Awabakal Local Aboriginal Land Council v Minister Administering the Crown Lands Act

Land and Environment Court (NSW)|2008-07-01|Before: Pain J

CITATION : Awabakal Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 124

APPLICANT Awabakal Local Aboriginal Land Council PARTIES : RESPONDENT Minister Administering the Crown Lands Act

KEY ISSUES: Aboriginal :- land claim - claimable Crown lands - whether Crown Lands Minister formed an opinion that the land was needed or likely to be needed as residential land - opinion required to exist when claim made - whether the Minister's opinion can be inferred on evidence - whether delay by the Minister in determining the claim is a relevant factor in weighing up evidence - appeal dismissed

Aboriginal Land Rights Act 1983 s 36, s 243 Aboriginal Land Rights (Amendment) Act 1986 Crown Lands Act 1989 sch 8 Crown Lands Consolidation Act 1913 s 17A, s 25A Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Evidence Act 1995 Housing Act 1985 sch 1 Interpretation Act 1987 s 33 Land and Environment Court Act 1979 Land Commission Act 1976 s 9 National Parks and Wildlife Act 1974 Public Works Act 1912

Carltona Ltd v Commissioner of Works and Others [1943] 2 All ER 560 Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act [No 2] (1995) 89 LGERA 194 Deerubbin Local Aboriginal Land Council v The Minister Administering The Crown Lands Act [1999] NSWLEC 82 Griffith Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 108 La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 McDougall v Warringah Shire Council (1993) 80 LGERA 151 CASES CITED: 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 for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 NAIS and Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 New South Wales Aboriginal Land Council & Nambucca Local Aboriginal Land Council v the Minister for Land and Water Conservation [1997] NSWLEC 176 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 13 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 35 R v Connell; ex parte The Hetton Bellbird Collieries Ltd [No 2] (1944) 69 CLR 407 Sydney City Council v Ipoh Pty Ltd (2006) 149 LGERA 329 Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2001) 113 LGERA 163

6 December 2007 DATES OF HEARING: 7 December 2007 3 April 2008 (additional submissions) 4 April 2008 (additional submissions)

APPLICANT Mr N J Williams SC with Mr M Wright SOLICITORS Chalk & Fitzgerald LEGAL REPRESENTATIVES: RESPONDENT Mr M Leeming SC with Ms V Hartstein SOLICITORS Crown Solicitor's Office

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

31479 of 2005 Awabakal Local Aboriginal Land Council v Minister Administering the Crown Lands Act

JUDGMENT 1 Her Honour: This Class 3 appeal is in relation to the Minister's refusal on 1 November 2005 of Aboriginal Land Claim 3508 (ALC 3508) made by the Awabakal Local Aboriginal Land Council (Awabakal LALC) pursuant to s 36(5) of the Aboriginal Land Rights Act 1983 (the ALR Act). The claim was lodged on 18 October 1989. 2 The claimed land is part of Lot 1821 DP44994, Hillsborough, Parish of Kahibah, County of Northumberland, City of Lake Macquarie. It is 40ha of land located on the southern side of Myall Road, Hillsborough in the north-western corner of the Charleston planning district of the Lake Macquarie local government area. The land is of irregular shape. Dense bushland covers the majority of the site with gentle slopes which drain to the west. Legislative background 3 The Preamble of the ALR Act 1983 states that it is the intention of the legislation to provide a compensatory regime aimed at redressing the impact of dispossession on Aboriginal people in New South Wales: WHEREAS: (1) Land in the State of New South Wales was traditionally owned and occupied by Aborigines: (2) Land is of spiritual, social, cultural and economic importance to Aborigines: (3) It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land: (4) It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation:

4 The intention of the Act as expressed in the Preamble has been articulated in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 by Kirby P as follows: The Aboriginal Land Rights Act 1983 is beneficial and remedial legislation. Clearly, it was enacted to give important rights in Crown land to the representatives of the Aboriginal people. By common acknowledgment, such people have suffered substantial injustice and loss consequent upon the deprivation of their land following the settlement of Australia." (at 157)

5 Section 36(1) of the ALR Act relevantly provides: " 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 and 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 … "Crown Lands Minister" means the Minister for the time being administering any provisions of the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 under which lands are able to be sold or leased. (see sch 8 cl 21(1) of the Crown Lands Act 1989 (the CL Act) which provides that a reference in any other Act to the now repealed Crown Lands Consolidation Act 1913 (the CLC Act) shall be read as a reference to the CL Act) 6 The ALR Act establishes a regime for the claiming of land as a mechanism to achieve the aims of the legislation in s 36. Section 36(1) contains the definition of "claimable Crown lands" and includes, at s 36(1)(b), lands that "are not lawfully used or occupied" and, at s 36(1)(b1), lands that, in the opinion of a Crown Lands Minister, "are needed or likely to be needed as residential lands." 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). 7 Pursuant to s 36(7) of the ALR Act, the Minister has the statutory onus of satisfying the Court that the claimed land is not "claimable Crown land". 8 If the Minister fails to discharge that statutory onus then the Court is bound to transfer the land to the Applicant land council: see New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 (Winbar (No 3)) per Hope JA at 692D-693C.

9 Similarly, if the Minister fails to satisfy the Court that the whole of the claimed land was not claimable Crown land, then the Court is bound to transfer that part of the claimed land which is claimable to the Applicant land council.

10 In Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] (2001) 50 NSWLR 665 (Deerubbin (No 2)) Spigelman CJ (Powell and Heydon JJA concurring) held at [53]: The beneficial purpose of the legislative scheme of the Aboriginal Land Rights Act 1983 suggests that the exceptions to the right to make claims on Crown Land should be narrowly construed. Issues 11 The Minister argued that when the claim was made, on 18 October 1989, the land was not claimable Crown land within the meaning of the Act because: (a) the land was needed, or likely to be needed as residential lands (s 36(1)(b1)); (b) a small part of the land (formerly Lot 2 DP 642471) was formerly owned by the Trustees of the Roman Catholic Church for the Diocese of Maitland and thus is outside s 36(1)(a).

Evidence 12 An affidavit of Ms McCauley, Development Manager Landcom, dated 22 November 2006 with a large number of documents annexed was relied on by the Minister (tendered as exhibit 3) and a bundle of further documents was tendered in relation to the history of the site (exhibit 5). The following history is based on the documents in exhibit 3 and exhibit 5, and the Applicant's two tender bundles of documents (exhibits C and D). 13 The relevant events have taken place over a number of years during which various state government departments have been involved and administrative arrangements have changed. The full extent of these changes are identified in the additional written submissions from the Minister dated 3 April 2008 requested by the Court. In summary, the Home Sites Branch was originally part of the Department of Lands and was established in 1971. By proclamation, this branch was transferred to the Land Commission of NSW (Landcom) in February 1984, including staff. The development of Crown land for residential purposes became the Land Commission's responsibility in major urban centres. At the same time the Department of Local Government and Lands was split into the Department of Local Government and the Department of Lands. 14 Landcom was established under the Land Commission Act 1976. Section 9(2) provided that the functions of Landcom were, inter alia: a) to acquire land for the present or future urban development and for public purposes; b) from time to time, as prevailing circumstances require, to develop and make available, or to make available for development by others, such of the land so acquired as the Commission considers necessary or expedient for urban development and for public purposes; … d) to make such reports or recommendations to the Minister or any other person or body in relation to urban development as the Commission considers necessary or appropriate;

On 1 January 1986 Landcom was replaced by the NSW Land and Housing Corporation under the Housing Act 1985 which also established the Department of Housing. The new corporation was entitled to use the title "Landcom" under cl 4(3) of Sch 1 and property of the Land Commission was vested in the new corporation; cl 5. Anything done before 1 January 1986 by a member, officer or employee of the former commission was deemed to have been done by the new corporation; cl 4(2). 15 Some of the earlier documents in the evidence are sent by the Crown Lands Office and the Land Board. The Minister advised in recent supplementary submissions that the Crown Lands Office became part of the Department of Lands in 1975. That department became part of the Department of Local Government and Lands in 1981. The Crown Lands Office continued as an operations area in the department. Correspondence from the Land Board is from the Land Board office, for example, the Land Board office of Maitland. That was also part of the Department of Lands as variously constituted.

Documentary evidence Before date of claim 16 On 11 March 1975 a memorandum entitled "Proposed Disposal of Crown Land at Hillsborough, Parish Kahibah, County Northumberland, Land District Newcastle, Shire Lake Macquarie" from the Department of Lands to the District Surveyor, refers to "LB 68/1770" (the claimed land) and a residential subdivision design prepared by Lake Macquarie City Council. On 8 April 1975 the Secretary of the Hunter District Water Board wrote in reply to the Land Board Office, East Maitland in relation to LB 68/1770 advising that the whole of the area in the proposed subdivision could be supplied with water as it was within the Board's water supply system. On 27 November 1975, the Secretary of the Hunter District Water Board again wrote to the Land Board Office in relation to LB 68/1770 advising that sewerage facilities could be made available to the subject land. 17 A report dated 9 March 1976 from AJ Quinn, Staff Surveyor, to the District Surveyor in relation to the proposed residential subdivision, stated that water and sewerage could be made available. One area was subject to mine subsidence so that larger blocks were recommended for this area. The overall design of the subdivision was "not feasible without the proposed exchange of land between the Crown and the trustees of the Roman Catholic Church Diocese of Maitland". The size of the parcel of land owned by the Church was approximately 8540m2 and the Church had previously indicated an agreement to this exchange. An Instrument of Surrender was certified on 23 June 1978 in relation to the parcel of land owned by the Church. 18 A Department of Lands memorandum dated 29 February 1980 recorded inspection of the site with Landcom on the previous day, noting that "Landcom [was] very keen on [the] site". Another Department of Lands memorandum dated 13 March 1980 in relation to file MD79H26 included references to (a) delay in provision of sewerage until 1985 (referring to the 27 November 1975 letter from the Hunter District Water Board), (b) proposed residential rezoning of the land and (c) a request for an urban capability study by Soil Conservation Service. On 17 March 1980 a request for an urban capability study was made in relation to the investigation by the Department of Lands into the rezoning of the Crown lands. 19 A Department of Lands memorandum to the Director of Crown Lands in relation to a proposed residential subdivision at Myall Road dated 20 May 1980 referred to a rezoning report by Mr Staff, surveyor, and indicated an intention that the "Department of Public Works be requested to carry out preliminary hydraulic calculations to determine location and dimensions of main drainage lines and retarding basins". A Department of Local Government & Lands, East Maitland dissection of expenditure of $3,667.43 was approved on 20 July 1981 on private survey work carried out by Asquith & De Witt in association with the proposed residential subdivision of the land. 20 On 18 August 1981 the Land Board appointed Planning Workshop Pty Ltd as consultants on planning and development matters relating to Project Hillsborough 2 (described as Landcom site 38). This project became known as Project 12806 (exhibit 3). On 3 September 1981 Planning Workshop inquired of the Mine Subsidence Board as to subsidence on the claimed land (exhibit 3). In response on 22 September 1981 a survey of the claimed land was undertaken. 21 In October 1981 Planning Workshop prepared a report entitled "Supplementary Report: Proposed Residential Subdivision Myall Road Hillsborough" (exhibit 3). That report contained a proposed subdivision plan for 287 lots (p 4), a proposed staging of development (pp 5, 7), preliminary servicing designs map (p 6), climatic data, profile of drainage lines, requests for information from the Mine Subsidence Board, which had no objection to the alienation of the land for residential use, the Department of Sport and Recreation, the Department of Education, the National Parks and Wildlife Service, the Department of Main Roads, the Urban Transit Authority (which suggested a new bus route commencing opposite Garden Suburb public school and proceeding through the centre of the claimed land to a point in Myall Street approximately 400-500 metres east of Lois Crescent), the Electricity Commission (which referred to an easement over part of the land), Shortland County Council which advised in relation to the supply of electricity, Telecom and AGL (which advised via their engineers of a gas pipeline easement). The report was also sent to Lake Macquarie City Council which resolved to prepare a Local Environmental Plan (LEP) over the land in May 1982. No substantive objections were raised in response. 22 On 22 September 1981 a survey of Lot 1821 DP 4494 was undertaken including the claimed land (exhibit 3). On 17 March 1982 the Development Manager, Landcom wrote a letter to Lake Macquarie City Council in relation to the draft Lake Macquarie LEP (exhibit 3). On 24 February 1983, the survey plan of Lot 1821 DP 4494 was registered (exhibit 3). On 28 November 1983, a plan of proposed residential subdivision of claimed land was prepared in the Department of Lands (exhibit 3). On 16 March 1984, the Development Manager, Landcom wrote a letter to the Mine Subsidence Board annexing a plan of the proposed subdivision of claimed land showing lot layout (exhibit 3). The Mine Subsidence Board replied on 18 April 1984 that certain building restrictions would be required in areas of the site subject to mine subsidence. 23 The Lake Macquarie LEP 1984 was gazetted on 19 April 1984, and the land zoned largely 2(a) residential, and also 2(b) residential, 3(c) neighbourhood business zone, 5(c) special uses "proposed local road" and 6(b) open space (local reservation). The land was identified and listed in the Department of Planning's Lower Hunter Urban Development program in 1982. 24 On 30 May 1984 the Regional Manager of Landcom, Maitland, wrote a memorandum "Proposed acquisition of Crown land at Hillsborough for the purposes of the Land Commission of NSW". It identified that there may have been mining constraints, that "the proposed design over site 806 requires an exchange of land by arrangement with Council as "owner" of portion 1608" and that "the design also requires a road through the transmission and pipeline easement" (exhibit 3). On 7 May 1985 Landcom wrote to the Lands Office, Maitland in relation to Project 806 and noted that Project 806 Hillsborough was in the development section of Landcom (within the Department of Housing) where "planning and construction action will proceed". The Department of Lands was asked to "agree to commit the area to Landcom use" and "agree to not take any action in respect of the subject land or any adjacent land without discussion with Landcom". On 5 June 1985, a copy of the Landcom submission was signed by JL Youman, Senior Draftsman for and on behalf of the Minister for Natural Resources signifying concurrence. That was "subject to Neighbourhood Centre site and special uses site being excluded for administration by the CLO [Crown Lands Office]" (exhibit 3). That land was indicated on an attached plan. 25 On 12 July 1988 a letter from the Department of Housing to the Lands Office advised that the claimed land was incorporated in the Department of Housing's five year land development program (exhibit 3). On 5 September 1988, a letter from Scott Crisp Cashmere, surveyors, was sent to Sinclair Knight and Partners, Consultant Project Managers, concerning action required to be taken by the Department of Housing to acquire the claimed land (exhibit 3). 26 On 8 September 1989 a Department of Housing memorandum indicated the status of Newcastle/Hunter projects as at 8 September 1989 (exhibit 3). Under the heading "Projects programmed for 1990/91 and later: "(d) Project 12806/1 Hillsborough Handed over. 60 lots. Registration due May 91. Crown Land. No consultants appointed. Total lot yield up to 250 lots, depends on mines subsidence areas. Zoned, lot layout available. Land Exchange with Council proposed. Current action - Sinclair Knight asked to submit a proposal for Project Management." 27 On 18 October 1989 the land claim was lodged.

After date of claim 28 In March 1990, a draft "Department of Housing Project 12806 Hillsborough Schematic Subdivision Plan" was prepared by Gardner Browne Planning Consultants (exhibit 3). On 20 March 1990 a letter to Paul Farnill at Department of Housing Parramatta was sent from Sinclair Knight and Partners attaching the draft Schematic Subdivision Plan and seeking comments. The letter indicates in par 7 that once agreement was reached on a preferred plan Sinclair Knight would present the report to the Lake Macquarie City Council for discussion. 29 On 25 July 1990, John Mills, Member for Wallsend wrote to Garry West, Minister for Tourism, Lands and Forests making a representation on behalf of Lake Macquarie City Council that the vacant Crown land south of Myall Road (the claimed land) not be developed. Mr Mills raised various concerns, including the potential impact on the environment, amongst other things. Mr West replied to Mr Mills, stating that, inter alia, the land referred to had been identified as a possible site for home site development and had been committed to the Department of Housing, Landcom development section, for feasibility studies and that the matter would be referred to Mr Schipp, Minister for Housing as it was his responsibility. Mr West wrote to Mr Schipp, Minister for Housing, on 28 August 1990 relaying Mr Mills' request. Mr Schipp replied to Mr West on 11 January 1991, stating that, inter alia, the land had been zoned as residential, had been set aside for housing purposes and that feasibility studies had been carried out taking into consideration the concerns raised in Mr Mill's correspondence. 30 On 27 July 1990 a letter from Mr Scrivener, Department of Housing Newcastle office, to the Lands Office, Maitland, objected to ALC 3508 because "detailed planning has been completed for future residential subdivision" and it was "anticipated that tenders for road and drainage works on the site will be called within the next 12 months." A development application was lodged by the Parramatta Office of Department of Housing for Stage 1 of residential subdivision (50 lots) on 5 September 1990 attaching the schematic subdivision plan. 31 On 21 August 1990, the Town Clerk, City of Lake Macquarie, wrote a letter to the Department of Housing in relation to drainage requirements of land off Myall Road. The letter advised the Department of Housing of the Council's stringent drainage requirements for any development on land south of Myall Road. 32 On 11 July 1991 a letter from the Department of Housing Parramatta office, was sent to the Regional Director of the Maitland Lands Office for "consent to the Land and Housing Corporation appropriating Crown land". The annexure to the letter stated that "Development consent is imminent from Lake Macquarie City Council". A handwritten annotation "ALC 3508" appears on the letter, the date of annotation is unknown. Another letter dated 11 July 1991 was sent from the Department of Housing to the Department of Minerals seeking advice as to any objection to alienation and development because the land "is to be appropriated for the Land and Housing Corporation with the intention of disposal for residential purposes". A similar letter of the same date was sent to the Mine Subsidence Board. 33 On 18 July 1991 a letter from the Department of Housing, Parramatta Office to Lake Macquarie City Council advised that the development consent issued by the Council for 51 lots on the land was not valid as the Department had not agreed to a number of conditions sought to be imposed. Memoranda from the Department of Housing, Parramatta, in relation to project 12806, dated 16 October 1991, recorded decisions to proceed with Precincts 2 and 4 (55 and 87 residential lots). On the same day, development applications for Precincts 2 and 4 were lodged with Council. Development consent for Stage 1 was granted by Lake Macquarie City Council on 2 November 1991. 34 On 9 December 1991 handwritten notes were made by the Regional Director, Department of Lands on a copy of the 11 July 1991 letter requesting appropriation. The notes indicated that the land was the subject of a claim, and advised that appropriation should await resolution of this claim. 35 On 11 December 1991 a letter was sent from the Department of Housing Parramatta office to the Department of Conservation and Land Management concerning an inquiry about the proposed neighbourhood centre. The letter stated that the Land Development Team, Department of Housing Parramatta was unaware of ALC 3508 until the day before. 36 Exhibit 3 contains letters from Lake Macquarie City Council, and minutes of meetings between the Department of Housing's consultants, Sinclair Knight, on 18 September 1991 in which the Council staff advised that the development for Precinct 1 was opposed by new council members and it was likely to impose significantly more stringent conditions or refuse the consent. 37 On 10 February 1992, Mr Morris for the Acting Manager of the Aboriginal Land Claims Unit addressed a memorandum to the Regional Director, Maitland Lands Office in relation to ALC 3508 stating that "[w]hilst the Department of Housing may be interested in the subject land, there is no documentary evidence to support the need or likely need of the land for residential purposes… as at the date of the Claim." The memorandum stated that "[t]he Department of Housing will need to substantiate its objection to the Claim with a more comprehensive report." (exhibit c).

Affidavit evidence 38 An affidavit of Mr Watkins, Manager Status Branch Department of Lands, dated 5 September 2007 was read. Part of his duties include investigating and reporting on the status and history of land tenure and boundary definition of areas of land and water in NSW. He has been employed in the department since 1986. At par 3 he sets out the history of dealing with Lot 2 DP 542471 until 18 October 1989. The land was granted to the Maitland diocese of the Roman Catholic Church in 1962. That portion was surrendered by instrument of surrender in 1978. Further he considered that no notice under s 25A of the CLC Act had been gazetted in relation to former Lot 2 DP 542471 (relevant to the issue raised in par 11(b)). 39 Exhibit 2 was the annotated parish map held by the Department of Lands in relation to the parish of Kahibah, in which the claimed land is located. An affidavit of Mr Wood, Team Leader Commercial, Hunter Central Coast Crown Lands Division, Department of Lands, sworn 3 October 2007 was read. He has worked in the department for over 30 years and has been in the East Maitland office for about 10 years. He gave evidence about the practice of the department in relation to parish maps of making notes on the face of the map or in a schedule next to the map. Mr Wood stated at par 7 - 10 of his affidavit: (par 10 was read on a limited basis only as evidence of the Department's, not Landcom's, intention) 7. It is a convention of the Maitland Office to write notes in red ink (known as County Notes)) where the information is to be permanently retained on subsequent versions of the parish map. It is also a convention of the Maitland Office to draw yellow edging around Crown land parcels that are of residential development potential and suitable for subdivision. 8. Lot 1821 DP 44994 is on sheet 3 of the map of Parish Kahibah (grid reference G4). The land is of interest to Landcom for a proposed subdivision for residential development, as indicated by: (a) "Project 806 Housing Appropn MD88H419", which is a pencil note referring to action being undertaken by Landcom (formerly known as the NSW Land and Housing Corporation). The action is described as "Project 806" and started prior to or in 1988, as indicated by the Maitland office file reference "MD88H419". (b) The yellow edging around Lot 1821. (c) "DISPOSAL LB68/1770", which indicated that residential disposal was being considered prior to or in 1968 by the local Land Board. The disposal actions for the site were transferred to papers MD79H26 when the Department changed the file record management system.

The annotations on Lot 1821 reflect the Department's recognition of Landcom's interest in the land and are an alert requiring the Department to notify Landcom of any proposed or intended dealings with the land, for example, request by a utility authority to create an easement.

After the Department recognised Landcom's interest in the land, Landcom could undertake all necessary steps to develop the land, confident that no other inconsistent interest or use would be recognised, or dealing entered into, by the Department in respect of the land. 40 In Ms McCauley's affidavit at par 8 - 11 she states: 8. Landcom has a long-standing interest in developing the land subject to ALC 3508 for residential purposes as part of Landcom Project 12806. 9. The subject land was originally identified for residential development by the Department of Lands in about 1966. As such, it was included in matters handled by the Department of Lands Home Site Branch, which was established in 1971. 10. In 1975 the Land Commission of New South Wales ("Landcom") was established. The Department of Lands Home Site Branch (then part of the Crown Lands office) was removed from the Department of Local Government and Lands and was added to the Administrative Office of Landcom by Government Gazette Proclamation dated 2 March 1984. 11. In 1986 Landcom became part of the Department of Housing where it remained until 1993. Between 1993 and 1995 Landcom was part of the New South Wales Property Services. From 1995 until 2002 Landcom was part of the Department of Urban Affairs and Planning. 41 A Department of Housing submission which is attached to Ms McCauley's affidavit stated that "since 1971, the Government has sought to develop Crown land efficiently and in accordance with demand generated by population growth". On 4 October 1977 Cabinet decided that: 1) In the interests of co-ordinated urban development, the oversight of the phasing of development and production of home sites on the Government's behalf in major urban centres should be the responsibility of one authority and the Land Commission is the body to perform this function. 2) Crown lands in Sydney, Hunter, and Illawarra regions available for home sites development to be transferred to the Land Commission as it requires. 6) In organising the development and disposal programme, the Commission is to have regard, inter alia, to the need for maintaining an appropriate flow of revenue to the Consolidated Revenue Fund. 7) Adequate financial resources for the development of Crown land home sites are to be made available.

42 An affidavit of Mr Robledo, Senior Development Manager Landcom, sworn 20 September 2007 was also read. His evidence concerned the process for developing Crown land sites from the initial planning stage to construction to sales of home sites. That practice has been largely unchanged for about 20 years. Crown land home sites are nominated or identified under the Crown Lands Homesites Programme and are indicated on the Department of Lands parish maps as being reserved for Landcom use for residential development so that such sites are not used or committed for any other purpose. The site is surveyed and other investigations such as site constraints considered. Consultant reports are obtained to accompany a development application lodged with the local consent authority. External project managers are engaged to oversee the development process. Standard practice in the past was to obtain development approval for development of the Crown land site, before obtaining concurrence from the Department of Lands to acquire the site under the Housing Act and the Public Works Act 1912. Landcom would acquire the site for the purpose of creating a title to the land under the Torrens Title System, in order to facilitate the subdivision and sale of the individual lots created, after a development application was approved. 43 A letter from Landcom dated 7 May 1985 to the Department of Lands, Maitland branch, asking that particular land be committed to Landcom use for Project 806-Hillsborough was annexed to Mr Robledo's affidavit. When such a commitment was made by the Department of Lands, Landcom could be confident that the Crown land would not be used for any other purpose. In 1986 Landcom was merged with the Housing Commission to form the Department of Housing. After that merger, development production teams were created and development staff resources were rationalised. The Maitland office was closed (precise date unknown) and some projects were taken over by the Parramatta team. A Department of Housing report identifies Project 806 for development in 1990/91. 44 Evidence of Mr Sanders, town planner, was relied on by the Applicant and that of Mr Andrews, town planner, was relied on by the Minister on the issue of whether the land was needed or likely to be needed for residential use at the claim date.

Land needed or likely to be needed as residential lands (s 36)(1)(b1)) (a) operation of s 36(1)(b1) - "opinion of the Minister" Minister's submissions 45 Section 36(1)(b1) is conspicuous by reason of its different wording and different legislative history. Unlike every other element of the definition of "claimable Crown lands", s 36(1)(b1) is expressed to turn upon an opinion of the Minister. Unlike every other element of the definition, s 36(1)(b1) was inserted after the enactment of the Act, by legislation whose inevitable and intended consequence was to narrow the scope of claimable Crown lands. It was submitted that those differences should be reflected in the construction to which the section is given: "a court construing a statutory provision must strive to give meaning to every word of the provision": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679. 46 If the Minister forms the opinion that lands are needed or are likely to be needed as residential lands, then by dint of that opinion, those lands are not claimable Crown lands. So to read the paragraph gives effect to its ordinary grammatical meaning. It means that the task of the Court, in determining the statutory appeal pursuant to s 36(6) and (7), is to determine whether the Minister's opinion was properly formed, principally was it formed reasonably upon material before him or her; R v Connell; ex parte The Hetton Bellbird Collieries Ltd [No 2] (1944) 69 CLR 407 at 430 and 432; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [34]. 47 So to construe s 36(1)(b1) accords not merely with the language, but with the stated intention of the Minister. On 16 April 1986 the then Minister for Aboriginal Affairs, Mr Anderson, presented a bill to amend the Act to add s 39(1)(b1) and in his second reading speech said: Further amendments will bring the Act into greater conformity with government policy by allowing claims in the Western Division to be granted under lease; by removing residential land from the category of claimable Crown land ; and by resolving outstanding questions involved in the issuance of certificates under section 36(8) of the Act. (New South Wales, Parliamentary Debates, Legislative Assembly, 16 April 1986 (Mr Anderson) at 2042, emphasis added)

48 The explanatory memorandum to the bill stated: The conditions under which claims to Crown Land (proposed sections 36(1)(b1)) are made will, in future, be varied. It is intended that land earmarked for residential development be made non-claimable. This is a scarce resource and access to it should be through normal channels in accordance with government policy … (Explanatory Memorandum, Aboriginal Land Rights Bill 1986 at 2044, emphasis added) 49 Of course, a court will construe s 36(1)(b1) purposively, so as to promote, not defeat, the evident purpose of the Legislature: Interpretation Act 1987, s 33. Legislative context is to be considered "in the first instance"; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 at [11].

Why Londonderry Claim incorrect 50 Firstly, Bignold J in Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act [No 2] (1995) 89 LGERA 194 (the Londonderry Claim) relied upon what Hope JA said in Winbar (No 3) at 689A in the context of s 36 in its original form prior to the introduction of s 36(1)(b1). The ratio of Winbar (No 3) is that the claimant land council was entitled to have its appeal determined as if the law had remained the same as it was at the time when its appeal was instituted (at 696F). In any event, Hope JA's analysis supports the Minister's construction, and is inconsistent with that applied by Bignold J in the Londonderry Claim, for the task of this Court pursuant to s 36(7) is to determine whether the statutory definition is, or is not, satisfied. 51 Secondly, his Honour considered that accepting the Minister's submissions would deprive s 36(8) of all effect. That does not follow, for at least two reasons: (a) the s 36(1)(b1) opinion is nonetheless judicially reviewable, and (b) the position may have changed materially between rejecting of a claim and issuing of a certificate (suppose, to take the example in Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 254D, the claimed land was at Badgery's Creek and, after the claim had been rejected but before an appeal had been determined, government had decided to build a second airport on the land). His Honour seemingly described part or all of the argument set out above as "ingenious" and rejected it, but gave no reasons for either the description or its rejection.

Applicant's submissions 52 The Applicant argued the Court should continue to apply the approach in the Londonderry Claim and subsequent decisions whereby the Court was not bound by the Minister's opinion but rather was able to form its own view on whether the land was needed or likely to be needed for residential land. That approach is correct because of the power of the Land and Environment Court under s 39(2) of the Land and Environment Court Act 1979. In McDougall v Warringah Shire Council (1993) 80 LGERA 151 Kirby P stated at 159 that a narrow interpretation of s 39(2) would frustrate Parliament's purpose and narrow the facility for appellate review by rendering it nugatory or diminishing its utility; see also Sydney City Council v Ipoh Pty Ltd (2006) 149 LGERA 329 where it was held that it would be exceptional for the courts to hold that a discretion or power exercised by a decision-maker could not be exercised by the Court under s 39(2). Under this wide view of s 39(2) the courts have assumed the power to exercise discretions to rely on the satisfaction of a decision-maker, see North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740 per McHugh JA and Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399. 53 If a different interpretation of s 36(1)(b1) such as that argued for by the Minister is adopted it would be inconsistent with s 36(8)(a) which requires that a certificate state that land is needed or likely to be needed as residential land without reference to opinion. 54 Further, "need" is an essential component of s 36(1)(b1) which the Court is required to be satisfied in relation to. Further there would be no consideration of whether the land was reasonably needed, a consideration which the Court properly accepted was a relevant consideration in Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2001) 113 LGERA 163 at [16]. The Minister's submissions ignore any consideration of "reasonable futurity" which was considered relevant in the Londonderry Claim and Wanaruah.

Finding 55 The same arguments made by the Minister in relation to the correctness of the Londonderry Claim were considered by Jagot J in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 13 (NSWLALC 2008). In that case she accepted most of the same submissions from the Minister as were put to me and held that the Londonderry Claim was wrongly decided at [71] - [76]. In the course of her judgment her Honour also dealt with the same submissions of the Applicant which I have heard in this matter. In Griffith Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 108 I adopted her findings at [90]. In Griffith the same arguments were presented by both the Minister and the Applicant as I have heard in this case. Consequently I do not need to further consider the arguments before me on this issue. The approach to be taken to s 36(1)(b1) is that the existence of an opinion of a Crown Lands Minister (being the Minister administering the CLC Act or its successor) that the claimed land is needed or likely to be needed for residential land must be determined on the whole of the evidence. The Court will not itself determine whether the land was needed or likely to be needed for residential land at the date of the claim. Additional issues arise of when an opinion must be formed and by whom.

(b) whether opinion to be held as at date of claim by Crown Lands Minister 56 The Applicant's counsel argued as its primary submission on this issue was that the opinion required by s 36(1)(b1) must be that of the Crown Lands Minister (rather than his or her delegate) and this opinion can be formed up to the date of the claim. The Minister has the power to review and identify Crown lands that are required for residential purposes, or likely to be required, in advance of claims being lodged. To the extent that does not occur now it is an avenue open to the Minister if he wishes to exempt land to be used for residential purposes from s 36(1)(b1) of the ALR Act. There is no evidence of such a process being undertaken in this case. 57 I agree with the Minister's submissions that there can be no inference that such a process is required under s 36(1)(b1) in advance of a claim being filed. There is no specific statutory requirement for such a process identified in the ALR Act or elsewhere. The identification of land for residential purposes is likely to be an ongoing, possibly state wide, process. The utility of requiring such a review on a regular basis to enable a Crown Lands Minister to form an opinion under s 36(1)(b1) in relation to particular land when there may or may not be any land claim is debatable. This is particularly the case in the absence of a statutory scheme for the determination and reservation of residential land. 58 In NSWLALC 2008 Jagot J at [78] also noted that there is no statutory process for the identification and reservation of residential land as there is, for example, in the case of land identified for a national park as contained in the National Parks and Wildlife Act 1974. Her Honour held at [106] that the opinion under s 36(1)(b1) may be found by direct evidence or inferentially on the whole of the evidence. She noted that there is no statutory requirement that there be a specific exercise of statutory power conditional on an opinion under that subsection before a claim is made, in contrast to the grant of a development consent which requires the formation of a particular opinion under the Environmental Planning and Assessment Act 1979 before it can be granted. It does not appear from the judgment in NSWLALC 2008 that this argument was put to Jagot J. Her Honour's reasoning nevertheless confirms my view and I do not accept this part of the Applicant's argument. 59 It has been determined that a Crown Land Minister's opinion must be held at the date of the claim (rather than after it based on information up to the date of the claim). This was the primary submission of the Minister in this case. That matter was agreed before Jagot J in NSWLALC 2008 and her Honour so held at [73]. Her reasons for that approach are identified in [74]. It was also raised in submissions in Griffith and I also held the existence of an opinion must be determined as at the date of the claim considering the evidence as a whole at [94].

(c) Delegation of opinion of the Minister 60 In recent submissions filed after the hearing, the Minister submitted that the opinion required under s 36(1)(b1) need not be held personally by him or her but may be held by officers of his Department. The Minister submitted that this was held by Jagot J in NSWLALC 2008 at [107] and by me in Griffith at [105]-[107]. In this case Mr Youman signed the memorandum on behalf of the Minister for Resources in June 1985. The presumption of regularity applies. There is in evidence the general delegation in 1989 for determining the requests for appropriation by governmental authorities such as Landcom which extended to the Senior Drafting Officer. Mr Youman on behalf of the Crown Lands Minister could only have agreed to commit the claimed land if he were of the opinion that it was needed or likely to be needed for residential land. That was Landcom's function. The commitment by Mr Youman was not countermanded between 1985 and 1989. 61 At the hearing the Applicant had argued, as had been argued in Griffith, that there was no evidence of the delegation of the formation of the Minister's opinion under s 36(1)(b1) to Mr Youman in the context of the Applicant's primary argument that the relevant opinion had to be held personally by the Minister. The Applicant submitted in later submissions made in response to the most recent submission filed by the Minister that the opinion of the Minister could be held by officers in his Department based on NSWLALC 2008 and Griffith was not correct. The terms of s 36(1)(b1) require that the opinion be held by the Crown Lands Minister. In NSWLALC 2008 Jagot J held at [106]-[107] that evidence of the opinion may be found by indirect evidence or inferentially on the whole of the evidence including the actions of the Minister's Department. The opinion remains one that is ultimately attributable to the Minister according to the Applicant. Reliance in the Minister's submissions on the Carltona principle as referred to in Griffith at [106] is erroneous (Carltona Ltd v Commissioner of Works and Others [1943] 2 All ER 560). Carltona deals with agency, see Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257 per McClellan J at [45] - [58], it does not apply where there is an express and general power of delegation contained in the legislation as there is in s 17A of the CLC Act and s 243 of the ALR Act. 62 The fact that Landcom wishes to develop the land cannot discharge the Minister's onus of proof that he had formed the opinion under s 36(1)(b1). The mere fact that Landcom wanted to develop the land does not establish that that opinion was held. The memorandum signed by Mr Youman is a material factor that must be considered in light of the whole of the evidence. Finding 63 The Applicant did not state in its submissions why what I held in Griffith did not support the Minister's submission that the opinion under s 36(1)(b1) can be delegated to an officer in the department but does criticise my reasoning which referred to the Carltona principle at [106]. The argument that I had to address in Griffith was whether the relevant Crown Lands Minister was required to personally hold the opinion referred to in s 36(1)(b1). That was not a matter debated before Jagot J in NSWLALC 2008 because the applicant in that matter agreed that the Minister could act through a delegate ([68]). The essence of my decision is in [107] where I accepted the Minister's submission: … that the existence of a Crown Lands Minister's opinion can be inferred from the actions of his or her Department conducted up to the date of the claim pursuant to general delegations of statutory duty under the CL Act.

That is in accordance with the approach of Jagot J in NSWLALC 2008 . I also held elsewhere in Griffith , adopting NSWLALC 2008 , that the existence of the Minister's opinion had to be determined in light of all the evidence. That is the approach I intend to take in this matter.

64 I agree with the Applicant that the Minister's recent submission that the Minister's opinion can be held by officers in his department is not directly supported by NSWLALC 2008 or Griffith, because the issue on delegation as presented in those cases (if in issue at all) was not directed to precisely that question. I do not need to further consider whether my reference to Carltona at [106] in Griffith was incorrect. The whole of the evidence which will include the minute of Mr Youman signed on behalf of the Minister for Natural Resources in June 1985 and not countermanded thereafter will be considered in relation to, inter alia, the processes undertaken by Landcom in relation to this particular site. As already held in Griffith there is no requirement on the Minister to provide a specific delegation of the opinion required under s 36(1)(b1). In this case it could not have been done in 1985 in any event because the amendment of the ALR Act to introduce s 36(1)(b1) did not occur until 2 May 1986. 65 As submitted by the Minister there is in evidence the general delegation of duties under the CLC Act as at 1989 in evidence including to the level of senior draftsman.

(d) Opinion that needed or likely to be needed for residential land 66 The issue now requiring consideration is whether on the whole of the evidence the inference arises that there was a Crown Lands Minister's opinion that land was needed or likely to be needed for residential land at the date of the claim. There is no evidence of a specific opinion having been formed by the Minister so that it is necessary to consider the whole of the evidence of the circumstances of the land at the date of the claim, including actions of the relevant Department, to determine if there is evidence of an opinion under s 36(1)(b1) at the date of the claim.

Minister's submissions 67 It was submitted that it was reasonably open to the Minister through his delegate to form the view that there was a "real or not remote chance" (Deerubbin (No 1)) as at October 1989 that the claimed land would be needed as residential lands. At that date the land had already been "committed" to Landcom by the Department of Lands, the parish map had been annotated to show Project 806 on Lot 1821, extensive masterplanning and subdivision planning had already been undertaken, and project managers were about to be appointed. The senior draftsman at the Lands Office at Maitland for and on behalf of the Minister agreed to commit the area to Landcom's use in June 1985 (par 24). It is irrelevant that this occurred before s 36(1)(b1) was inserted in the ALR Act. By agreeing to commit the land to Landcom, the Minister through his delegate was forming the opinion the land was needed or likely to be needed for residential land. Shortly after the claim, on 2 November 1991, the Council gave consent to Stage 1 of the project which proposed the creation of 50 residential lots, public roads and a public reserve. 68 Zoning of land is not decisive of the opinion being formed under s 36(1)(b1) but it is relevant to note that at the date of the claim it was suitably zoned for the residential development. Those parts zoned special purposes, neighbourhood centre and open space were for purposes ancillary to the use for residential land, see Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 at [38]-[45]. The subdivision plan in the consultant's 1981 report (see par 21) showed 280 residences intended for both single dwelling and medium density housing, and showed roads, open space and a neighbourhood centre. "Need" was considered in Deerubbin (No 1). The reasoning of Meagher JA, while in dissent on the final issue of whether there was an error of fact or law by the primary judge, was concurred with by the other appellate judges. His Honour held that when determining whether land was needed or likely to be needed for an essential public purpose it is irrelevant to consider if it could have been achieved another way. The opinions of the town planners on whether the land was needed or likely to be needed are irrelevant in light of this decision. Applicant's submissions (i) significance of the delay in refusing claim 69 The Minister delayed making a decision and the Court is required to undertake the task by reference to the state of facts that existed some 18 years ago. Both the delay in bringing a proposal to fruition, and the delay in determining a land claim, are relevant considerations in determining whether land was in fact needed for an essential public purpose: La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176, at 182-183; Deerubbin Local Aboriginal Land Council v The Minister Administering The Crown Lands Act [1999] NSWLEC 82 per Bignold J at [88]; Deerubbin (No 2) per Spigelman CJ at [61]. That reasoning should also apply in this case given the lengthy delay in the Minister issuing a refusal.

70 As the Minister has the onus of satisfying the Court that the claimed lands were needed or likely to be needed for residential lands as at the date of claim, any ambiguity arising from the difficulty of establishing relevant matters with the passage of time will be required to be resolved in favour of the Applicant. There is a need for extra caution in the present case for the following reasons: (a) The delay creates difficulties for the parties as their case has to be prepared well after the relevant date. (b) For the reasons outlined in NAIS and Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, the passage of time creates risks in the decision-making process both by the Minister in determining the claim and the Court on appeal. (c) In this matter, at least some relevant documents have been lost. Those documents include a Department of Lands file relating to the local council's opposition to the residential development of the claimed land. (d) The ALR Act is remedial legislation aimed at remedying the past dispossession of Aboriginal people. The legislation emphasises the date of claim as the point in time at which the claim is made as the "controlling criterion". A 16 year delay with a refusal on the basis of circumstances existing at the date of refusal is unfair. Such a delay is a substantive injustice to applicant land councils. (e) With the passage of time there is a tendency for subsequent information and values to be brought into consideration contrary to the scheme of the Act.

(ii) whether there was an opinion at date of claim that land was needed or likely to be needed 71 The Applicant argued there is no evidence that the Minister has formed any opinion under s 36(1)(b1) or has delegated to any person in the Department, such as the chief draftsman in the Maitland office, the formation of the relevant opinion. That person signed the minute dated 7 May 1985 above the signature line "for and on behalf of the Minister for Natural Resources" and is a document particularly relied on in the Minister's case. 72 Further, the Minister must establish that any opinion was in relation to the need or likely need of the land for residential use. That question is not the same as ascertaining whether there is an intention to use land as residential lands. "Needed" means required not simply desired. The use of land is not referred to in s 36(1)(b1) suggesting that it was not Parliament's intention that the section be satisfied by the use of land. In Deerubbin (No 1) in the Court of Appeal, Handley and Powell JJA upheld the reasoning of the trial judge to the effect that "needed" means "required" at 254C. This is to be contrasted with a mere desire or demand (see New South Wales Aboriginal Land Council & Nambucca Local Aboriginal Land Council v The Minister for Land and Water Conservation [1997] NSWLEC 176 per Talbot J at [7], La Perouse at 182-3 inter alia). The Minister's reliance on the dissenting judgment of Meagher J is misplaced. The passage in question is obiter and has been taken out of context. If correct the Minister would not be required to consider the availability of large tracts of comparable land directly adjacent to the land in question and would be contrary to the approach taken in Wanaruah. 73 In Deerubbin (No 2) Spigelman CJ did not hold that 'needed' means "required or wanted" but considered at [50] that the relevant distinction was whether a decision concerning the use of the land had in fact been made. The approach in the Londonderry Claim, Wanaruah and Nambucca Heads is correct so that in determining a "need" for residential lands it is necessary to identify whether there is sufficient land to meet projected residential needs for a reasonable time into the future. The concept of need in relation to residential land is different to other land uses such as a hospital or an airport, it is not a one-off event but will be fulfilled over time over many different pieces of land. It is therefore relevant to consider the issue of need over a wider area as occurs in a planning document. If there is more than sufficient land in the relevant area then the land is not needed for residential lands, even if the Crown wishes to subdivide and sell the land. 74 When the relatively few steps taken before the date of the claim are considered there is no decision about the use of the land let alone use for residential lands at the date of the claim. The Minister relied heavily on the memorandum of 5 June 1985 purportedly signed on behalf of the Minister for Natural Resources to allege there was an agreement by that Minister to commit the claimed land to Landcom use. Such a commitment does not satisfy any Ministerial decision in respect to the need of the land to fulfil residential land needs in the relevant area. Rather it is an administrative step with no legal consequences for future dealings with the subject land. 75 The minute of the senior draftsman, Maitland office, on behalf of the Minister for Natural Resources dated 5 June 1985 is unclear about what land it refers to as the map attached suggests a larger area of land excluded for neighbourhood centre and special uses than the proposed development. There is no reference to the need for the land for residential purposes. There is no evidence of formal delegation from the Minister to the senior draftsman. Reliance for this submission was based on the documents produced pursuant to a Notice to Produce issued by the Applicant. 76 Further there were numerous statutory hurdles, practical steps and planning obstacles that Landcom still had to overcome at the date of the claim before a substantive decision or action could be undertaken in relation to the claimed land. The memorandum titled "Proposed acquisition of Crown land at Hillsborough for the Purposes of the Land Commission of NSW" dated 30 May 1984 identifies potential mining constraints, the proposed design over site 806 requires an exchange of land by arrangement with the Council as owner of portion 1608, and the acquisition of necessary easements. Consent to the transfer of the land of the Department of Lands was also needed at the date of the claim. 77 There was no detailed planning for the proposed subdivision before the date of the claim and proposals were resisted by the Council when the development application for the first stage was received in 1990. The letter from the Council dated 21 August 1990 referred to the Council's stringent drainage requirements for any development on the area of the claimed land (par 31). A letter from the MP for Wallsend to the Minister for Lands dated 25 July 1990 requested that there be no development of the claimed land due to environmental impact concerns inter alia. A Council minute attached to the letter was not produced by the Minister after service of a Notice to Produce. Nor did the Council locate it in response to a subpoena served on Lake Macquarie City Council. 78 The Minister has also sought to rely on activity by Landcom staff after the date of the claim which it says confirms what was intended at the date of the claim. Whether this is permissible as it confirms a foresight as recognised by Spigelman CJ in Deerubbin (No 2) at [69]-[75] is debatable. After the date of the claim Landcom made a formal application to the Council to develop Stage 1 of Department of Housing site 12806 on 5 September 1990. 79 All that can be said at the date of the claim was that the land had been surveyed and had been the subject of overall but not detailed planning, and part of the subject land had been zoned residential under the LEP gazetted in April 1984. The Department of Lands had agreed informally to commit part of the subject land to Landcom use (the area which excluded the neighbourhood centre site and special uses site). The rest of the land was earmarked for sale to a private developer. The zoning under the LEP at the date of the claim zoned part for residential 2(a) and 2(b) and part for special uses, open space and neighbourhood business.The balance of the land was at the date of the claim was therefore proposed to be developed for other purposes such as a neighbourhood business zone and open space for public recreation. The zoning alone does not support the Minister's argument that the whole of the land was needed or likely to be needed for residential lands.

Finding 80 The issue of "needed or likely to be needed" was also considered in NSWLALC 2008 and Griffith. I adopt here what I held in Griffith at [120] -[125] which in turn applied the findings of Jagot J in NSWLALC 2008 at [87] - [90]. The observations of Jagot J at [93] in NSWLALC 2008 are pertinent in this case. Her Honour noted in relation to Deerubbin (No 1) and Deerubbin (No 2) that the observations made in those cases concerning need or likely need do not mean that any indication at any level in 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. To do so would give the subsection a wide operation which her Honour considered was inconsistent with the remedial purpose of the ALR Act. 81 In relation to the distinction between needed or likely to be needed, if this is relevant to my conclusion on the evidence, in Deerubbin (No 2) Spigelman CJ stated at [50] (Powell and Heydon JJA concurring): In the submissions for the appellant a number of the grounds of appeal were grouped under the heading "Likely to be Needed", the relevant limb of the formulation in s36(1)(c) of the Aboriginal Land Rights Act. The appellant accepted that, in accordance with the decision of this Court in Minister Administering Crown Lands Act v Deerubbin Local Aboriginal Land Council , 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.

Opinion of a Crown Lands Minister 82 A further matter to be noted before the evidence is considered is that under s 36(1)(b1) the relevant opinion is of a Crown Lands Minister who is defined in s 36 as the Minister administering the CLC Act (replaced by CL Act 1989). It is the Department of Lands in its various forms which carries out the administration of the CLC Act on behalf of the relevant Minister (the Minister for Natural Resources in 1985) and therefore the existence of the relevant opinion must be assessed in that context. 83 The evidence in this matter concerns the administration of the Crown Land Homesites Programme. The relevant departments and administrative arrangements concerning the management of the Crown Lands Homesites Programme are identified at par 13, 14. Briefly the unit responsible, having been established as part of the Department of Lands in 1971, was moved to the Land Commission in 1984. The Land Commission was abolished in 1986 and its functions including the home sites program continued in the Land and Housing Corporation which was entitled to use the name "Landcom". That corporation also incorporated the Department of Housing. Part of the Department of Housing administered the Crown Land Homesites Programme up to and following the claim date. The aims of that programme are identified in the Cabinet decision of 4 October 1977, set out at par 41.

Delay/missing evidence 84 The issue of excessive delay in the Minister's refusal of the land claim 16 years after the claim was lodged is relied on by the Applicant to argue that any ambiguity arising from the difficulty of establishing matters so long after the date of the claim should be resolved in the Applicant's favour. The Applicant relied on the principles in NAIS to support its submission. I observe that case was directed to a different legal issue than arises in the type of appeal I have before me. That case dealt with whether the delay of a tribunal to give reasons was a jurisdictional fact which invalidated the decision. Gleeson CJ, Kirby, Callinan and Heydon JJ held that it was, Gummow and Hayne JJ dissenting. The majority held the delay created a real and substantial risk that the tribunal's capacity to assess the applicants' evidence was impaired so that the applicants were denied a fair hearing. In his dissenting judgment Gummow J refers to the important distinction between maladministration and judicial review. His Honour considered issues in relation to delay in administration at [17] - [25] including the acceptance that many factors which will not impact on judicial processes contribute to delay in administrative decision making. The principles of the majority in that case are not directed to processes such as gave rise to this appeal so their direct application in the context of this appeal is not apparent. 85 As identified by the Applicant, in Deerubin at first instance at [88] the Court did take into account delay, inter alia, in determining the land claim when considering the substantive issue of whether land was needed for an essential public purpose as suggestive that it was not so essential; see also La Perouse at 182-183. The existence of an opinion of the relevant Crown Lands Minister as at the date of the claim is not a circumstance where delay in a decision by the Minister since the lodging of the claim can assist in the determination of that issue, unlike whether land is needed for an essential public purpose. 86 Having said that in response to the Applicant's specific submissions, I accept that given the beneficial intent of the legislation it is appropriate that the Court be vigilant in requiring the Minister to discharge his or her onus in s 36(7) that the land is not claimable Crown land. The Minister does bear the onus of proof under s 36(7) of the ALR Act so that if inadequacies in the evidence are identified by the Applicant these will need to be considered in relation to the relevant history as a whole. 87 Missing evidence the Applicant referred to was a missing Department of Lands file which includes communications from Lake Macquarie City Council opposing the development of the area that was proposed for housing in Project 806. That there was opposition by the Council is referred to in some of the evidence. A letter from the member for Wallsend dated 25 July 1990 (after the date of the claim) is in evidence (see par 29) in which he writes on behalf of Lake Macquarie City Council to the Minister for Natural Resources requesting that the proposed residential use of the area not be developed at that time because the area is one of the "lungs" of Newcastle, Cardiff High School uses the area for orienteering, destruction of flora and fauna is not warranted and the area is one of the headwaters of Winding Creek which has caused flood damage. Clearing of bushland is therefore discouraged until flooding impacts are assessed and guidelines developed. The Minister responded on 8 January 1991 advising the land had been identified as a possible site for home site development and had been committed to the Department of Housing, Landcom development section, for investigation for inclusion in that department's housing program if feasible. A letter from Sinclair Knight is also in evidence which refers to the Council's opposition to the development expressed in a meeting in September 1991 and there is a letter from the Council dated 21 August 1990 advising of likely Council opposition due to drainage issues (see par 31 and 36). The Applicant submitted that the missing file would have identified the Council's opposition to the residential development of the area in part because of the need to have in place adequate drainage systems. That suggests the Council would have opposed the grant of development consent. 88 Further, the Applicant argued there is no evidence to support the exercise of delegation in the June 1985 minute from the Department of Lands in which the senior draftsman, Mr Youman, identifies himself as acting for and on behalf of the Minister for Resources. There is no delegation in the evidence concerning a general delegation to the level of the senior draftsman. There were further submissions after the hearing which dealt with this issue and resulted in findings in par 63-65 above. That is not a relevant discrepancy in the evidence in my view. 89 A further discrepancy the Applicant referred to was in relation to the attached plan of the land intended for Project 806 sent back to Landcom by Mr Youman as identified in the Applicant's supplementary folder. The Applicant argued that this highlighted the whole area identified for Project 806 and labelled it as "Neighbourhood Centre and Special Use". In my view, the highlighting was consistent with previous subdivision plans in which the neighbourhood centre was identified, such as the November 1983 plan of the Department of Lands. There is no discrepancy in the evidence in this regard. Consideration of evidence 90 The Minister's documents identify the extent of the steps taken by Landcom and, at its request, the Department of Lands to have the claimed land available to be used for residential subdivision under the Crown Land Homesites Programme. These are set out in the chronology of evidence at par 16. Well before the date of the land claim investigations of the site for possible subdivision commenced in the Department of Lands from March 1975 according to the documentary evidence. As part of these investigations an exchange of land between the Roman Catholic church portion of the land was arranged by instrument of surrender dated June 1978. Landcom inspected the site in February 1980 and expressed interest in it for residential use. An urban capability study by the Soil Conservation Service was undertaken. A survey for the purposes of subdivision was undertaken and the Department of Public Works was requested to do hydraulic studies for drainage purposes. The site was generally suitable for residential use. The Department of Lands appointed Planning Workshop Pty Ltd as consultants on planning and development matters for the residential housing project in August 1981. Planning Workshop Pty Ltd prepared a report dated October 1981 on proposed residential subdivision which included a subdivision plan and proposed staging of development of the site for 287 lots, inter alia (full details are at par 21). A further subdivision plan prepared in the Department of Lands is dated November 1983. Enquiries were made of various bodies including the Mine Subsidence Board with a response in 1984, inter alia. None raised an objection to the proposed use for residential purposes. 91 A Landcom regional manager wrote a memorandum in May 1984 on the proposed acquisition of the Hillsborough land from the Department of Lands by Landcom (this does not seem to have been progressed at that stage). By a minute of about 7 May 1985 Landcom wrote to the Department of Lands asking that it agree to commit the Hillsborough land for Landcom use. Mr Youman concurred with that request on behalf of the Minister for Natural Resources on 6 June 1985. Project 806 was identified as a current project for 1990/91 by Landcom in September 1989, just before the land claim was lodged in October 1989. 92 Generally events after the date of claim are not relevant except in the limited circumstances recognised by Spigelman CJ in Deerubbin (No 2) at [69] - [75] where these confirm a foresight but are not admissible to prove a hindsight. Documents prepared with knowledge of a land claim are clearly not relevant as these could be interpreted as self-serving. The Parramatta office of Landcom in the Department of Housing was unaware of the claim until about 10 December 1991 based on the letter dated 11 December 1991 sent to Sinclair Knight (par 35) so that I consider its activities are relevant to consider. It lodged a development application with the Council for the first stage of the residential subdivision (50 lots) for Project 806 on 5 September 1990. This was granted by the Council on 2 November 1991. Development applications for Precincts 2 and 4 were lodged in October 1991.

93 The recognition of the potential use of the claimed land as residential land by the Department of Lands is clear from the notations on the parish map held by that Department (exhibit 2). It had yellow edging around it and pencilled on it "Project 806 Housing Appropn MD88H419" from some time in 1988. Mr Wood's affidavit describes those annotations as reflecting the Department's recognition of Landcom's interest in the land and were an alert requiring the Department to notify Landcom of any proposed dealings with the land. 94 Mr Robledo's affidavit attests to the extensive processes undertaken by Landcom in carrying out its functions as identified in the Land Commission Act, s 9, to 1984 as identified at par 42. Those activities continued under the Land and Housing Corporation. Virtually the last step taken by Landcom in effecting development of land is having the land transferred from the Department of Lands to the Department of Housing following the carrying out of all necessary investigations and obtaining development consent from the Council. 95 While the Applicant argued at par 76 that many matters remained outstanding at the date of the claim, not least that the Department of Lands had not yet agreed to transfer the land to Landcom, I agree with the Minister's submissions at par 67. Planning was well progressed at the date of the claim. That is also confirmed by the actions of the land development team at the Parramatta office of Landcom in the Department of Housing before and after the date of the claim. That activity of Landcom was occurring with the concurrence of the Department of Lands as identified in the minute signed by Mr Youman on behalf of the Minister for Natural Resources dated 5 June 1985. 96 The preparatory studies undertaken on behalf of the Department of Lands confirmed that the majority of the claimed land was generally suitable for residential subdivision. It was able to be supplied with sewerage and other services. There were limitations on the type of housing that could be constructed on an area in the east of the site due to the advice of the Mine Subsidence Board Guidelines as that area was underlain by former coal mine workings. These limitations did not prevent the development of that land for residential purposes. 97 While the Applicant argued that the Council's opposition to the proposed residential development of the area is a relevant factor and it is disadvantaged because the full extent of the correspondence on that issue is unknown, the consultants' reports provided to the Department of Lands or Landcom did not suggest that drainage was a limiting factor on the residential use of the land. I note that as at the date of the claim the land had been rezoned in the 1984 LEP by the Council as largely for residential use. The evidence of Council opposition is after the date of the claim and concerns drainage and a desire to keep part of the area as bushland. The Council approved the Stage 1 residential subdivision for 50 lots on 2 November 1991. Zoning 98 The Lake Macquarie LEP was changed in 1984 to zone a large part of the land as residential 2(a) with about 25 per cent identified as able to be preserved for open space (according to the letter from Mr Schipp, Minister for Housing in January 1991). At the date of the claim the claimed land was zoned as Residential 2(a), 2(b), Neighbourhood Business 3(c), Special Uses (roads) 5(c) and Open Space 6(a) and 6(c) under the LEP as amended in 1984. The majority of the site was zoned for residential use. 99 Both parties accepted that zoning need not be determinative of whether land was needed or likely to be needed for residential land. It is a relevant factor. The Applicant relied at the date of the claim on the zoning to suggest that the land, not being appropriately zoned throughout for residential use confirms that it was not all needed or likely to be needed. The Minister argued that submission was undermined by the fact that relatively shortly after the date of the land claim, in November 1991 the Council granted development consent to Stage 1. The fact that the Council granted development consent for Stage 1, albeit after the date of claim, also does not suggest that its opposition prevented that outcome in relation to Stage 1 which was for 50 residential lots. 100 I accept the Minister's submission that the areas of the claimed land zoned non-residential were for uses ancillary to the residential use of the land. This applied also to the commercially zoned area of the land. At the date of claim the neighbourhood commercial centre location was not finally determined by the zoning. For example, the location of the neighbourhood centre was moved from the southern part of the land to the northern part on Myall Road when the development application for Stage 1 was lodged in September 1990. This application was subsequently approved by the Council. 101 Accordingly there was a real or not remote chance that the whole of the land would be needed, meaning required, as residential land under the Crown Lands Homesites Programme. Events after the date of the claim confirm that was the approach taken within the Parramatta office land development team in the Department of Housing. That office was not aware of the land claim until about 10 December 1991. 102 The evidence also suggests that at the date of the claim the relevant Crown Lands Minister through the actions of the officers in the Department of Lands had formed the opinion that the claimed land was needed or likely to be needed for residential land under the Crown Lands Homesites Programme. The evidence considered as a whole as set out in the previous paragraphs gives rise to that conclusion that, as well as the view within Landcom of the desirability of the land for residential use, the relevant Crown Lands Minister had formed that opinion as at the date of the claim. This is supported by the earlier history of investigations undertaken within the Department of Lands in relation to the suitability of the land for residential purposes and the later procedures adopted in the Department of Lands as part of the identification of land with potential use for residential purposes under the Crown Lands Homesites Programme, set out in the affidavit of Mr Wood. It is specifically confirmed by the minute signed by Mr Youman on behalf of the Minister for Natural Resources in June 1985. That there had not been a final transfer of the claimed land to the Department of Housing as at the date of the claim does not mean that the relevant opinion, inferred from the actions of the departmental officers, had not been formed. I consider that it had. The Minister has discharged the onus of proof he bears in this matter. 103 As identified in NSWLALC 2008 and Griffith, the Court is not itself required to undertake an analysis of need or likely need as at the date of the claim and considering expert planning evidence on that issue is likely to lead to a process of impermissible second guessing. Much of the planners' evidence relied on by both parties falls into that category. I do not consider there is any matter which arose at the date of the claim which requires further clarification from the planners' evidence and I do not need to consider it further. 104 As I have determined that the claimed land was needed or likely to be needed for residential land it is not therefore claimable Crown land under s 36 of the ALR Act. It is unnecessary that I resolve the second issue referred to in par 11(b). The Applicant's appeal should be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(2004) 135 LGERA 257

(2007) 151 LGERA 400

(2006) 149 LGERA 329

(2001) 113 LGERA 163

At a glance

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Judgment (40 paragraphs)

Parties

Cases Cited (23)

Cited By (4)