NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2)
[2008] NSWLEC 13
•31 January 2008
Pending Appeal: 040079/08
Land and Environment Court
of New South Wales
CITATION: NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [2008] NSWLEC 13
This decision has been amended. Please see the end of the judgment for a list of the amendments.PARTIES: APPLICANT
RESPONDENT
New South Wales Aboriginal Land Council
Minister Administering the Crown Lands ActFILE NUMBER(S): 30568 of 2006 CORAM: Jagot J - Davis AC KEY ISSUES: Aboriginal :- land claim - claimable Crown lands - land needed or likely to be needed as residential lands - requirement for opinion of a Crown lands Minister - opinion required to exist when claim was made - certificates of final and conclusive evidence - judicial review - whether certificates valid - jurisdictional error - certificates invalid - whether lawful use of land - whether land needed or likely to be needed for essential public purpose - appeal upheld - land claimable Crown lands LEGISLATION CITED: Aboriginal Land Rights Act 1983
Aboriginal Land Rights (Amendment) Act 1986
Crown Lands Act 1989
Environmental Planning and Assessment Act 1979
Interpretation Act 1989
Land and Environment Court Act 1979
National Parks and Wildlife Act 1974CASES CITED: Aeropelican Air Services v Lake Macquarie City Council (2006) 153 LGERA 19
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Badraie v Commonwealth of Australia (2005) 195 FLR 119
Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450
Blair v Curran (1939) 62 CLR 464
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400
Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135
Craig v The State of South Australia (1994) 184 CLR 163
Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140
Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act [No 2] (1995) 89 LGRA 194
Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 95 LGERA 353
D’Orta Ekenaike v Victorian Legal Aid (2005) 223 CLR 1
Foodbarn Pty Limited v Solicitor-General (1975) 32 LGRA 157
Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388
Jerrinja Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 577
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277
Koompahtoo Aboriginal Land Council v KLALC Property & Investment Pty Ltd [2006] NSWSC 856
La Perouse Local Aboriginal Land Council v The Minister Administering the Crown Lands Act (La Perouse) (1991) 74 LGRA 176
Manly Council v Hortis (2001) 113 LGERA 321
Markisic v Commonwealth of Australia & Anor [2007] NSWCA 92
Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812
Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249
Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] (2001) 50 NSWLR 665
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1997) 42 NSWLR 641
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106
Minister For Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Mirvac Homes Pty Ltd v Parramatta City Council (No 3) (1999) 111 LGERA 233
New South Wales Aboriginal Land Council v Minister for Land and Water Conservation Act [1997] NSWLEC 176
New South Wales Aboriginal Land Council v Minister Administering 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] NSWCA 281
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
The King v Connell; Ex parte The Hetton Bellbird Collieries Limited (1944) 69 CLR 407
Tickner v Chapman (1995) 57 FCR 451
Trust Company Limited v Chief Commissioner of State Revenue [2007] NSWCA 255
Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2001) 113 LGERA 163DATES OF HEARING: 27 & 28 November 2007
DATE OF JUDGMENT:
31 January 2008LEGAL REPRESENTATIVES: APPLICANT
Mr J E Griffiths SC with Mr Jason Lazarus
SOLICITORS
Chalk & FitzgeraldRESPONDENT
Mr M J Leeming SC with Mr Craig Lenehan
SOLICITORS
Crown Solicitor's Office
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
31 January 2008
30568 of 2006
NEW SOUTH WALES ABORIGINAL LAND COUNCIL
ApplicantJUDGMENTMINISTER ADMINISTERING THE CROWN LANDS ACT
Respondent
Jagot J:
A. Introduction
1 On 22 October 1990 the New South Wales Aboriginal Land Council (the Land Council) made a claim for land at Nambucca on the north coast of New South Wales under s 36(4) of the Aboriginal Land Rights Act 1983 (the ALR Act). Over 15 years later, on 4 May 2006, the Minister Administering the Crown Lands Act (the Minister) refused the claim under s 36(5)(b) of the ALR Act. This is an appeal against the Minister’s refusal of the claim (s 36(7) of the ALR Act).
2 Appeals under s 36(7) ultimately involve a single question of fact (has the Minister satisfied the Court that the land or part of the land is not claimable Crown lands as defined in s 36(1) of the ALR Act). In this case, however, a number of preliminary issues need to be resolved in order to answer this question of fact as follows:
(1) Is the Minister precluded from arguing that the land was needed or likely to be needed as residential lands when the claim was made (s 36(1)(b1) of the ALR Act) by reason of an issue estoppel arising from an earlier decision of this Court ( New South Wales Aboriginal Land Council v Minister for Land and Water Conservation [1997] NSWLEC 176 ( Nambucca 1997 ))?
(2) Should the Court adopt the same reasoning and conclusions as apparent in Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act [No 2] (1995) 89 LGRA 194 ( The Londonderry Claim ), Nambucca 1997 and Wanaruah Local Aboriginal Land Councilv Minister Administering the Crown Lands Act (2001) 113 LGERA 163 ( Wanaruah ) by reason of judicial comity?
(4) What is the meaning of s 36(1)(b1) of the ALR Act and how is it to be applied?(3) Are the decisions in The Londonderry Claim, Nambucca 1997 and Wanaruah consistent with the decisions of the Court of Appeal in Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 ( Deerubbin (No 1) ) and Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] (2001) 50 NSWLR 665 ( Deerubbin (No 2) )?
3 Two certificates under s 36(8)(a) of the ALR Act also affect the ultimate question in this case. The first certificate relates to the whole of the land whereas the second relates to part of the land. Each certificate states that such land was needed or likely to be needed as residential land when the claim was made. The Land Council, by notice of motion, claimed that the certificates are invalid, being vitiated for jurisdictional error.
4 The issues and evidence relating to the ultimate factual issue and the validity of the certificates overlap. It is also necessary to keep in mind that while the Minister bears the onus of satisfying the Court on the ultimate factual issue by reason of the terms of s 36(7) of the ALR Act, the Land Council challenged the validity of the certificates by notice of motion in the appeal and thus bears the onus with respect to that challenge.
5 Acting Commissioner Davis assisted in the appeal.
6 The ALR Act establishes a scheme for Aboriginal land councils to make claims for the transfer of claimable Crown lands. It does so against the background of express acknowledgements by Parliament in the long title to the Act and s 3 that past government decisions have caused land traditionally owned and occupied by Aboriginal people to be taken without compensation, and that it is fitting to recognise the importance land has for Aboriginal people, and their need for land. Within this scheme claimable Crown lands are to be transferred to the claimant Aboriginal land council. Claimable Crown lands are defined in s 36(1) of the ALR Act as follows:
(1) In this section, except in so far as the context or subject-matter otherwise indicates or requires:
claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division:
(a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901,
(b) are not lawfully used or occupied,
(b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands,
(c) are not needed, nor likely to be needed, for an essential public purpose, and
(d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and
(e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands).
7 Section 36(1)(b1) was inserted by the Aboriginal Land Rights (Amendment) Act 1986 and commenced on 2 May 1986 (before the date of the claim in this case).
8 Under s 36(2), the Land Council may claim land on its own behalf. Claims are to be made in accordance with s 36(4). The Minister’s obligations with respect to claims are contained in s 36(5):
(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
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
(ii) part only of the lands claimed is claimable Crown lands,
(b) if the Crown Lands Minister is satisfied that:(i) the whole of the lands claimed is not claimable Crown lands, or
refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require.
(ii) part of the lands claimed is not claimable Crown lands,
9 The right of appeal is vested in land councils by s 36(6). Under s 36(7):
(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 The certificate provision is contained in s 36(8), which is in the following terms:
(8) A certificate being:
(a) a certificate issued by a Crown Lands Minister stating that any land the subject of a claim under this section and specified in the certificate is needed or is likely to be needed as residential land, or
(b) a certificate issued by a Crown Lands Minister, after consultation with the Minister administering this Act, stating that any land the subject of a claim under this section and specified in the certificate is needed or likely to be needed for an essential public purpose,
shall be accepted as final and conclusive evidence of the matters set out in the certificate and shall not be called into question in any proceedings nor liable to appeal or review on any grounds whatever.
11 Section 36(14) enables a land council to obtain information from the Minister about Crown land and provides:
(14) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may request a Crown Lands Minister to supply or cause to be supplied to it such information in relation to the Crown land or dealings in Crown land as is specified in the request and the Crown Lands Minister shall, so far as is reasonably practicable, comply with that request.
C. Evidence
General
12 The land has an area of about 1.8 hectares. It is an irregularly shaped parcel bounded by numerous streets including Lackey, Small, Pacific, Boronia, and Parkes Streets, Nambucca. The land as a whole is generally referred to as the Boronia Street land in records of the Department of Lands (the Department). The Crown owned other substantial areas of vacant land in Nambucca Heads including at Ocean Street, Lee Street, and Pilot Street. These areas are different from the land at Boronia Street. The whole of the Boronia Street land has been zoned Residential 2(a) at all relevant times.
Before the claim
13 In November 1981 the Nambucca Shire Council informed the local member that there was a shortage of residential land in Nambucca despite large areas of Crown land being available for release and development. The Council requested that the Crown lands Minister consider immediate release of serviced Crown land to meet the shortfall, and a meeting to facilitate this consideration. The Council repeated this request in December 1981. The Minister for Lands responded on 30 December 1981 to the effect that the request would be given early attention. On 2 February 1982 the Minister informed the Council that (amongst other things) investigations had started for subdivision of 20 to 25 lots from the Boronia Street and Ocean Street lands.
14 The Department of Lands retained the Council to carry out the investigation of the Boronia Street land for residential development. On 13 December 1982 the Council reported to the Department about a recommended subdivision layout of the Boronia Street land. The subdivision involved 13 lots with the balance of the land shown as drainage reserve (and a small strip as access pathway). The Council explained that the drainage reserve was due to the steep topography with three of the lots requiring further investigation for the same reason. This investigation involved some clearing of the land. Officers of the Department considered the Council’s recommendations. In February 1983 the District Surveyor noted that the land was “very difficult” to develop so that much had to be retained as open space. Given the slope of the land the surveyor recommended that the geotechnical investigation be carried out, with further work by the Council to cease in the interim. These instructions were conveyed to the Council later that month with a request for quotes from geotechnical engineers. In March 1983 the Council forwarded a control survey of the land and its surrounds to the Department. In May 1983 the Council provided the Department with the estimate from a geotechnical engineer. Mr Edwards, a senior surveyor in the Department, noted that this work was essential to identify building blocks within the boundaries of the steep lots. The Department accepted the estimate. The geotechnical engineers reported in June 1983. Their report referred to a site inspection and fieldwork consisting of auger holes and sample collection. The report noted that geotechnical conditions required amendments to the proposed subdivision and that closure of part of Dale Street would be necessary.
15 In July 1983 Mr Edwards reported within the Department that the proposed subdivision had been amended to accord with the recommendations of the geotechnical engineer. The amended layout involved 12 lots. Mr Edwards recommended that a development application be pursued for the subdivision.
16 In September 1983 the Department’s district office received a report relating to market conditions in Nambucca in the context of development of the Ocean Street land. The report noted that the real estate market should continue to improve. At the same time the Council took steps directed towards the possible closure of part of Dale Street. The owner of one affected lot objected and Mr Edwards was required to investigate the issue. In November 1983 the Council provided the Department with a progress claim recording the steps completed to date and outstanding with respect to the development of the Boronia Street and Ocean Street lands. Completed steps included site clearing, control survey, detailed/contour survey, and detailed subdivision design, with the lot and centreline calculations, engineering survey, and engineering design outstanding. The Department authorised the planning, survey and engineering design works on 29 November 1983.
17 While these works were being carried out the Department dealt with the road closure issue. By May 1984 a way to meet the objector’s concerns about closure had been devised and the Department decided to request the Council to complete the development application. However, in August 1984 the Department recorded that programming of the Ocean and Boronia street subdivisions had been reviewed because of the depressed state of the real estate market. Finance for construction of the subdivisions was deferred until 1986/1987 for Ocean Street and 1987/1988 for Boronia Street. The Department then informed the Council that, due to economic constraints, it did not propose to proceed with the developments immediately. Therefore, the Council’s retainer would be terminated after completion of the engineering and related design works for the two areas of land.
18 On 6 June 1985 Mr Edwards reported to the Department that the development of the Ocean Street land had been deferred to the 1988/1989 financial year. With respect to the Boronia Street land, Mr Edwards was concerned the Council’s engineering design did not accord with the geotechnical recommendations. He recommended further consideration of the design and amendment of the subdivision layout to enable three stages of development (Ocean Street stage 1 with eight lots, Ocean Street stage 2 with 13 lots and Boronia Street with 11 lots).
19 By letter dated 9 July 1985 the Regional Manager informed the Council that the development at Ocean and Boronia Streets had been “removed from the current development programme”, and requested the Council to complete the outstanding plans to a formal standard consistent with Mr Edwards’ recommendation. Final payment to the Council for the engineering design was made in April 1986 from the Department’s “Homesite subdivision account”.
20 Nothing appears to have occurred between mid 1985 and 1988. On 19 February 1988 the Council asked the Department whether it could buy another parcel of land in Nambucca Heads (at Pilot Street to the west of the Boronia Street land) for development. In a further letter to the Department on 22 February 1988 about the Pilot Street land the Council noted advice from a real estate agent that the time was right to release further developed lots at Nambucca Heads or sales would be lost to adjoining coastal areas not as pressed for land supply. In March 1988 the Council assured the Department that it did not want the Pilot Street land for low cost housing. In May 1988 the Council wrote to the Department noting that residential development of the Pilot Street land had been considered and rejected previously. The Council asked whether the Department would consider development of that land for an up market tourist resort development. On 16 May 1988 the Department wrote to the Council about the Ocean Street land noting that the proposed development of 21 lots was unlikely to take place within the foreseeable future. This letter noted that at a recent meeting Council officers had raised a shortage of privately owned residential blocks in Nambucca Heads and the possible interest of the Council in acquiring land shown on an attached map for residential development. The Department offered to consider selling the land to the Council on conditions. The attached map shows the Pilot Street land. On 24 May 1988 the Council noted that it would hold the offer in abeyance pending a response to its letter of 5 May 1988 about development of the Pilot Street land for a tourist resort. The Department responded on 8 November 1988. The response noted the information provided by officers of the Council about a serious shortage of residential land in Nambucca Heads and the Council’s view that the Pilot Street land was suitable for tourist development, rather than residential development. The Department was willing to consider the sale of the land for that purpose but noted the general increased demand for residential land along the north coast.
21 In February 1989 the Department responded to an inquiry from a neighbour about buying Crown land adjoining his home near Small Street at Nambucca Heads. The Department noted that the land was part of the Boronia Street subdivision proposed in 1983 consisting of 12 lots and steep gullies not suitable for development. In those circumstances the Department advised that it was proposed to retain the land outside the lots as a natural drainage medium and pedestrian access corridor. By September 1989 vegetation on the cleared parts of the land had evidently regrown as the Council had concerns about bushfire hazards from the heavily overgrown parts of the Boronia Street land.
22 In May 1990 Mr Edwards wrote to the Council about a recent meeting concerning the ongoing program for the release of residential lots from Crown land at Nambucca Heads. The Department undertook at that meeting to prepare a strategy for the release of a large tract of land near Mahogany and Forest Roads and Palmer, Halidise and Charlton Streets. This release was intended to meet long-term demand. The Department also recognised short-term demand and referred to its willingness to sell land at Lane Road to the Council. Mr Edwards’ letter also enclosed development applications for the subdivision of the Boronia Street land into 10 lots and the Lee Street land into five lots. The letter noted that since much of the preliminary investigation and design work had been completed, marketing of the 15 lots could start in early 1991 subject to obtaining the necessary approvals. The Regional Manager of the Grafton Lands Office signed the enclosed development application for the Boronia Street land (registered as DA 2273) dated 15 May 1990 on behalf of the Minister. The statement of environmental effects referred to increased stormwater run-off through the gullies from the development, and noted the lot layout had been redesigned to maximise open space available for drainage. The development application for the subdivision of the land at Lee Street was registered as DA 2274.
23 The Council consulted the Soil Conservation Service about DA 2273 and the accompanying geotechnical report (apparently the report obtained in 1983). The Soil Conservation Service recommended further information about two of the proposed lots due to site stability concerns. On 28 June 1990 the Council informed the Department that it could not refuse a Crown development application and consulted about proposed conditions which could not be imposed without the Crown’s agreement. The Council also drew the advice from the Soil Conservation Service to the Department’s attention. The Department responded to the Council on 31 August 1990. On behalf of the Minister, Mr Edwards agreed to the imposition of amended conditions on developments consents for the subdivisions at Boronia and Lee Streets. He noted that the vacant Crown land adjoining the lots proposed in the Boronia Street subdivision would be established as public reserve in conjunction with the development.
24 On 13 September 1990 a draft land assessment was prepared within the Department under the provisions of the Crown Lands Act 1989 (which had commenced on 1 May 1990). The draft assessment had to be approved before being advertised. The draft assessment was advertised between 9 October and 9 November 1990. A related memorandum identified the subject as proposed urban development and environmental protection at Nambucca Heads.
25 The Council considered the development applications on 20 September 1990. On 21 September 1990 the Council issued development consents to DA 2273 and DA 2274 providing for lapse within two years of 20 September 1990 without physical commencement of the development. The conditions of consent required inter-allotment drainage pipes or other satisfactory means to convey stormwater in accordance with approved engineering plans. The conditions also required the provision at the applicant’s expense of a reticulated water and sewerage supply, construction of Boronia Street, kerb, guttering and drainage pits, and the construction of Lackey Street including a turning circle, kerb, guttering, and drainage pits. The approved subdivision plan for DA 2273 shows two lots adjoining Pacific Street, two lots adjoining Boronia Street, three lots adjoining Boronia and Dale Streets, and three lots adjoining Lackey Street with a large area of land in between.
26 On 18 October 1990 Mr Edwards wrote to geotechnical consultants about the recent grants of development consent to subdivide land at Boronia and Lee Streets as follows:
Development Consent was recently granted by Nambucca Shire Council to this Department’s proposals for the establishment of a five lot residential subdivision at the northern end of Lee Street, and a three lot residential subdivision at the eastern end of Lackey Street.
27 The letter invited the geotechnical engineers to review the engineering design for both projects including redrawing the engineering design plans “to exclude unwanted information (i.e. Lane Road Subdivision, Boronia Street Subdivision)”.
28 On 22 October 1990 the Land Council’s claim over the land was registered. The claim related to the whole of the Boronia Street land.
After the claim
29 In November 1990 the Council released a structure plan (the first draft of which pre-dated the claim). Under the heading “urban land” the plan noted that it seemed likely no centre within Nambucca Heads (except Scots Head) had more than one to two years supply of subdivided land available. For Nambucca Heads the plan said that there was adequate land zoned for urban development (mostly zoned 2(a) Residential) to meet forecast needs for more than a decade.
30 On 19 December 1990 Mr Edwards prepared a memorandum about the development of the land at Lee Street and Lackey Street. The memorandum noted that a commitment to this project had resulted from the Council requesting the Department, as a major owner of vacant land within Nambucca, to initiate an on-going program of land development to meet the acute shortage of home sites. The Department had prepared plans for the release of some 450 home sites to the north of the urban area with an initial release programmed for mid 1992 (this is a reference to the large tract of land near Mahogany and Forest Roads). The memorandum continued:
In order to satisfy the immediate demand this office has been able to bring forward a small residential development as a stop-gap measure whilst work proceeds on the major project.
The project is included on the Land Development Program (project number 1519). On-site construction works are proposed for June – August 1991, with marketing planned for October, 1991.Basically two projects in one, the development proposes subdivision of Crown land at the northern end of Lee Street (five lots) and the eastern end of Lackey Street (three lots). Both sites are in close proximity and can effectively be undertaken by the one contractor.
31 The memorandum also referred to the land claims recently lodged over various parcels of land at Nambucca Heads noting that it was most unlikely that the claims would be upheld given the Department’s long-standing intention to develop the land for residential purposes. Mr Edwards recommended that the design work for Lee and Lackey Streets proceed despite the risk presented by the land claims. The recommendation was accepted subject to there being no expenditure on construction until the land claims were resolved, and immediate application to the Aboriginal Land Claims Unit (another unit within the Department) for the claims to be refused on the basis of demonstrated demand for the land for residential purposes.
32 On 2 May 1991 Mr Edwards wrote to the Council about the three lots on Lackey Street approved as part of DA 2273. The letter said that further design work required the three lots to be reduced to two with larger lot areas. Mr Edwards requested that the Department modify the development consent. The Council approved the modification on 17 May 1991.
33 On 15 May 1991 the Department’s Manager, Land Resources Branch rejected the draft assessment of the land under the Crown Lands Act as inadequate noting, amongst other things, that the development capability ratings were too high given the slopes on the land.
34 On 30 May 1991 the Aboriginal Land Claims Unit prepared a memorandum about the claim. The memorandum noted that the development of the two lots on Lackey Street was on the Department’s current four year program and continued as follows:
As there is evidence of a long-standing identified need for the land for residential purposes, the claim should be refused…Although the other 8 blocks are not included in the current land development program, the program is subject to periodic review which allows for additional blocks to be added as required.
35 The annexed documents included an extract from the “Crown Land Four Year Development Program”. This program referred to the development of eight lots (at Lee and Lackey Streets) with sales starting in 1992/1993.
36 In June 1991 the Manager, Aboriginal Land Claims Unit responded to the effect that the May memorandum mainly dealt with past demand and a current opportunity to develop part of the land for residential purposes. However, little evidence had been provided about any current need for that purpose. The Manager noted “in fact only two of the proposed blocks are currently on your development programme”. The Manager said that if refusal of the claim was appropriate then further evidence would be required and requested further consultation. A Senior Lands Officer responded in August 1991 to the effect that he took a broader view of residential lands. The officer continued:
Clearly the maximisation of commercial return is a major issue leading to placement of land on a development programme; not solely need (perhaps not even related to need other than as a basis of demand). In any case in the event of a claim being lodged the site is not programmed (i.e. withdrawn).The relevance of programme escapes me.
37 The Senior Lands Officer also disclosed his view that the Minister could form a relevant opinion under s 36(1)(b1) when the claim was determined (a view inconsistent with the Minister’s submissions in this appeal).
38 On 14 August 1991 Mr Edwards noted in a memorandum that the design work for the two lots on Lackey Street and five lots on Lee Street had been completed. Further work required resolution of the land claims. Mr Edwards said that the Department also needed to negotiate a contribution from the Council towards the cost of upgrading Lackey Street without which the Lackey Street development would be economically unviable.
39 On or about 11 October 1991 the assessment of the land under the Crown Lands Act was approved for the purposes of Pt 4 of the Crown Lands Act 1989 (ss 31 and 35).
40 On 23 July 1992, Mr Edwards informed the Council that the proposal to “establish two residential lots at the north-eastern end of Lackey Street was abandoned as a result of Council’s requirements for the upgrading of Lackey Street rendering such proposal uneconomic”. He also noted that if the claim were refused then development options would be examined but he did not envisage any development of the land in the short-term due to the Department’s commitment to the development at Forest Road.
41 On 18 May 2001 the Department advised North Power that most of the land was claimable Crown lands.
42 Officers within the Department prepared a number of documents at intervals over the years about the claim and the history of the land. None resulted in a submission to the Minister for determination of the claim.
43 On 4 May 2006 the Minister approved a recommendation that the claim be refused on the ground that the Department of Lands lawfully occupied the land for the purpose of effecting residential development (a ground not pressed in the appeal), and the land was needed or likely to be needed as residential lands under s 36(1)(b1) of the ALR Act. It is clear from the submission annexed to the recommendation (paragraph 3.16) that the Department and the Minister understood s 36(1)(b1) of the ALR Act as permitting the Minister to form a relevant opinion about need or likely need at the time the claim was determined (contrary to the Minister’s principal submissions in this case). In the letter of refusal the Minister noted (in accordance with the recommendation) that he was considering issuing a certificate under s 36(8)(a) and invited submissions from the Land Council.
44 On 22 September 2006 the Land Council made a lengthy submission to the Minister to the effect that a certificate under s 36(8)(a) of the ALR Act should not be issued. The submission, amongst other things, noted that the Council’s 1990 structure plan concluded there was an adequate supply of land in the area for more than a decade, including 530 hectares of land available for residential development outside the existing urban area. In response to further information provided by the Minister’s solicitors the Land Council made a further lengthy submission to the effect that no certificate under s 36(8)(a) should be issued.
45 On 30 October 2007 the Minister issued two certificates under s 36(8)(a) of the ALR Act in accordance with a recommendation in a briefing note. The first certificate states that the whole of the land was needed or likely to be needed as residential land when the claim was made. The second certificate states that part of the land consisting of the ten lots shown on an annexed plan was needed or likely to be needed as residential land when the claim was made. The briefing note is considered below in the context of the Land Council’s challenge to validity of both certificates.
46 On 8 November 2007 the Land Council’s solicitor requested information under s 36(14) of the ALR Act including the Minister’s reasons for issuing the certificates. The Minister’s solicitor referred to the briefing note signed on 30 October 2007 (particularly paragraphs 6.16 to 6.18).
Mr Edwards
47 Mr Edwards provided an affidavit and gave oral evidence. Mr Edwards had primary responsibility for managing the regional home sites program for the Grafton area. Land was assessed for placement on the program if the Department decided that it had a preferred land use. Mr Edwards considered such matters as zoning, physical features, market demand, and the relative priority of projects. Once land was in the program Mr Edwards would arrange the plan for development.
48 Mr Edwards noted that the Crown owned much of the land suitable for residential development in Nambucca and was asked by the Council to make such land available for subdivision in the early 1980’s. In the mid 1980’s the Boronia Street subdivision was given a lower priority than previously because of available resources, the cost of the project, funding availability, and market demand. By May 1990 Mr Edwards thought the Boronia Street subdivision could be marketed within about six months. He completed and lodged the development application for the subdivision into 10 lots. In Mr Edwards’ view the Boronia Street subdivision was part of the program at all times from 1983 to the lodgement of the land claim.
49 Mr Edwards was cross-examined. He agreed that the regional home sites program was a formal process documented in a spreadsheet. Due to the Department’s limited resources the program was small. To maintain continuity certain projects could be taken off the program to make way for others. Projects taken off the program were not abandoned but held in limbo so that if a problem arose with anything on the program those projects could be put back on. The program usually ran about three years ahead, possibly longer, and was constantly reviewed. When asked about the letter to the Council of 9 July 1985 Mr Edwards thought that “removed” might be a poor word choice because although the Boronia Street subdivision was taken off the program in the mid 1980’s (including off the formal spreadsheet) it was not abandoned.
50 Mr Edwards explained that the decision to proceed with the three lots at Lackey Street and five lots at Lee Street made economic sense because together the two could be a profitable development with a short lead time. In contrast to Lackey Street, the lots at Boronia Street required full road construction. The Department was looking to put blocks on the market as quickly as possible. Mr Edwards thought the Council might have approved staging of the Boronia Street subdivision at some time. The eight lots from this project (three at Lackey Street and five at Lee Street) were intended to meet the short-term demand for residential land in Nambucca Heads whilst the major project at Forest Road (450 lots) proceeded to meet long-term demand. There was also other infill land scattered throughout the area capable of providing a handful of lots each. After the geotechnical engineers were retained for the eight lot project the lots at Lackey Street had to be reduced by one due to topographical constraints.
Expert evidence
51 Mr Svikis and Mr Sanders, town planners, prepared detailed individual reports, a joint report, and gave oral evidence. Both planners provided their opinions about whether the land was or was not needed or likely to be needed as residential land when the claim was made. Mr Sanders also considered the need or likely need for part of the land for open space. With respect to residential lands the joint report disclosed that the experts disagreed about the parameters within which the question of need or likely need should be determined, including the relevant planning period, planning area, and the issues affecting supply when the claim was made.
Nambucca 1997
52 When the Land Council lodged the claim on 22 October 1990 it was registered as ALC 3721 relating to 1.8 hectares of land at Nambucca Heads. On the same day the Land Council lodged claims for other land at Nambucca Heads to the north and east. The Minister refused the other claims on 19 December 1994 on grounds that the land to the north and east was needed or likely to be needed as residential land. The Land Council appealed against that refusal. These appeals were heard on 17 November 1997 (with other appeals by the Nambucca Heads Local Aboriginal Land Council). Talbot J upheld the Land Council’s appeals and ordered the Minister as respondent to transfer land to the Land Council. In his ex tempore reasons Talbot J noted the Minister’s position in the appeal as follows (Nambucca 1997):
The case for the Minister proceeded on the basis that all of the evidence be placed before the Court and if the Court reaches the same view as the applicants, then it would be appropriate for orders to be made that the subject lands be transferred to the claimants….…the Minister had reviewed the evidence filed in the proceedings and had come to the conclusion that it was open for the Court to find that the land the subject of each of the applications was not needed as residential lands…
53 In accordance with the common position of the parties Talbot J identified that the “sole issue remaining to be determined therefore is whether the lands are claimable Crown Lands which do not comprise lands which are needed or are likely to be needed as residential lands”. Talbot J upheld the appeals on the basis that “the Court has not been satisfied that the Minister has discharged the relevant onus of proof to show, on the balance of probabilities, that the subject lands are needed or are likely to be needed as residential lands”. On the evidence Talbot J found that “at the date of the claim, there was more than adequate supply of land within the area of Nambucca Shire in proximity to Nambucca Heads which was capable of urban development and which was in sufficient quantity to meet the expected growth over very many years”.
The Londonderry Claim
54 The Londonderry Claim was decided before Nambucca 1997. The reasoning in the earlier decision is consistent with the common approach of the parties to s 36(1)(b1) before Talbot J. The claims were made in October 1989. The Minister refused the claims in December 1993. The Minister adopted the Department’s recommendation that the land was needed as residential lands. The Minister submitted in the appeal that the land was not claimable Crown lands if the Minister established the formation of the opinion within s 36(1)(b1) of the ALR Act. In the factual context of The Londonderry Claim this can only be understood as reference to an opinion formed when the Minister determined the claims.
55 Bignold J rejected the Minister’s submission on the basis of the observations of Hope JA in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 (The Winbar Claim) at 691 – 692. Bignold J held that as the Court must determine for itself whether the conditions in the definition of claimable Crown lands are satisfied at the date of the claim the Court could not be bound by the Minister’s opinion. Bignold J also noted that if the Court were so bound then the Minister’s opinion under s 36(1)(b1) would have the same effect as a certificate under s 36(8)(a). Bignold J considered that, if necessary, s 39(2) of the Land and Environment Court Act 1979 vests the Court with the same power as the Minister to form an opinion under s 36(1)(b1).
Wanaruah, Deerubbin (No1) and Deerubbin (No 2)
56 Wanaruah was decided after Deerubbin (No 1) but before Deerubbin (No 2). Deerubbin (No 1) concerned s 36(1)(c) of the ALR Act (the relevant essential public purpose primarily nature conservation or national park). The majority (Handley and Powell JJA at 254) said:
The word “needed” in s 36(1)(c) means “required”. The Land and Environment Court on an appeal from the Minister under this Act would not be called upon to second guess, for example, a decision by the Executive Government that Sydney needed a second major airport, and that it should be located at Badgery's Creek. The only question for the Court in such a case would be whether a second airport for Sydney was an essential public purpose, and if so whether the particular land was needed, that is, required or wanted, by the Executive Government for that purpose.
57 Handley and Powell JJA agreed with Meagher JA that the trial judge’s reasons disclosed errors of law. However, unlike Meagher JA, they characterised those errors of law as irrelevant to the ultimate finding that the Minister had failed to discharge the onus. The fundamental error Meagher JA identified (at 252 – 253) was that the trial judge had taken into account whether the public purpose could be achieved by other means. Meagher JA described this as “totally irrelevant” to the question, namely:
… whether the land was, at the date of the claim, needed or likely to be needed for an essential public purpose. That question does not involve an extensive inquiry into whether the purpose can somehow otherwise be achieved; it is essentially a question of the view held by the government on the day the claim was made.
58 The Minister’s submissions in Wanaruah applied the reasoning of the majority in Deerubbin (No 1) (at [15] – [16]) to the effect that “need” related to the views of the executive government and relied on actions taken by Landcom as evidencing those views. Lloyd J held that Landcom, being the relevant authority of the executive government, did not hold a clear opinion about the need for the land as residential lands (at [50]). Otherwise, however, Lloyd J determined the question of need by reference to detailed planning evidence about population growth and demand for residential land in the area.
59 The Court of Appeal delivered judgement in Deerubbin (No 2) the day after Lloyd J decided Wanaruah. Deerubbin (No 2) concerned s 36(1)(c) of the ALR Act (the relevant essential public purpose being nature conservation or national park). In Deerubbin (No 2) Spigelman CJ (at [50]) noted the appellant’s acceptance of the proposition that:
…the word “needed” meant no more than “required or wanted”. The distinction between what was “needed” and what was “likely to be needed” turned, in the appellant's submission, on whether or not a decision concerning the use of the land had in fact been made. This is an acceptable distinction.
60 Spigelman CJ later described this decision about the use of land as involving “an expression of political will” (at [73]).
61 The Court also held (at [57]) that, in s 36(1)(c) of the ALR Act:
…the word “likely” is not used in the sense of “more probable than not” but is used in the sense, as the appellant contends, of a “real or not remote chance”.
Submissions
62 The Land Council submitted that Talbot J’s finding in Nambucca 1997 that there was more than adequate land within Nambucca capable of urban development of sufficient quantity to meet the expected growth over very many years gave rise to an issue estoppel in the current appeal. The current appeal involved the same parties with respect to a claim made on the same day about land in Nambucca close to the land considered in Nambucca 1997. Hence, the Minister was bound by Talbot J’s finding (citing Blair v Curran (1939) 62 CLR 464 at 531 – 532, Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 603, D’Orta Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 at [34], Mirvac Homes Pty Ltd v Parramatta City Council (No 3) (1999) 111 LGERA 233 at [23] and Badraie v Commonwealth of Australia (2005) 195 FLR 119 at [70] – [87]).
63 The Minister accepted that proceedings under s 36(7) of the ALR Act could give rise to an issue estoppel (including proceedings where the concessions or consent of one party had been critical to the outcome as in Nambucca 1997). However, the Minister submitted that the only matter “legally indispensable” to Talbot J’s conclusion was the finding that the Minister had not discharged the onus of proof on the evidence before the Court in that case. This finding about onus could not bind the Minister in the present appeal where the Minister relied on different evidence (and, I note, different submissions about the proper approach to s 36(1)(b1) of the ALR Act).
64 The Minister submitted that Bignold J’s approach to the required opinion under s 36(1)(b1) in The Londonderry Claim was clearly incorrect and should not be followed. Further, that the reasoning processes in Nambucca 1997 and Wanaruah, insofar as they involved the Court in assessing for itself such matters as population growth and demand for residential lands, necessarily involved second-guessing of the executive contrary to the appellate authority of Deerubbin (No 1) and Deerubbin (No 2).
65 The Minister submitted that s 36(1)(b1), properly construed, required a factual finding whether there was (or was not) an opinion of a Crown Lands Minister that the land was needed or likely to be needed as residential lands. The Minister acknowledged the better view was that any such opinion, to be relevant under s 36(1)(b1), had to be an opinion at the date of the claim. This carried with it a logical necessity that the opinion be capable of being formed either by the Minister personally or a delegate (see also s 243 of the ALR Act and s 49 of the Interpretation Act 1989). If the required opinion existed at the date of the claim with respect to land then, by dint of that opinion, the land is not claimable Crown lands. This, said the Minister, accords with the ordinary meaning of s 36(1)(b1), gives work to every word in the section, and is consistent with the legislative purpose of the amendment introducing the section disclosed in the second reading speech (Hansard, 16 April 1986, p 2042, particularly the references to residential land being removed from the category of claimable Crown lands and the intention that land earmarked for residential development not be claimable).
66 This is not to say the opinion is unreviewable. The Minister accepted that the opinion must be formed reasonably on the available material (The King v Connell; Ex parte The Hetton Bellbird Collieries Limited (1944) 69 CLR 407 at 430 and 432, and Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at [34]. See also Jerrinja Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 577 at [95]).
67 Contrary to the reasoning in The Londonderry Claim, the Minister said this construction does not give an opinion under s 36(1)(b1) the same effect as a certificate under s 36(8)(a). Section 36(8)(a) does not enable the Minister to certify the existence of an opinion. It permits the Minister to certify only the question of need or likely need as residential lands. In other words, and in contrast to s 36(8)(b), a certificate under s 36(8)(a) does not automatically defeat a land council’s claim. The Minister must still satisfy the Court that the relevant opinion existed at the date of the claim. The certificate will protect the opinion (if established) from collateral challenge (such as on the ground of manifest unreasonableness) because it is final and conclusive evidence of the fact asserted in the certificate. However, the certificate itself is reviewable on the grounds of jurisdictional error (consistent with the Minister’s position in Jerrinja).
68 The Land Council agreed that: - (i) the relevant opinion under s 36(1)(b1) had to exist at the date of the claim, (ii) the relevant opinion could be held by a Crown lands Minister or a delegate, and (iii) a certificate under s 36(8)(a) was limited to the question of need or likely need as residential lands. However, the Land Council submitted that this was not inconsistent with the reasoning in The Londonderry Claim, Nambucca 1997 and Wanaruah. Moreover, those decisions are not inconsistent with Deerubbin (No 1) or Deerubbin (No 2).
Discussion
69 Judicial comity requires that a judge at first instance follow the decisions of another judge at first instance unless convinced the decision is wrong or distinguishable (Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 at 820).
70 Section 36 of the ALR Act contains many issues of construction. For example, s 36(5) requires the Minister to determine claims based on whether the Minister is satisfied about the status of the land as claimable Crown lands or not. Bignold J, in The Londonderry Claim (at 203), referred to a potential tautology given the reference in s 36(1)(b1) to the opinion of a Crown lands Minister. Section 36(8) enables a certificate of final and conclusive evidence to be given with respect to two exceptions from the definition of claimable Crown lands in s 36(1). The reference point of that definition is when the claim was made yet s 36(8) is not expressly so framed. For the matters in a certificate to be relevant evidence, however, the matters must refer back to the time when the claim was made (Jerrinja at [79]). A certificate under 36(8)(b) reflects the exception from claimable Crown lands in s 36(1)(c) in terms. Yet a certificate under s 36(8)(a) relates to only part of the exception from claimable Crown lands in s 36(1)(b1).
71 I accept the Minister’s submissions that the approach to s 36(1)(b1) of the ALR Act in The Londonderry Claim is clearly wrong for three reasons: - (i) it is inconsistent with the ordinary meaning of s 36(1)(b1) and does not give effect to all of the words of the provision, (ii) it does not readily accord with the remedial and beneficial purpose of the ALR Act, and (iii) the reasons for adopting the approach are not persuasive. It is not necessary to have recourse to the second reading speech for this purpose (particularly in recognition of the fact that s 36(1)(b1) does not say that residential land is not claimable Crown lands. See also the observations in Trust Company Limited v Chief Commissioner of State Revenue [2007] NSWCA 255 at [83] that it is the intention of the legislature as disclosed in the statute, not the words of the Minister, that must govern its construction).
72 Section 36(1)(b1) is the only provision within s 36(1) including reference to a state of mind (“in the opinion of a Crown lands Minister”) as part of the relevant factual condition. The ordinary meaning of s 36(1)(b1) is clear. To qualify for the exception from claimable Crown lands provided for in that section the land must not be land which, in the opinion of a Crown lands Minister, is needed or likely to be needed as residential land. This factual condition is to be tested by reference to the time when the claim was made in accordance with the fundamental prescription in s 36(1) (“claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division…”). As the Land Council submitted, if it were otherwise land could be claimable Crown land at all times after a claim until the Minister formed an opinion. This would be inconsistent with the requirement that the status of the land be determined by reference to the time when the claim was made. Further, the reference to “a” Crown lands Minister reflects the fact that the Minister who formed an opinion may be different from the Minister determining the claim.
73 The required opinion is an opinion of a Crown lands Minister that the land was needed or likely to be needed as residential lands. The ordinary meaning of s 36(1)(b1) is inconsistent with an approach in which the Court may substitute its own opinion for that of a Crown lands Minister. Enabling the Court to do so gives no effect to the words “in the opinion of a Crown lands Minister”. Under s 36(5), the obligation of the Minister determining a claim is to find whether there was or was not the required opinion when the claim was made. The function of the Court under s 36(7) (supplemented by s 39(2) of the Land and Environment Court Act) is to make that finding about the required opinion for itself on the evidence, having regard to the onus cast by that section on the Minister. Section 39(2) does not give the Court any function with respect to the forming of the primary opinion because that is not a function of the Minister under s 36(5) (which is the decision the subject of the appeal).
74 Giving s 36(1)(b1) its ordinary meaning is consistent with the beneficial purpose of the ALR Act. The long title to the ALR Act and s 3 disclose that Aboriginal people have been deprived of land in the past without compensation by reason of government decision-making. The fundamental prescription in s 36(1) ensures that the status of land as claimable Crown lands or not operates by reference to the time when the claim was made. The statute thus protects against any potential effects of expediency in the Minister determining the claim. It requires the Minister, in accordance with s 36(5), to do nothing more (or less) than make a finding about the factual circumstances prescribed by s 36(1)(a) to (e) at the time when the claim was made, irrespective of any matter or circumstance existing at the time when the claim is determined. The result (whether the land must be transferred to a land council or not) follows from the factual finding without involving the Minister in any discretionary exercise. On appeal under s 36(7) the Court is in the same position as the Minister under s 36(5) (albeit with the Minister bearing the onus of establishing the factual circumstance prescribed by s 36(1)(a) to (e) relied upon). If part of the factual condition in s 36(1)(b1) (the opinion of a Crown lands Minister) is able to be found by reference to the time when a claim is determined (either because of an opinion of a Crown lands Minister or the Court at that time) then this important protection in the statutory scheme would be lost.
75 The reasons that led to the contrary conclusion about s 36(1)(b1) in The Londonderry Claim (at 201 – 202) are not persuasive. The fact that the Court must determine whether the factual conditions in the definition of claimable Crown lands are satisfied (as stressed by Hope JA in The Winbar Claim) supports the ordinary meaning of s 36(1)(b1). Hope JA did not suggest that the Court could recast part of any of the factual conditions. The Winbar Claim was also decided before s 36(1)(b1) was inserted into the ALR Act. Giving s 36(1)(b1) its ordinary meaning does not give a decision under s 36(5) the same effect as a certificate under s 36(8)(a) because the certificate cannot extend to the existence of the required opinion.
76 Making a factual finding about whether (when a claim was made) in the opinion of a Crown lands Minister, the land was needed or likely to be needed as residential lands involves the same processes identified by Hope JA in The Winbar Claim (at 692). Making a factual finding about the existence of an opinion is not uncommon (see, for example, Manly Council v Hortis (2001) 113 LGERA 321 and the cases cited therein, and Aeropelican Air Services v Lake Macquarie City Council (2006) 153 LGERA 19, albeit relevant to a different context).
77 The evidence and submissions in Nambucca 1997 and Wanaruah did not call for resolution of any of the issues referred to above. For present purposes it is sufficient to note that Deerubbin (No 1) and Deerubbin (No 2) (particularly the former) disclose that evidence purporting only to second-guess the executive government without more would not be material to resolution of the issue of need or likely need. Further, those decisions relate to need or likely need in the context of s 36(1)(c) of the ALR Act. While I accept that need or likely need take the same meaning in s 36(1)(b1), that section involves other issues and a different factual context.
78 Evidence relevant to the existence or not of an opinion of a Crown lands Minister may be different from evidence relevant to the fact of need or likely need. Evidence relevant or sufficient to establish the view of the executive government about creating a national park (as in Deerubbin (No 1) and Deerubbin (No 2)) may be different from evidence relevant to the need or likely need of land as residential lands. For example, a specific statutory process under the National Parks and Wildlife Act 1974 (the NPW Act) applies to the creation of a national park. There is no equivalent process for lands needed or likely to be needed as residential lands. For these reasons, it is not necessary to consider whether Nambucca 1997 and Wanaruah are consistent with Deerubbin (No 1) and Deerubbin (No 2).
79 I do not accept the Land Council’s submission that Nambucca 1997 creates an issue estoppel relevant to disposition of the current appeal. As the Minister submitted, the indispensable matter to the outcome in Nambucca 1997 was the Minister’s failure to discharge the onus imposed by s 36(7) on the evidence. Talbot J’s finding that there was an adequate supply of land for urban development in Nambucca Heads for many years was not an “ultimate fact” forming part of the “ingredients in the cause of action” (Blair v Curran at 532), and depended on the evidence available in that appeal.
80 Accordingly, the present appeal must be resolved on the whole of the evidence having regard to the competing submissions made by the parties.
Submissions on non-certificate issues
81 The Minister made the following submissions about ss 36(1)(b1) and (c) of the ALR Act:
(1) The approaches to residential lands in Nambucca 1997 and Wanaruah carry no weight because those decisions assumed a particular operation of s 36(1)(b1) by reason of the common position of the parties. A decision is not authority for any proposition that has been assumed as opposed to decided ( Markisic v Commonwealth of Australia & Anor [2007] NSWCA 92 at [56]). Deerubbin (No 1) and Deerubbin (No 2) make clear that it is not the function of the Court to second-guess the executive. On this basis there is no warrant for the Court, as in Nambucca 1997 and Wanaruah , considering the planning area, population projections, and market conditions for residential land. The relevant question is only whether in the opinion of a Crown lands Minister the land was required or wanted or likely to be required or wanted (with likely meaning a real and not remote chance) when the claim was made.
(2) About four weeks before the claim was made the Council granted development consent for the subdivision of the land into 10 residential lots.
(3) The development consent was granted in response to a development application lodged on behalf of the Minister.
(5) The letter from Mr Edwards of 18 October 1990 referring to the development of three lots at Lackey Street does not establish that this opinion changed a few days before the making of the claim by a decision not to proceed with anything other than those three lots. The letter and Mr Edwards’ evidence were to the effect that the development of the lots easiest to develop (at Lackey and Lee Streets) should occur first. Mr Edwards was not squarely challenged about his conclusion that the land was always on the home sites program from 1983 until the claim was made.(4) The development application and consent, considered in the context of the land (zoned 2(a) and surrounded by residential development) and its history, establish the existence of the opinion of a Crown lands Minister that the land was needed or likely to be needed as residential lands when the claim was made.
(6) Mr Edwards’ memorandum of 19 December 1990 post-dates the claim, and shows that events had been affected by the claim. The decision then taken not to proceed with the balance of the Boronia Street subdivision makes sense given the claim. Importantly, despite the claim and associated risk, the Department was willing to proceed with the three lots on Lackey Street.
(7) The documents evidencing the program at May 1991 also post-date the claim. The fact that the balance of the Boronia Street subdivision does not appear on that document is immaterial given the claim.
(9) These propositions apply to the whole of the land, and not merely the lots. Drainage and open space uses are ancillary to residential development and are within the scope of s 36(1)(b1) ( Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 and the cases cited therein). Alternatively, such land was needed or likely to be needed for drainage and open space, being essential public purposes within the meaning of s 36(1)(c) of the ALR Act (with this claim depending on one of the Minister’s primary grounds being accepted).(8) The expert evidence can only be material if the Minister’s first submission is rejected. If relevant, the best evidence remains the contemporaneous documents. If more is necessary, Mr Svikis’s opinions should be accepted.
82 With respect to s 36(1)(b), the Minister relied on lawful use and not lawful occupation. The Minister submitted as follows:
(1) The relevant use must be a use in fact or actual use that is more than merely notional. It must be a present use when the claim is made rather than a contemplated or intended use ( NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281 at [32] ( The Wagga Wagga Claim ) referring to Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1997) 42 NSWLR 641 ( Nowra Brickworks (No 2) ), Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 ( Nowra Brickworks (No 1) ), and DarukLocal Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 ( Daruk )).
(3) In The Wagga Wagga Claim the Court of Appeal held that activities directed towards the sale of land (which was a condition of inclusion within the definition of claimable Crown lands in s 36(1)(a) of the ALR Act) could not found a use so as to take land outside the definition in accordance with s 36(1)(b). The present case is different. The purpose of the use was preparing the land for residential subdivision. Various steps had been taken directed towards the subdivision of the land for residential purposes (a condition excluding land from the definition of claimable Crown lands). The steps included clearing, preparation of a control survey plan, geotechnical investigations, a contribution by the Department to the cost of kerb and guttering to two of the proposed lots fronting Pacific Street, preparation of design plans for cut and fill, roads, and sewerage, and an inspection by the Soil Conservation Service. It is true that these activities mostly occurred up to about 1985 but the project to develop the land had been re-activated before the claim was made and the reason for the hiatus was reasonable. These activities were all directed to the purpose of residential development and constituted a lawful use of the land within the meaning of s 36(1)(b) of the ALR Act.(2) To determine the question of use in accordance with the requirements above it is necessary to consider the purpose of the use of lands which will dictate “the degree of immediate physical use required to decide whether they are actually used in more than a notional sense.” ( Nowra Brickworks (No 1) at 121 cited in The Wagga Wagga Claim at [34]).
83 With respect to ss 36(1)(b1) and (c) the Land Council submitted that:
(1) Exceptions to the definition of claimable Crown lands should be construed narrowly given the remedial purposes of the ALR Act ( Deerubbin (No 2) at [53] – [54] and The Wagga Wagga Claim at [21] and [25]).
(2) Needed means “required”. A mere desire for land to be used for a purpose is insufficient ( Deerubbin (No 1) at 254, Nambucca 1997 , La Perouse Local Aboriginal Land Council v The Minister Administering the Crown Lands Act ( La Perouse ) (1991) 74 LGRA 176 at 182 – 183 and Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 95 LGERA 353 at 361).
(3) The zoning of land for residential purposes is not conclusive of the question of need or likely need under s 36(1)(b1). Zoning merely acknowledges capacity for use. If the need can be fulfilled on other land then the land cannot be needed or likely to be needed as residential lands ( The Londonderry Claim at 203 and Wanaruah at [14] and [19]). Nor does inclusion with a residential release strategy or plans for future development establish need or likely need ( Nambucca 1997 , The Londonderry Claim at 198 – 199, 204, Wanaruah at [18] – [19], [48] and [50]).
(4) The question for the Court is whether there was sufficient land at Nambucca Heads to meet anticipated population growth on the basis of a reasonable planning area and time frame. This approach is consistent with Nambucca 1997 , The Londonderry Claim, and Wanaruah . The evidence shows more than sufficient land for this purpose.
(5) The Minister delayed determining the claim for nearly 16 years. This delay is relevant to the factual issues requiring resolution. Moreover, any uncertainty arising from the delay should be resolved in the Land Council’s favour. It may be explained by the view set out in the Department’s letter of 18 May 2001 that most of the land was claimable Crown lands.
(6) The variety of uses suggested for the land over time is also relevant ( Deerubbin [No 1] at 254). In this case proposals included drainage, open space, recreation, and pedestrian access.
(7) There is no evidence of the relevant opinion under s 36(1)(b1) when the claim was made. Lodgement of a development application is insufficient because it evidences only an intention that land might be used in the future as residential lands not an opinion about need or likely need for the land as residential lands. In any event, part only of the land was identified for such use with the balance being unsuitable for that purpose (and thus identified for drainage and open space because it could not be used for development). Alternatively, if the development application establishes the relevant opinion with respect to any part of the land, then the opinion had changed after development consent was granted and before the claim was made. At that time it was proposed to proceed only with the three lots on Lackey Street (as part of a project with the five lots on Lee Street). The balance of the land was taken off the development program because the Forest Road development could meet long-term demand and the eight lots the short-term demand.
(8) Other factors bear on the required inference. Development of the land for residential purposes was plagued by difficulty by reason of the steep topography and landslip hazard. The number of lots proposed had to be periodically reduced due to these issues. Residential development would also require significant earthworks and other engineering works to the surrounding roads. Mr Edwards described the works to Lackey Street alone as uneconomic without financial contribution by the Council, causing the proposed two lot development to be abandoned. Even if the claim were refused Mr Edwards, by July 1992, did not envisage any development of the land in the short-term due to the Department’s commitment to the large development at Forest Road. While development of the land stalled and stagnated, substantial areas of other Crown land were developed for residential purposes.
(10) Mr Sanders’ evidence that there was no need or likely need for the land as residential lands when the claim was made should be accepted. The relevant planning area for this assessment is the whole local government area. The 1990 structure plan disclosed that there was sufficient land available for residential development.(9) The area outside the designated lots had been the subject of various suggested uses (drainage, open space, access). The Department’s willingness to dedicate this land for open space and drainage was because it could not be used for residential purposes. The evidence does not indicate any essential public purpose (recognising that essentiality sets a high threshold ( Deerubbin (No 2) at [55]), or need, or likely need for the land. There is no evidence of the nature of the drainage required or the parts of the land to be affected by it. This is particularly so given that, when the claim was made, the proposal was to develop three lots at most.
84 In response to the Minister’s submissions about lawful use of the land under s 36(1)(b) the Land Council made the following submissions:
(1) The Minister’s submissions seek to characterise steps preliminary to a possible future use as lawful use. This involves the same “self-levitating” approach rejected by the Court of Appeal in The Wagga Wagga Claim (at [55]).
(2) The actions relied on by the Minister do not constitute more than merely notional use. In particular, administrative acts such as plan preparation, cost estimates, studies, and the like do not evidence use as required.
(3) The acts on which the Minister substantially relied (clearing, survey, and kerb and guttering by the Council outside two lots on Pacific Street) occurred in the main some seven years before the claim. By the claim date the land was again heavily overgrown.
(4) The Crown Lands Act 1989 had commenced before the claim (the commencement date of that Act was 1 May 1990). The Minister could not sell the land without an assessment. The assessment process was ongoing when the claim was made. Hence, the land could not have been used for the asserted purpose of preparation for residential development at that time.
(6) The asserted constructive use of the land could not, on any view, relate to the area outside the lots nominated on the subdivision plan relating to the land.(5) The evidence relied on by the Minister involved a mere asserted constructive use of the land years before the claim. This was insufficient to establish a lawful use within the scope of s 36(1)(b).
Submissions on certificate issues
85 Both parties relied on their submissions above where relevant. The Land Council said the certificates were invalid for the following reasons:
(1) The Minister asked whether a decision had been made or was likely to be made that the land be used as residential lands (paragraph 6.13 of the briefing note to the Minister). This was the wrong question and involved an impermissible gloss on the statute. Need and likely need are not the same as use. The authorities relied on by the Minister to support this test ( Deerubbin (No 1) and Deerubbin (No 2) ) are not authority for the proposition that the Minister may substitute a question about use for the text of the statute.
(2) The observations of the majority in Deerubbin (No 1) at 254 about the meaning of “need” have to be read carefully. The example provided about the second airport was a decision by the executive that Sydney needed (that is, required) a second airport, and it should be located at Badgery’s Creek. In this example the decision would evidence need if the Court found that an airport was an essential public purpose and the land was required or wanted by the executive for that purpose. The majority did not suggest that the same result would follow without the executive having decided the question of the need for the second airport. The acceptance of the distinction between need and likely need in Deerubbin (No 2) at [50] has to be understood in this context. Spigelman CJ was not suggesting that a decision or real chance of a decision about use without more would necessarily demonstrate need or likely need.
(3) Considerations relevant to need or likely need for land for an essential public purpose are also different from need or likely need for land as residential lands. Decisions to develop and sell land for residential purposes may be made independently of any need.
(4) The Minister failed to consider relevant matters. First, the briefing note to the Minister about the certificates failed to disclose that the Department had decided to proceed with a development of three lots on Lackey Street only before the claim was made. Secondly, the briefing note incorrectly represented that the land had always been on the Department’s home sites program when it was wholly removed from the program in the mid 1980’s and, more importantly, was reduced to three lots on the program before the claim was made. These facts were centrally relevant to the question of need or likely need but were not drawn to the Minister’s attention as the most up to date information available ( Minister For Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 30 – 31, 45, 65, and 69).
(5) The Minister also failed to consider: - (i) the earlier decision of the Court in Nambucca 1997 , (ii) the views of Mr Sanders and Mr Svikis that the amount of other land available was relevant, and their conclusion about sufficient land supply for Nambucca Heads for a 25 – 30 year period, (iii) the conclusions in the 1990 structure plan that there was sufficient land available to meet projected population growth, including for residential land, (iv) the fact that the difficulties in developing the land meant that it could not make any significant contribution to residential lands, and the uneconomic nature of the development, (v) the fluctuating interests in developing the land over the time, (vi) other residential developments in the area at the time, (vii) the Department’s view in May 1981 that most of the land was claimable Crown lands, (viii) the inordinate and unexplained delay in bringing any development proposal to fruition, and (ix) the relevant planning area, period, estimated population growth, and alternative areas available for residential development.
(6) The Minister failed to consider whether the certificates should be issued as a matter of discretion having regard to the inordinate and unexplained delay in determining the claim (see Jerrinja at [95]). This is disclosed by the Minister’s statement of reasons which makes no reference to question of discretion (despite the reference to discretion in paragraph 6.13 of the briefing note to the Minister).
(7) The Minister failed to identify any relevant decision or other expression of political will concerning s 36(1)(b1) of the ALR Act. In this regard it is not necessary to be sure of the precise particular in which the Minister went wrong, it being sufficient that “you can see that in some way he must have failed in the discharge of his exact function according to law” ( Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.
(8) With respect to the certificate relating to the whole of the land being needed or likely to be needed as residential lands, the Minister issued this certificate because he was unsure about the meaning of residential lands (paragraphs 6.17 and 6.18 of the briefing note to the Minister). Being unsure, the Minister could not be satisfied about the required factual condition and could not issue a certificate about the status of this land ( Jerrinja at [83] and The Hetton Bellbird Collieries at 432).
(10) With respect to the certificate relating to the whole of the land, the briefing note to the Minister incorrectly advised that the development consent required the surplus land to be set aside for drainage/open space when it did not. Further, the Minister could not reserve the land without an assessment under the Crown Lands Act. The assessment remained incomplete when the consent was granted.(9) With respect to the certificate relating to the whole of the land the evidence never suggested that the whole of the land was so needed or likely to be needed. Part was clearly unsuitable for residential development and surplus. The creation of the reserve was not a necessary component of the subdivision but a mere afterthought to deal with surplus land. Mr Edwards’ offer to the Council to dedicate the surplus land as a reserve (which he had no authority to do under the Crown Lands Act) was not a condition of the development consent for subdivision. The Minister thus misdirected himself about s 36(1)(b1) of the ALR Act. Residential lands should not be expanded to include land to be used for drainage or open space (if it were to be so used).
86 The Minister accepted that the certificates were reviewable for jurisdictional error. The Minister submitted that:
(1) In paragraph 6.13 of the briefing note the Minister was asked to consider precisely the question identified as relevant to need or likely need accepted by Spigelman CJ in Deerubbin (No 2) at [50] (see also Jerrinja at [122]). Focusing on a decision or manifestation of political will to use land evidences need or likely need, and is not an impermissible gloss on the statute. Land is required or wanted for a purpose (residential lands in this case) in the sense that it is required or wanted to be used for that purpose. There is no meaningful distinction between requiring land for a purpose and requiring land to be used for a purpose. Such a distinction inevitably requires some form of second-guessing of the executive which is contrary to Deerubbin (No 1) at 252 and 253E.
(2) The Land Council’s submission that the documents of 18 October and 19 December 1990 show a decision by the Department to proceed with three lots only on Lackey Street and abandon the balance is untenable (see the submissions above). Accordingly, the factual basis for the submission about a failure to consider these matters has not been established. None of the alleged failures of consideration relate to matters the Minister was bound to consider by implication from the subject-matter, scope or purpose of the ALR Act. The Land Council’s submissions disclose a slide into impermissible merits review ( Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at [79], and Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450 at [77] – [78]).
(3) The allegation that the Minister failed to consider whether he should issue the certificates in the exercise of discretion is misconceived. The briefing note called on the Minister to address both substantive matters and the discretionary factors (paragraph 6.15). In Jerrinja (at [97]) the Court stressed that the Minister was exercising a single function involving two layers and did not wish to be understood as suggesting the function had to be exercised mechanically in two parts. The Land Council’s approach involved reading the statement of reasons in isolation from the briefing note and with an eye keenly attuned to the perception of error ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
(4) The challenge that the Minister failed to identify any decision of the executive or other expression of political will founders on the facts. The Minister was satisfied that there was or would be likely to be such a decision or manifestation of political will (paragraph 6.13) for the reasons given at paragraph 6.16 of the briefing note. This finding was open to the Minister. It does not matter that a different view could have been reached on the same facts. It is sufficient that there was some material probative of the factual finding ( Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [137] and [147]). The Land Council’s reference to Avon Downs (at 360) also omitted the important qualification that it is not necessary to know precisely where a decision-maker has gone wrong if, on the whole of the material, the decision is “capable of explanation only on the ground of some such misconception”.
(5) The suggestion that legal uncertainty about the meaning of residential lands stultifies the Minister’s power under s 36(8)(a) is untenable. There is no basis in the statute to reach that conclusion.
(7) The briefing note does not say that the development consent required the balance of the land to be set aside as a drainage/open space reservation. Any error about that matter would be a mere error of fact and provides no basis for impugning the Minister’s decision. There was some material before the Minister supporting the finding and that is sufficient.(6) Residential lands encompass more than merely the area of a house and extend to different uses serving the same purpose ( Chamwell and the cases cited therein).
Some preliminary matters
87 The Land Council’s written submissions about ss 36(1)(b1) and (c) included three preliminary matters. First, insofar as the submissions said that “needed” means required, and distinguished between a requirement and a “desire”:
(1) Talbot J did not deal with a distinction between “need” and “desire” in Nambucca 1997 .
(3) Deerubbin v Minister Administering the Crown Lands Act (1997) 95 LGERA 353 also related to s 36(1)(c) and was decided before Deerubbin (No 1) .(2) La Perouse was decided before s 36(1)(b1) was inserted into the ALR Act. The issue was whether the land was needed for an essential public purpose within s 36(1)(c). The requirement for essentiality (which does not apply to s 36(1)(b1)) is an important factor operating on the composite phrase in s 36(1)(c) ( Deerubbin (No 2) at [55] – [57]). La Perouse was also decided before Deerubbin (No 1) .
88 It is true that the references by the trial judges about needs and desires were not subject to criticism by the Court of Appeal in Deerubbin (No 1) and Deerubbin (No 2). Nevertheless, those decisions do not support any process of presumptive labelling of evidence as showing a mere desire as opposed to a need. Contrary to the Land Council’s submissions I do not consider that the Court of Appeal in Deerubbin (No 2) at [42] – [43] and [61] approved a test of asking whether the evidence showed a need or mere desire. The reasoning was simply that it was open to the trial judge to find that there was not a need or likely need when the desire of officers within the National Parks and Wildlife Service had not met with success for two decades. The descriptions of evidence as showing a mere desire in the first instance decisions relied on by the Land Council are best understood as involving another way of expressing the conclusion that the Minister had not satisfied the Court the land was relevantly needed or likely to be needed. The Court of Appeal has not been called upon to decide otherwise.
89 Secondly, insofar as the Land Council’s written submissions said that land could not be needed or likely to be needed as residential lands if the need could be fulfilled on other land, it is necessary to note the reasoning in Deerubbin (No 1). Although Meagher JA was in dissent in the result the majority agreed with his analysis that considering whether an essential public purpose could be achieved in some other manner was irrelevant (at 252 and 254 – 255). Acceptance of that conclusion is inherent in the majority’s observation that the Court is not called upon to second-guess decisions of the executive. However, and as noted below, evidence may be relevant for more than one purpose, particularly where the issue involves a factual finding about the existence of an opinion.
90 Thirdly, the question said to be relevant in the Land Council’s written submissions (namely, whether there was sufficient land at Nambucca Heads to meet anticipated population growth on the basis of a reasonable planning area and time frame) does not reflect the terms of s 36(1)(b1), and is not readily reconcilable with the reasoning in Deerubbin (No 1). Moreover, on careful reading, the Court did not pose for itself that question in Nambucca 1997, The Londonderry Claim or Wanaruah. This question would transform the Court’s function under s 36(7) from asking whether the Minister has satisfied the Court that when the claim was made the land was, in the opinion of a Crown lands Minister, needed or likely to be needed as residential lands into an historical strategic planning exercise. Accordingly, the relevant question under s 36(7) cannot be framed as asserted by the Land Council in its written submissions.
91 However, I do not accept that facts about population growth, available land areas, and market demand when the claim was made are necessarily irrelevant to the issue under s 36(1)(b1). Considering those matters does not necessarily involve any form of second-guessing of the executive. In a particular case those matters may bear upon the process of finding facts and drawing inferences relevant to the existence or not of the required opinion when the claim was made (and may also be relevant if the opinion under s 36(1)(b1)) is challenged as invalid).
92 Observations in other decisions under s 36(7) of the ALR Act must be treated with care. First instance decisions under s 36(7) involve a factual finding on the evidence in the particular case. Appeals from those decisions are limited to questions of law. Hence, the Court of Appeal’s focus will be whether the reasoning in the particular first instance decision discloses a vitiating error on one of the grounds of appeal raised.
93 The Land Council’s point relating to the observations in Deerubbin (No 1) and Deerubbin (No 2) about need and likely need was well made. Those observations, carefully read in context, do not say that any decision of or indication at any level within the executive that it wants or may want to use land for a purpose without anything more necessarily establishes the existence of the relevant need or likely need. That would give the exceptions from claimable Crown lands a very wide operation inconsistent with the remedial purpose of the ALR Act, and the clear statements of the Court of Appeal that the exceptions should be construed narrowly (Deerubbin [No 2] at [53] – [54] and The Wagga Wagga Claim at [21] and [25]).
The certificates under s 36(8)(a)
94 Consistent with the Minister’s submissions, the certificates under s 36(8)(a) are limited to the issue of need or likely need, and thus (if valid) are not final and conclusive evidence of the existence of an opinion of a Crown lands Minister within the meaning of s 36(1)(b1) of the ALR Act. However, it would be artificial to attempt to deal with the issue of the opinion separately from the content of the opinion. The required content of the opinion (about which the certificates are final and conclusive evidence, if valid) will affect the process of drawing factual inferences about the existence of the opinion. Accordingly, it is necessary to consider the validity of the impugned certificates first. This is also consistent with the purpose of a certificate under s 36(8) being to “exclude the inquiry” that would otherwise be required (Koompahtoo Aboriginal Land Council v KLALC Property & Investment Pty Ltd [2006] NSWSC 856 at [40]).
95 The Minister accepted that the certificates were reviewable for jurisdictional error, and did not depart from the Land Council’s submission that jurisdictional error embraced all the errors of law identified in Craig v The State of South Australia (1994) 184 CLR 163 at 179 (see also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82], and Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [83]). The majority of the many and varied claims by the Land Council were rightly described by the Minister as involving either an invitation to impermissible merits review or not arising on a reasonable view of the facts. Two, however, fall into a different category (the claims that the Minister asked the wrong question and failed to consider information centrally relevant to the exercise of power).
96 Because of the facts of this case these grounds of challenge need to be considered together. The claims arise from the terms of the briefing note approved by the Minister on 30 October 2007. To the extent that the Land Council’s submissions said so, I do not accept that the Minister’s reasons for issuing the certificates can be ascertained solely from the correspondence from the Crown Solicitor in response to the Land Council’s requests for information under s 36(14) of the ALR Act. The briefing note (with annexures) was the document before the Minister when he decided to issue the certificates. Its terms (particularly paragraphs 1, 2 and 9), the circumstances in which it was prepared, the Minister’s approval of the document, and the issue of the certificates in consequence of that approval all demonstrate the primacy of the briefing note. Accordingly, I am satisfied that the Minister decided to issue the certificates on the basis of the briefing note approved on 30 October 2007 and that his reasons for so doing are disclosed in the briefing note. The Minister did not suggest otherwise.
97 Paragraph 6.13 of the briefing note supports the inference (not seriously disputed by the Minister) that, in deciding whether a statement to the effect of s 36(8)(a) of the ALR Act could be made about the land (or part of the land), the Minister asked whether there had been or was a real and not remote chance of a decision or manifestation of political will that the land be used as residential land when the claim was made. The Minister did not deny that this involved a gloss on the words of s 36(8)(a) (which involves a statement in a certificate that the land is needed or is likely to be needed as residential land) but said the gloss was authorised (indeed, mandated) by appellate and first instance authority (Deerubbin (No 2) at [50] and Jerrinja at [122]). However, neither decision required the Minister to substitute some other words for the statutory formula in s 36(8)(a). Both were dealing primarily with the distinction between need and likely need. Neither suggested that a decision or manifestation of political will (or real chance of either) about use necessarily and of itself alone provides a presumptive answer in each and every case to the question of need or likely need.
98 The difficulty with paragraph 6.13 of the briefing note is that it unequivocally invited the Minister to adopt the questions posed as a complete cipher for the words of s 36(8)(a). It invited answers to those questions to be treated as presumptively determining the issue of need or likely need set out in s 36(8)(a). In isolation, and depending on the facts, this approach might be insufficient to constitute vitiating jurisdictional error. However, it did not occur in isolation in this case. In circumstances where the substituted test focused solely on use, the briefing note omitted and inaccurately represented information centrally relevant to the question of use. The briefing note said:
(1) The land (described as the Boronia Street subdivision) was part of the home sites program at all times from 1983 to the lodgement of the claim (paragraph 5.4(c) and 6.16(b) of the briefing note).
This is wrong. The whole of the land was removed from the program in 1985. Further, and more importantly, I am satisfied that only part of the land (the three lots on Lackey Street, as a combined project with the five lots on Lee Street) was on the program by the date of the claim. This is the reason the Department described the development as a “three lot residential subdivision at the eastern end of Lackey Street” and the balance of the Boronia Street subdivision as “unwanted information” in its correspondence of 18 October 1990. I do not accept that the Department removed the seven lots from the program in December 1990 after the claim. That is inconsistent with: - (i) the terms of the correspondence of 18 October 1990, (ii) the fact that the recording of a decision often occurs at some later time, and (iii) the fact that by December 1990 the memorandum recorded the nature of project 1519 and an anticipated construction and marketing timetable (which must have taken some considerable lead time to formulate). Mr Edwards’ statement to the contrary in his affidavit is incorrect. This is hardly surprising given that he was attempting to remember events from 17 years earlier on the basis of an incomplete set of documents given to him by the Crown Solicitor’s office
(2) The memorandum of 19 December 1990 noted that the Boronia Street subdivision project was included on the program as project 1519 with on-site construction works proposed for June - August 1991 and marketing planned for October 1991 (paragraph 5.4(r) of the briefing note).(3) The Council objected to the claim on 29 April 1993 on the ground that the land was needed for residential development and public recreation purposes (paragraph 5.4(u) of the briefing note).
This is a serious error. The 19 December 1990 memorandum did not say this at all. Rather, the memorandum said that project 1519 involved three lots on Lackey Street (approved as part of the Boronia Street subdivision) and five lots approved on Lee Street. Paragraph 5.4(r) of the briefing note has taken a quote from the memorandum and placed before it the words “the Boronia Street subdivision” when the memorandum makes clear beyond any doubt that project 1519 is not the “Boronia Street subdivision”.
The context compounds this material inaccuracy because the following paragraphs of the briefing note (5.4(s) and (t)) refer to the modification of the Boronia Street subdivision from 10 lots to nine lots. These paragraphs clearly and wrongly convey the impression that project 1519 consisted of the 10 lot subdivision of the land and the modification involved steps directed towards implementing that subdivision consisting of all 10 (and then nine) lots. However, and consistent with the true text of the 19 December 1990 memorandum, the modification application lodged by the Department in May 1991 specifically identified the modification as relating to the three lots approved on Lackey Street being reduced to two. The reason the modification application was so framed is clear. Insofar as the Boronia Street subdivision was concerned, project 1519 related to those three lots only.(4) “Consent to the development application…was granted by the Council on 21 September 1990 to a 10 block subdivision over the land…. The land claim was lodged on 22 October 1990” (paragraph 6.16(d) of the briefing note).
The Council did so object. However, paragraphs 5.4(t) and (u) of the briefing note skip from the approval of the modification application to the Council’s objection to the claim made on 29 April 1993. The briefing note thus omits reference to the Department’s view that the Council should contribute to the cost of upgrading Lackey Street expressed in the memorandum of 14 August 1991. It also omits reference to Mr Edwards’ letter to the Council of 23 July 1992 disclosing that the release of two lots from the land (at Lackey Street) had been abandoned altogether because the Council’s requirement for the upgrading of Lackey Street made the proposal uneconomic and Mr Edwards’ view that, if the claim were refused, the Department would examine development options but did not envisage any development in the short-term due to the Department’s focus on the release of the land at Forest Road.
Again, the impression conveyed by omission is materially incorrect. The Department had in its possession evidence demonstrating that at some time before the claim was made (18 October 1990 at the latest) the Department had decided not to retain the whole Boronia Street subdivision on its home sites program as a project. Instead it consolidated a part of that subdivision (the three lots on Lackey Street) with another subdivision (five lots on Lee Street) to create a new project (1519) for its program. The evidence is not mentioned in the briefing note. Instead, the briefing note represents that whole Boronia Street subdivision was always part of the program and constituted project 1519 when it plainly was not and did not.
99 It is not to the point that the Department might have had sound financial reasons for creating project 1519 as it did in or about October 1990. Similarly, the fact that the removal of the Boronia Street subdivision from the program before the claim did not necessarily represent permanent abandonment does not undermine the Land Council’s claims about jurisdictional error in the issue of the certificates. The Boronia Street subdivision of 10 lots was not on the program as at October 1990. Project 1519 was on the program. Project 1519 was not the Boronia Street subdivision of 10 lots. It was, as the Department’s records disclose in terms, two projects in one (three lots from Lackey Street and five from Lee Street). The Minister was told to the contrary.
100 The Minister was also told that the only question he had to answer related to decisions (or manifestations of political will) about the use of land in the manner set out in paragraph 6.13 of the briefing note. In that context information about use is centrally relevant to the discharge of the Minister’s function in issuing a certificate. In other words, if the Minister is correct that the gloss on the section disclosed by paragraph 6.13 was permissible then the Minister was bound to consider the material facts bearing upon any decision or manifestation of political will about use of the land. The mandatory nature of this consideration is bound up with the content of the substantive statement the Minister is authorised to make through the certificate. If it were otherwise the Minister could make statements in certificates within the meaning of s 36(8)(a) having final and conclusive evidentiary effect without being subject to any meaningful obligations of consideration.
101 The fact that the briefing note drew attention to the Land Council’s submission does not undermine these material errors. The Land Council’s submission is summarised in the briefing note to the Minister (section 4). It could not deal with the inaccuracies in the briefing note. Nor, for the same reason, does the earlier report approved by the Minister on 4 May 2006.
102 The errors taken together (and paragraph 5.4(r) on its own) do not involve a mere different view about the facts within a range reasonably open to the Minister to find. The errors involved material inaccuracies about matters at the heart of the function under s 36(8)(a) of the ALR Act. Information in the Department’s possession bearing directly on the issue of decisions about the use of the land was both omitted from and inaccurately represented in the briefing note. The omissions and inaccuracies were not about “insignificant or insubstantial” matters but matters the Minister was bound to consider by necessary implication from the statutory scheme (Peko-Wallsend at 31. See also Tickner v Chapman (1995) 57 FCR 451 at 476F – 477B and 497D, and Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388 at [174]). That information was directly relevant to the test the Minister applied in issuing the certificates. The Minister, relying on the Department’s summary, could not have had regard to the information because of the critical omissions and inaccuracies.
103 Whether the label assigned is asking the wrong question or failing to consider a mandatory relevant consideration (as to which see Yusuf at [82]) the Minister’s function in issuing the certificates dated 30 October 2007 fundamentally miscarried by reason of jurisdictional error. The certificates are not at law certificates within the meaning of s 36(8)(a) of the ALR Act. Accordingly, they do not have effect as provided for in that section. Order 1 in the Land Council’s notice of motion (to the effect that the Minister be restrained from tendering the certificates in the proceedings) should be made.
104 As I have said many of the other alleged failures of consideration patently invited merits review, and other claims by the Land Council simply did not arise on a fair view of the facts. However, it is not necessary to deal with the Land Council’s other grounds of challenge to the validity of the certificates given the conclusions above.
Section 36(1)(b1) – residential lands
105 These conclusions do not end the matter. It is still necessary to determine whether the Minister has satisfied the Court on the whole of the evidence that the land (or part) is not claimable Crown lands on the grounds nominated irrespective of the certificates. I turn to that issue now.
106 Although neither party expressly addressed this issue in terms it must be the case that an opinion for the purpose of s 36(1)(b1) may be found by reference to direct evidence or inferentially on the whole of the evidence. Unlike, for example, the creation of a national park under the NPW Act there is no exclusive legislative process for constituting land as “residential lands”. Further, the present context is different from cases asking whether a consent authority has formed an opinion as a pre-condition to the grant of development consent imposed by an environmental planning instrument (such as Manly Council v Hortis and the decisions referred to therein). When a development consent is granted there is a specific exercise of statutory power calling for the formation of the required opinion under s 76A of the Environmental Planning and Assessment Act 1979. There is no equivalent occasion calling for a specific exercise of statutory power conditional on an opinion within the meaning of s 36(1)(b1) before a claim is made. These contextual considerations must be relevant to the process of fact finding. They suggest that when the Minister relies on s 36(1)(b1) the question whether the Minister has discharged the onus under s 36(7) will usually call for inferences on the whole of the evidence.
107 I am satisfied that the steps carried out by the Department with respect to its home sites program in the Grafton area from the early 1980’s onwards were carried out by or on behalf of the Minister. That is an obvious inference from the correspondence between the Minister and the Council in late 1981. Accordingly, those steps may evidence an opinion of the Minister for the purpose of s 36(1)(b1) (particularly having regard to the common position of the parties on the capacity for a delegate to form the opinion, and that the ALR Act and Crown Lands Act both authorise the Minister to delegate functions in s 249 and s 180 respectively).
108 I do not accept that the relevant question under s 36(7) can be answered by presuming that the making of a development application on behalf of the Minister (and/or grant of development consent thereto) necessarily either does or does not establish an opinion within the meaning of s 36(1)(b1). The making of an application to develop land is a material factor to consider but its significance will depend on the whole of the available evidence. In other words, I do not accept that the development application provides a presumptive answer to the appeal. Nor do I accept that a development application necessarily shows nothing more than a capacity for land to be used for a purpose rather than an opinion about need or likely need. The circumstances surrounding the development application will affect the inferences drawn from its making.
109 In this case there are numerous factors (taken together) that indicate the development application carries substantially less significance than contended for by the Minister. The Department’s home sites program had to be kept small due to limited resources. Projects were given relative priority over time. While removal from the program did not necessarily mean abandonment in perpetuity, it is obvious that the Department’s limited resources would be applied to projects on rather than off the program, and the progression of projects on the program would depend on their priority and ongoing viability.
110 The proposed development of the land for residential purposes involved substantial potential constraints by reason of topography and the many road frontages. Formulating a proposed residential subdivision alone took many years of work. Despite the Council’s request in late 1981 for the immediate release of serviced Crown land for residential lots, detailed design work was still being carried out more than two years later. The officers of the Department were well aware of the difficulties associated with developing the land. By the time those difficulties had apparently been resolved in the mid 1980’s the real estate market was too depressed to warrant further development action and the development was deferred as a result. Irrespective of the Council’s perceptions about the need for residential lots, the Department’s views about market conditions were a critical part of its decision-making process.
111 Further, the Department decided to remove the land from its home sites program by 1985. Perceived market conditions were so important to the Department that they ensured the land remained off the program for two or more years.
112 The Department’s position on the Pilot Street land also shows that both it and the Council were willing to consider alternative uses of land zoned for residential purposes despite the Council being concerned about a shortage of land in Nambucca Heads for residential purposes.
113 The representations about long-term and short-term demand contained in the Department’s letter to the Council enclosing the development applications in May 1990 should be understood against this background, and in the context of the making of an application for consent.
114 Advice from the Soil Conservation Service after lodgement reinforced the difficulty of developing the land, and identified specific problems with two of the proposed lots.
115 The grant of a development consent that will lapse without commencement does not bind the person with the benefit of the consent to carry out the development. The nature of conditions imposed may be material to the person’s decision whether or not to carry out the development. In this case, the consent contained conditions requiring substantial road works (with the Minister’s agreement, so presumably they were recognised to be unavoidable).
116 The nature of the subdivision was also unusual. The majority of the land was too steep for residential development. Hence, the lots were in small groups fronting several of the surrounding roads. Civil engineering works for the whole subdivision thus could not be consolidated into one readily manageable area.
117 I infer that the Department’s officers understood these difficulties at all times, and they explain the consolidation into one project of the three lots on Lackey Street with the five lots on Lee Street. The balance of the subdivision of the land could be described in the Department’s correspondence as “unwanted information” on 18 October 1990 because the works to Boronia Street required to facilitate the subdivision of the lots fronting that street were substantial and no doubt expensive (particularly having regard to the low yield). I infer the Department removed the balance of the subdivision of the land from the home sites program by this time (that is, before the claim was made) for these reasons.
118 By 14 August 1991 Mr Edwards also recorded that a financial contribution from the Council would be necessary for the upgrading of Lackey Street otherwise the development of the two lots would be unviable. The letter to the Council of 23 July 1992 is consistent with the abandonment of the entire subdivision (including the two lots on Lackey Street) due to the cost of the road works required. Although this evidence about the civil engineering works required to develop the Lackey Street lots post-dates the claim I do not accept that the relevant officers would have been unaware of the nature and potential cost of those works before the claim was made. The Council consulted with the Department about the conditions necessary for the subdivision to proceed before the claim was made. The Department must have considered the conditions and their potential implications at that time. The relevant officers within the Department must also have recognised the marginal nature of the development in all of the circumstances described above. This conclusion is available without impermissible hindsight (Deerubbin (No 2) at [69]). It is also consistent with the consolidation of a project involving three lots on Lackey Street and five lots on Lee Street before the claim was made.
119 The Department was also aware there were substantial areas of other Crown land zoned and available for residential development in the area. It referred to its proposals to release the large tract of land at Mahogany and Forest Roads in the correspondence to the Council covering the development application lodged in May 1990.
120 All of these circumstances must be considered in determining whether the Minister has satisfied the Court that, in an opinion of a Crown lands Minister, the land was needed or likely to be needed as residential lands when the claim was made.
121 The distinction drawn in Deerubbin (No 2) at [50] about the difference between need and likely need is also relevant. The making of the development application, grant of consent, and placement of project 1519 on the program does not establish a decision or manifestation of political will about the use of the land. These steps are inherently prospective in nature and raise the issue of likely need rather than need.
122 The evidence, even taken at its highest, does not support an opinion about any need or likely need for the whole of the land as residential lands when the claim was made. The removal of the majority of the land from the home site program and the focus on project 1519 before the claim was made indicates to the contrary. An opinion about likelihood involves an opinion of a real and not remote chance, and not a mere tenuous possibility when the claim was made.
123 The evidence, taken as a whole, points against any relevant opinion of need or likely need within the meaning of s 36(1)(b1) of the ALR Act. The making of the development application and obtaining of the development consent to the subdivision by the Department was a highly equivocal step made in circumstances where the Department was aware before the claim was made of: - (i) the significant difficulties the land presented for residential subdivision, (ii) the substantial costs likely to be involved, (iii) the marginal and awkward nature of the proposed subdivision, (iv) the very low yield the subdivision involved, (iv) the limited resources (both staff and financial) available to the Department, and (v) the availability of other areas zoned and available for far larger residential developments. Consideration of these matters does not involve any impermissible second-guessing of the executive. These surrounding facts rationally bear upon the fact-finding process. They do not support a finding of an opinion of a Crown lands Minister that the land or any part of the land was needed or likely to be needed as residential lands when the claim was made.
124 The expert evidence of Mr Sanders and Mr Svikis does not lead to any different conclusion. Their evidence (consistent with their instructions) primarily consisted of their own opinions about the need or likely need for the land as residential lands when the claim was made. As such this evidence was not particularly helpful and mostly involved a process of impermissible second-guessing.
125 The Minister has not satisfied the Court that when the claim was made the land was, in the opinion of a Crown lands Minister, needed or likely to be needed as residential lands within the meaning of s 36(1)(b1) of the ALR Act.
Section 36(1)(b1) or (c) – drainage and open space
126 The conclusion above has consequences for the Minister’s reliance on s 36(1)(c) of the ALR Act (the ground that part of the land was needed for the essential public purpose of drainage/open space). In particular, it is not necessary to resolve whether “residential lands” extends to land used for ancillary activities such as drainage and open space. Nevertheless, I note that the principles relied on by the Minister (established in Foodbarn Pty Limited v Solicitor-General (1975) 32 LGRA 157 at 161) depend on factual findings about the purpose of uses. These in turn depend on the character, nature and extent of the uses in question.
127 The evidence about the nature and extent of any use of the balance of the land (outside the lots) for drainage or open space, and any relationship between that use and the residential subdivision, is unsatisfactory. The documents show that most of the land was unsuitable for residential use due to its steep topography. Although the development application referred to increased run-off from the subdivided lots the development consent required an inter-allotment drainage system. It did not require the balance of the land as a public reserve. The Department’s offer (before the grant of consent) to constitute this land as a public reserve should be understood as a position reached by default. That land simply could not be used for any other purpose. None of the evidence adequately demonstrates that the whole or any particular part of that land was needed or likely to be needed for drainage or open space (whether ancillary to the proposed residential subdivision or otherwise) when the claim was made. Accordingly, the Minister has not satisfied the Court that the land or any part thereof was needed or likely to be needed for an essential public purpose within the meaning of s 36(1)(c) of the ALR Act when the claim was made.
Section 36(1)(b) – lawful use
128 The Minister also relied on s 36(1)(b) of the ALR Act (to the extent that the Minister said the exception relating to land not lawfully used when the claim was made applied). The Minister described the relevant use as use for the purpose of preparing the land for future residential subdivision, and noted that the nature of the purpose dictates the degree of use required to be an actual and not merely notional use (Nowra Brickworks (No 1) at 121). The steps taken between 1982 and 1990 were said to be precisely the class of action that would be expected for achieving that intended purpose, and sufficient to constitute lawful use when the claim was made. The Minister emphasised that this was a stronger case than Nowra Brickworks (No 2) because the land was earmarked for residential use and had the benefit of the development consent for subdivision when the claim was made.
129 I do not accept that the principles relied on by the Minister lead to the conclusion for which the Minister contends on the facts of this case. In the Nowra Brickworks cases the use of the land for the mining purpose was not merely a contemplated or intended use (see Nowra Brickworks (No 2) at 649). The land had been aggregated with another parcel “thereby permitting labour and labour expenditure for both to be deployed in any part of the amalgamated leases” (Nowra Brickworks (No 1) at 121). The significance of this fact to the outcome is clear (See The Wagga Wagga Claim at [35]). Characterising the purpose of the use as preparation for future residential subdivision does not avoid the requirement that lawful use be use in fact and to more than merely a notional degree whilst recognising that “lands may for some purposes be used more directly or immediately than for other purposes” (Nowra Brickworks (No 1) at 120).
130 The acts relied on are of such a limited character and extent, being ephemeral in nature, and in the main were completed at least five to seven years before the claim was made. The hiatus between the primary activities relied on between November 1985 (when the Council provided detailed engineering design drawings) and June 1990 (when the Soil Conservation Service inspected the land when consulted by the Council about the development application) is telling. That the hiatus is reasonably explicable due to the Department’s reaction to the depressed real estate market is not determinative. The acts relied on, in all of the circumstances, simply do not amount to use of the land to more than merely a notional degree when the claim was made.
131 Hence, the Minister has not satisfied the Court that the land was lawfully used when the claim was made within the meaning of s 36(1)(b) of the ALR Act.
132 For the reasons given above the Minister has not satisfied the Court that when the claim was made the land or a part thereof was not claimable Crown lands by reason of s 36(1)(b1), (c) or (b) of the ALR Act. It follows that, as provided for in s 36(7), an order for transfer of the land to the Land Council must be made.
133 I direct the parties to file draft orders with my Associate within 14 days to give effect to these reasons.
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15/04/2008 - Second judgment in matter - Paragraph(s) Case Title
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