Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act and Anor

Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act and Anor - [2006] NSWLEC 180 - NSWLEC 2006 case summary — Zoe

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History of Lot 183/Lot 160 6 On 10 August 1951, a parcel of Crown land including Lot 183 was reserved from sale for future public requirements under s 28 of the Crown Lands Consolidation Act 1913 ("the CLC Act"). No trustee has been appointed as manager of the land under the Crown Lands Act 1989 ("the CL Act") or the CLC Act. Lot 160, which is adjacent, is also Crown land. It has an area of approximately 5,000m2 and has been reserved for community purposes since 1984. The Council is the trustee/manager of Lot 160, pursuant to the CL Act. Respondents' reasons for refusal of claim 7 The Minister relied on the Council's use and occupation of the land and its purposes in relation to the land to refuse the Applicant's claim. In identical statements of grounds as to why the land is not claimable Crown land, both Respondents argued that at the date of the claim (28 July 2003) Lot 183 was needed or likely to be needed for the essential public purposes of: (i) a neighbourhood centre, that is, a retail centre integrated with, and associated with, car parking and community facilities (ii) car parking and community facilities (arising independently of the association of such purposes with a retail centre) (iii) a drainage system, comprising of a piped and unpiped drainage channel, overland flow path and retention basin (iv) sewerage infrastructure (v) asset protection from fire (vi) nature conservation (vii) public access. 8 Further, at the date of the claim (28 July 2003), Lot 183 was lawfully used and/or lawfully occupied by Wyong Shire Council as a result of the following uses: (i) The use of the land for sewerage infrastructure, originally constructed by the Council in around 1980-1982 and then replaced in September 1995, and the inspection and maintenance of the sewerage infrastructure by officers of the Council. (ii) The use of part of the land as a piped and open drainage channel, overland flow path and retention basin, and the inspection and maintenance of the drainage channel and overland flow path by officers of the Council. (iii) The use of part of Lot 183 by officers of the Council for access to the Council's sewerage infrastructure and drainage channel/overland flow path. (iv) The use of Lot 183 adjacent to Scribbly Gum Close as an asset protection zone with respect to the residential properties in that road, and the maintenance of this asset protection zone by officers of the Council in conjunction with the Rural Fire Service. (v) The care, control and maintenance of the whole of Lot 183 together with the land in Lot 160 immediately adjacent to Lot 183, by officers of the Council. This has involved inspection by Council officers and removal of rubbish and other discarded material, and the inspection of Lot 183 by officers of the Council to determine whether the removal of rubbish from Lot 183 was required. (vi) The inspection of the whole of Lot 183, together with the land in Lot 160 immediately adjacent to Lot 183 by Council officers. These inspections were carried out to determine whether undesirable/antisocial behaviour by members of the public was occurring on Lot 183, and the removal of any such members of the public from Lot 183 by Council officers. (vii) The construction of earth mounds at Lot 183 by Council officers to prevent vehicles from being driven through Lot 183 to Brava Avenue. (viii) The use of the land by members of the public for access to areas to the north of Lot 183, including the Charmhaven Hotel and Scribbly Gum Close, as well as for access from areas to the north of Lot 183 to areas to the south of Lot 183, including Northlakes High School. (ix) The use/occupation of Lot 183 by Council officers and agents following the Council's resolutions on 26 February 2003 and April 2003 to compulsorily acquire Lot 183 as part of Council's strategic urban planning decision to locate a neighbourhood centre on Lot 183 and the adjoining Charmhaven Hotel land, including: (a) Attendance at the site by the Council's Strategic Planner, Robert Hodgkins, on 13 March 2003; (b) Attendance at the site by the Council's Strategic Planner, Scott Duncan, to conduct field survey work on 21 March 2003; (c) The preparation by the Council of consultant briefs for a plan of management/preliminary ecological investigation in relation to Lot 183 in May 2003; (d) Site meeting of Council officers on 23 June 2003; (e) The engagement by the Council of Robert Payne, flora and fauna consultant on 11 June and field survey work conducted by Mr Payne on 26, 27 and 30 June 2003; and (f) The preparation by Council of a San Remo and Wadalba economic study consultant brief in July 2003. Relevant legislation 9 The recital to the ALR Act states: 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: … 10 Pursuant to s 36(1) of the ALR Act, "claimable Crown land " is defined as: … lands vested in Her Majesty that, when a claim is made for the lands under this Division: … (b) are not lawfully used or occupied, … (c) are not needed, nor likely to be needed, for an essential public purpose, … 11 Section 36(5) of the ALR Act states: (5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall: (a) if the Crown Lands Minister is satisfied that: (i) the whole of the lands claimed is claimable Crown lands, or (ii) part only of the lands claimed is claimable Crown lands, grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be, or (b) if the Crown Lands Minister is satisfied that: (i) the whole of the lands claimed is not claimable Crown lands, or (ii) part of the lands claimed is not claimable Crown lands, refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require. 12 The decision as to whether land is claimable Crown land is made by the Minister. The conditions in s 36(1) of the ALR Act must be satisfied at the date the claim is made. On appeal, the Court exercises the same functions and discretions as the Minister and determines in a hearing de novo whether the land is claimable Crown land. The Minister bears the onus of proving that the land is not claimable Crown land (s 36(7)).

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27 For the reasons stated by the Minister in par 23 of his submissions, in light of s 7 of the CL Act, where the Council undertakes lawful activities on the land pursuant to a provision in another Act that use or occupation can be considered under the ALR Act to determine if it constitutes lawful use or occupation. 28 In Georgeski, one of the few cases to consider s 6 according to the First Respondent, the plaintiff was granted a licence over Crown land pursuant to s 34 of the CL Act. A jetty and slipway occupied the whole of the licensed land. The plaintiff sought declaratory and injunctive relief to restrain two neighbours from "trespassing" on the jetty and slipway. It was held by Barrett J at 563 that the jetty and licence were fixtures of the Crown land and therefore, since they belonged to the Crown and not the licensee, the licensee had no legal right of possession in relation to them and could not resort to the law of trespass to restrain entry to the land. At [85]-[90] Barrett J considered briefly the meaning and construction of s 6 of the CL Act. He stated at [85] that by virtue of s7 of the Act, any other Act authorising Crown land to be disposed of or dealt with takes precedence over s 6. This conclusion supports the Respondents' arguments. 29 I agree with the Minister's submissions as set out in par 24 of his submissions that both "use" and "occupation" under the ALR Act have a different meaning to that in the CL Act. Lawful use and occupation of land under the ALR Act is not restricted only to lawful use and occupation as provided under the CL Act. Several cases under the ALR Act have been determined since the CL Act came into force in 1990 which confirm that "use" under the ALR Act does not require a legal dealing in land. Section 36(1)(b) of the ALR Act is consistent with "use" by a person who has the right to use the land which arises without any dealing necessarily taking place; see Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1997) 42 NSWLR 641 at 653, and can include a "use" which is not objected to by the body authorised to do so; Minister Administering the Crown Lands Consolidation Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 ("Tweed Byron LALC") at 143. I conclude therefore that activities on land which are not underpinned by an interest referred to in s 6 of the CL Act can be considered as lawful "use" and/or "occupation" under the ALR Act.

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Finding on s 48 34 There is no definition of "public reserve" under the CL Act or the CLC Act. Lot 183 was reserved as a Crown Reserve under the CLC Act, s 28, as the Act stood in 1951 when the land was reserved from sale. This is the equivalent of the current CL Act, s 87. "Public reserve" is defined in the LG Act, as set out above at par 31. 35 Section 98A, as referred to in the preamble to s 48 is not applicable. The section applies to public reserves not otherwise under the control of or vested in a body other than the council and not held under lease from the Crown. None of the numbered definitions of "public reserve" in the dictionary to the LG Act is relied on by the Respondents. Only the last, unnumbered, paragraph is relied on. That leads to a somewhat circular argument because it simply states that "public reserve" includes a public reserve which a Council has control over under s 48 (or s 344 of the LG Act 1919 which the Respondents did not refer to in Court). Considering the definition of "public reserve" does not therefore assist in the interpretation of s 48. 36 For the Respondents' argument to be correct "public reserve" in s 48 must mean Crown land of some description, although no such term is used in the CL Act or its predecessor. Section 87 of the CL Act provides for the Minister to reserve any Crown land from the sale, lease or licence or for future public requirements or other public purpose, as occurred with Lot 183 under the equivalent provision of the CLC Act. I agree with the Respondents that the section will never operate if "vested in any body or person" includes land vested in the Crown as all public land unless vested in another entity is likely to be vested in the Crown. The section, although not ideally drafted, is aimed at enabling a council to exercise control of land in its local government area reserved for public purposes, whether current or future, not otherwise under the control of another entity. That is the circumstance with Lot 183. I do not consider that the power to exercise control of Lot 183 amounts to occupation of Lot 183 for the purposes of the ALR Act but rather is a factor to consider in the circumstances of the case when determining whether there is lawful use and/or occupation. I have already noted that none of the definitions of public reserve in the definition section of the LG Act were argued to apply to the land. The fact that the Council can exercise control over Lot 183 does not alter its status as vacant Crown land reserved for future public purposes. Other legislation under which control exercised? 37 The Council argued that regardless of whether s 48 does apply, other Acts could be relied on as the basis for the power to exercise control over Lot 183, namely, the Rural Fires Act 1997, s 7, s 22 and s 23, the Summary Offences Act 1988, the Protection of the Environment Operations Act 1997 Pt 5.6A (ss 144A-146E), the Local Government Act 1993, s 56(2), the Water Management Act 2000, s 285 and the Education Act 1990, s 122. I will consider the issue of "use" and "occupation" on the basis that these statutes apply to the activities of the Council's officers who went onto Lot 183 as well as s 48 of the LG Act. Lawful use and occupation - general principles 38 Both parties made similar submissions on the general legal principles relating to lawful use and occupation as derived from numerous cases. There is a difference between lawful use and occupation as one can have lawful use without occupation (Tweed Byron LALC per Clarke JA at 142). The parties generally agreed the following. When s 36(1)(b) uses the phrase "lawfully used or occupied", the word "lawfully" qualifies "used" as well as "occupied", so that the lands may be used for lawful purposes or occupied for lawful purposes. Mere proprietorship is not sufficient to establish that lands are occupied, something more is needed. Physical acts of occupation and the exercise of control and maintenance of lands are relevant to the inquiry: Tweed Byron LALC at 140 per Clarke JA; Daruk Local Aboriginal Land Council v Minister administering the Crown Lands Act (1993) 30 NSWLR 140 per Priestley JA at 163. 39 For land to be "occupied" there must be some actual physical occupancy of at least part of the land, as opposed to constructive occupation. The mere exercise of control over or maintenance of the land without any occupation is insufficient: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 at 197-8 per Stein J. 40 "Used" means actually used in the sense of being used in fact and to more than a merely notional degree: Daruk per Priestley JA at 164; Tweed Byron LALC at 143 per Clarke JA. 41 In deciding whether lands are being lawfully used within the meaning of s 36(1)(b), it is necessary to take into account the purpose for which it is claimed they are being used. The purpose will dictate the degree of immediate physical use required to decide whether they are actually used in more than a notional sense: Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1993) 31 NSWLR 106 per Sheller JA at 121. Evidence 42 As identified in the "Statement of Grounds as to why the land is not claimable Crown Land", (see par 8) the Council and Minister relied on activities undertaken by Council officers and the public to argue there was lawful use and occupation. Evidence for these activities was contained in the affidavits of Ken Bruce Holton, the Council's regional supervisor for water and sewerage, sworn 25 August 2005, Ian Dennerley, a technical officer employed by the Council, sworn 26 August 2005, Peter Ronald Barwick, a gardener employed by the Council, sworn 26 August 2005, and Derek Peter O'Toole, the chief ranger employed by the Council, sworn 20 October 2005, Eddy Tyler, Council's pump station operator dated 26 August 2005 and Gary James Watson, Team Leader for the Work for the Dole Program, dated 13 September 2005. The Applicant relied on the affidavit of Dr Perrens, consulting engineer, in relation to drainage matters. 43 The seven broad areas of activity relied on relate to (i) the provision and maintenance of sewerage (par 8(i) and (iii)) (ii) the provision and maintenance of drainage (par 8 (ii) and (iii)) (iii) the construction of earth mounds to prevent car access (par 8(vii)), (iv) the maintenance of an asset protection zone next to the houses on Scribbly Gum Close along the northern boundary of the land (par 8(iv)), (v) the collection of rubbish and patrolling the land to regulate anti-social behaviour (par 8(v), (vi) (vii)), (vi) access by Council officers and Council consultants to undertake studies for urban planning for the site (par 8(ix)), (vii) general public access across the site to the Charmhaven Hotel on adjoining land and areas to the north of Lot 183 (par 8(viii)). 44 The Respondents argued that the various uses relied on could be considered cumulatively. The decision of Stein J in New South Wales Aboriginal Land Council v Ministering Administering the Crown Lands Act (the Department of Education Claim) (1992) 76 LGRA 192 was relied on in support of that argument.

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(ii) Drainage 50 The evidence of the relevant Council staff in relation to drainage is found in the affidavits of Ken Bruce Holton, Regional Supervision of Water and Sewer North, sworn 25 August 2005, and Ian Dennerley, a technical officer at the Council, sworn 26 August 2005. Mr Holton states that there is a piped and unpiped Council drainage system through the land along the northern and western boundaries which discharges through an open drainage system along the western boundary adjacent to No 41 Brava Avenue. Mr Holton attests that the system was constructed in 1995 when the Scribbly Gum Close subdivision was developed. The affidavit of Mr Dennerley states that from at least 1988 the Council has had in place a system of responding to complaints from the public with respect to its drainage channels, including those on Lot 183. Mr Holton states that the system is integral to draining a large area of Council's road gutter system which, in turn, takes drainage from houses in Scribbly Gum Close. Stormwater from the Charmhaven Hotel site drains to an open drainage channel which connects with the Council system located on the land. Mr Dennerley also states that the open drain located on the land is categorised by the Council as a major open drain, which means that it is routinely inspected every three months. 51 The report of Dr Perrens dated 22 February 2006, a consulting engineer experienced in engineering hydrology, including stormwater drainage and flooding relied on by the Applicant, stated: (a) There is a piped drainage system located along the northern boundary and along the western boundary for a distance of about 90m from the north-western corner of Lot 183. (b) There is an open channel that extends for a distance of about 65m south from the end of the piped drainage system as far as Brava Avenue. (c) There are two drainage reserves located on Scribbly Gum Close, to the north of Lot 183. They act as overland flow paths for stormwater flows in excess of the capacity of the piped drainage system. They direct any overland flow into Lot 183 to a location on the western boundary of Lot 183 or to the location of the original drainage depression that runs diagonally from north-east to south-west. (d) There is no "retention basin" as such on Lot 183. If anything there is a "detention" area, and even so, the term "basin" is inappropriate. There is a low lying area that naturally floods under the influence of both backwater flooding from Budgewoi Lake and Wallarah Creek, and stormwater runoff from the contributing catchment. It is not part of any formal drainage system and it has none of the features of a formal basin designed to retain or detain flood flow. (e) The formal piped drainage system would only have a minor impact (about four per cent) on the area of potentially developable land on Lot 183. The minimal impact of the existing drainage system into Lot 183 could be further reduced by locating the piped drainage system along the western boundary of Lot 183 within the land occupied by the Charmhaven Hotel. (f) The location of the piped drainage system along the northern and western boundaries of Lot 183 is artificial, as the natural pathway for drainage would be along the drainage depression that runs from north-east to south-west across Lot 183. (g) Dr Perrens inspected the complaints register referred to by Mr Dennerley and only one complaint referred to Lot 183. 52 Mr Ken Holton and Mr Ian Dennerley were both asked if they disagreed with anything in Dr Perrens' report and they replied in the negative. 53 In relation to the drainage from the Scribbly Gum Close residential development to the north, the Applicant tendered (Exhibit J) the deposited plan of the subdivision dated 17 August 1994, which does not show any drainage is to be located on Lot 183. Correspondence from the Crown Lands Service, dated 18 August 1994 and 6 March 1995, was also tendered (Exhibit K) which does not refer to any agreement to the drainage being located on Crown land. I therefore have no evidence that the drainage located on the northern part of Lot 183 to service the Scribbly Gum Close residential subdivision is lawful.

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78 Concerning the southern part of the land, there was evidence of a path to the beach being used for public access, regular visits to the site by the Council's ranger, and maintenance of the site by the Council's parks and garden staff. There was no discrimination between the two sections of the land in regards to maintenance and inspection. 79 Here, the Council is not a trustee of Lot 183 nor is the land reserved for public recreation. I have already held in my finding that s 48 of the LG Act applies but that that does not change the status of Lot 183 from the vacant Crown land (see par 36). The Council has sought permission from the Crown to enter and undertake sewerage activities on the land and also to undertake assessment activities related to the compulsory acquisition of the land. It can exercise control over the whole of the land under s 48 of the LG Act but the land is not a public reserve within the definition in the LG Act. Apart from the sewer line area and walking track along it, it presented on the view as vacant Crown land. This is not surprising given that its use is still identified as reserved for future public purposes, as yet unspecified. It is not managed as a recreation area or park, for example, for the obvious reason no doubt that that is not its current purpose. In these circumstances the inspection and maintenance activities of the Council pursuant to specific statutory powers it exercises throughout the local government area under s 48 of the LG Act or under other statutes identified in par 37 do not amount to occupation of the land. 80 The issue arises therefore of whether these activities amount to lawful use over the whole of the land. The maintenance and control over the whole site on a regular basis is also absent in this case. I do not consider the activities of the ranger, Mr O'Toole, amount to a use of land when he inspects it for truants and accept the Applicant's arguments in that regard. The frequency of inspections for litter control is also not sufficient in my view to warrant a finding that that activity is a lawful use across the whole of Lot 183. I do not consider the Respondents have made out their case for lawful use and occupation of the whole of Lot 183 on this basis.

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(vi) Public access 81 On the coloured map attached to the "Statement of Grounds as to why the land is not claimable Crown land" filed 27 October 2005 there are three unformed walking tracks identified across the land, one running east-west along the sewer line, and two running north-south from Scribbly Gum Close. Evidence 82 The affidavit of Daniel Smith, the director of strategic planning for Wyong Shire Council, sworn 11 October 2005, states that several walking tracks traverse the subject site in a north-south and east-west direction, including an unformed pathway located along the sewer line. He states that access along these walking tracks has been enjoyed since at least 1992. The affidavit of Derek O'Toole, the Council's chief ranger, sworn 20 October 2005, states that there is a track in approximately the same location as the sewer line used by members of the public to walk from Brava Avenue to the adjoining Charmhaven Hotel site or vice versa, and to and from the Pacific Highway. He states that he has observed members of the public using this track on countless occasions. The affidavit of Ken Bruce Holton, the Council's regional water and sewer supervisor, sworn 25 August 2005, states that patrons from the Charmhaven Hotel also use the walking track along the sewer line. The affidavits of Eddy Tyler, the Council's pump station operator, sworn 26 August 2005 and Peter Ronald Barwick, the Council's gardener, sworn 26 August 2005, give evidence of the walking track along the sewer line being traversed by students and members of the public. 83 Apart from the general statements of Daniel Smith about the existence of walking tracks on the site in the places identified on the plan attached to the statement of grounds, there is no evidence supporting the specific use of the tracks identified apart from the substantial use by the public of the path along the sewer line. Applicant's arguments on public access 84 The Applicant argued the use of the land by the public was not lawful. The subject land has not been opened as a Crown public road and at common law, this is the only way to create a public use entitlement: Western Australia v Ward (2002) 213 CLR 1 at 137 [217] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. Neither is the land a public reserve open to the public as of right (Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 at 72-74 per Windeyer J) as the land was in the Tweed Byron LALC case. Therefore the public do not enjoy access to the land as a legal right. It is a well settled principle that the common law does not recognise any right to wander across open space: Re Ellenborough Park [1956] Ch 131 at 176, 184 per Evershed MR. Section 178 of the Conveyancing Act 1919 also states that no grant of way shall be presumed against the Crown by way of use.

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Are the Council's purposes "public purposes" under the ALR Act? 97 As noted by the parties these proceedings are atypical under the ALR Act because the process of compulsory acquisition of Lot 183 under the Just Terms Act by the Council underway at the time of the claim has since been completed and the Council is now the owner of the land. The essential public purposes relied on by the Respondents are the Council's purposes in relation to the land. 98 The Applicant relied on Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 254, to argue that the ALR Act required that the land be needed or likely to be needed for an essential public purpose by the executive government. As local councils are not the executive government, any purposes the Council has in relation to the land cannot satisfy the ALR Act. If correct, the Respondents' case on essential public purpose under s 36(1)(c) of the ALR Act must fail now. 99 The Minister's submissions referred to the role of local government under the LG Act s 7, which enables councils to provide goods, services and facilities and to carry out activities appropriate to the current and future needs of local communities and the wider public. These purposes are identified by the legislature as public purposes. Under s 51 of the Constitution Act 1902 (NSW) ("the NSW Constitution") local government is the third tier of government. By the NSW Constitution, councils have been charged with responsibility for acting for the better government of the areas that are subject to local government control and responsibility. The introduction to Chapter Two of the LG Act specifies that councils have been invested with the means to give effect to the purposes of that Act and s 51 of the NSW Constitution. This satisfies the finding of Stein J in New South Wales Aboriginal Land Council v Minister for Natural Resources (1986) 59 LGRA 318 ("the Tredega claim") at 331, where he adopts the findings of Romer LJ in Bank Voor Handel En Scheepvaart v Slatford [1953] 1 QB 248 at 298, that purposes are: required and created by the Government of the country and therefore deemed part of the use and service of the Crown… [and] purposes of the administration of the government.

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Finding 100 "Public" purposes are the purposes of the administration of government: the Tredega claim at 331. I agree with the arguments presented by the Minister in par 99 that the purposes carried out under the LG Act can be public purposes within the context of s 36(1)(c) of the ALR Act. 101 Given that the facts in Deerubbin did not concern a local council I do not consider that the general statement of Meagher JA relied on by the Applicant is definitive as to the relevant level of government which must identify the essential public purpose. Other cases such as the Tweed Byron LALC case demonstrate that a council's use and occupation of land is relevant to issues such as whether there is lawful use and occupation under the ALR Act. This suggests the Council's purposes can be relevant in the context of essential public purpose also. Are the purposes relied on essential public purposes? 102 The Respondents have identified seven essential public purposes over part or all of the land, set out in par 7 above. The Minister is not confined to the grounds of refusal identified in the Minister's notice of refusal, which referred only to lawful use and occupation as the ground for refusal; Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 158. According to the Respondents, at the date of the claim Lot 183 was needed for a number of different purposes and the development of the land for those purposes is capable of meeting different needs simultaneously. The purposes are not inconsistent and would not "cancel each other out", as the Applicant sought to argue. I will consider this issue in more detail when I consider particular purposes relied on. 103 Which parts of Lot 183 were intended for what purposes can be inferred in part from the evidence. Four of these purposes are the same activities relied on to demonstrate lawful use and occupation, namely sewerage infrastructure (par 7(iv)), a drainage system (par 7(iii)), asset protection (par 7(v)), and public access (par 7(vii)). The purposes are dealt with individually later in the judgment but it is useful to summarise that the sewerage infrastructure and drainage system take place on a small area of Lot 183. Asset protection is also conducted on a small part of the land and also need not defeat the claim if I hold that it is an essential public purpose. The use of the land for public access is not claimed over the whole of the land but relates to the use of a couple of walking tracks established by long use across the land. The actual area used is small. Once again, if found to be an essential public purpose, it would not necessarily defeat the claim but may be able to be accommodated within the area required for the sewer line as I found above in par 49. 104 The annotated plan of Lot 183 attached to the "Statement of Grounds as to why the land is not claimable Crown land" shows the essential public purpose of a neighbourhood centre, carparking and community facilities across the whole of the land (par 7(i) and (ii)). That overlaps with the essential public purpose of nature conservation also relied on by the Respondents (par 7(vi)). The use of part of the land for conservation purposes relates to a defined area of an endangered ecological community in the southern part of the site and part of the vegetated land to the north. These would appear to be overlapping purposes in that nature conservation, meaning reservation of the land for that purpose, cannot occur simultaneously with development. That conflict of itself does not negate reliance on both these purposes, as noted in Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council by Meagher JA at 252. It does have practical consequences as to how the evidence is considered in relation to those separate uses. 105 The principal essential public purposes relied on for the whole of the land are the neighbourhood centre, including a retail component together with or separately from community facilities and carparking (par 7(i) and (ii)), and the evidence and argument was directed largely to these purposes. The Respondents combined their evidence and arguments about the two purposes so it is difficult to separate them out. 106 It is necessary to set out some of the planning history in relation to the surrounding area and Lot 183 in order to assess this part of the claim to determine what was the nature of the facilities intended by the Council for Lot 183, and if there was a need or likelihood of such a need arising at the date of the claim. Chronology of events in relation to Lot 183

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(i) August 1982 - Draft San Remo Neighbourhood Centre Study prepared by Hassell Planning Consultants Pty Ltd for the Department of Local Government and Lands and Paketai Pty Ltd (the then owner of the Charmhaven Hotel site) considered the use of the subject land as part of a Neighbourhood Centre including a retail shopping centre, community facilities and car parking. (ii) 11 November 1983 - Crown granted to Wyong SC a Permit to Enter Lot 162 DP46754 (which includes the subject land) "at any time and to carry out works thereon associated with or incidental to the construction of buildings, road and water reticulation." (iii) 21 October 1991 - The Council considered a report prepared by the Department of Lands and Paketai Pty Ltd, which related to the rezoning proposal for Lot 183. The Council stated that it proposed to rezone approximately 2 ha of the site for community facilities and car parking. (iv) 1 April 1992 - The Council considered a report relating to the exhibition of a draft LEP rezoning Lot 183 and adjoining land for community facilities and car parking. A Council report dated 1 April 1992 stated that at this time, "the type of community facilities that will be developed are not known". (v) 31 July 1992 - Lot 183 and the adjoining lot 160 rezoned 5(a) Special Uses (Community Facilities and Car Parking) by amendment no 24 to the Wyong LEP. (vi) 11 November 1992 - Wyong SC adopted Development Control Plan 44 - San Remo Community Centre ("DCP 44"), proposing the integration of (proposed) community facilities and car parking with facilities existing on adjoining land. The Council's community planner identified a shortage of community land in the locality in a report dated 4 November 1992. (vii) 10 July 1993 - The Department of Conservation and Land Management advised the Council that it was seeking expressions of interest for the lease by tender of Lot 183 for community uses. (viii) 13 November 1996 - The Council wrote to State Land Services seeking the granting of a licence for it to build a carpark over Lot 183, for use by the day care and neighbourhood centres on Lot 160. (ix) 6 January 1998 - Wyong SC submitted an unsuccessful application for endorsement of application to use the subject land for "temporary car parking" (16 car spaces) to Department of Land and Water Conservation (DLWC). (x) October 1992 - s 94 Contribution Plan No 8 (San Remo District) adopted. Contributions for community facilities sought. New site identified was not Lot 183. It was located in the adjoining Blue Haven district. (xi) 24 April 2002 - DCP 81 - Retail Centres came into effect. The DCP identified a retail hierarchy for existing and proposed retail centres in the Wyong Shire. There was no neighbourhood retail centre proposed for Lot 183. A suitable site was identified in the adjoining Blue Haven area. (xii) 24 July 2002 - A report to the Council stated that the preferred location for a neighbourhood or retail centre was Lot 562 not Lot 183. The report stated that, "alternate sites for such a use…are difficult to identify". (xiii) 6 November 2002 - the Council amended s 94 Contribution Plan No 8 (San Remo District) (adopted in October 1992). This stated at Cl 10.3 under "Guidelines" that: For the remainder of the district, apart from the Blue Haven Urban Release Area, assessment of existing landholdings shows that there is an excess of community land for the existing population and that there is no significant shortfall due to the requirements generated by the future development.

[58]

(xv) 24 February 2003 - Letter from DLWC District Manager to the Council's General Manager: (a) consenting to the proposed acquisition, and (b) advising that there is "no objection to Council entering upon the Crown Land site prior to acquisition to undertake planning and preliminary survey work." (xvi) 26 February 2003 - Council resolved to compulsorily acquire the land. Confidential report considered by the Council stated: "Lot 183 … is strategically placed opposite North Lakes High School and between the Charmhaven Hotel and lot 160 DP 46754 which is also Crown Land with care, control and management vested in the Council … Acquisition of the property would give Council a significant advantage in progressing the planning and development of this general area. Because it is currently vacant Crown Land …, Council as a public authority could acquire it for public purposes by way of compulsory acquisition … whereas for it to be disposed of to a private buyer it would have to be offered by way of competitive tender/auction or the like. If the land is acquired by Council it should be classified as operational land." (xvii) 3 March 2003 - State Valuation Office inspected the land to complete its valuation for purpose of the proposed acquisition and subsequently valued the land at $570,000. (xviii) 13 March 2003 - Council's Senior Strategic Planner, Robert Hodgkins, carried out a preliminary inspection of the land and identified the need for an ecological survey. (xix) 18 March 2003 - Wyong SC appointed Robert Payne, Environmental Consultant to undertake environmental investigations in relation to the subject land. (xx) 21 March 2003 - Council's Strategic Land Use Planner, Scott Duncan, inspected the land and made a preliminary assessment of ecological and threatened species constraints. In an email annexed to the affidavit of Daniel S Smith, a planner for the Council sworn 11 October 2005, Scott Duncan noted that there is remnant vegetation located on Lot 183. (xxi) April 2003 - Wyong SC continued negotiations with Stevens Group, a development company, in relation to development of the subject land for community and retail purposes. The Stevens Group's letter of 14 April 2003 read in part: "Further to our discussions in regard to land adjoining the Charmhaven Hotel Site, this letter is to confirm our expression of interest to enter into an agreement with Wyong Council to purchase and/or jointly develop the land for community and retail purposes." The plan attached to the letter shows a Bi-Lo supermarket partly located on Lot 183 together with carparking. (xxii) 23 April 2003 - Council resolved to reaffirm its decision of 26 February 2003 in relation to the acquisition of the land and further resolved to undertake a preliminary environmental assessment of the site. Council also resolved to have a Plan of Management prepared "to have regard to the need for retail and service facilities to be developed in conjunction with the redevelopment of the adjoining hotel site." (xxiii) 15 May 2003 - Council wrote to Department of Local Government for consent to acquire land for a community facility of a type yet to be identified. The Department replied to this letter on 10 June 2003, seeking details as to the type of community facility proposed. During May 2003 a project brief was prepared for a preliminary ecological assessment. Council replied to the Department of Local Government in a letter dated 17 June 2003, that community facilities needed were yet to be identified. (xxiv) 26 June 2003 - Department of Local Government sought identification of what community facility was intended and whether it would be on sold to a third party. (xxv) 27 June 2003 - Environmental consultant undertakes field survey work on site over several days in late June 2003. Flora surveys undertaken between late June and early October 2003. (xxvi) 2 July 2003 - Council replied to Department of Local Government letter dated 26 June 2003, that the purchase was to facilitate the development of a small neighbourhood shopping centre which would include Council carparking and other community facilities. (xxvii) 21 July 2003 - Department of Local Government replied to the Council and stated that compulsory acquisition for the purpose of resale or transfer of an interest to a third party was not generally considered a local government function and was therefore outside the acquisition powers given to councils under the LG Act. (xxviii) 28 July 2003 - The Applicant lodged its claim for the land under the ALR Act.

[59]

There are numerous events set out in the respective parties' chronologies after the date of the claim but it is at that date that the essential public purpose or the likelihood of the need for such a purpose must be identifiable. (xxix) 5 August 2003 - Council wrote to the Department of Local Government, stating that Lot 183 was required for "use as car parking and conservation". On this same date the Applicant's claim under the ALR Act was forwarded to the Council. (xxx) Proposed plan attached to an internal Council memorandum of 7 August 2003 shows a Bi-Lo supermarket, speciality shops and commercial development on the Charmhaven Hotel site with only some carparking on part of Lot 183. (xxxi) A plan prepared by the Stevens Group sent by fax to the Council on 13 August 2003 shows medical, pharmacy, carparking, and "community" buildings on Lot 183 with the Bi-Lo supermarket on the adjoining Charmhaven Hotel site. (xxxii) 17 September 2003 - Council wrote to the Department of Local Government stating, inter alia: "The Council's prime purpose in seeking to compulsory [sic] acquire this land is, and always has been, to provide community facilities to service the neighbouring suburbs of San Remo and Blue Haven. · Conservation, including buffer - an area of approximately 5,085m2. · Free car parking - an area of approximately 4,211m2. The carparking is largely driven by the needs of the adjacent high school and adjoining community facilities. · Youth facility - an area of approximately 1,857m2. This is needed to provide permanent accommodation for a youth drop in centre, alternative education, youth conferencing programmes and other activities. These are currently conducted out of a shipping container temporarily located on a neighbouring site. · Community Health facilities - an area of approximately 600m2. There are currently no health facilities servicing the large and growing communities of San Remo and Blue Haven. The exact nature of the community health facilities has not been determined at this stage … · The remaining portion of the site being approximately 1,453m2, is proposed for resale to facilitate the development of a neighbourhood shopping centre partly on this land but very largely on adjoining privately owned land which is already partly developed for business purposes. The two communities have no adequate shopping facilities and the alternative site planned and zoned by Council for this purpose has had to be acquired by the NSW Department of Eduction to provide for expansion of the local school …" (xxxiii) 5 December 2003 - Director General, Department of Local Government approved acquisition by the Council of Lot 183, "Conservation, carparking, youth facility, community health facilities and resale".

[60]

(xxxiv) 12 March 2004 - The Notice of Acquisition of Lot 183, published in the Government Gazette stated that the land is acquired for "Conservation, carparking, youth facility, community health facilities and resale". (xxxv) 22 September 2004 - A report prepared for a Council meeting referred to land within Lot 183 that was surplus to Council's requirements, which would be sold. The remainder would stay in Council ownership, to be managed as an environmental asset. The report also discussed a proposal that a small youth facility which was then proposed for Lot 183 be re-located to the adjacent community site, Lot 160. (xxxvi) 8 December 2004 - In a letter to the Stevens Group, responding to its offer for the surplus land on Lot 183, the Council proposed that the land not sold to the Stevens Group remain in Council ownership to be managed as an environmental asset. Regarding community facilities, the Council was of the view that the youth centre would not be constructed at that time, and there would be no need to maintain any car parking facilities "on the surplus part of Lot 183", the part proposed to be sold to the Stevens Group. (xxxvii) A subdivision plan dated 25 January 2005 for Lot 183 provided to the Council by the Stevens Group showed the conservation land of 4818m2, the surplus land of 8560m2. There was provision for an easement to drain water of 2.5m wide and an easement to obtain sewerage 3m wide. (xxxviii) 9 February 2005 - A report prepared for a Council meeting dated 9 February 2005 stated that "Council is seeking to dispose of the surplus land (part Lot 183 DP 823113) and concentrate any future community uses on the San Remo Neighbourhood Centre (Lot 160 DP 46754) where a substantial amount of vacant land remains…Council has been negotiating for disposal of the surplus land and possible development for the purpose of a neighbourhood shopping centre and medical centre. The form of development varies substantially from what was proposed when DCP no. 44 was introduced (ie a shopping centre as opposed to community facilities)…". (xxxix) 9 June 2005 - A development application for a two-lot subdivision of Lot 183 was approved by the Council for Lot 183 in similar configuration to that proposed by the 25 January 2005 subdivision plan. This included an easement for drainage on the western boundary and an easement for sewerage across the land in the location of the existing sewer pipe. The easement for drainage is 3m wide, and the easement for sewerage is 3m wide. Planning evidence 107 The affidavit of Mr Daniel Smith, director of strategic planning at the Council, dated 11 October 2005 sets out the planning matters which the Council relied on to argue these purposes were essential public purposes. The area is characterised by predominantly single lot residential development. San Remo and neighbouring Blue Haven have had significant population growth over the last two decades. The population in 2001 was 8,500 which is expected to grow to 11,500 when the area is fully developed. San Remo has a significantly lower socio-economic profile than the rest of the Wyong Local Government Area. As early as November 1992 Council's planner advised that there was a shortage of community land in the locality. A number of community groups wished to locate to the subject land. 108 In addition, Mr Smith states in his affidavit that on 11 November 1992 the Second Respondent adopted DCP - 44 "San Remo Community Centre", which proposed the integration of (proposed) community facilities and car parking with facilities existing on adjoining land. This was expected to improve surveillance and security. 109 On 6 November 2002 the Second Respondent amended the Section 94 Contribution Plan No 8 (San Remo District) which notes an absence of spare capacity in existing community facilities and the need for additional facilities and augmentation of existing facilities. The new facility identified was in the Blue Haven district, that is, not on Lot 183 in San Remo. According to Mr Smith's affidavit the community facility intended in the Blue Haven area provided for meeting rooms, younger children's youth facilities, counselling facilities, skate board ramp and sport support facilities. 110 The demand for community facilities in the area including a neighbourhood shopping centre remains unfulfilled and there are no other suitable sites. There is a significant demand for car parking in the area surrounding the subject land. There is a need for a viable retail centre to service the Shire's population in the San Remo/Blue Haven area.

[61]

111 There was also expert planning evidence relied on by the Applicant from Mr Sanders. A joint report was prepared with Mr Smith, the Council's director of strategic planning. There was no agreement between them about what is commonly meant by the term neighbourhood centre. Mr Sanders considered that what was proposed was a neighbourhood shopping centre, to be distinguished from a community neighbourhood centre such as that existing on Lot 160. Mr Smith stated in the joint statement that the land use on Lot 183 was not proposed to be retail. In his affidavit at par 64 he states that in his view the use of Lot 183 for community purposes and the development of the adjoining Charmhaven Hotel site for a neighbourhood shopping centre were complementary from the strategic planning viewpoint. I should note here that the case argued by the Respondents clearly does rely on an intention that there be retail use to an unspecified extent on Lot 183. That was the case argued at the hearing and was clear from the issues pleaded (see the essential public purpose in par 7(i)). 112 The planners disagreed on whether a neighbourhood centre, meaning one without shopping facilities, is an essential public purpose. Mr Smith considered that community facilities are an essential public purpose. Frequently community centres are developed as part of a shopping centre but the community facilities are not operated by the developer. These are a necessary service. Mr Smith commented that charitable organisations on the Central Coast depend on State and Federal government funding and were therefore part of the publicly funded services. Mr Sanders does not consider that a community facility such as a neighbourhood centre is necessarily an essential public purpose. Moreover, there is no reason, in principle, why a community facility cannot be developed and run by the private sector. 113 The planners also disagreed on whether carparking is an essential public purpose. Mr Smith considered that it was. Mr Sanders argued carparking is not an essential public purpose and there is no reason why it cannot be provided by a private owner of land. Are the purposes relied on essential public purposes? (a) meaning of "essential" 114 The parties made similar submissions on the meaning of "essential". The Applicant submitted the word "essential" means a purpose that is necessary or indispensable (Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act and Anor (1991) 72 LGRA 149 per Stein J at 163). In Deerubbin (No 2), Spigelman CJ, with whom Powell and Heydon JJ concurred, said at 674: … the exception under consideration in the present case is expressed in terms of "an essential public purpose" . The public interest in serving a public purpose of an essential character counter-balances the implication of the beneficial construction to which the Aboriginal Land Rights Act would otherwise be entitled. The reference to "essentiality" of the public purpose sets a high standard. The restriction implied in the use of the word "essential" is a significant one. It is not enough that the public purpose to be served is "desirable" or even that it is "highly desirable". 115 In addition to the cases referred to by the Applicant, the Respondents submitted "essential" in s 36(1)(b) of the ALR Act means "indispensable or at least material and important" (the Tredega claim per Stein J at 332).

[76]

138 It is difficult to determine from the evidence before and after the claim what public purpose the Council was seeking to acquire the land for as at the date of claim. If the correspondence between the Council and the Department of Local Government, who had to give consent under the LG Act to the compulsory acquisition, is examined, the Council gave varying reasons for undertaking the acquisition before and after the date the Applicant's claim was filed. The Council's letter of 15 May 2003 to the Department of Local Government stated the land was to be used for unspecified community facilities. The Council's letter of 2 July 2003 to the Department of Local Government stated the land was to be acquired for development of a small neighbourhood shopping centre and Council carparking and community facilities. The Applicant's claim was filed on 28 July 2003. The Council's letter dated 5 August 2003 to the Department of Local Government stated the land is to be used for carparking and conservation. The Council's letter dated 17 September 2003 to the Department of Local Government set out in detail the five uses of the land, being conservation (5085m2), carparking (4211m2), youth facility (1857m2), community health facility (600m2) and resale for development of a shopping centre (1453m2). That letter was the basis for the acquisition notice dated 12 March 2004, which specified those purposes as the purpose of the acquisition, although not the amount of land to be devoted to those purposes. Later material in the bundle of documents tendered in evidence relied on by the Applicant and referred to in the chronology above (par 106 xxxiii - xxxvi) suggests that the Council changed its view on the appropriate use of the land. In December 2004 the Council considered the southern part of Lot 183 should be used for conservation and the rest of the land was surplus and could be sold for private development. 139 Apart from this correspondence, for the purposes of considering this argument there are documents in the tender bundle such as internal Council memoranda which suggest that the Council did consider the provision of a neighbourhood shopping centre in whole or part was a preferred use of the site, and could be complemented by development of the adjoining Charmhaven Hotel site. Mr Smith's affidavit attests to the desirability of the potential use of Lot 183 in conjunction with the adjacent site. I have already noted at par 111 that the affidavit of Mr Smith does not suggest an intention on Council's part to have retail activity on Lot 183 but the Respondents' case does rely on that purpose taking place on Lot 183 in part. The need for such a facility was identified by a planning process at local government level and land identified for that purpose. While I accept that public purposes may be served by private interests, not every private facility which the community uses can be considered as having a public purpose. If this were the case, at one extreme of that argument every land use a council identifies as desirable in its strategic planning would arguably be a public purpose. This is a difficult area in which to make a definitive statement as to what will be a public purpose where private interests carry out the activity. There are clearly a number of areas where public purposes are sometimes provided by private interests, as the Minister identified (see par 135). The examples given are clearly the provision of functions which are arguably public infrastructure, at least in part. Where a private activity is clearly providing essential public infrastructure the interrelationship is clear. It is not at all clear that the provision of private retail facilities on private land is "public" infrastructure given that retail activity generally is "private" in nature. 140 If the observations of Bannon J in La Perouse are considered these reinforce, in my view, that urban development generally is not an activity that equates to public purpose. That case concerned a government body undertaking residential development so that the facts of this case are obviously different but his Honour's observations distinguish clearly between "public" and "private" activity. 141 One possible guide to the determination of this question in this case is to consider if the public land where the private activity is intended to take place remains in public ownership. Here the Council intended to sell the land on which the private development would take place. The extent to which the neighbourhood shopping centre may include community facilities is unclear at the date of the claim. Whether acquisition for the purpose of sale to a third party was a function of local government was a concern raised by the Department of Local Government in its letter to the Council dated 21 July 2003 when the Council was seeking to secure the Department's consent to the acquisition between May and September 2003. Ultimately, consent to the compulsory acquisition was given by the Minister for Local Government (or his delegate) in December 2003, after the date of the claim, on the basis that a small part of Lot 183 would be on sold to a third party. In December 2004 the Council was of the view that the majority of Lot 183 (8,560m2) was surplus and could be sold to a third party.

[80]

Finding 148 I accept that the provision of carparking on Council owned land can be a public purpose (see Gaudron, McHugh, Gummow, Hayne and Callinan JJ, Bathurst City Council v PWC Properties 195 CLR 566 at [49]) in the context of a local council's responsibilities under the LG Act and the EP&A Act to properly plan and manage its local government area. I do not consider it is "essential" meaning "indispensable" as identified by Spigelman J in Deerubbin (No 2) at 674 where he states that "essential" sets a high standard in the context of s 36(1)(b) of the ALR Act. 149 If I am wrong and carparking unrelated to any particular development application is an essential public purpose, is the need or likelihood of need for such a purpose demonstrated as at the date of the claim? As Lloyd J held in NSW LALC (on behalf of Dubbo GA Local Aboriginal Land Council v Minister administering the Crown Lands Act (Dubbo claim) (1997) NSWLEC 157, the fact land is zoned a certain way is simply an acknowledgment of the capacity of the land for such development. That factor does not support a finding that land is needed for an essential public purpose. As outlined above at par 137, I can take into account facts after the date of acquisition which confirm a foresight, but not facts which prove a hindsight. 150 In his oral evidence, Mr Smith, Council's strategic planner, was asked if there were any studies in the last five years before the date of the claim of the need for carparking and he said no. He refers to a Hassell report (chronology par 106(i)) prepared in 1982, twenty one years before the date of the claim. 151 I have outlined above at par 138 the different purposes used in correspondence to the Department of Local Government to describe what use was intended by the acquisition. If events before and after the claim are considered, the attitude of the Council to the provision of carparking changed over time. The letter of 17 September 2003 sent shortly after the claim refers to carparking and defined an area of the site as one of the purposes of the acquisition. When the evidence of what transpired after the date of the claim is examined, in December 2004 the Council wrote to the Stevens Group and stated it was not necessary to maintain carparking on the residual part of Lot 183 which was intended to be sold to the Stevens Group (approximately 8,490m2). This history suggests that there was not a need or likely need for carparking at the date of the claim.

[84]

Need for community facilities? 157 As I heard argument on the need for community facilities, and in case I am wrong about requiring the Respondents to better specify such facilities in order to determine whether these are an essential public purpose, I will need to consider if there was a need or likelihood of need for community facilities at the date of the claim on Lot 183. The chronology set out above at par 106 shows that since the early 1980s Lot 183 was identified for community facilities and car parking, and zoned accordingly in 1992 under the Wyong LEP 1991. The area including Lot 183 was zoned for Special Uses - community facilities and car parking on 22 July 1992. DCP 44 - San Remo Community Centre provides for the integration of (proposed) community facilities with car parking facilities which exist on adjoining land. It states at "C" that: Land zoned 5(a) Special Uses - Community Facilities and Carparking shall be provided for the development of community facilities subject to development consent from Council…Proposed community facilities shall be integrated with the existing facilities already established on Lot 160… 158 The s 94 Contributions Plan 8 (San Remo District) (adopted in 1992 and amended in November 2002) covered parts of the San Remo and Blue Haven Urban Release Area. It provided for funds to be collected for, inter alia, community facilities. Section 10.3 of Plan 8 related to community facilities. It stated that in the Blue Haven Urban Release Area (rather than San Remo) there would be insufficient land to cater for the facilities for the increased population and that the Council proposed to construct a multi-purpose community centre and children's activity/youth centre and associated carparking. The remainder of funds would be used to augment existing facilities at Blue Haven and San Remo. As Mr Sanders, town planner, pointed out there is no provision for new facilities to be provided in San Remo and no new facilities were proposed for Lot 183 in the s 94 plan. 159 The evidence of Mr Smith, Council's strategic planner, disclosed that the nature of what was considered for Lot 183 changed over time. His affidavit and the Respondents' submissions emphasised that there remained demand for community facilities in San Remo and adjoining areas for local youth, and that needs and demands altered over time so that strategic planning had to take these into account over a long period.

[85]

160 The letter of 17 September 2003, from the Council to the Department of Local Government stated that a youth facility and community health facilities, unspecified, were intended to be established on Lot 183. Other documents on the Council's file before and after the date of claim from the Stevens Group show a variety of schemes related to the establishment of a supermarket, sometimes with community facilities and sometimes not. A plan sent by the Stevens Group with a letter dated 14 April 2003 to the Council showed about half of a supermarket building and carparking on Lot 183 (xxi in par 106). No community facilities are identified on Lot 183 in that plan. There is no suggestion that this proposal was adopted in any way by the Council. Later correspondence and plans exchanged between the Stevens Group and the Council (see xxx-xxxi in par 106) show different configurations of a supermarket, speciality shops and community facilities for Lot 183 and the adjoining Charmhaven Hotel site. Documents in evidence in late 2004/early 2005 (xxxv-xxxvii in par 106) suggest the majority of Lot 183 apart from the southern area, which is to be retained by the Council for environmental protection, is surplus to requirements and is intended to be sold to the Stevens Group. As noted at xxxviii in par 106, the February 2005 report to the Council by its officers states that any future community uses will focus on Lot 160 rather than Lot 183. The Council gave consent to its own subdivision of Lot 183 into two lots in June 2005 reflecting this proposal (xxxix in par 106). 161 I consider that the Council has not demonstrated a need or likelihood of a need for community facilities as at the date of the claim. The s 94 plan amended in 2002, only a year before the date of the claim, does not make particular provision for community facilities of the type able to be the subject of a s 94 contribution plan for Lot 183. While there is a lengthy history of consideration of possible uses including for community facilities on Lot 183 there is no demonstrated need or likelihood of need for Lot 183 for that purpose. Events after the date of claim do not confirm that Lot 183 was needed or likely to be needed for community facilities. (iii) Drainage 162 Maintenance of a drainage system across part of the land is clearly an essential public purpose. I have held the use of that land near the western boundary renders part of Lot 183 not claimable Crown land. In any event, this use is an essential public purpose which could be accommodated by an appropriate easement as provided for by s 36(5A). As already considered in relation to lawful use and occupation, the extent to which a drainage system should be accommodated is less than the extent argued for by the Council. This purpose is confined and need not defeat the Applicant's claim for the whole of Lot 183.

[90]

Finding 170 There does not appear to be a decided case in which the question of whether nature conservation is an essential public purpose has been determined in circumstances similar to this case. The Respondents made only brief submissions, essentially that because there was an endangered ecological community on the southern part of Lot 183 it was needed for the essential public purpose of nature conservation. The argument on this potentially significant matter was not well developed by the Respondents in my view. 171 Section 36A(1) of the ALR Act refers to arrangements that can be made if the Minister considers the land is needed or likely to be needed for nature conservation as an essential public purpose. If a claimant agrees, it can negotiate the lease of land under the National Parks and Wildlife Act 1974 ("the NPW Act") so that the land is rezoned or dedicated under the NPW Act. There is no suggestion here that the land should be dealt with on the basis that it becomes or is managed as national park given its size and location, so that s 36A(1) has no application. 172 In Deerubbin (No 2) the essential public purpose argued by the Minister was for nature conservation. In that case the land in issue was argued to be needed for a national park. At first instance and on appeal it was common ground that including land in a national park for nature conservation was an essential public purpose. Similarly, in Birrigan Gargle Aboriginal Land Council v Minister Administering the Crown Lands Act (1999) 102 LGERA 33, it was argued the land was needed for the essential public purposes of nature conservation and access. Whether "nature conservation" is an essential public purpose was not in issue in these cases. The issue in the cases was whether the land was "needed or likely to be needed" for that purpose at the date of the claim. 173 The evidence is that the area in the southern part of Lot 183 below the sewer line is an endangered ecological community under the Threatened Species Act. There are a number of mechanisms identified under that Act which must be taken into account if activities likely to affect listed communities are proposed. The extent to which those should be protected in public reserves is not a matter dealt with directly in legislation so far as I am aware.

[91]

174 At local government level the decision whether land remains in council ownership to be managed for conservation is a decision local councils can make subject to State government oversight. For example, ministerial approval of environmental planning instruments which identify areas for zoning purposes, including environmental protection, is required under the EP&A Act. Compulsory acquisition of land by local councils for various purposes, including conservation, also requires the consent of the Minister for Local Government under s 187 of the LG Act, as occurred in this case. It is clear that local councils can, as part of their responsibilities under the LG Act and their planning responsibilities under the EP&A Act, identify areas they consider should be conserved. Conservation of endangered bushland in local government areas can be an essential public purpose carried out by local councils in my view. Need/likelihood of need 175 I need to consider whether in the context of Wyong Shire, Lot 183 was needed or likely to be needed for the conservation of an area of an endangered ecological community identified under the Threatened Species Act at the date of the claim. Identification as endangered under the Threatened Species Act means that in the opinion of the Scientific Committee established under that Act the ecological community is facing a very high risk of extinction in NSW in the near future (s 12(2)(a) Threatened Species Act). I am unfortunately not assisted by any detailed submissions from the Respondents as to why the identification of land under the Threatened Species Act means that Lot 183 is needed or likely to be needed for its conservation. That Act provides, for example, for the development of recovery plans by the Director-General of National Parks and Wildlife Service for endangered ecological communities (s 56). Section 59 states what must be included in a recovery plan including what must be done to ensure the recovery of the threatened ecological community. I have no evidence before me from the Respondents of any plans at State or local government level for measures to protect this endangered ecological community in the Wyong Shire.

[92]

176 At first instance in Deerubbin (No 2), Bignold J considered whether the high ecological and conservation values of the land by virtue of their intrinsic ecological qualities generated a need for the land independent of any appraisal by human agencies. At [106] his Honour concluded that the undoubtedly high ecological significance of the claimed land did not demonstrate a need for the land or justify an inference being drawn of such a need. In this case there has been identification of the high ecological significance of the endangered ecological community by virtue of its identification by the Scientific Committee under the Threatened Species Act. The evidence suggests this community is scarce in the Wyong Shire and the Council has responsibility to manage the land in its local area for, inter alia, nature conservation. 177 The need for or likelihood of the need for the essential public purpose has to exist at the date of the claim. It can be relevant to consider events before and after the date of the claim to determine that question, that is, to confirm a foresight. The Council's strategic planner identified the need for ecological studies to be conducted on Lot 183 in March 2003. The Council's ecological consultant undertook flora and fauna field survey work from June 2003. The date of claim was 28 July 2003. A reference to the use of the land for conservation appears in correspondence to the Department of Local Government dated 5 August 2003. Subsequent events up to December 2004 and early 2005 suggest it has continued to be the Council's intention to retain the southern part of the land for conservation. I consider the southern part of Lot 183 was needed or likely to be needed for the essential public purpose of nature conservation at the date of the claim. 178 The evidence of Mr Sanders, town planner, is that there are mechanisms for dealing with areas considered worthy of protection under the EP&A Act such as appropriate zoning for environmental protection. These instruments do not necessarily require that the land be in public ownership. 179 It is therefore appropriate that I ask the Applicant if it would agree to a condition of a grant which would protect the southern area of Lot 183 for nature conservation purposes as is provided for by s 36(5A) of the ALR Act. (vii) Public access 180 The Respondents argued that public access across the unformed walking tracks which have formed over time on Lot 183 is an essential public purpose. This is opposed by the Applicant. I have considered the evidence in relation to public access already at par 88-90 and held that the evidence supports a finding of lengthy use for a number of years of access from the adjoining private land on which the Charmhaven Hotel is located along the sewer line to Brava Avenue and that is a lawful use. That access can be accommodated along the sewer line. The Respondents have the onus of demonstrating such a use is an essential public purpose. There is no basis put in the limited submissions of the Respondents to support this as an essential public purpose.

At a glance

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Cases Cited (14)

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