being maintenance records for the police station and the residence. The spreadsheets depicted work orders for a property described as “Helensburgh Pol Stat & Off Re” (Helensburgh police station and official residence), and included details such as who requested the work, the priority level of the work, the dates on which work was commenced and completed, and a description of the work performed.

NSW ALC’s evidence

Documentary evidence relied on by NSW ALC

78. An internal PNSW email from Ms Sharnah Harriman (Senior Tenancy Services Manager) to Ms Anita Tang dated 7 August 2018 described the residence as “requiring major works” and “uninhabitable in its present state”. The email went on to say that “[a]s such, PNSW’s position on the ALC claim is that we will not be contesting the claim”.

Submissions

Minister’s submissions

79. Relevant principles to determining claims under the ALR Act were identified by the High Court in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285; [2008] HCA 48 (Wagga HCA) at [28]-[31], [69]-[70], [75] per Kirby J. The meaning of “lawfully occupied” was considered in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 (Berrima Gaol HCA) at [17]-[19], [21]-[23].

The paddock was lawfully used / occupied as at 2010

80. There is undisputed evidence that there was a plan to sell the paddock in 2010. The sale did not proceed. The 2010 claim was lodged shortly after the land was advertised for sale. There is evidence that the paddock was occupied at the date of the 2010 claim. Mr Bowron gave evidence that Mr Drury permitted him to keep his horse in the paddock from 2007-2011, in exchange for keeping the grass cleared. Mr Drury also referred to this arrangement, recalling it commenced in about 2009 and noting that Mr Bowron kept his horse there until about 2011.

81. In oral evidence, Mr Drury and Mr Bowron agreed that they had an arrangement to keep a horse in the paddock commencing sometime between 2007 and 2009, before the first date of claim. The arrangement was informally made and did not involve money or documents. They agreed that Mr Bowron erected a shed/structure in the paddock for shelter as part of the arrangement. They also agreed that the arrangement ended when they became aware that the NSW Mounted Police wanted to use the paddock. Both witnesses rejected the suggestion that all of the work identified on the quote they were shown (above in [39]) was undertaken in February 2010 or shortly thereafter, or that the use of the paddock by Mr Bowron’s horse ended when the paddock was in the process of being put up for sale. Mr Drury said he recalled that work was done for preparing the paddock to be used by police horses. Mr Bowron gave evidence that he placed a bathtub in the paddock and filled it three times a day. This is not inconsistent with Mr Drury’s evidence that the plumbing to the bathtub was not done before November 2011.

82. Both witnesses indicated that the paddock was not a monolithic space. Some parts were more usable than others. That it might have needed slashing in part of it is not proof that no horse was on the land in 2010. Mr Bowron said that if the paddock was going to be slashed or work was to be done on it, then either the work was not done on the whole paddock or the horse was not on it at the time the work was done.

83. The paddock was being used by the NSW Police in enabling a local resident to keep a horse on it, which Mr Drury thought was a way of maintaining the paddock. The arrangement in which the horse ate some of the grass in the paddock assisted in the maintenance of the paddock.

84. The only relevance of what work was performed in the paddock would be if it could be shown that the state of the paddock was entirely inconsistent with the evidence of Mr Drury and Mr Bowron to the effect that the horse was being agisted on the land over a period that included the date of claim.

Crown Lands Act 1989 (NSW) s 155(1)(c)

85. Regarding the NSW ALC’s submission that the land was public land pursuant to ss 6 and 155 of the CL Act, meaning livestock could not graze or be agisted on it without lawful authority (s 155(1)(c)), the word “agistment” is not used in that section. As far as the Minister is aware there is no clear authority on what is meant by “grazing stock”. The more common meaning of “stock” is to do with growing animals for food and milk. “Livestock” is a broader term. Where grazing has come up in other cases (Minister Administering the Crown Lands Act v NSWALC (2012) 84 NSWLR 219; [2012] NSWCA 358 (Goomallee); Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2014] NSWCA 69 (Limbri)) the cases are not directly on point. What occurred in this case was an informal arrangement. There was nothing in the use of the paddock here that would interfere with the reserve purpose (police station and courthouse).

86. The NSW ALC also contends that Mr Drury had no authority to permit Mr Bowron to agist his horse in the paddock. The Minister submits this would have been the case had he purported to issue some kind of interest over the land or charged money for its use. The arrangement can be seen as an extension of Mr Drury’s role as a police officer in building community relationships as described in his affidavit (see [16] above). For these reasons the Minister submitted the Court should find that the Minister has met his onus of showing that as at 13 August 2010, the land that is the paddock part of Lot 995 was lawfully used or occupied

The paddock was lawfully used / occupied as at 2016

87. There is evidence that the paddock was occupied at the dates of the 2016 claims. Mr Bowron gave evidence that he removed his horse when he was told that the NSW Mounted Police needed to use the paddock for their horses. Mr Drury said he was required to ask Mr Bowron to remove his horse in 2011 when advised that the paddock was to be used by the NSW Mounted Police for police horses. That use is documented in [62] above in the form of two Spelling Paddock Quarterly Monitoring records which extend to December 2015. This is further confirmed by the two Spelling Paddock Risk Assessment documents above in [61] dated 26 November 2011 and 12 January 2012 (reviewed on 1 January 2013). Sergeant Rhind also gave evidence that the paddock was fenced throughout the time he worked at Helensburgh and thought some horses may have been in it.

88. The Minister contended the paddock was clearly occupied – it was fenced and used to house horses until at least 2015. The usage as a spelling paddock for police horses was manifestly consistent with the reserve purpose.

The residence was lawfully occupied as at December 2016

89. As at the dates of claim in December 2016 the residence was vacant. The residence was not lived in after Mr Drury vacated the house in July 2016, some four months before the December 2016 claim dates. The facilities management records, electricity records and water records attached to Mr Stepien’s affidavit confirm that the residence was occupied, in the sense that it was being continuously and actively maintained. The Minister described this material as information from which the Court could infer ongoing maintenance and the supply of services such that the building was still occupied during those periods of time.

90. The evidence shows that the residence was continuously maintained. In his affidavit, Sergeant Rhind gave evidence of a specific occasion after Mr Drury moved out when he made arrangements for a contractor to repair the hot water system, also noting other occasions on which contractors attended the residence (summarised above in [66]).

91. Mr Stepien’s evidence (above in [70]-[77]) demonstrates the continuous maintenance of the property at or around the time of the 2016 claims, including facilities management records (above in [77]), electricity bills (above in [71]-[72]), a water bill for the period that included the date of the 2016 claims (above in [76]), and building inspection reports (above in [73] and [75]). The Minister submitted that an inference could be drawn that having the electricity records up to November 2015 and again for a period in April to May 2017 meant electricity was being used in the period of the second and third dates of claim as at December 2016 as well.

92. Mr Stepien also referred to the Hazardous Building Material Inspections report for the residence dated 22 May 2012 (above in [73]) and Hazardous Materials Survey report for the police station and residence dated 9 November 2016 (above in [75]).

93. The NSW ALC relied on Berrima Goal HCA. The residence was located right next to a police station – it did not need 24-hour surveillance, unlike in Berrima Gaol HCA. The evidence establishes that the residence was lawfully occupied at the time of the second and third claims in December 2016. Once the residence ceased to be inhabited by a police officer, the evidence shows that the property was actively maintained, which meets the requirement in s 36(1)(b) as found in Berrima Gaol HCA at [28].

94. The High Court in Berrima Gaol HCA also rejected an argument that, if the land was no longer used for the reserve purpose, that did not itself deny the occupation the status of being “lawful occupation”, in circumstances where it was not contended that there was anything inconsistent with the dedicated purpose: at [43] (compared with the decision in Goomallee, where it was held that the grant of a grazing lease was inconsistent with a reservation from sale for the purpose of public recreation). The continued occupation, by way of ownership and active maintenance of a police residence, even if not inhabited, is not, in the Minister’s submission, inconsistent with the reserve purpose of the police station.

95. The cross-examination of Mr Drury and Sergeant Rhind in relation to the residence appeared to be an attempt to show that the property was in extremely poor condition and not fit for purpose. A key matter put to both witnesses was the proposition that both parts of the property (the police station and the residence) contained asbestos and were in poor condition. While Mr Drury agreed that the property contained asbestos, he also agreed in re-examination that he had no personal knowledge of there being asbestos or lead in the buildings.

96. The inspection for the Hazardous Materials Survey of the police station and the residence was said to be conducted on 9 November 2016, but the report was issued on 26 January 2018. Based on that document, it was put to Mr Drury that the residence was not fit for purpose, with which he agreed. However, the evidence is undisputed that Mr Drury lived in the property until July 2016, four months before the inspection date. Sergeant Rhind emphatically rejected the proposition that the residence was not fit for purpose. There is no necessary connection between a property being in less than ideal condition and it not being legally used or occupied within the meaning of s 36(1)(b) of the ALR Act. This is not a case of a long-abandoned building – Mr Drury and his family lived there until five months before the second and third dates of claim. The fact that it might have needed maintenance does not detract from that fact. The evidence establishes that the residence was lawfully occupied at the time of the second and third claims in December 2016.

NSW ALC’s submissions

Claimed land not lawfully used or occupied

97. The NSW ALC submitted that the Court should not be satisfied on the evidence before it that at the first, second or third dates of claim parts of Lot 995 were lawfully used or occupied within the meaning of s 36(1)(b) of the ALR Act.

98. Firstly, the Minister has the onus of satisfying the Court that the whole of the claimed land was lawfully used or occupied as at each date of claim. As Leeming JA observed in Bathurst CA at [102], s 36(7) empowers the transfer of part of a parcel of land claimed, if some but not the whole of the land the subject of a claim is not “claimable Crown lands”. Thus, in this case, if any part of the land was not used or occupied, then that part is required to be transferred to the Illawarra Local Aboriginal Land Council. The claimed land comprises distinct sections – the paddock, the residence and the police station. That Lot 995 is divisible in this way and that each of the three parts of Lot 995 warrants separate consideration is confirmed by the fact that as at the first date of claim, the paddock was proposed to be sold.

97. The Minister has the onus under s 36(7) to satisfy the Court by reference to evidence of the circumstances that existed as at the date of claim. That onus is not discharged by vague, unspecific or equivocal evidence which invites the Court to in effect speculate as to what was occurring on each of the three parts of Lot 995 as at the dates of claim.

The paddock as at August 2010

100. As at the first date of claim, the paddock was regarded as surplus land, and was being proposed for sale, a significant contextual circumstance. The Court can safely infer that, but for the lodgement of ALC 28490 (as a result of Mr Millott, a NSW ALC employee, seeing the “For Sale” sign), the paddock would have been sold. Land which is surplus to government needs and has been earmarked for sale is precisely the type of land which would be expected to be claimable Crown lands having regard to the remedial objects and purposes of the ALR Act. It might be accepted that land which is proposed for sale is capable of being lawfully used or occupied in limited circumstances. However, in circumstances where it has been held that a sale and steps taken to prepare land for sale are not a use of land, there should be close scrutiny of the acts relied on by the Minister as constituting lawful use and occupation of the paddock: Wagga HCA per Hayne, Heydon, Crennan and Kiefel JJ at [74]-[76]; La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 5 (Malabar Police Station) per Sheahan J at [60]. In relation to the paddock, the actions to dispose of the land are a significant matter against which the Minister’s assertion of use or occupation is to be assessed. It requires precision in identifying what was occurring on the land as at the actual date of claim.

101. The evidence confirms that works were done in preparation for sale of the paddock in 2010. ALC 28490 was lodged in direct response to the proposed sale of the paddock, a sale that did not proceed only because of that claim. The works performed in April 2010 including slashing of the paddock were done in preparation of the paddock for sale. This inference is supported by events around that time, including a survey of the land and application for consent for subdivision, the advertisement of the intention to revoke the reserve in March 2010, the checking for any ALCs, and the commencement of marketing the paddock for sale. It is implausible that these works were in preparation for the police horses. The first Spelling Paddock Risk Assessment (above in [61]) was not until November 2011, well after the sale did not proceed in August 2010. That Mr Bowron said he did not see a “For Sale” sign outside the paddock should be approached with a considerable degree of scepticism in light of Mr Millott’s unchallenged evidence that he saw a “For Sale” sign outside Lot 995 on the Boomerang Street frontage on 13 August 2010.

102. Regarding horses kept in the paddock, the highest the Minister can put the case was that horses kept in the paddock from time-to-time by members of the public was a form of maintenance. The evidence of Mr Drury and Mr Bowron is consistent with there being no horse kept in the paddock for maintenance, or at all, from early 2010. Much of the evidence adduced was vague and speculative, and not corroborated by any contemporaneous document. For example, Mr Bowron asserted that he installed a round yard in the paddock for his horse, but the aerial photographs published with the Domain website listing in connection with the proposed sale of the paddock did not show any round yard in the paddock. Some of the dates were not an actual recollection but by reference to another event, witnesses speculating that something must have occurred in or in relation to the paddock around a particular date. Mr Drury thought that Mr Bowron had his horse in the paddock for about 18 months before the NSW Mounted Police arrived, and the reason Mr Bowron had to remove his horse was because the NSW Mounted Police wanted to use the paddock for their horses. Mr Bowron stated that he removed his horse from the paddock around 2013 because he was still working at the butcher when told he had to move his horse, and he stopped being a butcher in 2014.

103. Some of Mr Bowron’s evidence was implausible and hence unreliable in light of the following matters:

1. Mr Drury’s oral evidence in relation to the unlikelihood of horses being in the paddock in 2010 because the paddock needed to be scoured when horses were not kept in it;

2. the documentary evidence in relation to the extensive works carried out in April 2010 following the provision of a quote on 18 February 2010, and its subsequent acceptance;

3. the strongly available inference that the works (including the installation of gates allowing for new access to the paddock from Waratah Street) which were invoiced on 20 April 2010 were being done in preparation for the sale of the paddock because of the events in late 2009/ early 2010 including: (i) the preparation of the internal departmental email dated 23 October 2009 with the heading “Surplus Police Site at Helensburgh”; (ii) the survey and application for consent to subdivide in February 2010; (iii) the approval on 3 March 2010 by the “Regional Manager, South”, by delegation, in principle of the sale of Lot 995 and the advertisement of the Minister’s intention to revoke R35425 and sell part of Lot 995 on 25 March 2010; (iv) the search for any ALC over Lot 995 in April 2010; (v) the grant of final approval to sell Crown land under delegation; and (vi) the listing of the property for sale on 22 June 2010;

4. the Domain website photos from June 2010 which do not show any horse in or any round yard in the paddock; and

5. the documentary evidence in relation to slashing of the “VACANT BLOCK AT HELENSBURGH” being undertaken in October 2010 (after the date of claim).

104. The Court could not be satisfied on the balance of probabilities that a horse was in fact in the paddock any time from early 2010 up until after the first date of claim (13 August 2010).

105. The NSW ALC submitted that where there is any inconsistency between the affidavit evidence and the oral evidence of a witness under cross-examination, on the one hand, and a document which is in evidence on the other hand, the documentary evidence would be preferred. For example:

1. in relation to the quote and invoice for April 2010 works involving two tonnes of blue metal, the Applicant submitted that the Court would not find that the works involving two tonnes of blue metal were not done;

2. likewise, the Court would not find that the work in relation to the fence and gates in April 2010 was done in preparation for the police horses, as suggested by Mr Drury in his oral evidence, rather than that, consistent with the documents, that work was done in preparation for the proposed sale of the paddock;

3. the first suggestion in the evidence of police horses being agisted or convalesced in the paddock was in about November 2011 in the Spelling Paddock Risk Assessment for police horses; and

4. any suggestion that works in April 2010 were done in preparation for police horses is also inconsistent with, and impossible to reconcile with, the notice of the Minister's intention to revoke R35425 and to sell part of Lot 995 on 25 March 2010.

106. The assertion that Mr Drury arranged maintenance of the paddock in the form of Mr Bowron’s horse is inconsistent with the evidence of Mr Vella in relation to how the maintenance of police properties was managed. Further, Mr Drury had no legal authority to agist horses on the land. At all relevant times Lot 995 was Crown land reserved under the CL Act. It remained “public land” for the purposes of Div 5 of Pt 7 of the CL Act and could only be used or occupied as authorised under the CL Act (s 6). Livestock could not graze or be agisted on it without lawful authority (s 155). The informal ad hoc arrangement he made with Mr Bowron was not in accordance with s 6 of the CL Act. The Minister submitted that the prohibitions in ss 6 and 155 of the CL Act did not apply in this case because horses are not “stock”. The Minister did not provide any source to support the definition proffered. The ordinary dictionary meaning of “stock” in this context is “farm animals or equipment”. There is nothing in s 155 which requires a determination of the purpose for which stock is grazed on public land. The sole issue is whether a person has proved that they have lawful authority to do so. The fact that the arrangement between Mr Drury and Mr Bowron was informal and did not involve payment does not support a finding that the arrangement was lawful. Sections 6 and 155 of the CL Act do not exclude unpaid or informal arrangements, nor do they exclude unauthorised arrangements for the purpose of “community relationship building”.

The paddock as at December 2016

107. In relation to the second and third dates of claim, the NSW ALC submitted that the Minister did not identify any evidence of substance in relation to occupation of the paddock in December 2016. The Spelling Paddock Risk Assessment reports relied on relate to a period that ended three years before the second and third dates of claim. The police records show that the last police horse was removed from the paddock on 13 July 2015 (see above in [62]). The Spelling Paddock Quarterly Monitoring records extending to December 2015 have no probative value in relation to what was occurring in the paddock a year later at the second and third dates of claim.

108. The evidence relied on by the Minister does not substantiate use or occupation of the paddock as at the second dates of claim. There is no evidence of any police horses being in the paddock at any time around either the first date of claim, or the second and third dates of claim.

109. The land was vacant and unused. The Minister’s assertion it was occupied is no more than an assertion of constructive occupation.

The residence as at December 2016

110. It is undisputed that Mr Drury vacated the residence on or before 15 July 2016. The building was unoccupied as at either claim date in December 2016. The Minister relies on the evidence of Sergeant Rhind. He provides no evidence capable of establishing that the residence was used or occupied to more than a notional degree, or at all, as at December 2016. Sergeant Rhind’s evidence that sometime after Mr Drury moved out he was contacted by contractors to make arrangements to fix the hot water system was vague. The Court cannot know when this might have occurred, and the evidence does not assist the Court in determining whether, as at December 2016, the residence was used or occupied.

111. The spreadsheets summarising facilities management (above in [77]) did not show anything suggesting attendance at the residence for the purpose of maintenance works after Mr Drury vacated the premises. The spreadsheet for the period 2013 to 2016 contained records in relation to the police station and the residence. After Mr Drury vacated the residence, seven entries related to the police station. The “finalised” column for each of those entries was blank, meaning this could not evidence the works being carried out or finalised. On the spreadsheet for the period 2017-2019, the only “property name” recorded is “Helensburgh police station”. These documents are irrelevant as they do not establish anything in relation to maintenance of the residence.

112. Electricity bills relied on by the Minister (above in [71]-[72]) were not from December 2016 and did not identify whether they were for the supply of electricity to the police station or the residence. The more reasonable inference is that any supply of electricity to Lot 995 in December 2016 was for the police station rather than the residence which was unused and unoccupied. This can be demonstrated from the bills on their face notwithstanding that there is no bill for the relevant quarter. The bills issued from late 2013 until late 2015, prior to Mr Drury vacating the residence, were for amounts in the range of approximately $500-$600. The bill issued 5 May 2017 showed a charge of $274.45 for energy usage at Helensburgh, a significant drop in the electricity usage compared to the preceding quarters. Similarly, the Hazardous Building Material Inspections report (above in [73]) and Hazardous Materials Survey report (above in [75]) do not go to establishing occupation of the residence in December 2016.

113. The scant, vague and equivocal evidence is not complemented by evidence from any person who can say they visited or entered the residence at or around the second and third dates of claim. The alleged maintenance and assertion that the residence was actively maintained must be treated sceptically in circumstances where it had been identified that the house required major works and was uninhabitable in its present state.

114. Even if the Court accepts that electricity was maintained to the residence or that some maintenance occurred, that is insufficient to establish occupation in fact. In the absence of the actual physical presence of any person, the assertion of occupation is one of “constructive occupation” rather than actual occupation. This is insufficient for the purposes of s 36(1)(b) of the ALR Act. The following paragraphs describe in detail the circumstances in which a building may be said to have been lawfully used or occupied within the meaning of s 36(1)(b) of the ALR Act.

Buildings

115. The circumstances in which a building may be said to have been lawfully used or occupied within the meaning of s 36(1)(b) of the ALR Act have been considered in the following cases: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 (Education Building Case); NSW Aboriginal Land Council v Minister Administering The Crown Lands Act (2007) 157 LGERA 18; [2007] NSWCA 281 (Wagga CA); Wagga HCA; Malabar Police Station; Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council (2012) 193 LGERA 276; [2012] NSWCA 359 (Malabar Police Station CA); New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2014) 204 LGERA 1; [2014] NSWLEC 72 (Newcastle Post Office); and Berrima Gaol HCA. Each illustrates the principle that to establish whether land is used or occupied involves a consideration of the particular acts, facts, matters and circumstances which are said to deprive the land of the characteristic of being “not lawfully used or occupied”.

116. In particular cases, the courts have held as follows:

1. The mere exercise of control over or maintenance of a building without any actual occupation does not constitute use: Education Building Case per Stein J at 198; Wagga CA per Tobias JA at [80], [82]-[83] and Mason P at [40]; Newcastle Post Office at [162(c)] per Pepper J.

2. Something more than the mere locking of a decommissioned building is required in order to establish lawful use or occupation of a building: Education Building Case at 199 per Stein J; Newcastle Post Office at [161(b)] per Pepper J.

3. “Minimal presence” in a building or occupation “so slight as to be insufficient” does not constitute occupation as required by s 36(1)(b): Education Building Case per Stein J at 198; Malabar Police Station per Sheahan J at [67]-[71]; Newcastle Post Office at [161(c)] per Pepper J.

117. In the Education Building Case, there were a number of matters which together were held to amount to “use” of the claimed building (Education Building Case per Stein J at 196, 198 and 199):

1. there were some six officers still occupying the premises;

2. in order to provide services for the existing employees, there was ongoing maintenance of “telephones, water, electricity and gas” and “all building services such as lifts, air-conditioning and fire systems” were maintained;

3. cleaning was provided on a regular basis;

4. a caretaker was appointed and a security firm was employed to control access;

5. the building was being used for the storage of furniture, although it was in the process of being removed; and

6. the central internal car parking area was being utilised.

118. Stein J held that those matters did not constitute occupation, and that none individually amounted to “use” of the building. However, cumulatively, along with the fact that the building was being actively marketed for sale, they did amount to a use within the meaning of s 36(1)(b) (at 199).

119. In Wagga HCA, the building was in a state of disrepair. It was, however, locked and physically used for “storage of some furniture” (Wagga HCA at [60]; Wagga CA per Mason P at [27]), and there were some transitory visits to the land by surveyors and a real estate agent (Wagga CA per Mason P at [27] and Wagga HCA at [76]). The plurality concluded that apart from the survey, and the agent inspecting the land, there was no evidence of anything else being done on the land in connection with the proposed sale or for any other purpose. Everything that was being done towards selling the land, apart from the survey and the agent’s inspection, occurred at places other than the land. Those steps concerned the land in the sense that they were directed towards its sale. They were steps directed to deriving the advantages of disposing of the asset and receiving the proceeds of sale. They did not amount to a use of the land within the meaning of s 36(1)(b) (Wagga HCA at [75] and [76]).

120. Malabar Police Station involved a claim over two buildings comprising a former police station (at [9]). At the date of claim, the buildings had ceased to function as a 24-hour police station and had fallen into a state of disrepair. The Minister argued that the buildings were being maintained and were being used for policing purposes. Sheahan J held that:

1. Intention to use the property is what Tobias JA in Bathurst CA and Kirby J in Wagga HCA discussed as notional rather than actual use (Malabar Police Station at [70]).

2. Visits “by officers to maintain a level of possession to exclude others, or to do security checks, and visits by cleaning and maintenance contractors, [were] transitory visits which [did] not amount to use or occupation beyond a notional degree” (at [67]-[71]).

121. The decision of Sheahan J was upheld in Malabar Police Station CA.

122. In Newcastle Post Office Pepper J held that repair work to make a building safe and intermittent visitation were not in the circumstances of the case sufficient for the purposes of s 36(1)(b). Her Honour said at [177]:

… even viewed cumulatively, the remediation activity on the land was insufficient to constitute use or occupation. The repair work was intermittent, generally constituted emergency repairs, and was directed primarily to rendering the building safe. It was acknowledged that any potential lessee or proponent would be required to carry out additional repairs to render the building habitable. In short, the making-safe of the claimed land did not, in this instance, establish relevant use or occupation. Even if, at their highest, the works constituted maintenance, this did not elevate the use or occupation of the land to anything more than nominal given their sporadic and incomplete nature.

123. At [182] Pepper J said:

… 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.

124. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Berrima) [2014] NSWLEC 188 (Berrima) I considered that claimed land on which there were a number of decommissioned buildings was occupied at the date of claim in circumstances summarised by the Court of Appeal (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2015) 215 LGERA 103; [2015] NSWCA 349 (Berrima CA) per Leeming JA at [27]-[33]) as including the presence of a security guard “24 hours a day, 7 days a week”, that electricity, water and sewerage services remained connected to the centre, that a fire alarm system remained in place, that “some assets continued to be stored in the correctional centre in February 2012, although more recently they had been removed”, and that “groups of persons serving Community Service Orders regularly visited the land to work on the gardens” and “to conduct work at the front and the back of the gaol and inside the gaol”. Offenders “were working on the claimed land in the performance of their sentences” under the supervision of Corrective Services “on both days of the two weekends immediately preceding and following the lodging of the claim”. That work was held to have “concentrated on the roses but extended to fruit trees at the back of the gaol, mowing the lawns and maintaining and weeding the gardens.” The reasoning giving rise to a finding of occupation in Berrima was upheld in Berrima Gaol HCA.

Consideration

125. The objects of the ALR Act are to remedy the past dispossession of Aboriginal people in New South Wales, address the cultural importance of land to Aboriginal people and provide a basis for a more secure economic future. Section 3 of the ALR Act sets out the purposes of the legislation which include inter alia to “provide land rights for Aboriginal persons in New South Wales” and “to vest land in [representative Aboriginal Land] Councils”. The parties identified the following principles in well-known authorities. The nature of the legislation is beneficial and remedial: Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157. Exceptions to the right to claim land should be narrowly construed: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665; [2001] NSWCA 28 at [53].

126. Under s 36(5) of the ALR Act, when a claim is made to the Minister, the Minister is required to grant the whole or part only of the lands claimed by transferring the land or relevant part of the land to the claimant if the Minister is satisfied that the whole or part of the land is claimable Crown lands. Under s 36(7) part of claimed land can be transferred to a successful applicant land council, as identified by the NSW ALC at [98] above. The Minister does not dispute that if the claim for part of Lot 995 is upheld in relation to the residence and/or the paddock that land can be transferred to the NSW ALC. At issue in this case is whether the paddock and/or the residence were lawfully used or occupied under s 36(1)(b) at the dates of claim.

127. Pursuant to s 36(7) of the ALR Act, the Minister bears the legal and evidentiary burden of satisfying the Court that the claimed land is not claimable Crown lands: Bathurst CA at [202]. If it fails to do so the Court is bound to transfer the land to the NSW ALC: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 at 692-693.

128. The date of the claim is generally paramount in determining whether land is claimable, requiring the Minister and the Court to look at the facts as they existed at the date of the claim. The principle in Falconer referred to above in [6] can be applied where justified. The Minister has sought to rely on some utility and maintenance records after the December dates of claim in relation to the residence, being an invoice for electricity for the period April to May 2017 (above in [72]), an account for water usage for a period up to February 2017 (above in [76]), and facilities management records for 2017-2019 (above in [77]). The Applicant has sought to rely on documentary evidence in relation to slashing of the “VACANT BLOCK AT HELENSBURGH” (the paddock) being undertaken in October 2010 (above in [55]) and an internal email of PNSW in August 2018 concerning the state of the residence (above in [78]).

Aboriginal Land Rights Act 1983 (NSW) s 36(1)(b) – lawful use or occupation

129. To determine whether land is “used or occupied” under s 36(1)(b) of the ALR Act it is necessary to consider the particular acts, facts, matters and circumstances which are said to deprive the land of the characteristic of being not lawfully used or occupied and measure those against an understanding of what would constitute use or occupation of the land: Wagga HCA at [70]. There is no exhaustive definition of when land is not lawfully used or occupied or what relevant use or occupation is: Wagga HCA at [69]. Recurring physical acts on the land by which the land is made to serve some purpose will usually constitute a use of the land: Wagga HCA at [69].

130. Ownership or mere proprietorship of land is not of itself actual use or occupation: Berrima Gaol HCA at [46]; Wagga HCA at [31]. For land to be used it must be actually, not merely notionally or nominally, used: Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 (Daruk) at 164; Wagga HCA at [32]-[34]. A constructive use or occupation is insufficient: Daruk at 164. Assessing whether land is used or occupied requires examination of activities undertaken on the land including continuous physical possession: Berrima Gaol HCA at [34]. Transitory visits do not necessarily amount to use of land: Wagga HCA at [76]. The purpose for which land is reserved, dedicated or leased is relevant to the question of whether it was used or occupied and may determine the degree to which actual physical presence on the land is required to establish lawful use: Berrima Gaol HCA at [34]. Total abandonment is not a requirement for finding that land is not lawfully used or occupied: Education Building Case at 198.

131. Any use or occupation of Crown land must be lawful: Bathurst CA per Basten JA at [240]. In Berrima Gaol HCA the majority stated at [43] (footnotes omitted):

The adjective “lawfully” which precedes “used or occupied” does not assist the NSW ALC’s argument. It may be accepted that the dedication of land has a limiting effect. Its use, benefit and possession must conform to the purpose for which it was dedicated. A use which is made of land which is inconsistent with its dedicated purpose is not a lawful use of it. But the NSW ALC does not suggest that the acts relied upon as constituting occupation are inconsistent with the dedicated purposes. What it does say is that for it to be lawful occupation, those purposes must be pursued. To say that is to say that the claimed land must be actively used for those purposes if it is to be said to be lawfully occupied. There is no basis to be found in s 36(1) for that submission.

Paddock not lawfully used / occupied as at 2010

132. ALC 28490 lodged in August 2010 concerns the paddock. Active steps to sell the paddock commencing in October 2009 were being taken by the LPMA in the months leading up to the claim on 13 August 2010, identified in the summary of evidence in [35]-[55] above. These included (i) in February 2010 preparation of the SEE; (ii) in February 2010 a quotation and a tax invoice for works on Lot 995; (iv) in February and April 2010 a survey of Lot 995, and an application to subdivide Lot 995 into two lots; (v) in March 2010 recommendation of the LPMA to sell or lease the surplus land at Lot 995; (vi) in April 2010 confirmation from the LPMA of approval to sell; (vii) in June 2010 listing of the paddock for sale on the Domain website; and (viii) in July 2010 valuation of the paddock. A “For Sale” sign was seen on the property by Mr Millott in August 2010. Taking steps to prepare land for sale is not a use of land: Wagga HCA at [74]-[76]. Nor does the Minister rely on such activity. For the reasons given by the NSW ALC in [119] above, that is an important context for considering the circumstances concerning the paddock in 2010.

133. The Minister relies on occupation of the paddock by Mr Bowron’s horse for maintenance at the suggestion of Mr Drury as at August 2010 to satisfy s 36(1)(b). The NSW ALC disputes that the horse was there at the date of claim. Even if the Minister’s position is accepted, the principal hurdle to being able to rely on that circumstance is that Mr Drury did not have any authority to deal with occupation of the paddock in light of Mr Vella’s evidence that the authority for maintenance of NSW Police land resided in his position based in Wollongong. This evidence was supported by Mr Drury’s affidavit evidence above in [18] and his oral evidence above in [23]. Mr Drury’s job did not include maintenance of the paddock. I do not accept the Minister’s submission that arranging a privately owned horse to graze in the paddock was part of Mr Drury’s community policing responsibilities, in the absence of any evidence to support such a statement. That it was a commonsense response to maintaining the paddock, fostered community relations, and had happened before, according to Mr Drury’s evidence, does not render it lawful.

134. Mr Drury’s completely casual arrangement with Mr Bowron had no legal basis under s 6 of the CL Act, as the NSW ALC submitted. The land is Crown land as defined under Pt 5 of the CL Act. Under s 6 Crown land cannot be occupied, used, sold, leased, licensed, dedicated or reserved unless authorised. There is no evidence of any authorisation of the use of the paddock by a private horse owner such as by an agistment agreement.

135. Section 155(1)(d) of the CL Act prohibits the grazing of stock on Crown land without permission. As the NSW ALC submitted, the grazing of a single horse could arguably be the grazing of stock for the purposes of the CL Act which requires permission, pursuant to s 6. The Minister submitted that stock was undefined but connoted growing animals for food and milk. A single horse was livestock, a broader term, according to the Minister. According to the Macquarie Dictionary there is no difference between “stock” and “livestock”, suggesting that the NSW ALC’s position is correct.

136. Consequently, even if it is established by the Minister that Mr Bowron’s horse was in the paddock in August 2010, it was not there lawfully under the CL Act. Consequently, that occupation could not amount to a lawful use or occupation of the paddock.

137. For this reason, it is strictly unnecessary to resolve the evidential discrepancies as between Mr Drury and Mr Bowron about when Mr Bowron’s horse was occupying the paddock. Mr Drury said the horse was there from 2008/2009 to 2011. Mr Bowron said the arrangement was from 2007-2013. If their evidence is accepted, on either of these date ranges the horse was in the paddock at the date of claim in August 2010. That Mr Bowron took the horse for an annual event in January each year does not undermine that occupation. Mr Bowron said he constructed a shed in 2007. This can be seen in the Domain website photographs when the paddock was advertised for sale in 2010. Both Mr Drury and Mr Bowron stated that the arrangement came to an end when the use of the paddock for police horses arose. The first Spelling Paddock Risk Assessment for that purpose was in November 2011. Plumbing to install a water supply to the bathtub placed by Mr Bowron was carried out between 17 November 2011 (the date of the quote) and 25 November 2011 (the date of the invoice for work done). This evidence suggests the police horses arrived no earlier than the end of 2011. Mr Drury’s evidence in this regard was vague.

138. The NSW ALC identified in its submissions in [103] above a number of discrepancies between Mr Bowron’s and Mr Drury’s evidence, suggesting that Mr Bowron’s recollection in particular was incorrect or was inherently implausible. While aspects of their evidence were imprecise as to dates, the substance of it is as stated in the immediately preceding paragraph. Contrary to the NSW ALC’s submission that recollection of events by reference to other events undermines evidence, I consider the contrary applies. Mr Drury did change his oral evidence, having initially agreed that the presence of a horse was inconsistent with slashing of the paddock, later stating that the horse was there for 18 months before the police horses arrived, which arrival is likely to have been towards the end of 2011, as identified immediately above.

139. Most challenging to the acceptance of both Mr Drury’s and Mr Bowron’s evidence that the horse was in the paddock throughout 2010 is the incompatibility between the work undertaken to prepare the paddock for sale in early 2010, if this occurred, as submitted by the NSW ALC based on departmental records. If scouring of the whole paddock, installation of new gates and fencing and delivery of two tonnes of blue metal occurred, a quotation for which was obtained in February 2010, this was arguably incompatible with occupation by a horse. The NSW ALC relies on the records obtained from the relevant NSW department concerning this work as outlined above in [35]-[55], including a quote for five categories of work in February 2010 in [39] above and a tax invoice dated 20 April 2010 to attend and carry out items 1, 2, 4 and 5 in [48] above. The tax invoice refers to future work. No evidence of payment for any of the work is in the documents. A further tax invoice issued on 31 October 2010 identified slashing of a vacant block at the police station, in [55] above. Mr Bowron agreed in oral evidence that most of these activities, particularly slashing and laying of blue metal could not have been conducted when his horse was in the paddock and stated these activities did not take place while his horse was in the paddock. Mr Drury gave evidence that new gates to the paddock were installed.

140. There is no direct evidence that any of the slashing or laying of blue metal was undertaken in or around April 2010 or later. Mr Bowron agreed that slashing took place while his horse was there, accepting this occurred in October 2010 in the question put. Mr Bowron was adamant that no blue metal was laid while his horse was in the paddock and Mr Drury also could not recall blue metal being laid.

141. The most obvious incompatibility between the oral evidence and the documents is in relation to the laying of blue metal. The Minister submitted that while a tax invoice for the laying of blue metal was in evidence, this did not prove that the work had been done and it is possible this was a purchase order. In the absence of other evidence to confirm the blue metal was laid, it has not been established by the NSW ALC that it was.

142. I note for completeness that Mr Drury said the fence and gate were installed in preparation for the police horses but this is inherently unlikely given the timing of that work in 2010 when the property was being actively prepared for sale and marketing. The Minister in any event did not rely on the fence and gate being installed for police horses in relation to the 2010 claim date.

143. On balance, it is probable that Mr Bowron’s horse was in the paddock eating grass in August 2010. However for the reasons I have already given in [132]-[136] above, the Minister has not proved that the paddock was lawfully used and occupied as at 13 August 2010. The part of ALC 28490 concerning the paddock is upheld.

Paddock not used / occupied as at 2016

144. If I am wrong in relation to the 2010 claim, the two 2016 ALCs for the paddock should be upheld for the following reasons. The Minister relies on the presence of police horses, or more accurately the potential for the presence of police horses, as at the two claim dates in December 2016 to establish lawful use and/or occupation. Such use would be lawful if it could be established. There is no evidence that any police horses were located in the paddock at the two claim dates in December 2016.

145. The documentary evidence relied on by the Minister were two risk assessments of possible use of the paddock by police horses produced in 2011 and 2012 in [61] above. The principal preparation for the arrival of police horses was installation of a permanent water source in November 2011 according to the invoice for work by a plumbing contractor in [63] above. I have already found above that Mr Drury’s oral evidence that work done in April 2010 to install new gates and a fence at the paddock was for police horses is inherently unlikely given the preparations for the sale of Lot 995 then underway, as the NSW ALC submitted. The Minister did not rely on that oral evidence in any event.

146. Three records of two police horses being present on the land in 2013, 2014 and 2015 are also in evidence, being the “Spelling Paddock Quarterly Monitoring” records above in [62]. The second police horse, Ritchie, was removed on 13 July 2015. There is no evidence of the presence of any other police horse before the two ALCs in December 2016.

147. The Minister also relied on the evidence of Sergeant Rhind that the paddock was fenced throughout the time he worked at Helensburgh, and that some horses may have come and gone but that he had nothing to do with them. As the NSW ALC submitted, that evidence takes the matter of use and/or occupation by police horses at the relevant dates no further.

148. This evidence is insufficient to demonstrate lawful use or occupation as required by the authorities (summarised above in [129]-[131]) at the dates of claim in December 2016, the activity relied on being non-existent, or nominal at best. The Minister has not proved that the paddock was lawfully used and/or occupied as at December 2016. At the dates of claim the paddock was vacant and unused. The parts of ALC 42456 and ALC 42492 concerning the paddock are upheld.

Residence not occupied as at December 2016

149. ALC 42456 and ALC 42492 were also lodged in relation to the residence. The NSW ALC’s submissions usefully and accurately set out the “buildings” cases above in [115]-[124], being Education Building Case, Wagga CA, Wagga HCA, Malabar Police Station, Malabar Police Station CA, Newcastle Post Office, Berrima and Berrima Gaol HCA. I adopt that analysis with the following qualifications in relation to their applicability to this aspect of the ALCs. The Education Building Case, Wagga CA and Wagga HCA considered use of claimed land, not occupation. Malabar Police Station, Malabar Police Station CA and Newcastle Post Office considered both use and occupation somewhat interchangeably. Of most relevance is Berrima Gaol HCA as that case focused solely on occupation, the basis for the Minister’s rejection of the claims in relation to the residence in December 2016. In Berrima Gaol HCA the majority of the High Court (Nettle and Gordon JJ dissenting) stated at [14], [28] and [34] (footnotes omitted):

14   It was not necessary in Minister Administering Crown Lands Act v New South Wales Aboriginal Land Council (Wagga Wagga) to decide whether “lawfully used or occupied” is a composite expression or is better understood by separate consideration of the words “used” consideration of the words “used” and “occupied”. The latter understanding is correct. The two terms refer to different concepts and a natural reading of the phrase is that either a lawful use or a lawful occupation of the land will defeat a claim.

…

28   Clearly, at the date of the claim, the claimed land and the buildings on it were not deserted. They had been the subject of continuous physical possession. Even if that possession was reduced to a minimum, it was more than notional. The acts of repair and maintenance of the claimed land and buildings, including the tending to the gardens, were acts associated with continued occupation, even if the buildings were no longer being actively put to their former use. The act of permitting the public to enter and view parts of the claimed land was an act consistent with the exercise of control over the claimed land. Viewing these factors as a whole, the claimed land was occupied at the date of the claim.

…

34   True it is that the words “used” and “occupied” might be said to take much of their meaning from context. But that is not to say that they are devoid of a commonly understood meaning in ordinary parlance. They require an examination of activities undertaken upon the land in question and, in the case of “occupied”, factors such as continuous physical possession must be taken into account. No question of differing approaches to construction arises for limiting the ordinary understanding of that term by reference to the beneficial purposes of the ALR Act.

150. There is no dispute about whether activity of the type relied on by the Minister in relation to the 2016 claim dates concerning the residence is lawful. At issue is whether the Minister has proved that the residence was in fact occupied as at December 2016, the second and third dates of claim, on the basis the building was being continuously and actively maintained at those dates. The residence was vacant, Mr Drury having ceased living there in July 2016. Occupation, meaning active maintenance in this case, was submitted by the Minister to be established by documents attached to the affidavit of Mr Stepien, being (i) utility records and general maintenance contracts for the whole of Lot 995 (above in [71]-[72] and [76]-[77]]); (ii) hazardous building materials inspection reports prepared in 2012 and around November 2016 (above in [73] and [75); (iii) the evidence of Sergeant Rhind; and (iv) the evidence of Mr Drury. Mr Drury agreed that the residence was rundown when he vacated.

150. The electricity records were for the period 11 July 2013 to 9 October 2013, 14 October 2014 to 6 January 2015, and 6 April 2017 to 5 May 2017 (not long after the dates of claim in December 2016). The Minister submitted that it is possible to infer from these records that electricity was being used at the residence as at the second and third dates of claim in December 2016. The water records were for the period 14 November 2016 to February 2017. These records relate to the whole of Lot 995 which includes the police station. The NSW ALC’s submissions accurately characterise the nature of the evidence relied on by the Minister in that electricity and water use for the residence as opposed to the police station is not established by the records. That analysis of the electricity records showing reduction in usage rates after Mr Drury left the residence is set out above in [112], suggesting these records do not reflect use at the residence. The records otherwise do not differentiate between the police station and the residence. The water records provide no assistance for the same reason. The same observation can be made about the general maintenance records for the whole of Lot 995 referred to in Mr Stepien’s affidavit, once again analysed in the NSW ALC’s submissions above in [111] in that no work on the residence is specifically identified and/or carried out after the December dates of claim.

151. The NSW ALC identified that the Hazardous Building Material Inspections report prepared in 2012 and a report prepared after an inspection in November 2016 for the police station and the residence showed parts of the residence contained hazardous material such as asbestos cement sheeting in various locations and lead paint. In cross-examination of Mr Drury, Mr Drury did not agree that the residence was unfit for human occupation. He did agree that the residence was rundown. Sergeant Rhind did not accept that the residence was unfit for purpose in July 2016 as a family was still living there. The Hazardous Building Material Inspections report confirms the poor state of the residence, as does the 2018 email of PNSW stating the property was uninhabitable, which confirms a foresight and is permissible to consider under the Falconer principle.

152. I agree with the NSW ALC that the evidence of Sergeant Rhind about a contractor attending the residence to fix the hot water system was vague as to timing and was a single event. He did not recall how often contractors attended the residence to do work.

153. The tenor of the evidence is that in December 2016 the residence was vacant, rundown and contained substantial hazardous material. The extent of maintenance undertaken on that building, as opposed to the police station, is unknown. The evidence does not establish that utilities, being electricity and water, were connected in December 2016. The business case document prepared for the police station in 2015, above in [74], does not include the residence.

154. The Minister’s evidence is so minimal as to not amount to occupation, meaning continuous and active maintenance, on the dates of claim in December 2016. It falls well short of what was demonstrated in Berrima at first instance and accepted by the High Court at [28] in Berrima Gaol HCA as activity amounting to occupation of the relevant gaol premises. The circumstances in this case are more akin to Malabar Police Station at [67]-[71] and Newcastle Post Office at [177] and [182], amounting to no more than a notional occupation, lacking any activity suggestive of physical possession.

155. The parts of ALC 42456 and ALC 42492 concerning the residence are upheld.

Conclusion

157. ALC 28490, ALC 42456 and ALC 42492 for that part of Lot 995 occupied by the residence and the paddock are upheld with respect to:

1. the paddock at the first date of claim (August 2010);

2. the paddock at the second and third dates of claim (December 2016); and

3. the residence at the second and third dates of claim (December 2016).

158. Appropriate orders for the transfer of the different parts of Lot 995 will be made. The parties are to advise of the appropriate form of orders to achieve this in a timeframe to be discussed with them.

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Decision last updated: 14 September 2020