Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act - 'Gosford 1 & 2' - [2022] NSWLEC 68 - NSWLEC 2022 case summary — Zoe

NSWNSWLEC

Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act - 'Gosford 1 & 2'

[2022] NSWLEC 68

Land and Environment Court (NSW)|2022-02-17|Before: Pain J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-02-17

Before

Pain J

Catchwords

[2006] NSWLEC 180 Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2012) 211 LGERA 100
[2012] NSWLEC 68 Deerubbin Local Aboriginal Land Council v Minister administering the Crown Lands Act (1997) 95 LGERA 353
[2009] NSWCA 289 Minister Administering Crown Lands Act v NSW Aboriginal Land Council (2009) 171 LGERA 56
[2021] NSWCA 204 Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531

Source

Original judgment source is linked above.

Catchwords

[2006] NSWLEC 180 Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2012) 211 LGERA 100[2012] NSWLEC 68 Deerubbin Local Aboriginal Land Council v Minister administering the Crown Lands Act (1997) 95 LGERA 353[2009] NSWCA 289 Minister Administering Crown Lands Act v NSW Aboriginal Land Council (2009) 171 LGERA 56[2021] NSWCA 204 Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531

Judgment (85 paragraphs)

[1]

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 v Minister Administering Crown Lands Act (2014) 204 LGERA 1; [2014] NSWLEC 72 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) (No 3) [2015] NSWLEC 145 NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [2008] NSWLEC 13 NSW Aboriginal Land Council v Minister for Natural Resources (1986) 59 LGRA 318 Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Tweed Byron Local Aboriginal Land Council v Minister Administering Crown Lands (Consolidation) Act (1990) 72 LGRA 177 Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2001) 113 LGERA 163; [2001] NSWLEC 20 Texts Cited: Gino Dal Pont, Law of Charity, (2nd Ed, 2016, LexisNexis) Herzfeld and Prince, Interpretation (2nd ed, 2020, Thompson Reuters) Category: Principal judgment Parties: Darkinjung Local Aboriginal Land Council (Applicant) Minister Administering the Crown Land Management Act (Respondent) Representation: Counsel: S Pritchard SC (Applicant) A Lyons (Respondent)

[3]

table of contents Aboriginal Land Rights Act 1983 Contentions and issues Statement of agreed facts Survey plan Evidence of the Minister Fealy first affidavit Fealy second affidavit Minutes of Terama Industries Inc executive meeting and AGM 2009 Mr Fealy - oral evidence Fegan affidavit and exhibit Documentary tender bundle Osborne Affidavit Internal Crown Lands department emails Crown Lands manual of procedures Office Practice Guidelines - Crown Land Management Letter from ARP to Mayor of Gosford Internal memorandum of proposed construction of road off Gertrude Street Internal memorandum for disposal of Crown land at Gosford Letter from undersecretary for Lands to General Secretary, ARP dated 18 December 1970 Internal memorandum for proposed appointment of ARP as trustee of R88027 Executive Council minute of appointment of ARP as trustee of R88027, gazettal Evidence of the Applicant Emails between Mr Allen and DSA Expert evidence of traffic experts/surveyor Documents referred to in traffic evidence Traffic evidence - Joint Report Surveyor evidence - Mr Bracken Concurrent oral evidence of experts Reversing into or out of Henry Parry Drive Turning around in widened driveway Access via the roller door onto level 3 using the driveway off Terama Place Changes to carport on Henry Parry Drive Encroachment onto Lot 6 Essential public purpose - Lot 7 Minister's submissions Statutory construction of ALR Act 'Public' Terama Industries Inc was a charitable organisation in ordinary sense 'Essential' 'Needed or likely to be needed' No specific view need be formed at or near the date of claims No requirement of lawfulness No need to prove that no other land available for the purpose Reserve purpose of 'charitable organisations' not determinative Commonwealth government's actions support NSW government intentions Applicant's submissions Statutory construction of ALR Act 'Public' Terama Industries Inc is not a charitable organisation 'Essential' 'Needed or likely to be needed' Reserve purpose not the Minister's purported public purpose No view formed at appropriate level of government Continual use cannot be relied upon Commonwealth's actions should not be construed as those of NSW government Consideration of need or likely need for essential public purpose - Lot 7 Consideration of post-date of claim evidence Public purpose Was Terama Industries Inc a charitable organisation at the date of claims? 'Essential' 'Needed or likely to be needed' View of essential public purpose formed by appropriate level of government in 1969-71 Is evidence of reconsideration of need for land for essential public purpose close to date of claim required? 16 October 1981 letter from ARP to mayor of Gosford Does s 36(1)(c) require occupation of Crown land to be lawful? Conclusion on Lot 7 - not claimable Crown land Essential public purpose - Lot 8 Minister's submissions Henry Parry Drive driveway Roller door access into level 3 Encroachment onto Lot 6 Easement Applicant's submissions Entry from Henry Parry Drive Vehicular access to level 3 roller door Encroachment onto Lot 6 and 2011 Building works Consideration of essential public purpose - Lot 8 The use of Lot 7 relied on the use of the driveway on Lot 8 at the date of claims Conclusion on Lot 8 - driveway not claimable Crown land Encroachment on Lot 6 irrelevant to whether Lot 7 and Lot 8 claimable Crown land Future finalisation of orders

[5]

Aboriginal Land Rights Act 1983

Relevant sections of the ALR Act applying follow: Part 1 Preliminary 3 Purpose of Act The purposes of this Act are as follows - (a) to provide land rights for Aboriginal persons in New South Wales, (b) to provide for representative Aboriginal Land Councils in New South Wales, (c) to vest land in those Councils, (d) to provide for the acquisition of land, and the management of land and other assets and investments, by or for those Councils and the allocation of funds to and by those Councils, (e) to provide for the provision of community benefit schemes by or on behalf of those Councils. … Part 2 Land rights … Division 2 Claimable Crown lands 36 Claims to Crown lands (1) In this section, except in so far as the context or subject-matter otherwise indicates or requires - claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division - (a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901, (b) are not lawfully used or occupied, (b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands, (c) are not needed, nor likely to be needed, for an essential public purpose, and (d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and (e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands). 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. … (3) One or more Local Aboriginal Land Councils may make a claim for land within its or their area or, with the approval of the Registrar, outside its or their area. … (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. … (5A) Where, under subsection (5), a Crown Lands Minister is not satisfied that the whole or part of the lands claimed is claimable Crown lands because the lands are needed, or likely to be needed, for an essential public purpose, but that the need for the lands for the public purpose would be met if the claim were to be granted in whole or in part subject to the imposition of a condition (whether by way of covenant or easement or in any other form) relating to the use of the lands, the Crown Lands Minister may, notwithstanding that subsection, where the condition is agreed to by the Aboriginal Land Council making the claim, grant the claim under that subsection subject to the imposition of the condition. (6) An Aboriginal Land Council may appeal to the Court against a refusal under subsection (5)(b) of a claim made by it. (7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council. .... (9) Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer. … (10) A transfer of lands pursuant to this section operates to revoke any dedication or reservation under the Crown Lands Consolidation Act 1913 to which the lands were subject immediately before the transfer. … (12) A transfer of lands pursuant to this section is subject to the following - … (b) any condition imposed under subsection (5A), …

[6]

Contentions and issues

The Minister's Amended Statement of Facts and Contentions (SOFAC) contended in respect of Lot 7 that as at 2 June 2009 the workshop on Lot 7 was needed or likely to be needed for the essential public purpose of providing supported employment for disabled persons, such that paragraph (c) of s 36(1) of the ALR Act was satisfied.
In respect of Lot 8, or alternatively, the part of Lot 8 comprising the driveway to Lot 7 and associated car parking, the Minister's contention was that this land was not claimable Crown lands within the meaning of s 36(1) of the ALR Act because the driveway was needed to provide safe access to the delivery dock and workshop and carparking for staff and disabled employees and Lot 8 was needed for the essential public purpose of providing supported employment for disabled persons, such that paragraph (c) of s 36(1) of the ALR Act was satisfied.
One contention of lawful use and occupation was no longer pressed by the Minister in the course of the hearing following evidentiary rulings. Consequently, the questions that remain for determination, as agreed by the parties, are whether: 1. the Minister can satisfy the Court that, as at the date of claims, any part of Lot 7 and Lot 8 was needed or likely to be needed for an essential public purpose of "supported employment of disabled persons" and was therefore not "claimable Crown lands" within the meaning of s 36(1)(c) of the ALR Act; and 2. any appropriate orders to be made in light of the Court's determination on that issue.
It should be noted that as a result of the Minister not pressing the matter of lawful use and occupation, Terama Industries Inc, the occupier at the date of claims, cannot be assumed to have been lawfully occupying Lots 7 and 8 as at the date of claims for the purposes of the CL Act. The circumstance resulting in this situation is referred to at the SOAF par 48 below, namely Terama Industries Inc was not appointed the trustee of R88027 for the purposes of the CL Act at the date of claims.

[7]

Statement of agreed facts

The parties provided the following statement of agreed facts (SOAF) dated 18 January 2022: The land 1. Lots 6, 7 and 8 of Section 96 in Deposited Plan 758466 are located in the Parish and Town of Gosford in the County of Northumberland on the Central Coast of New South Wales. 2. Lots 7 and 8 together comprise parcels of land known as 143 Henry Parry Drive, Gosford, New South Wales. Lot 6 is an adjacent parcel of land. 3. Lots 7 and 8 are steep blocks, sloping downwards to the west and south. 4. Lot 7 is located on the corner of a main road known as Henry Parry Drive and a dead-end street known as Terama Place. 5. Lot 8 abuts the eastern boundary of Lot 7 (on the far side of Henry Parry Drive) and fronts onto Terama Place. 6. Lot 6 is a slim parcel of land that fronts onto Henry Parry Drive and spans the length of the southern boundary of Lot 7 to abut Lot 8. 7. Henry Parry Drive forms part of the State Road network and is classified as being Main Road 673. It is a four-lane dual carriageway with a 60km speed limit, which decreases to 50km around 5 metres past the frontage of Lot 7. The road has a north- south orientation in the vicinity of 143 Henry Parry Drive and rises steeply to the north from the intersection of Terama Place at a grade of 13.6%. 8. As at 2 June 2009 (the date of claims), when Aboriginal Land Claims 17974 and 18000 were lodged, Lots 6, 7 and 8 were Crown land. 9. On 17 June 2020, the Minister determined that Lot 6 was claimable Crown land. Lot 6 has since been transferred to the Applicant. History of the land 10. On 29 October 1965, Aid Retarded Persons NSW (ACN 000 510 136) (ARP) was formed as a company limited by guarantee to pursue the following primary objects: • To further the interests, train, educate and promote the welfare generally of intellectually handicapped persons and to promote their economic and social well-being. • To establish sheltered workshops for intellectually handicapped persons either as pre-employment training or as terminal occupation or otherwise. • To facilitate the absorption of intellectually handicapped persons into industry and foster harmonious relations in respect of their employment. • To establish hostel accommodation social clubs and other facilities and amenities for intellectually handicapped persons. • To present the special needs of intellectually handicapped persons to the relevant authorities parliamentary or otherwise. 11. In 1966, a State-wide survey conducted by ARP revealed the need for a sheltered workshop on the Central Coast for intellectually handicapped persons over 16 years of age. A group of concerned citizens, keen to help establish the workshop, formed the ARP Central Coast Branch. 12. In around 1968, the then Minister for Lands made available for lease by charitable organisations a series of allotments of land off Gertrude Street, Gosford around a proposed road. Gertrude Street later became known as Henry Parry Drive and the proposed road became Terama Place. 13. ARP applied to the Crown Land Agent for an allotment. 14. In around October 1968, ARP's application for Crown Land in Gosford was approved. 15. On 1 March 1969, a Special Lease in Perpetuity (68-12 Gosford) was granted to Aid Retarded Persons NSW under the Crown Lands Consolidation Act 1913 (NSW) (CLCA) over Allotments 7 and 8 of Section 96, Town of Gosford for the purpose of "Erection of buildings (training centre for handicapped persons)". 16. Between around 1969 and 1970, ARP constructed a workshop and associated facilities on Lots 7 and 8. This included a driveway from Terama Place on Lot 8, which wound around the back of the workshop on Lot 7, through a "carport" and out onto Henry Parry Drive. 17. The workshop was completed and occupied from around 3 August 1970. It was officially opened by the Minister for Social Services on 7 November 1970. 18. The Commonwealth contributed grants for the construction of the workshop, in the order of approximately $19,064 against a total construction cost of $28,524. 19. On 27 November 1970, Special Lease 68-12 was withdrawn. In its place, on the same day, Reserve 88027 (R88027) was notified over Allotments 6, 7 and 8 of Section 96, Town of Gosford. The reserve purpose was "for charitable organizations". 20. On 19 February 1971, by proclamation published in the NSW Government Gazette under the Public Trusts Act 1897 (NSW) (PTA), ARP was appointed as trustee of R88027. That proclamation was authorised by the Governor of NSW and the Executive Council, based on a recommendation of the then Minister for Lands. 21. On 24 December 1971, by proclamation published in the NSW Government Gazette under the PTA, ARP was appointed trustee of another reserve, being Reserve 88406 for "Charitable Organizations" (R88406) in Lambton, Newcastle. 22. In around 1971, the Patron-in-Chief of ARP was the Governor of NSW, Sir Roden Cutler, and other Patrons were the Premier and Treasurer of NSW, the Deputy Premier and Minister for Education and Science, the Minister for Health, the Minister for Child Welfare and Social Welfare, and the President of the Rural Bank of NSW. 23. 1981 was the International Year of Disabled Persons. In that year, the workshop at Henry Parry Drive achieved the official status of a "sheltered workshop". Instead of being classified as trainees, the workers were to be known as employees. 24. On around 16 April 1981, DA 14278/81 was lodged with Gosford City Council for alterations and additions to the existing structures on Lots 7 and 8 by Grenfell, Fraser & Associates on behalf of the owner given as "Aid Retarded Person's NSW Gosford Branch". The Council granted approval on 8 May 1981. 25. On around 1 December 1981, the ARP Central Coast Branch resolved to change its name to "Terama Industries". 26. ARP Central Coast Branch received funding approval from the Commonwealth Department of Social Services (DSS) for the works in DA 14278/81, and they commenced on 9 May 1982. The extensions were officially opened by the Parliamentary Secretary to the Prime Minister on 7 November 1982. 27. On 27 February 1987: a. a provisional liquidator was appointed to ARP by order of the Supreme Court of NSW; and b. the provisional liquidator commenced proceedings in the Supreme Court of NSW for the winding up of ARP, namely Re Aid Retarded Persons NSW BC9201477 (Supreme Court Proceeding No.1467/1987). 28. The appointment of the provisional liquidator was gazetted in the Commonwealth of Australia Gazette on 24 March 1987. 29. On 18 August 1987, 'Terama Industries Inc' (Incorporation Number Y0313803) was registered with the NSW Office of Fair Trading. 30. On 21 December 1987, ARP (Provisional Liquidator Appointed) and Terama Industries Inc entered into an agreement for the transfer of various assets owned by ARP to Terama Industries Inc, including: a. furniture and equipment located at 143 Henry Parry Drive, Gosford; b. leasehold improvements to premises at 143 Henry Parry Drive, Gosford; c. trade debtors and other debtors; and d. stock located at 143 Henry Parry Drive, Gosford. 31. On 23 November 1990, pursuant to clause 4(3) of Schedule 8 of the Crown Lands Act 1989 (CLA), the corporate name "Gosford Charitable Organisation (R88027) Reserve Trust" was assigned to the reserve trust for R88027. The reserve trust manager was noted in the gazette notice to be "Aid Retarded Persons (NSW)". 32. On 12 July 1991, the then Minister for Conservation and Land Management placed an official notice in the NSW Government Gazette which stated the following: DISSOLUTION OF RESERVE TRUST PURSUANT to Clause 4 of Schedule 8, Crown Lands Act 1989, a reserve trust was constituted in respect of Reserve 88406 for Charitable Organisations at Lambton, notified 26 November 1971. By virtue of Clause 5 of Schedule 8, the corporation known as Aid Retarded Persons NSW was appointed to manage the affairs of the reserve trust. Aid Retarded Persons NSW has been wound up and the NSW Supreme Court has ordered its assets to be transferred to Wickham Industries Incorporated. Accordingly it is HEREBY NOTIFIED that the aforesaid reserve trust is dissolved pursuant to Section 92(3) Crown Lands Act 1989 (thereby the corporate manager is in effect removed). A new reserve trust has been established and Wickham Industries Incorporated has been appointed to manage its affairs so that effect may be given to the Supreme Court order insofar as the aforesaid reserve is concerned - see separate notification dated this day. MD89 R 118 33. Immediately thereunder, there were notices gazetting the formation of Lambton Charitable Organisations (R 88406) Reserve Trust and the appointment of Wickham Industries Incorporated as corporate reserve manager. 34. On 19 November 1992, the Supreme Court of NSW in Supreme Court Proceeding No.1467/1987, ordered that ARP be wound up under the Companies (NSW) Code and appointed a liquidator. 35. On 27 November 1992, notice of the Court-ordered winding up of ARP and appointment of the liquidator was published in the NSW Government Gazette. 36. On 30 March 1995, notice was given in the Commonwealth of Australia Gazette that the registration of ARP would be cancelled and the company dissolved by publication of that notice, pursuant to s 574(1) of the Corporations Law. 37. On 30 November 2007, notice was given in the NSW Government Gazette that, as ARP had ceased to exist, other charitable organisations with similar objects could apply for the funds left in the will of a deceased person who had nominated ARP as a beneficiary in their will under the doctrine of cy-pres. 38. On 2 June 2009, the Applicant lodged Aboriginal Land Claim (ALC) 17974 over Lot 8 and ALC 18000 over Lots 6 and 7. Use of Lots 7 and 8 as at 2 June 2009 39. As at the date of claims, the facilities on Lots 7 and 8 comprised a workshop building, located wholly on Lot 7, and a driveway that ran from Terama Place on Lot 8 around the back of the workshop, through a "carport" and out onto Henry Parry Drive. 40. The workshop on Lot 7 was used by Terama Industries Inc as a facility which provided supported employment to persons with disabilities. 41. The driveway on Lot 8 was used by vehicles accessing the workshop, carport and parking on Lot 7. 42. The workshop operated 5 days a week, Monday to Thursday 7.30am-3pm and on Fridays 7.30am-12pm. 43. The only wheelchair access was the ramp at the back of the workshop from Lot 7 to Level 2 and there was no internal lift or ramp within the workshop. 44. The only amenities at the workshop were located on Level 2. Status of Terama Industries 45. As at the date of claims, Terama Industries Inc was registered as a charity with the Australian Taxation Office and received certain charitable concessions. 46. As at the date of claims, Terama Industries Inc was a registered disability services provider with the DSS. 47. As at the date of claims, Terama Industries Inc was substantially reliant for its income on government grants, specifically, grants from the Department of Family and Community Services ("FACs"). 48. As at the date of claims, Terama Industries Inc had not been appointed the trustee of R88027 by notification in the NSW Gazette pursuant to s 95 of the CLA. Events after 2 June 2009 49. On 2 November 2009, Allotments 6, 7 and 8 of Section 96 were converted from old system title to Torrens title, and became Lots 6, 7 and 8 (respectively) of Section 96 in DP 758466. 50. In December 2020, a survey of the eastern end of the driveway on Lots 7 and 8 was undertaken, which shows that the driveway on Lot 7 encroaches onto Lot 6 over the boundary between Lot 6 and Lot 7. This is the survey at Appendix A to the affidavit of Stuart Bracken affirmed 9 April 2021. The Aboriginal Land Claims 51. On 2 June 2009, the Applicant lodged ALC 17974 over Lot 8 and ALC 18000 over Lots 6 and 7. 52. By letter to the Applicant dated 17 June 2020, the Respondent: a. refused ALC 17974 in relation to Lot 8; and b. granted ALC 18000 insofar as it related to Lot 6 and refused it insofar as it related to Lot 7. 53. The reason given for the refusal of ALC 17974 and ALC 18000 insofar as it related to Lot 7 was that the land was "not claimable Crown land as it was needed for the essential public purpose of supported employment for disabled persons". 54. On 5 August 2020, the Respondent transferred Lot 6 to the Applicant. A new certificate of title was issued on 26 August 2020. …

[10]

Fealy first affidavit

Mr Fealy is the Manager at Terama Industries Inc, an Australian disability enterprise registered under the National Disability Insurance Scheme.
Mr Fealy has worked at Terama Industries Inc for 28 years (since 1992), becoming an administration and finance manager in 2002 and manager in 2008. He volunteered at both Terama Industries (as Aid Retarded Persons NSW, Central Coast branch (ARP) was known before the incorporation of Terama Industries Inc in 1987) and Terama Industries Inc between 1984 and 1992 with roles including training and supervision of employees, when his father was a supervisor there (his father became manager in 1987). Terama Industries Inc is an Association that has been registered with the NSW Office of Fair Trading since 18 August 1987. Terama Industries Inc's current constitution was adopted in April 2010, with the previous constitution, as far as Mr Fealy could recall, being adopted in around 1982.
Mr Fealy deposed that Terama Industries Inc is and has been since he has worked there, a charitable organisation that helps people with disabilities access work opportunities through supported employment and helps them access the community through participation services. Its main activity is the operation of a workshop which employs people with disabilities at 143 Henry Parry Drive, Gosford. It also offers a supported accommodation service, which opened in 2018.
As at the date of claims Terama Industries Inc was registered as a charity with the Australian Taxation Office (ATO) and received charitable concessions. Mr Fealy annexed to his affidavit a notice of endorsement from the ATO dated 8 July 2005 recording endorsement of Terama Industries Inc for an income tax exemption, GST exemption and FBT rebate before the date of claims. Terama Industries Inc has been endorsed as a Deductible Gift Recipient since October 2015.
Since 1 July 2007, Terama Industries Inc was a registered disability services provider with the Commonwealth Department of Social Services (DSS), formerly the Department of Family, Housing, Community Services and Indigenous Affairs (FaHCSIA). As at the date of claims, the DSS/FaHCSIA would arrange for an external contractor to attend Terama Industries Inc's premises and certify its compliance with relevant standards each year. During all the period Mr Fealy has worked at Terama Industries Inc, it has been substantially reliant for its income on government grants specifically from DSS/FaHCSIA. The financial statement for the year ending 30 June 2009 annexed to Mr Fealy's affidavit recorded that $494,177.50 of total income of $715,947.19 was received from subsidies/grants. An extract of Terama Industries Inc's MYOB statement for 1 June 2009 to 30 June 2008 shows a number of "FACS Grants" being received into its bank account during that period.
Mr Fealy deposed that rates notices from the Central Coast Council regarding 143 Henry Parry Drive have been addressed to Terama Industries Inc at least since about 1998 when Mr Fealy started doing the accounts. Lot 7 is on a busy main road in Gosford, with two lane travel in each direction and a 60km/h speed limit, and Terama Place is a quiet dead-end street. Lot 8 abuts the back of Lot 7 and faces onto Terama Place.
Mr Fealy annexed a document obtained from Terama Industries Inc's hardcopy records entitled "The History of Terama Industries" which described the history of ARP and Terama Industries from 1966 to 1982. That document states that in 1982 extensions were made to the workshop pursuant to a DA. The new wing of the workshop was opened officially by Mr Alan Cadman MP, then Parliamentary Secretary to the Prime Minister, in 1982. A plaque on the wall of the workshop states that the building was officially opened by the Commonwealth Minister for Social Services on 7 November 1970.
An article attached to Mr Fealy's affidavit in the Gosford Star in 1981 entitled "name change" stated that ARP will now be known as Terama Industries in response to the International Year of Disabled Persons.
ARP went into liquidation in the late 1980s and ARP (Provisional Liquidator Appointed) entered into an agreement in 1987 between ARP (Provisional Liquidator Appointed) and Terama Industries Inc (the 1987 agreement). ARP's assets were split between a number of new entities including Terama Industries Inc. Mr Fealy deposed that he knew from his volunteer work at Terama Industries at the time that there was no change to the activities at the workshop as a result of the transfer of assets from ARP to Terama Industries Inc. ARP Gosford Branch had been known as Terama Industries for several years previously.
In 2009, the workshop operated similarly to today, being 5 days a week Monday to Thursdays 7:30am to 3:00pm and on Fridays 7:30am to 12:00pm. In June 2009, the workshop employed 51 people with disabilities and a further five staff. Twenty-seven of the employees with disabilities are still working at Terama Industries Inc today. Mr Fealy recalls that in 2009 the work performed by employees at the workshop was packaging cosmetics, shampoos, conditioners, hair dyes and hair curlers for Proctor & Gamble, covering library books for Gosford Library, and packing pet food for the Australian Reptile Park in Somersby.
The facilities are in substantially the same form today as they were after the renovations in 1981. The use of the facilities has not changed in any substantial way since Mr Fealy began working there. The facilities comprise a workshop building located wholly on Lot 7 and a driveway from Terama Place on Lot 8 through to the loading dock of the workshop on Lot 7 and from there out onto Henry Parry Drive. There is parking partly on Lot 7 and partly on Lot 8. The workshop has three levels.
Level 1 contains a delivery dock for loading and unloading vehicles, storage of electronic waste and cosmetic products and packaging machinery. There is a hoist located on level 1 which brings up pallets of e-waste and cosmetic products to the middle floor, level 2, to be dispersed to the employees for production. Level 1 also contains two machines and a hand-operated forklift. One machine shrink wraps cosmetic products and the other shrink wraps pallets for the completed products to be transported out of the building. Level 1 also contains tools which are sometimes necessary to prepare the pallets and space for storage of goods. The delivery dock is at the side of the workshop, facing Henry Parry Drive. It is accessed by the driveway that leads in from Terama Place on Lot 8 and winds around the back of the workshop building. The driveway then goes through the delivery dock and out onto Henry Parry Drive.
Level 2 is the main workshop floor which accommodates 40 employees. This is where the amenities are located. A wheel-chair access ramp rises to this level at the back of the building accessible through the Lot 8 driveway. That is the only wheelchair access to the building, which lacks a lift. Wheelchair access to Levels 1 and 3 is not available. Since 2009, Mr Fealy estimated there are one to two employees in wheelchairs who need the wheelchair access every year and one to two who use walkers and also need that access.
Level 3 of the building is used as a workshop for 25 employees. Level 3 has a roller door and driveway access to the street level at Terama Place from Lot 7. It is used from time to time by employees to access level 3 of the workshop. For the entire time Mr Fealy has worked at Terama Industries Inc, the roller door and driveway have never been used by vehicles to access the workshop. Access is prohibited to vehicles of any type because the entire floor is used as a workshop every day for 25 employees. That number would have been similar in 2009 as the split between the two floors has always been around half and half. It would not be possible to change the use of level 3 as the other floors cannot accommodate all of the employees. The level 3 access does not have any of the equipment needed to load the products onto the pallets, and load and unload trucks, which are all on level 1. There is also no excess space to store goods. The hoist only goes between levels 1 and 2 and cannot be moved. Mr Fealy did not think level 3 could accommodate all of those things. Even if it could, production would need to be halted for a significant period of time to renovate level 3 to incorporate all those things, which would be highly disruptive to operations.
Terama Industries Inc uses trucks to bring goods into the workshop to be packaged and deliver the goods to their destination once packaged. It is necessary for trucks to be able to access the workshop for these purposes to enable the operations at Terama Industries Inc to occur. In 2009, Terama Industries Inc owned one six pallet truck. A 14 pallet truck from Proctor & Gamble also made deliveries of goods to be packaged using the driveway. For as long Mr Fealy has worked at Terama Industries Inc, the trucks making deliveries and taking goods away from the workshop have never used the Henry Parry Drive access to enter the workshop because the incline of the driveway is too steep for a fully loaded truck to reverse up it, and because in any case it would be unsafe to do so. Henry Parry Drive is a busy main road and it would cause a safety hazard for a truck to have to stop in the middle of Henry Parry Drive to reverse into the driveway. There is also a very steep rise at the top of Henry Parry Drive to the north, coming around a bend in the road, which means traffic travelling south from that direction moves quite fast with limited visibility of the driveway from the workshop. The left lane where the driveway meets the road is also a no-standing zone. The only use of the Henry Parry Drive access point has always been for the truck to leave once it is loaded or unloaded, which it does by driving forward down the driveway out onto Henry Parry Drive. The employees and staff never use the Henry Parry Drive access to enter or leave Terama Industries Inc because the steep gradient of the driveway makes it too dangerous. There are also safety concerns about using the Henry Parry Drive access because of the constant, on-coming traffic from the rise at the top of Henry Parry Drive past the access point. Mr Fealy does not allow the employees with driver's licences to use the Henry Parry Drive access point due to safety concerns.
For as long as Mr Fealy has worked at Terama Industries Inc, due to the safety concerns the Lot 8 driveway has been used to access the workshop. The Lot 8 driveway is used by trucks to enter the property. They do this by driving forward from Terama Place, along the driveway around the back of the workshop, to the delivery dock on level 1. The truck is then unloaded at the delivery dock by staff and employees before it drives out forward onto Henry Parry Drive. The trucks use the driveway for this purpose around three times a day, five days a week. The Lot 8 driveway is also used for general access by all people who attend the workshop, including vehicles dropping off wheelchair bound employees and employees who use walkers to the wheelchair ramp at the back of the building at level 2.
Mr Fealy estimated that during the period 2009 to date, people have used the driveway from Lot 8 to drop off and pick up people in wheelchairs around three times a week. In addition, during the same period, taxis and community transport drivers dropping off employees, staff and employees with physical disabilities have used the driveway from Lot 8 every day. The three employees with disabilities and who drive cars park in the allocated parking spots on Lot 8 along with other staff, to the side of the driveway (area marked "existing carpark" on the 1981 DA plans). Mr Fealy and other staff park in spots on Lot 7 accessed via the Lot 8 driveway. These people attend the premises five days a week, which has been consistent since the 1990s.

[13]

Mr Fealy - oral evidence

In examination-in-chief, Mr Fealy confirmed that the facilities were in substantially the same form as shown on the 1981 DA plans as at the date of claims. The facilities in the loading dock on level 1 (see above in [25]) were also confirmed to be in the same form in June 2009. The functions undertaken in the loading dock were the same as at the date of claims. The hoist and other boxes and equipment were also in place on level 1 as shown on the photographs annexed to Mr Fealy's first affidavit, as at 2009. Some equipment had been replaced since 2009. The same kinds of equipment was always stored in the same location.
Mr Fealy confirmed that the evidence summarised in [24], [26], [27] and [30] above applied as at the date of claims. In 2009, two employees needed wheelchair access. Two to three used walkers. They used the wheelchair access on level 2.
Mr Fealy was cross examined by the Applicant. He testified that the Crown wrote his first affidavit while he was present.
He was not aware that his references to Terama Industries Inc before 1987 in his first affidavit could not legally have been correct given Terama Industries Inc was only registered in 1987. He has only ever known the entity as "Terama Industries". He accepted that to the extent Terama Industries Inc was not legally in existence before 1987, the constitution of Terama Industries Inc to which he referred in [15] above could not have been that of Terama Industries Inc and it likely related to ARP. He accepted that his reference to Central Coast Council (see above in [19]) could not be correct as that Council did not exist as at 1998.
In relation to the document entitled "History of Terama Industries" (see above in [20]), Mr Fealy accepted that the document, compiled in 1982, could not refer correctly to Terama Industries Inc as that entity had not come into existence yet. In relation to the article in the Gosford star (see above in [21]) Mr Fealy couldn't one hundred percent say that the reference to Terama Industries Inc must have been a reference to ARP as he has always known it as Terama Industries. Mr Fealy accepted that in the 1987 agreement, Terama Industries Inc is stated as a new entity to which ARP's assets would be transferred.
Mr Fealy was told about ten to 15 years ago by previous management that Terama Industries Inc was on Crown land. He was not aware that occupying Crown land requires consent from the Minister or Department. He was not aware of anyone at Terama Industries Inc obtaining that consent.
Mr Fealy was asked about extensions made to the carport in 2011, the subject of his second affidavit. He accepted there was about a three-foot extension. He accepted that the extension occurred sometime in 2010 [I note that his second affidavit places the time of the works in around 2011]. He accepted that he was not aware that the Central Coast Council did not produce any documents relating to the works carried out on the carport. Mr Fealy hired a builder for the works and left the builder to seek council approval for the works. He was not aware whether permission was sought from the Council. When asked why the material he produced on behalf of Terama Industries Inc in response to the Applicant's subpoena in these proceedings included DA plans dating back to 1981 but no documents falling within the terms of the subpoena, particularly in relation to building works completed on Lots 7 and 8, Mr Fealy answered that there was no record of any building application or DA in respect of the carport works. He agreed that it was probably the case that no application was ever made in respect of the carport extension; he "left it up to the builder, I hired the builder, and he went on everything and finished the job, so I didn't put one in, it was up to the builder to do that."
Mr Fealy was shown survey plans of Lots 6, 7 and 8 prepared by Mr Bracken, the Minister's expert surveyor witness. When asked whether he agrees that the driveway on Lot 7 traverses across into Lot 6, which is owned by the Applicant, Mr Fealy accepted that the survey plans do show encroachment and that this was the current position. He did not know when the encroachment occurred. Mr Fealy did not seek permission from the Applicant to cross into Lot 6. Mr Fealy stated that the driveway was "done way before my time".
Mr Fealy did know that Terama Industries Inc was located on a Crown reserve. He did not fully appreciate the legal meaning of that term. He spoke with Mr Shane Smith of Crown Land at Dubbo around 2019/2020 about what a 'reserve' was. He did not speak to anyone at the Crown Lands department about the reserve of which Lots 7 and 8 are part or about Terama Industries Inc being reserve manager prior to 2019/2020. He understood that an obligation of being a reserve manager is submitting reports to the Department of Lands about reserve management. He was not aware of ARP submitting any reports of this nature.
In re-examination, Mr Fealy stated: 1. that Terama Industries Inc received rates notices from Gosford Council from 1998; 2. that the extension to the carport "went out the same distance as the roof"; 3. that nearly all documents were shredded after seven years. The hard copy files that he found at the workshop and gave to the Minister's solicitors were not shredded; and 4. there have been no changes to the driveway or carport since Mr Fealy has been at Terama Industries Inc other than the carport works in 2011.

[14]

Fegan affidavit and exhibit

Ms Fegan's affidavit exhibited a variety of public documents relating to the provision of supported employment services to disabled people. These included the following documents: 1. the NSW Legislative Council Standing Committee on Social Issues Parliamentary Paper No 247 titled "Making it happen: Final Report on Disability Services" published in November 2002 (the 2002 NSW Legislative Council report); 2. The NSW Government's official response dated 19 August 2003 to the Legislative Council report above (NSW Government Response 2003); 3. the "National Disability Agreement" introduced by the Council of Australian Governments (COAG) in 2009 (National Disability Agreement 2009); 4. the "2010-2020 National Disability Strategy" published in February 2011 by COAG (National Disability Strategy 2011); 5. the Productivity Commission Report inquiry into disability care and support released on 10 August 2011 (Productivity Commission Report 2011); 6. the "Advisory Group: Vision for Sustainable Supported Employment" report published by FaHCSIA in 2012 (FaHCSIA Report 2012);
The 2002 NSW Legislative Council report at [12.26]-[12.27], [12.32], [12.34], [13.32]-[13.37] and recommendations 49 and 55 states: Commonwealth State Territory Disability Agreement 12.26 The Commonwealth has a significant responsibility within the disability service system to fund some types of service directly and also to fund State Government disability service programs. Under the Commonwealth State Territory Disability Agreement (CSTDA, formerly known as the Commonwealth State Disability Agreement or CSDA), the Commonwealth is responsible for the funding, planning and management of employment services and it shares responsibility with States and Territories for advocacy services. States and Territories are directly responsible under the CSTDA for all other specialist disability services, including accommodation support, respite and day programs. While States and Territories are directly responsible for the administration of these areas, the Commonwealth contributes approximately 20 percent of the funding for State based programs. This contribution arises from the fact that prior to the CSTDA, the Commonwealth funded non-government service providers directly. 12.27 All jurisdictions in Australia are facing similar challenges relating to unmet need and the growing complexity of demand to those faced in New South Wales. The CSTDA is intended to clarify the respective roles of States and the Commonwealth in this area and to provide a national framework for provision of specialist disability services. The present CSTDA is due to expire at the end of November and is currently being re-negotiated. … 12.32 The CSTDA underpins the disability service system in New South Wales. To have an effective and equitable system it is essential that workable and cooperative funding arrangements exist between the two tiers of government. From the perspective of people with disability, advocates and service providers, arguments about which level of government is responsible to provide additional funding appear to be little more than evasion of responsibility by both levels of government. … 12.34 It is also important to clarify issues around daytime activity. People with disability that we spoke to during regional consultations indicated an overwhelming preference for employment over non-work related day programs. They were particularly concerned about the contraction of supported employment programs and the resultant loss of opportunities for financial independence and participation in the community. The Committee notes that access to employment is critically important for all members of the community and considers that significant additional funding for supported employment services is required. Recommendation 49 As part of the negotiation for the forthcoming Commonwealth State Territory Disability Agreement, the Government should: • Seek additional funding from the Commonwealth as a matter of urgency both to address unmet need and to accommodate cost increases in disability services • Seek to develop an approach to funding under the CSTDA that links growth funding from the Commonwealth to identified unmet need • Specifically seek additional funding for supported employment programs. … Meaningful daytime activity 13.32 A common theme during consultations was that when a person with disability leaves school, they and their family lose access to a valuable support network. They also face a lack of meaningful daytime activity that can rapidly lead to poor self-esteem, frustration, the emergence of challenging behaviours and crisis. Access to supported employment or day programs was therefore raised as a significant area of unmet need in submissions, evidence and hearings. 13.33 According to the Australian Institute of Health and Welfare, there are currently 5,400 people nationally who have unmet need for employment support and 8,200 people who report unmet need for non-employment related community access, or day programs. These figures equate to roughly 1,800 and 2,730 people respectively for New South Wales. We note that these estimates are based on current Commonwealth eligibility criteria for access to supported employment services, rather than an actual assessment of people's capacity or desire to work. Different eligibility criteria could therefore result in a higher number of people needing access to supported employment programs and a correspondingly lower number requiring access to community participation. It is therefore more accurate to state that there are approximately 4,530 people in New South Wales who report unmet need for meaningful daytime activity. 13.34 Meaningful daytime activity enhances the independence, community participation and integration of people with disability and contributes to their wellbeing. In speaking to people with disability and advocates, the following key points emerged in relation to daytime activity: • People with disability overwhelmingly prefer employment to day programs • Continuity of funding for day programs must be ensured to provide certainty for people with disability, their families or service provider • Non-employment related day programs should be flexible and emphasise inclusion in the community. Rather than provision of activities in an isolated setting, day programs should facilitate access to mainstream activities such as further education and training through TAFE. 13.35 Paid employment affords both a valued social role as well as an income, enabling people to exercise choice in many aspects of their lives. There is substantial unmet need for supported employment programs that both utilise people's skills and provide opportunities for further development. The disability service system should reflect the preferences of people with disability and ensure that opportunities for employment are promoted as the first priority. In Chapter 12 we noted that this is an area where the Commonwealth could do more to fulfil its responsibilities. 13.36 At the State level, evidence to the inquiry has been characterised by high levels of uncertainty about the ATLAS Program for school leavers. For those who are unable to participate in employment and training programs, the Committee stresses the need for a system that provides meaningful day activities for all those who wish to participate in them. 13.37 There is an inextricable link between supported employment and day programs. We therefore consider that the State and Commonwealth should develop a joint and cooperative approach to meeting unmet need for meaningful daytime activity. The approach should be based on the principles outlined in the recommendation below. Recommendation 55 The State and Commonwealth Governments should develop a joint and cooperative approach to meeting unmet need for meaningful daytime activity. This approach should be based on the following principles: • Growth funding from both the Commonwealth and the State will be required to address unmet need for meaningful daytime activity • The primary emphasis should be on supporting people with disability to access employment • People with disability who are not able to access supported employment services should have guaranteed and continuing access to day programs"…
The NSW Government Response 2003 stated: Commonwealth State Territory Disability Agreement Recommendation 49 … The Government is committed to the development of a third Commonwealth State Territory Disability Agreement to provide an adequate and sustainable funding base for disability services in NSW. The Commonwealth has offered to provide an additional $125 million for all States and Territories over the next five years. During negotiations, the States and Territories have pressed for additional funds to be allocated by the Commonwealth. The Government is, however, keen to finalise the Agreement to bring about certainty for people with a disability and service providers. In addition, the Government is seeking to secure bi-lateral agreements to improve support for: • Young people with a disability in their transition to employment; and • Young people with a disability living in residential aged care facilities and older people with a long-term disability … Recommendation 55… … In addition, as indicated previously, the Government is seeking to establish a Bilateral Agreement with the Commonwealth Government under the third Commonwealth State Territory Disability Agreement (CSTDA) to develop a joint approach to assisting the transition of young people with a disability from school to work…
The National Disability Agreement 2009 between the Commonwealth and the States and Territories relevantly states: PRELIMINARIES All Disability Minsters [sic] agreed to establish a new National Disability Reform Agenda that will place people with disability, their families and carers at the centre of services across Australia. … 2. This Agreement has been updated to reflect the roles and responsibilities of governments (except Victoria and Western Australia) in relation to basic community care services and should be read in conjunction with the National Health Reform Agreement. These changes in roles and responsibilities will enable the creation of a national aged care system and a national disability services system. … OBJECTIVES 9. Through this Agreement, the Parties commit to the following objective as the long-term, overarching aspiration that governments should strive for in the provision of disability services. All aspects of the National Disability Agreement contribute to, or measure progress towards: "People with disability and their carers have an enhanced quality of life and participate as valued members of the community." OUTCOMES 10. The Agreement will contribute to the following outcomes: (a) people with disability achieve economic participation and social inclusion; (b) people with disability enjoy choice, wellbeing and the opportunity to live as independently as possible; and (c) families and carers are well supported. OUTPUTS 11. The Agreement will contribute to the following outputs in support of the agreed outcomes: (a) services that provide skills and supports to people with disability to enable them to live as independently as possible; (b) services that assist people with disability to live in stable and sustainable living arrangements; (c) income support for people with disability and their carers; and (d) services that assist families and carers in their caring role. ROLES AND RESPONSIBILITIES OF EACH PARTY 12. All Parties to this Agreement will work co-operatively together to realise the objectives and commitments made in this Agreement. … All Australian governments are committed to their responsibilities in relation to public leadership which actively promotes the rights of individuals with disability, and encourages the community to embody these values, which are the foundation of an inclusive society. … Role of the Commonwealth 17. The Commonwealth undertakes responsibility for: (a) provision of employment services for people with disability, which includes: (i) regulation, service quality and assurance; (ii) assessment; (iii) policy development; (iv) service planning; and (v) workforce and sector development in a manner which most effectively meets the needs of people with disability consistent with local needs and priorities…
The National Disability Strategy 2011 was signed by the leaders of Commonwealth, State and Territory Governments including the Premier of NSW. Relevant extracts include the following: Outcome: People with disability, their families and carers have economic security, enabling them to plan for the future and exercise choice and control over their lives. Work is essential to an individual's economic security and is important to achieving social inclusion. Employment contributes to physical and mental health, personal wellbeing and a sense of identity. Income from employment increases financial independence and raises living standards. People with disability can face greater direct costs than other people because of additional expenses with transport, personal and health care, diet and communications requirements. Adequate housing security provides people with disability freedom of choice and is the basis for independent community involvement. The three policy directions in this outcome area focus on the economic and housing security necessary for people with disability, their families and carers, to fully participate in all aspects of Australian society. Policy Direction 1: Increase access to employment opportunities as a key to improving economic security and personal wellbeing for people with disability, their families and carers. The vast majority of people with disability can and do want to work and be as financially independent as possible, but employment is one critical area where Australia is lagging behind other countries. Work is the pathway used by most Australians to long-term economic security and wellbeing. Job retention and career development are also important. Barriers have to be identified and addressed, so that people with disability have opportunities for more control over their lives and, like other Australians, are able to build personal and community wealth. "The concept of 'giving someone a break' fails to recognise the important economic benefits of ensuring skilled individuals are able to fully participate in the economy. Greater independence also produces long-term benefits by enabling people to become less reliant on government income support (Shut Out, 2009)." "After my accident on the building site, I did a course to help me get a job in the building game working in an office providing quotes, costing, etc. I sent out over 350 applications without any result. In the end my brother and I had to start up our own business managing a motor vehicle repair business. It was tough at first but we are doing very well now (Disability Council of NSW, 2008)." "In 2003, the labour force participation rate of people with disability aged 15 to 64 years was 53 per cent and the unemployment rate was 8.6 per cent. Corresponding rates for people without disability were 81 per cent and 5.0 per cent (ABS, 2004)." "In 2003, primary carers also had a lower labour force participation rate (39 per cent) than people who were not carers (68 per cent) (ABS, 2004). " "As in the broader community, women with disability face poorer economic outcomes than men with disability. Data from 2003 indicate that the labour force participation rate of women with disabilities was only 46.9 per cent compared to 59.3 per cent for men with disabilities. The unemployment rate of disabled women in the same year was 8.3 per cent compared to 5.3 per cent for non-disabled women. In any type of employment women with disabilities are already more likely to be in low paid, part-time, short-term casual jobs (ABS, 2004)."
Among the "Current commitments 2010" the same document stated: The Australian Government has implemented a number of strategies to assist Australians with disability to find and maintain employment through the National Mental Health and Disability Employment Strategy, including: • $1.7 billion for new, demand-driven Disability Employment Services • creation of an Employment Assistance Fund to improve workplace accessibility • a $6.8 million Disability Support Pension Employment Incentive Pilot with wage subsidies of up to $3,000 to employers • improved viability and better outcomes through Australian Disability Enterprises through a new 10 year vision which will include consideration of the social enterprise model and the benefits of a mixed workforce. • The Australian Government is also introducing better and fairer assessment procedures for the Disability Support Pension to ensure that appropriate employment services and income support are provided to people with disability."
The Productivity Commission Report 2011 contained the following: The Commonwealth, along with the States and Territories, has a major investment in disability specific support. However, there remains a significant level of unmet demand for disability services which impacts upon the lives of people with disability, their families and carers… ... Supported employment is designed to assist those 'people with disability whose employment opportunities would be very limited or non-existent if they were to compete for a job in the open labour market' (Australian Government 2010d, p. 10). Some 70 per cent (13 166) of supported employees have an intellectual disability. One quarter (a530) of supported employees were living in residential facilities and group homes (Australian Government 2010d).
The FaHCSIA Report 2012 includes the following: Part 1 Overview The vision - at a glance The advisory group on inclusion for people with disability through sustainable supported employment has developed a 10-year vision. This vision has three main parts: 1. Australia has a supported employment system that benefits people with disability and Australia as a whole. It does this by helping people with disability take part in work and their community. 2. People with disability have access to a supported employment system. This system fully supports them to take part in work and their community. It includes them in Australian society by providing services so that they can get and keep good jobs. 3. The supported employment system works with other national systems that support people with disability. These include the National Disability Agreement, the National Disability Strategy and the National Disability Insurance Scheme. … .. Currently fewer than 10 per cent of people with disability who get the Disability Support Pension have paid work. Clearly the Australian Government is keen to make sure that people with disability who can work have opportunities to do so. … Employment support should focus on results. The main result should be good jobs for people with disability so that they can work and be part of their community. People with disability should have real opportunities to have a job like all Australians. They should have the same rights at work and the same opportunities to find rewarding work. People with disability should have access to jobs wherever they happen to live-no matter which state or territory they live in or whether they live in the country, the regions, a remote area or a city. Support should be diverse and flexible. It should meet the unique and changing needs of individual people and respond to changes in the job market. The system should be seamless and easy to use. It should give extra support at times of transition to help people move through life stages such as school, work and retirement. Funding should reflect the support needs of the person with disability. The amount of funding should meet the demand. No-one should be denied support because there is not enough funding. Organisations providing support should be better able to support themselves. The system should encourage innovation. It should welcome, use and share new ideas. … Appendix 2 Economic importance of employing people with disability Number of people with disability The 2009 Australian Bureau of Statistics Survey of Disability and Carers reported the following findings. • Four million Australians (18.5 per cent) had a disability in 2009 and over a million Australians had a profound or severe core activity limitation (5.8 per cent). Rates of profound or severe core activity limitation were highest in Tasmania (6.8 per cent), South Australia (6.4 per cent) and Victoria (6.2 per cent), and lowest in the Northern Territory (4 per cent) and the Australian Capital Territory (4.5 per cent), reflecting the age structure of these regions. • Rates of disability and rates of profound or severe core activity limitation for five- to 14-year-old males (11 per cent and 6.6 per cent respectively) were close to double those for females in the same age group (6.1 per cent and 3 per cent respectively). • The prevalence of disability in the Australian population declined 1.5 percentage points. This decrease is particularly noticeable in the younger age groups. From 2003 to 2009 the disability rate for 15 to 24 year olds fell from 9 per cent to 6.6 per cent. Over the same period the rate of disability also decreased for those aged between 25 and 34 from 11 per cent to 8.6 per cent. Similarly 22 per cent of 45 to 54 year olds reported a disability in 2003, compared with 18 per cent in 2009. • The rate of profound or severe limitation in the core activities of communication, mobility and self-care declined from 6.3 per cent in 2003 to 5.8 per cent in 2009. • Much of the decrease in the prevalence of disability between 2003 and 2009 is due to a decline in the proportion of Australians disabled by physical health conditions, such as asthma and heart disease. … However, some groups continue to be excluded from the opportunity and wealth experienced by other Australians. In supported employment: • workers with disability work for an average of 24 hours a week • 70 per cent of the workforce is part time • the average wage of a worker with disability is $3.65 an hour (working 24 hours a week, this adds up to a weekly income of $87.50). Only 13 per cent of people with a severe or profound core activity limitation have a bachelor's degree. In 2007 the Innov8 Consulting Group estimated that if all working-age Australians with disability receiving a pension (approximately 680 000 at the time) were working in jobs that paid the average weekly wage: • the saving to the Australian Government in DSP and related welfare payments would be $9.4 billion per annum • tax receipts would increase by $8.6 billion per annum • the increase in GDP through increased economic activity (using US Department of Labor statistics specifically for Australia on the GDP contribution of Australian workers) would be $54 billion per annum. … United Nations Convention on the Rights of Persons with Disabilities The UN Convention on the Rights of Persons with Disabilities makes a clear statement about what an employment vision for people with disability must contain: States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realization of the right to work. UN Convention on the Rights of Persons with Disabilities, Article 27, p 19. …
The affidavit also annexed copies of documents and correspondence in relation to R88027 from March 1969 to about April 1972. No files of the Crown Lands department could be identified in relation to R88027 after April 1972.

[20]

Letter from ARP to Mayor of Gosford

On 16 October 1981, ARP wrote to the Mayor of Gosford regarding the works approved by the DA 14278/81 in May 1981 the subject of par 24 of the SOAF (in Ex 3). The letter stated in part: As you are aware, we recently had plans approved for the extension of our Sheltered Workshop facility in Henry Parry Drive. We are only awaiting confirmation of the verbal approval of the Department of Social Security and the timing of their financial assistance, before commencing the work which hopefully will be finished in mid-1982. These extensions will utilise all of that part of our land that is suitable for occupation - you will remember it is a very difficult block for utilisation and access. This latter aspect has been of concern to our Executive Committee for some time, as it does place a serious restriction upon the type of disabled person that we can employ and train. We encourage our people to develop independence and expect them to travel to the workshop by normal public transport. If their disability affects their mobility, the steepness of the Henry Parry Drive Hill and our own access road becomes a major obstacle and certainly precludes us from admitting anyone in a wheelchair. Ideally our workshop should be located on an area of approximately 1/3 hectare of level 10nd, appropriately zoned for the varied work that we do and served by public transport. We would like to commence discussions with you and your Council officers to explore all aspects of this problem. Not as an alternative for our planned building extensions which we desperately need for our present level of operations, but as preparation for our future long term development over the next decade. We appreciate that the unusual tenure of our land brings special problems but these like all others, can only be overcome by discussion and we would like to make a start on these in the near future. Would you please give the matter some of your time and arrange for an initial explanatory meeting to be convened…with the aim of developing a strategy towards having our workshop/operation relocated on a more suitable site…

[27]

Emails between Mr Allen and DSA

The series of emails in evidence (Ex F) between the Crown Lands department and DSA, as referred to in [69(3)], begins on 27 June 2018. The exchange proceeded as follows: 1. The Crown Lands department emailed DSA attaching a copy of the NSW government gazette that appointed ARP as reserve manager of R88027. Crown Lands wrote "[a]s you would be aware the name changed to Amaroo Industries in 2002 and then to Disability Services Australia. Office records has failed to show any request for the now Disability Services Australia to be removed as Trust Manager". The Crown Lands department asked DSA to check the organisation's records to see if any administrative action had occurred, noting that any such actions needed Ministerial consent. 2. DSA responded on 26 June 2018 that "Disability Services Australia does not have any sites that we manage in the Gosford area nor have we since my tenure for the last 8 years. I have checked our old files and there is no property listed in Gosford." 3. The Crown Lands department responded on 26 June 2018 referring to previous discussions regarding the care, control and management of the site, referring to Lots 6-8 and the corporate name of R88027. It wrote that DSA was the appointed corporate trust manager notified 19 February 1971. 4. On 27 June 2018 the Crown Lands department emailed DSA writing that upon reviewing emails it had found a reference to Terama Industries Inc. A Google search identified Terama Industries Inc as being on the land. The Crown Lands department could not find any record of Terama Industries Inc having tenure and hoped DSA could assist. 5. DSA responded on 27 June 2018 that it had called Terama Industries Inc, who confirmed they are located at 143 Henry Parry Drive. Existing records and retired staff members at DSA did not know of the property. 6. On 28 June 2018, the Crown Lands department followed up, writing that it had to ensure the land was managed in accordance with the Crown Lands Act and asking for more information on how Terama Industries Inc became involved with the land. 7. DSA responded on 5 July 2018 that, having asked those who had been working for DSA for a longer period, no one was aware of the property at 143 Henry Parry Drive and no documentation relating to it could be found. DSA questioned who Terama Industries Inc was paying rent to and who has been maintaining the property for the previous 47 years.

[29]

Documents referred to in traffic evidence

Before summarising the expert evidence, it is appropriate to extract a number of rules, standards or guidelines referred to in the expert traffic evidence (Ex 2 and 3).
Australian Standard 2890.1 (2004) 'Part 1: Off-street car parking' (AS2890.1) relates to cars. At r 3.2.2 'Width requirements at low volume (Category 1) access driveways and connecting roadways' (as applying to the Henry Parry Drive access) it states the following: Where the circulation roadway leading from a Category 1 access driveway is 30 m or longer, or sight distance from one end to the other is restricted, and the frontage road is an arterial or sub-arterial road, both the access driveway and the circulation roadway for at least the first 6 m from the property boundary shall be a minimum of 5.5 m wide. In other cases subject to consideration of traffic volumes on a case-by case basis, lesser widths down to a minimum of 3.0 m at a domestic property may be provided. As a guide, 30 or more movements in a peak hour (in and out combined) would usually require provision for two vehicles to pass on the driveway, i.e. a minimum width of 5.5 m. On long driveways, passing opportunities should be provided at least every 30 m. Reversing movements to public roads shall be prohibited wherever possible.
Australian Standard 2890.2 (2002) 'Part 2: Off-street commercial vehicle facilities' (AS2890.2) contains the following relevant standards for commercial vehicles including trucks: 1.4 Definitions … 1.4.8 Major road A road carrying predominantly through traffic, generally either a two-way roadway and generally more than 12 m between kerbs, or a divided road. … Section 3 Access Driveways and Circulation Roadways … 3.2.2 Occasional service Requirements and recommendations for providing for occasional service are as follows: (a) The vehicle shall be able to stand wholly within the site. (b) Reverse manoeuvres at the property boundary, if permitted by the relevant authority, shall be limited to one only, either on entering or departing, and shall be subject to consideration of both safety and obstruction to other on-street traffic. … 3.2.3 Regular service - Major road Requirements and recommendations for providing for regular service from a major road are as follows: … (c) Both entry and exit at the property boundary shall be in the forward direction.
The Australian Road Rules (ARR) r 296 states: 296 - Driving a vehicle in reverse (1) The driver of a vehicle must not reverse the vehicle unless the driver can do so safely. (2) The driver of a vehicle must not reverse the vehicle further than is reasonable in the circumstances.
The RTA NSW Guide to Traffic Generating Development dated October 2002 (RTA Guide), states: About this Guide. Purpose. This Guide outlines all aspects of traffic generation considerations relating to developments. The Guide provides information regarding traffic issues for those submitting Development Applications, and for those involved in the assessment of these applications. The overall objective is that both parties have access to common information relevant to the development approval process … Section 6 Access and Parking Area Design … 6.2 Access requirements … 6.2.1 Access Driveways - safety considerations. Public safety is the main consideration when planning the location of access to a development. ... 6.2.2 Access driveways - design considerations. Design Principles. Follow these general design principles when planning access driveways for developments: … avoid reversing movements into or out of public streets (except in the case of individual dwelling houses). … 6.4.2 Services vehicle areas. Design considerations. … all vehicles are to enter and leave a site in a forward direction…
The 2017 Austroads guidelines, Guide to Road Design Part 4A - Unsignalised and Signalised Intersections' was referred to during concurrent evidence (in Ex 2). That document contains table 3.2 relating to the safe intersection sight distance (SISD) and corresponding minimum vertical crest curve sizes for sealed roads, and table 3.4 which is a table of grade corrections to approach site distance (ASD) and SISD for cars respectively. That document also contains tables A7 concerning grade correction to stopping sight distances and A12 concerning minimum extended design domain (EDD) SISD for sealed roads with level grades for the truck-day base case using an observation time of 1.5 seconds. It is unnecessary to extract these tables.

[30]

Traffic evidence - Joint Report

The experts produced a joint report in which they addressed six questions (Ex 9).
Question one stated: "what were the existing or potential vehicular access point/s to the building located on Lot 7 based on the documentation submitted and approved by Gosford City Council for DA 14278/81".
The Experts agreed that the existing vehicle access provisions for the building on Lot 7 in June 2009 comprised: 1. A driveway on Terama Place which directly accessed the warehouse on level 1. This driveway splayed from 3600 millimetres at the building to 5400 millimetres at the kerb and accordingly is designed to accommodate trucks (a driveway for a car would only need to be 3000 millimetres wide). 2. A driveway on Henry Parry Drive which provided access for the "carport" and this driveway is appropriately 3000 millimetres wide; 3. A driveway on Terama Place over Lot 8 which is some 3500 millimetres wide and provides access for the carport.
Question two stated: "please set out any requirements, standards or guidelines (including traffic standards or guidelines) that applied in relation to the ingress and egress of passenger cars, community transport buses, a six pallet truck and a 14 pallet truck from Lot 7 from or onto Henry Parry Drive in June 2009".
Mr Nettle identified AS2890.1 (2004) relating to passenger cars and AS2890.2 (2002) relating to commercial vehicles. Mr Nettle emphasised that AS2890.1 (2004) says that reversing movements to public roads should be prohibited wherever possible (but reversing from a public road is permitted). AS2890.2 (2002) for "occasional service" says that reverse manoeuvres shall be limited to 1 per day (either entering or departing) subject to consideration of both safety and obstruction to other vehicles. ARR r 296 permits reversing provided it can be done safely and the distance is no further than is reasonable for the circumstances. Mr Nettle noted that development consent had been granted for the vehicle access on Henry Parry Drive and there is nothing in the conditions of consent restricting the direction or manner of access.
Mr Morgan noted that AS2890.1 states that reversing to a public road is prohibited but does not specifically state that reversing from a public road is permitted. The RTA Guide section 6.2.2 states that reversing in or out of public roads, should be avoided except for individual dwellings. Henry Parry Drive forms part of the NSW road network and the requirements in the RTA Guide would apply.
Mr Morgan agreed that AS2890.2 allows for occasional service requirements and reversing movements. He did not consider that reversing in or out of the site direct to Henry Parry Drive is safe, due to the speed of vehicles, the down grade of traffic passing the site and the forward visibility. Any reversing movement would also cross the footpath creating safety issues for pedestrians. The driveway to the site also offers a steep gradient, which would reduce the speed for a vehicle reversing into the site at this location and lead to potential blocking of the southbound through movements on Henry Parry Drive. This in turn could lead to rear end type accidents for vehicles southbound on Henry Parry Drive.
Question three stated: "please set out any requirements, standards or guidelines that applied to the circulation of vehicles within Lot 7 in June 2009, including the circumstances where pedestrians, including disabled persons using wheelchairs or walking frames, may have accessed the building on Lot 7 by the disabled access ramp to level 2 or by means of the roller door access from Terama Place into level 3 of the workshop".
Mr Nettle opined that the relevant standards to the circulation of vehicles on Lot 7 are AS2890.1 and AS2890.2. There are a number of access points for pedestrians (the door on Henry Parry Drive frontage, ramp on southern side of building, opening at carport and roller shutter on Terama Place frontage). All three experts agreed disabled access is not within their area of expertise.
Question four stated: "in June 2009, was it possible for passenger vehicles, community transport buses, a six pallet truck and/or a 14 pallet truck to enter and exit Lot 7 using only the Henry Parry Drive exit (a) safely and/or (b) in accordance with the applicable requirements, standards or guidelines identified in response to questions 2-3 above".
Mr Nettle opined that it was possible for cars, mini buses and trucks to enter from Terama Place and exit to Henry Parry Drive safely in compliance with the applicable requirements. It was also possible to enter from Henry Parry Drive and exit to Terama Place safely in compliance with the applicable requirements. Cars and mini buses would be able to turn around in the widened driveway area on the eastern side of the building in order to enter and depart from Henry Parry driveway in a forward direction. Trucks would not be able to turn around within Lot 7 and would be required to either reverse into or out of the Henry Parry driveway. AS2890.2 and the ARRs permit this reversing and there is nothing in the conditions of consent to preclude this.
Mr Morgan agreed that it was safe and compliant for a car or mini bus and truck to enter off Henry Parry Drive and then exit via Terama Place. He also agreed it would be safe and compliant for these vehicles to enter off Terama Place and exit via Henry Parry Drive. A car or mini bus with 12 seats or less could turn around within the site to the east of the building to enter and exit via Henry Parry Drive. A mini bus greater than 12 seats would not be able to turn around within the site and would therefore need to reverse out of the site to Henry Parry Drive. He agreed with Mr Nettle that a six or 14 pallet truck would not be able to turn around within the site and would need to reverse out onto Henry Parry Drive. He agreed that AS2890.2 allows for occasional service requirements and reversing movements but did not consider that reversing in or out of the site direct to Henry Parry Drive is safe for the same reasons mentioned earlier in [85].
Question 5 stated: "in June 2009, was it possible for passenger vehicles and/or a six pallet truck and/or a 14 pallet truck to use the driveway between Lot 8 and the carport/loading dock on Lot 7 without traversing the boundary line into Lot 6".
Mr Nettle noted that the distance between the retaining wall at the south-east corner of the building and the boundary of Lot 6 is approximately 2250 millimetres. He commented that a passenger car (some 1800 millimetres wide) would be able to squeeze between the retaining wall and the boundary wall but a pallet truck (some 2500 millimetres wide) would not. AS2890.2 specifies that a driveway for a truck should be 3500 millimetres wide as a minimum. Mr Morgan agreed with that position.
Mr Bracken agreed with the other experts, additionally commenting that those measurements concurred with the survey undertaken by Crown Lands. The southern fence of the existing kerb line encroaches onto Lot 6 by up to 1300mm.
Question 6 stated: "on the assumption that no part of Lot 6 or Lot 8 can be used, please make any comments that are within your expertise about whether it would be possible to construct an alternative driveway from the Lot 7 carparking facilities/loading dock/wheelchair access Level 2 and driveway onto Terama Place, and any issues this would face and/or expenses it would involve. If any relevant matters are outside your expertise, or it is not possible for you to express an opinion without further information, then please state that".
The experts agreed that a feasible driveway could not be built.

[32]

Reversing into or out of Henry Parry Drive

There was extensive examination in concurrent evidence of the permissibility of reversing from or onto Henry Parry Drive into Lot 7. This was based on the opinions expressed in the Joint Report set out above in [82]-[85] and [88]-[90].
Mr Morgan opined that the existing access into Henry Parry Drive is a steep driveway resulting in a difficult access for any vehicle. If the roller shutter door were closed, a vehicle would not be able to park outside the travel lane prior to entering the building. It could potentially block across into Henry Parry Drive.
Mr Nettle opined that a truck could stand on the driveway from Henry Parry Drive wholly within the site, and he had seen a Google street view image of a truck standing there.
Mr Morgan and Mr Nettle disagreed about the status of the RTA Guide. Mr Nettle expressed the view that despite the various authorities, the Australian Standards prevail over other authorities or guidelines. They were the preeminent standard in relation to legality and safety. Mr Morgan opined that the RTA Guide was commonly applied in his work and should be complied with as much as the Australian Standards. In response to a question from the Acting Commissioner, Mr Morgan agreed that having regard to the purpose section of the RTA Guide, that document is about identifying matters to be taken into account in a development application rather than prescribing what can and cannot be done. Mr Morgan did not put the Australian Standards over the RTA Guide or vice versa in terms of importance.
Mr Nettle agreed that if the driveway was used for reversing more than once a day, it would not be permissible under AS2890.2. He accepted that given the wording of the occasional service rule, permissibility is subject to safety and obstruction concerns. That was the same in relation the ARRs.
Mr Nettle also agreed that having regard to paragraphs 6.2.2 and 6.4.2 of the RTA Guide, it would be contrary to the guidance in the document for vehicles to enter or leave via Henry Parry Drive by reversing.
Mr Nettle was asked whether it was an accepted approach in ascertaining the design speeds of roads under the tables mentioned above in [78] that 10km/h be added to the speed specified in table A7. He agreed with that proposition, so long as the '85th percentile' speed could not be ascertained. The '85th percentile' method involves taking speed readings of the actual speeds on the roads and utilising that data rather than making theoretical adjustments such as adding 10km/h to obtain the design speed. Mr Nettle accepted that this meant the SISD for the Henry Parry Drive access driveway, with an appropriate downgrade correction, was 160. That was assuming the speed on the relevant stretch of Henry Parry Drive was 60km/h and the design speed was 70km/h. Mr Morgan had nothing to add to this. Mr Nettle maintained that using the 85th percentile approach was more realistic, common and practical. Mr Morgan agreed that the 85th percentile approach was an alternative but did not consider that it would necessarily produce a different result.
Mr Nettle and Mr Morgan accepted, on the assumption (consistent with Mr Fealy's evidence above in [29]) that trucks come to the property several times a day to load and unload, that the relevant standard applying to this matter was AS2890.2 r 3.2.3 'Regular Service - Major Road' because Henry Parry Drive is a 'Major Road' within the definition of that term in r 1.4.8 of AS2890.2. Clause 3.2.3 states "both entry and exit at the property boundary shall be in the forward direction".
In relation to the permissibility of cars reversing in from Henry Parry Drive, Mr Nettle maintained his view that r 3.2.2 of AS2890.1 allowed for this because it prohibits only reversing movements "to public roads". Mr Morgan considered that reversing was contrary to r 3.2.2 because it requires that the access driveway and the circulating roadway be a minimum of five metres wide for at least the first six metres from the property boundary; based on the photo in Ex C, this property lacks those features.
As to the safety and desirability of reversing onto Henry Parry Drive, Mr Nettle maintained in oral evidence that it was safe to do so. Vehicles were able to pass in the second lane and it was possible for a six or 14 pallet truck to reverse while using only one lane. Visibility is good. It is a straight section of road with a slight downgrade with a speed limit of 50km/h. There was no adverse safety record on Henry Parry Drive when regard is had to the crash data (referred to above in [72(10)]).
Mr Morgan opined that the speed limit adjacent to the site is actually 60 km/h, despite the limit changing to 50km/h just after the site of Terama Industries Inc. He did not believe that a commercial vehicle could reverse out of the driveway to Henry Parry Drive without occupying two lanes, impacting oncoming traffic and leading to safety concerns. Mr Morgan stated, in response to the crash data relied on by Mr Nettle, that the road characteristics are different along Henry Parry Drive, and that the current data does not take into account the prospect of a commercial vehicle reversing onto Henry Parry Drive.

[40]

'Public'

A "purpose" may be defined as "the object in view or the object for which something is done". A "public" purpose is one that is normally carried out by the Government or regarded as a governmental function. A public purpose will have connotations of the "community, state or nation as a whole". It may be distinguished from a "private" purpose: New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act (2014) 204 LGERA 1; [2014] NSWLEC 72 (Newcastle Post Office) at [192]; NSW Aboriginal Land Council v Minister for Natural Resources (1986) 59 LGRA 318 (Tredega) at 331 (Stein J).
Providing supported employment for disabled persons is also a "public" purpose, being a purpose that has traditionally been pursued and funded by government. Again, this is demonstrated by, inter alia, Article 27 of the Convention on the Rights of Persons with Disabilities (CRPD), pursuant to which State Parties, including Australia, assume obligations to (amongst other things): (d) Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training; (e) Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment; … (h) Promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures; …
The NSW and Commonwealth governments pursued for decades and as at the date of claims the goal of increasing supported employment for disabled persons, as evidenced by: 1. Commonwealth State Territory Disability Agreement (CSTDA) of 2002 and the 2009 National Disability Agreement (see above in [45]-[47]); 2. the fact that the "care and training of handicapped or disabled persons" (or the like) has long been recognised by the Minister and/or Crown Lands as a public purpose for which a reserve may be granted, and indeed a "priority" purpose (see above in [59]); 3. Mr Fealy's evidence explaining the certification, regulation and funding by the NSW and Commonwealth governments of Terama Industries Inc (see above in e.g. [17]-[18])
The Court can take notice of governmental regulation of the sector through acts such as the Handicapped Persons Assistance Act 1974 (Cth) (see, e.g. s 5 "sheltered employment"), the Disability Services Act 1986 (Cth) (see, e.g. Part II, Div 2A "Grants for employment services") and the National Disability Insurance Scheme Act 2013 (Cth).
That the NSW and Commonwealth governments chose to pursue the essential public purpose partly by encouraging, subsidising and regulating private providers such as charitable institutions (including Terama Industries Inc) does not mean the purpose is not fundamentally a public one.
In Deerubbin Local Aboriginal Land Council v Minister administering the Crown Lands Act (1997) 95 LGERA 353; [1997] NSWLEC 95 (Deerubbin Cemetery) at 360-361, Lloyd J determined that the operation of a cemetery to be run by a private operator was an essential public purpose notwithstanding the submission that it could not be so because the facilities would be provided privately.
In Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2001) 113 LGERA 163; [2001] NSWLEC 20 (Wanaruah), Lloyd J held that a trigonometrical station was an essential public purpose notwithstanding it was used extensively for private and public survey purposes: at [83].
Governments are increasingly contracting out the provision of many traditional governmental services. In circumstances where an organisation such as Terama Industries Inc is carrying out an essential service of supported employment for disabled persons, the fact that they are a private organisation in the sense of being a non-governmental organisation does not mean the relevant purpose is not public. Services such as drainage and sewerage works demonstrate this point.

[41]

Terama Industries Inc was a charitable organisation in ordinary sense

The Minister's position was that, as at the date of claims, Terama Industries Inc was a "charitable organisation" in the natural and ordinary meaning of that phrase, in that it was an organisation that was a charity as agreed at SOAF par 45. The fact that in the late 1980s there were internal Crown Lands department guidelines for certifying charitable organisations is not relevant for three reasons.
First, they are internal Crown Lands guidelines as to the practice then used to determine whether an entity is a "charitable organisation" within the meaning of the gazetted purpose and as such do not circumscribe the limit of the phrase. The gazetted purpose is not "charitable organisations certified by the Legal Department of Crown Lands" but rather "charitable organisations", and it is for the Court to determine the meaning of that phrase.
Secondly, there is no evidence that those guidelines applied as at the date of claims. The approach to determining what constitutes a charitable organisation at that date could have been completely different. This underscores why reliance cannot be placed on internal guidelines which change from time to time.
Thirdly, and in any case, the question for the Court is whether the land was needed or likely to be needed for an essential public purpose within the meaning of s 36(1)(c) of the ALR Act. That does not turn on whether or not Terama Industries Inc was officially certified as a "charitable organisation" by the legal department of the Crown Lands department as at the date of claims. Even if it was not, that does not prevent the conclusion that by decisions in 1969, 1970 and 1971, the Minister determined that the land was needed for the essential public purpose of supported employment of persons with disabilities, and the land was still needed for that purpose as at the date of claims.
That Terama Industries Inc is a charitable organisation established for public and beneficial purposes is an indication that it is carrying out public purposes. As for the Applicant's submission (see below in [166]) that Terama Industries Inc had intentions to make profits and it was unclear how much the employees benefitted from these or government funding, the Minister submitted that Terama Industries Inc is not prevented from being a charity by reason of the fact that it makes a surplus and to the extent the allegation is that Terama Industries Inc had done something other than comply with its obligations as a charity this was not put to Mr Fealy and cannot be accepted.

[42]

'Essential'

"Essential" means "necessary" or "indispensable". A wide range of purposes have been regarded as essential public purposes: coastal protection and public access to the shoreline; the provision of trigonometric stations and powerlines; the provision of drainage and sewerage infrastructure; public access and recreation with respect to tidal waters; national parks; and cemeteries, to name a few. What will constitute an essential public purpose in some circumstances may not be sufficient in others: Newcastle Post Office at [193], [195]-[196] (Pepper J).
"Supported employment for disabled persons" is an essential public purpose. "Supported employment" involves people with disabilities being employed in a supported working environment. It is essential that, like other persons, disabled persons have access to employment and training to provide income to support themselves, activity to fill their days and a sense of self-worth. This is recognised, amongst other things, in Article 27 of the CRPD, which Australia ratified on 17 July 2008 (see above in [123]). The reports published by the NSW and Commonwealth governments on or around the date of claims (see Ms Fegan's affidavit above in [44]-[52]) demonstrate that those governments considered the provision of supported employment and training facilities to be "critically important" and that there was "substantial unmet need" for those facilities.
It was incorrect to submit, as the Applicant did, that persons with a disability could find work elsewhere in mainstream employment as there were in 2009 very high levels of disabled persons who could not access mainstream employment. This is supported by the statistics on paid work for disabled persons above in [51], the 2010 research cited by the Productivity Commission report above in [50] and the passages referred to in the National Disability Strategy 2011 above in [48]. At the date of claims the Disability Services Act 1986 (Cth) regulated inter alia the provision of supported employment services, and defined such services in s 7 as services to support persons "(a) for whom competitive employment at or above the relevant award wage is unlikely; and (b) who, because of their disabilities, need substantial ongoing support to obtain or retain paid employment". By definition, mainstream employment is unsuitable to users of supported employment services such as those provided by Terama Industries Inc.
There is no requirement for the government of the day to hold the view that the public purpose was essential, though evidence of such a view may inform the question.

[43]

'Needed or likely to be needed'

Needed means required or wanted by the executive government: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (2001) 50 NSWLR 665 ([sic] - I note that the correct reference is Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 (Castlereagh CA) at 254D (Handley and Powell JJA)). For land to be needed there should be an actual decision concerning use, or manifestation of political will, at the level of executive government: Minister Administering Crown Lands Act v NSW Aboriginal Land Council (2009) 171 LGERA 56; [2009] NSWCA 352 (Berowra CA) at [25] (Hodgson JA); Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2012) 211 LGERA 100; [2012] NSWLEC 68 (O'Hara's Creek) at [144] (Pain J).
It is irrelevant in determining whether or not s 36(1)(c) of the ALR Act has been satisfied whether the essential public purpose could have been satisfied in some other way: Newcastle Post Office at [195] (Pepper J). That is, the question "does not involve an extensive inquiry into whether the purpose can somehow or otherwise be achieved; it is essentially a question of the view held by the government on the day the claim was made": Castlereagh CA at 252 (Meagher JA). The Court is not called upon to second guess a decision by the Executive Government that the land is needed for a certain purpose; the only question is whether the purpose is an essential public purpose, and whether the land was needed - that is, required or wanted - for that purpose: Castlereagh CA at 254 (Handley and Powell JJA). However, the Court may come to a different conclusion concerning whether or not the land is needed than that reached by the executive: Newcastle Post Office at [190].
The word "likely" means there is a "real or not remote chance" and does not impose a test of probability: Castlereagh CA at [57], [66] ([sic] I note that Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] (2001) 50 NSWLR 665; [2001] NSWCA 28 (Maroota CA) is the correct reference); Berowra CA at [24] (Hodgson JA). The question of whether land is "likely to be needed" is "a question as to whether it is likely that there will in the future be a Government requirement". This may be addressed by considering whether there is a trajectory at the appropriate government level or a trajectory towards a requirement at the appropriate government level: Minister Administering Crown Lands Act v Illawarra Local Aboriginal Land Council (2009) 168 LGERA 71; [2009] NSWCA 289 (Illawarra CA) at [35] (Hodgson JA, McColl JA agreeing); Berowra CA at [27] (Hodgson JA). The question of whether land is "likely to be needed" is "a question as to whether it is likely that there will in the future be a Government requirement". Thus, it will be sufficient if there is at the time of the claim a trajectory which does make it likely that there will in due course be the appropriate requirement at the appropriate government level: Berowra CA at [28] per Hodgson JA. See also, O'Haras Creek at [56] per Pain J.

[44]

No specific view need be formed at or near the date of claims

The Minister submitted that in 1969 (the special lease), and 1970 and 1971 (the reservation of R88027 and appointment of ARP as trustee) the Minister made conscious decisions that Lot 7 was needed for the purpose of supported employment for disabled persons. Those decisions manifested the political will of the Executive Government. The decisions were reaffirmed in 1990 by the assigning of the corporate name "Gosford Charitable Organisation (R88027) Reserve Trust" to R88027 (SOAF par 31). The patronage of ARP by the Governor of NSW and various other NSW ministers, and the provision of subsidies and tax concessions to ARP by the Commonwealth, are also relevant to the manifestation of this political will. Since then, the land has been continually used for that purpose (see Mr Fealy's evidence above in [16]). This demonstrates that the land was still needed for that purpose at the date of claims. Nothing more is required to discharge the Minister's onus on the balance of probabilities that Lot 7 was needed for that essential public purpose. The Minister relies on the actual decisions of the Minister and continuous use, where there is no evidence that the Minister or Executive Government changed their mind about the use of the land for that purpose.
It is not necessary for the Minister to continually refresh or review their decision, including at or around the date of claims, or that the Minister have a specific and detailed knowledge of the particular activities on a site in respect of which a decision had already been made as to its use. If that was the burden, it could never be discharged. The Minister is not aware of any case in which land which was actively used at the date of claims for an essential public purpose, pursuant to a decision by the Minister that it be used for that purpose, was held to be claimable because the Minister had not turned their mind to the precise activities on that land as at the date of claims. That would clearly be an outcome not intended by the drafters of the ALR Act, and one that would subvert the statutory scheme and threaten the continuation of many worthy activities on Crown land.
In Deerubbin Cemetery, Lloyd J held that the land in question was required for an essential public purpose of a cemetery. The claim was made in 1993. There had been no consideration by the Minister since 1889 when the land was dedicated as a cemetery: at 355. The most recent governmental consideration was when the local council proposed that the land be zoned as a cemetery in 1967, a decision given statutory force in 1982: at 356, 363. The evidence simply established that the land was still likely to be needed as at the date of claim: at 362-363.
In Wanaruah, Lloyd J held that the land in question was required for an essential public purpose of a trigonometrical station. There was no evidence in that case of any ministerial or government consideration as at the date of claim. The evidence of the Deputy Surveyor General of NSW at that time was accepted to the effect that the land was used for that purpose at the date of claim: at [79], [80], [83]. The same applies to the electricity transmission lines considered in that case: at [85]-[86].
No particular frequency of review by the Minister is necessary. It is a question of fact in the particular case depending on whether there has been any actual decisions concerning the public purpose to which the land would be put, and whether there is anything in the interim to suggest that decision has been revoked. It is irrelevant that the trust manager ceased to exist in circumstances where the trust itself continued to exist. Even if management of the land reverted back to the Minister on dissolution of ARP, this simply meant the Minister became the manager of the reserve, and says nothing about whether the land was needed or likely to be needed for an essential public purpose. Although relevant legislation did not deem Terama Industries Inc the successor to ARP, it was the successor in a lay sense because it contractually assumed all of the assets and liabilities of ARP. There was no change to management, employees, or use of the land. In these circumstances, by reason of the 1987 agreement, it can be inferred that ARP as trust manager and the reserve itself by reason of ARP's intention consented to an arrangement whereby Terama Industries Inc was the successor in operations to ARP.
In the alternative, if the Court were against the Minister and required more than the original decisions and continuous use, the Minister submitted that the land was "likely" to be needed for the same essential public purpose as at 2009. The original decisions, continuous use of the land for the same purpose, Commonwealth certification and funding of Terama Industries Inc, mean that it is likely that had the Minister turned their mind to the matter as at 2009 they would have considered the land to be needed for that purpose. The fact that when the status of R88406 (see par 21, 32-33 of SOAF) was brought to the Minister's attention the Minister determined to gazette the new manager as reserve manager by dissolving the initial reserve and creating a new one, is evidence for the proposition that the Minister likely would have taken the same approach in 2009 in relation to R88027 had the Minister known what was occurring on the land. The fact that the Minister's predecessor took certain steps in relation to R88406 cannot form the basis of an inference that the land the subject of R88207 was no longer needed for the essential public purpose of supported employment for disabled persons. If anything, the actions in relation to R88406 show that the Minister's predecessor would have done the same for R88207 had the matter been brought to his attention.
The evidence establishes that the land was likely to be needed for an essential public purpose, similar to Deerubbin Cemetery in which an historical decision to dedicate the land as a cemetery was supported by expert evidence that the land was likely to still be needed. In this case the historical decisions were in 1969-71, whereas in Deerubbin Cemetery it was in 1889, meaning the case is stronger here.

[52]

Terama Industries Inc is not a charitable organisation

The precise terms of the agreed facts concerning the status of Terama Industries Inc are set out in the SOAF at pars 45-47. The Applicant did not concede in oral submissions that at the date of claims Terama Industries Inc was a 'charitable organisation'. Firstly, the term was submitted to be a technical term for the purposes of the CLC Act or CL Act. The Applicant indicated during the hearing that it would consider Crown Land legislation and advise further. Subsequently the Applicant advised that there is no definition of 'charitable organisation' in the CLC Act, the CL Act or the regulations or by-laws under either of those acts, or in the Interpretation Act 1987 (NSW). It continued to submit that it did not concede that Terama Industries Inc was a charitable organisation.
Secondly, the Office Practice Guidelines summarised above at [60] specified procedures that were required to be followed for appointment as a reserve trust manager as devised by the legal branch of the Crown Lands department. One annexure included a list of eligible charitable organisations, and did not include Terama Industries Inc.
Thirdly, in written submissions the Applicant stated that prior to the introduction of the Charities Act 2013 (Cth) a number of Acts related to charities. The definition of what was a charity was derived from the common law. The implication was that there was no evidence that Terama Industries Inc satisfied these requirements and that the agreed fact that it was recognised as having charitable status for ATO purposes was not definitive.
Fourthly, on the evidence (see above at [15], [37]) the only available inference is that Terama Industries Inc did not have a constitution as at the date of claims.
Fifthly, the evidence (see above in [33]) suggests Terama Industries Inc had intentions to make significant profits. There is no evidence about how much Terama Industries Inc employees were paid and how much government funds flowed through to employees.
In any case, if Terama Industries Inc were a charity, merely that it is a charity does not mean that it is carrying out a public purpose, contrary to the Minister's submissions. Were it otherwise, the purposes of all charities, including the New South Wales Soccer Referees Educational Foundation and Greenpeace Australia Pacific Limited could be said to be public purposes.

[55]

No view formed at appropriate level of government

"Likely to be needed" requires that the proposal be seriously at play at an appropriate level of government, being the Executive Government and not a desire of a department or agency without decision-making power. As Pain J noted in O'Hara's Creek at [146]: ... the evidence must be considered to ascertain whether it assists in determining the likelihood of future decisions by the Executive Government. This suggests that consideration of a reasonably concrete proposal within State government agencies and departments must be at a senior level if not Ministerial level by the date of claim. Consideration of land use as part of normal State government functions will not necessarily suffice to meet the test of likely need and/or EPP identified in the relevant authorities.
It is not the case that "any decision of or indication at any level within the executive that it wants or may want to use land for a purpose without anything more necessarily establishes the existence of the relevant need or likely need": NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [2008] NSWLEC 13 at [93] (Jagot J).
In this instance, R88027 was notified over Lots 7 and 8 thirty-nine years before the date of claims. Any lawful use had ceased, at the latest, in 1992 when ARP was wound up. There is no evidence that the "government of the day" had formed a view that the land was "needed, or likely to be needed" for the purpose the Minister contends.
Even if it is accepted that a decision by the Minister need not be "constantly reconsidered and reconfirmed", the Minister has not made any submission as to what frequency of review is required. The Minister's submissions misunderstand the requirements of s 36(1)(c) of the ALR Act and do not address the requirement that the Minister or the Executive Government hold the view in relation to the need for the land for the essential public purpose at the date of claim. The Minister has not explained why a decision, made in 1970 to appoint ARP as reserve trustee, was still the view of the Minister in June 2009 when the Minister knew that ARP had ceased to exist in 1992. The Minister needed to have more than no knowledge at all of the use of the land to support a finding that at the date of claims a view was held at the appropriate level of seniority that the land was needed for the asserted public purpose. There was no proposal at any level of government for the land to be used for any purpose.
The fact that the actions taken in relation to R88406 (see par 21, 32-33 of SOAF) were not taken in relation to R88027 supports an inference that the Minister did not hold the view that Lot 7 was needed or likely to be needed for an essential public purpose.
Even if the Minister had conducted a land assessment and concluded that the land had the capacity for certain charitable purposes, the Minister did not adduce any evidence that would satisfy the Court that Lot 7, rather than other land in the Crown portfolio or other private land, was needed for charitable purposes or, more specifically, for the supported employment of disabled persons. It is not enough for the Minister to show that there is a desire or demand for land for the purpose generally. The Minister must demonstrate that it is the claimed land that is required: Illawarra Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 188 at [117] (Sheahan J).
There is sufficient evidence to support a finding by the Court that the Minister, knowing that ARP could not continue in the role of reserve trust manager having been wound up in 1992, was either content for Lot 7 to remain vacant Crown land, or did not turn their mind to whether there were any other charitable organisations that could use the land. The Minister has not adduced any evidence that could support any other finding.
The Minister's reliance on Deerubbin Cemetery is misplaced because that case is plainly distinguishable. In Deerubbin Cemetery case the cemetery was of a perpetual nature involving the internment on human remains, meaning there was no need for the Executive Government to continually revisit the initial decision. That need is manifested perpetually from the initial decision.

[59]

Consideration of post-date of claim evidence

In O'Haras Creek, I stated the following at [98]-[101]: Consideration of post-claim documents 98. Events at the date of claim are most relevant to the consideration of whether Crown land is claimable. Where parties seek to rely on documents created after the date of claim their admissibility must be determined. Falconer confirms that such documents are admissible as relevant provided they are confirming a foresight and not a hindsight (at 588B per Hope JA). 99. In Illawarra No 1 Basten JA, in dissent on other grounds, stated at [78]: ... the use of future events to confirm a real chance must be subject to reasonable time constraints. Were it otherwise, there would be an incentive for the Minister to delay deciding a land claim until the government's position with respect to the land had crystallized. A number of cases have now made reference to the unexplained, and thus apparently unjustifiable, delays incurred in processing land claims. Clearly a point is reached, far earlier than that demonstrated in the present case, at which time future events will no longer assist in confirming an existing state of affairs at the date of claim... 100. In Illawarra No 2 (CA) Sackville AJA (with whom Basten and Whealy JJA concurred) said: [61] ...In determining whether at the date of the claim it was likely that land would be needed for an essential purpose, it may be permissible for the court to take into account post-claim evidence. However, such evidence is relevant only if it is probative of the objective likelihood assessed in prospect at a particular date of events happening in the future and if the evidence is not used by way of hindsight to determine the events that were likely to occur at the relevant date: Deerubbin (No 2), at [69], [71], per Spigelman CJ, citing Housing Commission v Falconer, at 558, per Hope JA. 101. As a general proposition, documents created immediately after a claim is lodged can generally be considered as these are unlikely to be influenced by knowledge of a claim. The longer the time after a claim the greater that risk. In this case post-claim documents created until mid 1990 may be considered for this reason but not thereafter.
I allowed into evidence various documents attached to Ms Fegan's affidavit concerning NSW and Commonwealth government policies in relation to the provision of supported employment for disabled persons as summarised above at [44]-[51]. The report of the NSW Legislative Council Standing Committee on Social Issues, the NSW Government Response to that report, and the National Disability Agreement pre-date the date of claims. The National Disability Strategy 2011, Productivity Commission Report 2011 and Vision for Sustainable Supported Employment 2012 published by FaHCSIA are dated after the date of claims. These documents were allowed into evidence consistent with the above principles, being created shortly after the date of claims and not at all likely to be informed by them, being broad governmental policy documents. Both the Disability Strategy 2011 and the Vision for Sustainable Employment 2012, refer to circumstances in 2009 the year of the two claims. The Productivity Commission 2011 report referred to in [50] cited 2010 reports, which were written shortly after the claim dates. These may be relied on by the Minister consistent with my reasoning in O'Hara's Creek immediately above.

[60]

Public purpose

One issue arising from the Applicant's arguments is whether the activities of Terama Industries Inc were for a public purpose as required by cl 36(1)(c) of the ALR Act at the date of claims. Public purpose is undefined in the ALR Act. It is a broad term, applying its plain and ordinary meaning. A purpose of the administration of government is a "public purpose", as identified in Tredega at 331 by Stein J; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) (No 3) [2015] NSWLEC 145 (Nelson Bay No 3) at [41]. A "public" purpose has connotations of the community, state or nation as a whole": Tredega at 331. A public purpose can be distinguished from a private purpose: Tredega at 331. Such a purpose is one that is normally carried out by government, or is regarded as a governmental function: La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 (La Perouse) at 183 (Bannon J). In Tredega Stein J acknowledged in obiter dictum at 331 that a private purpose could be translated into a public purpose: Darkinjung 2006 at [132], and Newcastle Post Office at [213]. A sufficient "nexus" to 'public purposes' may be obvious where, for example, private activity is providing essential public infrastructure: Newcastle Post Office at [213]. In the context of land proposed to be used for retail and hospitality, while public benefit from private use may occur, the purpose was nevertheless essentially a private one: Newcastle Post Office at [208].
The Applicant submitted that a public purpose is one generally provided by government, here the NSW government and there is no evidence the NSW government has ever provided supported employment for disabled persons. While that is one indicia of a "public" purpose it is not the sole criteria given the absence of any definition or other indication in the ALR Act that would curtail its construction in this way. The purpose of supported employment for disabled persons through facilities operated by private not-for-profit entities such as Terama Industries Inc was contrasted by the Applicant with gaols run by private companies and wards of the state where home care is outsourced. It was said that those activities were relevantly "public" because prisoners remained incarcerated under the state criminal justice system, and wards of the state remained under the legal guardianship of the State. There is no statutory construction basis for limiting "public" purpose to the provision of services for people otherwise directly controlled by the NSW government, such as prisoners and wards of the state. The Applicant's narrow construction does not accurately reflect the authorities identified immediately above when read in context. Further, no principle of statutory construction suggests that "public" purposes must be solely those once provided directly by the NSW government, particularly in an age of increasing privatisation of public service delivery.
The Applicant submitted that supported employment benefits the individual employees and their families and private entities like Terama Industries Inc which undertake such work as another reason why such a use is not for a public purpose. I agree with the Minister that supporting persons with a disability benefits the community, through providing disabled people opportunities for employment with all of the attendant financial and social benefits inter alia otherwise available to employed people without a disability. Arguably that contributes to the welfare of the whole of society in NSW. I have considered the international framework in the CRPD for the support of disabled persons, (including for supported employment); the governmental reports and policy documents of both Commonwealth and NSW governments referred to in Ms Fegan's affidavit summarised above at [44]-[52]. These documents confirm that the NSW Government in conjunction with the Commonwealth Government took responsibility for the provision of supported employment for disabled persons well before and at the date of claims. That such employment was provided by a non-government entity does not change its provision being for a public purpose.
The Applicant submitted that Commonwealth legislation, which the Minister relied on as summarised above in [125], cannot be relevant as the Commonwealth government has no role to play in the management of Crown land in NSW. While that submission is correct, the Commonwealth legislation serves to highlight in a general way the significance of the provision of these kinds of services for disabled persons, and that does inform the approach of the NSW government undertaken in conjunction with the Commonwealth government identified in Ms Fegan's affidavit.
The facts of this matter are markedly different to, for example, Newcastle Post Office, where at the date of claim the government envisaged the land use to be for-profit redevelopment by a private company for hospitality and retail uses which it was argued would serve public purposes. Such purposes were the essential public purposes of community purposes, heritage purposes, urban services, regional requirements and tourism facilities and services. The future use envisaged was found not to serve a public purpose but a private one. The circumstances in Deerubbin are more analogous where the private operation of a cemetery was found to satisfy a public purpose.
The provision of services of supported employment for disabled persons in buildings located on Crown land while different in nature to physical structures such as a trig station, cemetery, sewerage pipes and drains inter alia the subject of several cases referred to in argument is capable of being a public purpose for the purpose of s 36(1)(c).

[61]

Was Terama Industries Inc a charitable organisation at the date of claims?

The Applicant did not concede that Terama Industries Inc was a charitable organisation at the date of claims, arguing that Terama Industries Inc was a private entity as it was non-governmental. While this question is not determinative of whether the provision of supported employment for disabled persons is a public purpose it does provide important context by which to assess that matter. The status of Terama Industries Inc as agreed in the terms set out in pars 45-47 of the SOAF includes that it was registered as a charity with the ATO at the date of claims in par 45. On one view that is determinative of the matter but I will consider the Applicant's submissions to the contrary.
An additional document dated before the date of the claim confirms that charitable status. The ATO notice of endorsement dated 2005 attached to Mr Fealy's affidavit (see above in [17]) recording its exemption for income tax, GST exemption and FBT exemption identifies Terama Industries Inc as a "charitable institution".
The same public purpose has been carried out on Lots 7 and 8 for decades. Mr Fealy identifies in detail the scope of activities carried out on Lot 7 over many decades by Terama Industries Inc in providing supported employment for disabled people including at the date of claims.
The SOAF at par 10 identifies the objects of ARP, and at par 20 describes the appointment of ARP as reserve manager of the reserve trust for charitable organisations on 19 February 1971. ARP is also listed as a charitable organisation certified by legal branch in the Office Practice Guidelines (above in [62]). The provision of a "sheltered workshop", as such facilities were previously known, in support of the "care and training of handicapped persons" or supported employment for disabled persons as it is now known, was expressly recognised a charitable purpose as in the Manual of Procedures (see above in [59]). The SOAF at par 11-18 identifies the identification by ARP of the need for a sheltered workshop on the Central Coast, the identification of land for that purpose in the Gosford area, the granting of a special lease in perpetuity to ARP NSW in 1969 on Lots 7 and 8 and the construction of a workshop in 1969 and 1970 using Commonwealth government funds. The ARP Central Branch resolved to change its name to 'Terama Industries' in December 1981. Mr Fealy's affidavit summarised above in [14]-[30] identifies the activities of ARP known as Terama and then Terama Industries Inc. While no precise start date is in evidence for when Terama Industries Inc took over from ARP following their agreement to that effect on 21 December 1987, the inference arises from this material that the same activity has happened continuously on Lot 7 up to the date of claims according to Mr Fealy's unchallenged evidence. ARP was wound up by order of the Supreme Court of NSW in 1992 and its registration as a company was cancelled in 1995. The inference arises that Terama Industries Inc took over occupation of Lots 7 and 8 in the period 1987 to 1992. The activities on the lots remained the same regardless of which legal entity was in occupation. That the activity carried out on Lot 7 can be characterised as charitable in purpose further supports finding that Terama Industries Inc was a charitable organisation at the date of claims.
Five bases were relied on by the Applicant to submit to the contrary, set out above in [162]-[166]. Firstly in the absence of any reference to 'charitable organisation' or similar in Crown Lands legislation it is not apparent why the Applicant's submission that it is a technical term for the purposes of that legislation can be correct applying usual statutory construction principles.
Secondly, statutory construction principles do not provide a basis to suggest that 'charitable organisation' has a technical meaning for the purposes of the CL Act because of the content of the Office Practice Guidelines identified above in [60]. The Office Practice Guidelines were made to ensure appropriate processes were followed in the appointment of a reserve trust manager. The effect of the Applicant's argument appears to be that an entity had to appear in Annexure 30-B of the Office Practice Guidelines (summarised in [62] above) to be considered a charitable organisation for the purposes of Crown Lands legislation. No statutory construction principle supports such an approach.
Thirdly, as the date of claims in 2009 was before the Charities Act 2013 (Cth) the agreed fact that it is a recognised charity by the ATO was not definitive according to the Applicant. The implication that seemed to arise from this submission was that the common law requirements for being a charity at the date of claims had to be satisfied by the Minister in relation to Terama Industries Inc. In oral closing submissions the Minister referred to Commissioners for Special Purposes of Income Tax v Pemsel [1891] 1 AC 531 (Pemsel), which is often cited as the basis for the common law definition of charity along with the Statute of Elizabeth 43 Eliz I c 4 (Charitable Uses Act 1601) (Gino Dal Pont, Law of Charity, (2nd Ed, 2016, LexisNexis) (Dal Pont on Charity). The Minister submitted that Terama Industries Inc did satisfy that definition at the date of claims. Lord Macnaghten stated in that case: "Charity" in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads. The trusts last referred to are not the less charitable in the eye of the law, because incidentally they benefit the rich as well as the poor, as indeed, every charity that deserves the name must do either directly or indirectly.
Supported employment for disabled persons arguably falls within the first head (relief of the poor, aged or impotent) of the Pemsel categories, being of public benefit: Dal Pont on Charity at [3.24]-[3.25], [8.33]-[8.39]. As the Applicant did not make further submissions to support a finding that Terama Industries Inc was not a charity within the meaning of the common law at the date of claims I am reluctant to further consider the law of charity as identified in Pemsel, including the Statute of Elizabeth as the parties did not address these in any detail.
Fourthly, the Applicant submitted that the inference arises from the evidence that Terama Industries Inc did not have a constitution at the date of claim. Although not spelt out in the Applicant's submissions the presumed inference is that consequently it cannot prove it had a charitable purpose as at the date of claims. Terama Industries Inc had to have rules in place at the date of claims given its registration in 1987 as an incorporated association under the Associations Incorporation Act 1984 (NSW) commencing 1 July 1985 (AI Act). The AI Act required a set of rules to be prepared and supplied to the relevant government department or the adoption of model rules (s 11, s 19(2)). The AI Act required a statement of the objects of an association to accompany the application for incorporation under the Act. The AI Act applied exclusively to associations not carried on for the object of trading or securing pecuniary gain for its members: s 7(2).
I also note that the Office Practice Guidelines stated that corporations established under the AI Act need not be referred to the legal branch of the Crown Lands department for certification because they can be presumed to be not-for-profit organisations (see above in [61]).
Mr Fealy recalled that there was a constitution from 1982. This is likely to have been for ARP known as Terama Industries as Terama Industries Inc was not incorporated as a legal entity until August 1987. He was not able to locate it. A constitution dated 2010 was attached to his affidavit. Whether Terama Industries Inc had a constitution in place at the date of claims is unknown but that has no consequence for my reasoning.
Fifthly, that Terama Industries Inc has made a profit in some years as the financial statements attached to Mr Fealy's affidavit suggest does not without more change its status as a charitable organisation carrying out the activities of supported employment for disabled people. The uncontested evidence of Mr Fealy was that Terama Industries Inc has substantially relied on government grants for all the period he has worked there.
That Terama Industries Inc has made a profit in some years has no bearing on whether it is carrying out a public purpose. The Applicant submitted that there was no evidence of how Terama industries Inc paid its employees and staff. The Applicant seemed to be suggesting that if employees are paid excessively above the accepted market rate this may suggest a private purpose. The Applicant could have cross-examined Mr Fealy on such a topic in light of the financial records he attached to his affidavit but did not, as the Minister also identified. These submissions are no more than assertions and carry no weight.
In light of the matters identified in [199]-[211] above, I find that Terama Industries Inc was a charitable organisation at the date of claims. Characterising the activities of Terama Industries Inc as for a private purpose because it is not a government body does not accurately reflect the character of the organisation. That Terama Industries Inc was a charitable organisation at the date of claims does support a finding that it was carrying out a public purpose on Lot 7 at the date of claims.
I conclude that the provision of supported employment for disabled people is a public purpose, which was carried out by Terama Industries Inc on Lot 7 at the date of claims.

[62]

'Essential'

The issue arises of whether the public purpose conducted by Terama Industries Inc is essential, in the particular circumstances of this case, see O'Haras Creek at [113] and Nelson Bay No 3 at [44]. In Newcastle Post Office, Pepper J summarised the following principles in relation to the required essentiality of the alleged public purpose under s 36(1)(c) of the ALR Act, at [191], [193] and [194]: 191. Fifth, "essential" means "necessary" or "indispensable" (New South Wales Aboriginal Land Council v Minister for Natural Resources (the Tredega Claim) (1986) 59 LGRA 318 at 331-332 per Stein J ("Tredega")). The concept "sets a high standard" and involves a "significant restriction" on the exception from claimable Crown lands. The reference to "essential" ensures that it "is not enough that the public purpose to be served is 'desirable' or even that it is 'highly desirable'", rather it must be "essential" (Illawarra at [32(2)] per Hodgson JA, Maroota at [55] per Spigelman CJ, Dorrigo at [10(3)] per Jagot J, Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 68 at [111] per Pain J ("O'Hara's Creek")). … 193. Seventh, what will constitute an essential public purpose in some circumstances may not be sufficient in others (Illawarra at [65] per Basten JA; Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800 at [107]-[108] per Sheahan J ("Batemans Bay"), Dorrigo at [34] and [48] and O'Hara's Creek at [113]). However, the mere fact that the Government undertakes the activity does not, of itself, make it an "essential public purpose" (La Perouse at 183). 194. Eighth, normally it is expected that steps would be taken to achieve an essential public purpose before the date of the claim if it was "essential" (Batemans Bay at [110] per Sheahan J). Thus evidence of varying purposes over time suggests that the land is not needed for an essential public purpose for the purposes of s 36(1)(c).
As discussed further below numerous cases which have considered these principles had factual circumstances that vary in a fundamental aspect from this case, namely that the use relied on by the Minister was a future use not undertaken on the claimed land at the date of a claim. Newcastle Post Office considered such circumstances as reflected in [194] extracted above referring to the expectation that steps be taken to ensure the achievement of a public purpose before the date of claim if it is essential. Similar observations can be made about O'Hara's Creek.
A wide range of purposes have been recognised as essential public purposes, as partially listed by the Minister above in [135]. The Applicant's assertion unsupported by evidence above in [170] that the purpose is not essential because disabled persons can seek mainstream employment, cannot be assumed to be correct for the reasons given above by the Minister in [137]. That those seeking supported employment are by definition or inherently unlikely to find work in mainstream employment is highlighted in the reports annexed to Ms Fegan's affidavit. The provisions of the Disability Services Act 1986 (Cth) which regulates such employment provides further support for finding that government support is needed for this purpose whether at the Commonwealth or NSW Government level. Based on the policy documents and reports attached to Ms Fegan's affidavit (see above in [45]-[51]) the Minister has established that the provision of supported employment for disabled persons is an essential public purpose.

[63]

'Needed or likely to be needed'

The Applicant relied on a number of authorities where principles relating to "needed or likely to be needed" in s 36(1)(c) of the ALR Act have been considered. A brief summary of some of these include that "needed" means "required or wanted" by the Executive Government: Castlereagh CA at 254D (Handley and Powell JJA). The distinction between "needed" and "likely to be needed" turns on "whether or not a decision concerning the use of the land had in fact been made": Maroota CA at [50]. Land that is "needed" should have been the subject of an actual decision about use or a manifestation of political will at the level of the Executive Government: Berowra CA at [25] (Hodgson JA). The Applicant relied on findings that the relevant need or likely need must be a need for the land by the state government of the day: O'Haras Creek at [126]. The question "is essentially a question of the view held by the Government on the day when the claim was made": Castlereagh CA at 252C (Meagher JA). Some cases refer to determining whether a particular future land use has a 'trajectory' within the NSW government towards a requirement for the land at the appropriate government level in determining if it was "likely to be needed" at the date of claim: Illawarra CA at [35] (Hodgson JA, McColl JA agreeing); Berowra CA at [27] (Hodgson JA); O'Haras Creek at [146]. As I will expand on below, these authorities were all responding to circumstances where the Minister was seeking to rely on a future land use at the claim date. As noted above the circumstance before me have rarely arisen in an ALR Act claim namely that the essential public purpose relied on exists on the land at the date of claim, a material differences which has not been addressed by any recent authority in this Court so far as I am aware. Many of the cases relied on by the Applicant, all of which concern future use of claimed land, consider need and likely to be needed together. As the Minister submitted in [143] above, no case addressing these facts which has required the Minister to form a view about the precise activities on claimed land as at the date of claim has been identified.

[64]

View of essential public purpose formed by appropriate level of government in 1969-71

I will address the Applicant's submissions in [172]-[174] above that, as the reserve purpose of charitable organisation is not the Minister's purported public purpose no evidence establishes that an appropriate level of government held the view that Lot 7 was needed for the public purpose relied on, and in [175]-[182] that no view was formed at any stage by an appropriate level of the NSW government. The two matters are related given the circumstances relevant to a finding.
The Minister submitted that the Minister of the day through their department in 1969-1971 did form a view about the use of Lot 7 for an essential public purpose. The reserve manager of Lot 7 was confirmed in 1990. The Minister submitted that no evidence of reconfirming that view is necessary in order for the Minister to discharge the onus of proof.
The SOAF at pars 12-15 and the documentary evidence in the tender bundle establishes that the use of land that became Lot 7 was agreed in 1968 by the Minister for Lands. ARP applied for an allotment and took occupation of Lot 7 pursuant to a special lease in perpetuity for 'Erection of buildings (training centre for handicapped persons)'. ARP built a workshop and associated works on Lot 7 and 8 and erected buildings as a training centre for handicapped persons in 1969. Lots 7 and 8 were reserved for charitable organisations in 1970. An appropriately senior level of the NSW government did form a view about the use of Lots 7 and 8 in the period 1969-1971 as can be seen in the circumstances of the reservation for charitable organisations and the granting of a special lease to ARP through the actions of senior departmental officers (see in particular the evidence in [64]-[68]). The lots were occupied by a charitable organisation to provide supported employment for disabled persons, a charitable purpose. It was occupied in August 1970 by ARP. The special lease was withdrawn in November 1970. Reserve R88027 was created in its place. That activity has continued on the land since 1970 when ARP finished building the workshop. According to Mr Fealy's unchallenged evidence that workshop remains on Lot 7. Mr Fealy attested to activities since 1984 up to and beyond the date of claims in 2009. In 1990 the corporate name "Gosford Charitable Organisation (R88027) Reserve Trust" was assigned to R88027 (see SOAF at par 31).
That the reserve purpose is not precisely the same as the charitable purpose contended for is not determinative of whether the land was identified by an appropriate level of government for use for a public purpose. I accept the Minister's submission that there is no obligation in the CL Act requiring a reservation to be in the precise terms of a public purpose carried out on Crown land in order for the onus of proof to be discharged. The evidence and SOAF outlined immediately above confirms that a view was formed at senior levels of government in 1969-1971 that Lot 7 should be used for the public purpose relied upon by the Minister. The reserve trust has remained in place since November 1970 with a new corporate name assigned in 1990. That the reserve was temporary, not perpetual, has little relevance given how long the reserve has been in place, namely continuously from November 1970 to the date of claims.

[65]

Is evidence of reconsideration of need for land for essential public purpose close to date of claim required?

The next issue to consider in light of this finding is whether an appropriate level of government must consider again at any point whether Crown land is needed for an essential public purpose in order to discharge the onus of proof the Minister bears. That the activity relied on by the Minister is being undertaken on Lot 7 at the date of claims and was for a lengthy period before those dates is a on one view a strong indicator that it is needed (required or wanted) at the date of claims.
The Applicant submitted at [177], [183]-[187] that continuous use cannot be relied on by the Minister to discharge the onus of proof. Relying on a number of authorities which have considered need and likely need, the Applicant submits that there must be sufficient consideration at an appropriate level of government approaching a claim date, or at least sometime closer to the date of claims than 1971, for the Minister to discharge their onus of need or likely need and that this is a requirement even if the Minister need not constantly reconsider and reconfirm a use of Crown land. The Minister cannot provide any evidence of consideration at any level of government of the occupancy of Lots 7 and 8 by Terama Industries Inc at any time before or after the date of claims up to 2018. ARP went into provisional liquidation in February 1987. Terama Industries Inc took over the chattels and buildings of ARP on Lot 7 following an agreement between them on 21 December 1987. This arrangement was unknown to the Crown Lands department. The Applicant points to the lack of awareness of the Crown Lands Department that Terama Industries Inc was occupying Lot 7 at the date of claim. ARP was incorrectly recorded as the reserve trust manager of R88027 named 'Gosford Charitable Organisation (R88027) Reserve Trust' in 1990 (SOAF par 31). ARP was then in provisional liquidation, declared in February 1987 (SOAF par 27). ARP's registration as a company was cancelled in 1995. The emails sent in 2018 summarised above in [70] make clear that the Crown Lands department was unaware until investigating these land claims that Terama Industries Inc was occupying Lots 7 and 8. There is no dispute that the Crown Land department found out about the existence of Terama Industries Inc occupying Lot 7 only when the assessment of the ALR Act claim commenced in 2018. Ms Fegan's affidavit states that no files of the Crown Lands Department could be identified in relation to R88027 after April 1972. Documents and correspondence in relation to R88027 from March 1969 to about April 1972 were identified. The Applicant also points to the reliance by the Minister on Ms Fegan's affidavit which shows that she carried out searches in around October 2021, the date of her affidavit, well after the date of claims. This was said therefore to not be indicative of any particular view of the NSW government at or near the date of claims in 2009.
Terama Industries Inc was not appointed the reserve manager of R88027 before the date of claims meaning according to the Applicant the occupation at the date of claims was unlawful and s 36(1)(c) cannot be relied upon by the Minister. I will consider the issue of lawful occupation as a discrete issue below.
No statutory obligation to review the use of Crown land exists in the CL Act or the CLC Act according to the Minister. According to the emails attached to Ms Osborne's affidavit no system exists for the periodic review of reserve managers due to the large number of Crown land properties in NSW. None of the cases relied on by the Applicant considered a longstanding current use of claimed land for an essential public purpose at the date of claim. I will consider those cases below.
This is the key issue in this matter in my view, namely whether the Minister is required to prove as part of discharging the onus of proof that at or around the date of a claim the appropriate level of government held that view having already formed a view in 1969-1971 in the circumstances of this case. In the Applicant's opening submissions this was expressed as 'it is necessary that the proposal be seriously in play at an appropriate level of Government'. The different authorities relied on by each of the parties reflect principles developed in very different factual circumstances. I have found above that the Minister of the day did form a view about the use of Lot 7 in 1969-1971. The Applicant's approach if adopted means that the Minister would have to provide evidence of more recent consideration of the use of Lot 7 by an appropriate level of government to justify finding that it was needed for an essential public purpose at the claim dates.
Turning to the authorities identified in argument, in Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) (1997) 95 LGERA 364 (Castlereagh LEC), Sheahan J considered whether land located next to the Castlereagh State Forest, described as remnant woodland, was needed or likely to be needed for an essential public purpose. The terms were considered together. The land was reserved for public purposes since the 1950s and was affected by a petroleum exploration licence and a transmission line easement. The Minister refused to grant part of the land on the basis that it was needed for the essential public purpose of nature conservation inter alia. The Court was satisfied of the high conservation value of the land but not that its protection required the refusal of the claim, as no evidence was presented that maintaining the land in public ownership as a nature reserve was the only or even best way to protect it: at 373. The Court further found that none of the proposed purposes to which the land would be put of urban development, expansion of state forest and nature conservation (in that order of importance) were regarded as essential by the proponent agencies.
In Castlereagh CA (Handley and Powell JJA, Meagher JA dissenting), the Court of Appeal found that Sheahan J's reasoning that evidence was required demonstrating that rendering the land a nature reserve would be the best or only way to achieve the purpose was incorrect: at 252C (Meagher JA), 254D (Handley and Powell JJA). Handley and Powell JJA concluded that, properly construed, the trial judge's reasons demonstrated that he did not consider that the land was needed or likely to be needed for the relevant purposes. The variety of public purposes suggested by different agencies, their lack of interest in the years before and after the claim, and the fluctuating priorities demonstrated in the evidence provided ample support for the findings of the primary judge that the Minister had not discharged the onus: at 254F. The finding that nature conservation was third in the order of public purposes suggested by the relevant agencies was alone enough to find that the land was not needed: at 254G. Handley and Powell JJA stated that the land had not been reserved or dedicated for any purpose under the CL Act.
At issue in Maroota CA on appeal was whether claimed Crown land was needed or likely to be needed for the agreed essential public purpose of a national park. The designation of the Crown land as State Forest under the Forestry Act 1916 (NSW) had been revoked in July 1976. The land was Crown land reserved from sale or lease at the date of claim: at [9]-[11]. There were a number of proposals for the future status of the land at departmental and parliamentary level most prominently as a national park: at [10]. Bignold J held at first instance that the claimed land was not "likely to be needed" for the relevant essential public purpose at the date of claim. The Court of Appeal (Spigelman CJ, Powell and Heydon JJA) determined he was not obliged to infer that there was a real and not remote chance that the proposals to render the Crown land a national park would come to fruition: at [63]. It was reasonably open for the first instance judge to find that until the change in government after the date of claim there was no real chance of the declaration of the forest as a national park: at [68].
In Batemans Bay the claimed Crown land was largely unreserved for any purpose: at [5]. At issue was whether part of the land was lawfully used and occupied by State Forests of NSW and was needed or likely to be needed for the essential public purpose of timber production: at [17(3)]. The evidence supported a finding that the claimed land was not required for an essential public purpose in the context of evidence of general government policy to build up the stock of forest lands and maintain full employment in the timber industry: [109]-[110]. There was no specific government intention in relation to the claimed land and no firm steps were taken to achieve the purpose of timber production on the land before the date of claim: at [110]. Sheahan J at [110] stated that: 110. … "it is not evidence of a specific government intention in relation to the claimed land. If at the time of that pressure on the industry the dedication of the claimed land was "essential" to advance the timber production of the State, one would anticipate firm steps to have been taken by the government to achieve it before this claim was lodged..."
In O'Haras Creek I considered a claim for vacant Crown land reserved from sale for future public requirements under the CLC Act. The Minister submitted that the claimed land, aside from some land the subject of concessions, was needed or likely to be needed for the essential public purpose of open space and/or urban fringe park, nature conservation and public recreation: at [4]. A key matter in the case was whether the nature and level of government decision-making at the date of claim satisfied the likely need criterion: at [143]. At [146] I held that "consideration of a reasonably concrete proposal within State government agencies and departments must be at a senior level if not Ministerial level by the date of claim. Consideration of land use as part of normal State government functions will not necessarily suffice to meet the test of likely need…". A Rural Land Study directed to future planning decisions and two Land Assessment and Planning Processes were aimed at the assessment of the capabilities of the O'Haras Creek land and identification of suitable uses. These bureaucratic processes identified particular land uses as suitable and were not expressions of political will that the land was likely to be needed at the date of claim as a real chance: at [149], [150]. This was a key reason why I held that there was not a sufficiently developed proposal regarding the mixture of purposes relied on by the Minister to establish that the claimed land was likely to be needed for any essential public purpose: at [169].
In Nelson Bay No 3 I was determining whether Crown land was needed or likely to be needed for an essential public purpose of drainage overflow: at [3]. The claimed land was part of a reserve from sale or lease generally notified in 1923: at [16]. Adjacent land used a small part of the relevant lot as overflow from a drainage pond: at [16]. In relation to the level of government at which consideration ought to occur, at [43] I reiterated my comments in O'Haras Creek at [126] in which I questioned whether the Minister could rely on the objectives of a local council in the absence of a necessary indication of the Crown land manager at the departmental or Executive level of what was intended for the Crown land. I held that I should not second guess the Executive's opinion in accordance with Castlereagh CA: at [48]. That the Minister adopted the Departmental recommendation when refusing the claim, based on the local council's concerns about stormwater flows, would have been enough to discharge the Minister's onus of establishing that the land was needed or likely to be needed for the essential public purpose of drainage: at [49]. However, a departmental minute on the date of claim recommended unconditional sale of the land to a company, and negotiations for this transfer had occurred before the date of claim: at [50]. The trajectory towards sale was confirmed by evidence after the date of claim. This evidence was inconsistent with the finding that the land was needed or likely to be needed for drainage at the date of claim and the Minister did not discharge their onus: at [52], [53].
In Castlereagh LEC, Castlereagh CA, Maroota CA, Batemans Bay, Nelson Bay No 3, Newcastle Post Office and O'Hara's Creek, the inquiry as to whether a proposed use for an essential public purpose was sufficiently seriously considered within the NSW government at or near the date of claim, as part of determining need or likely need, was material because the proposed land use relied on by the Minister was not the existing land use at the date of claim. The circumstances of this matter are different on a fundamental factual matter namely that the use relied on to establish need for an essential public purpose was occurring on Lot 7 at the date of claims and had been for a lengthy period. Further the use at the date of claims was consistent with the reservation of Lot 7 for charitable organisations and resulted from a view formed at an appropriate level of government at the time the reservation of Lot 7 was established. In these different circumstances the application of the principles developed in these authorities is necessarily limited. I do not consider they establish a requirement that a relevant level of government must have considered a use of Crown land close to the date of a claim in order to establish need in all cases. The particular circumstances of a case must be considered. No other case appears to share these particular facts so that directly applicable authorities are lacking.
The Minister relied on authorities in which he submitted that no particular view at the appropriate level of the NSW government was required to discharge the onus of proof, being Deerubbin Cemetery and Wanaruah. Both cases were decided quite some time ago (1997 and 2001) confirming my observation earlier that the circumstances of this case are novel or certainly unusual. The reasoning in these cases makes no reference to the need for consideration at an appropriate level of government near a date of claim as a requirement for the Minister in discharging their onus of proof, which does support the Minister's approach.
Deerubbin Cemetery was summarised by the Minister above in [144]. At issue was whether the claimed land was needed or likely to be needed for the essential public purpose of a cemetery. The land where the cemetery was located was dedicated as a general cemetery in 1889. The claimed land was a vacant parcel of Crown land adjacent to the cemetery. In 1967 an amendment to local government legislation vested the care, control and management of public cemeteries in local councils as trustees. Shortly after that date, the relevant council identified a need for the expansion of the cemetery and proposed a special use cemetery zoning over the adjoining unformed Crown road and the vacant claimed land. Lloyd J held that it could not be said that the vacant land was needed because there was clearly spare capacity within the existing cemetery. The question to be determined was one of likely need. The evidence from planning and environmental experts established that the claimed land was likely to be needed for the expansion of the cemetery and the claim was refused.
The Applicant sought to distinguish Deerubbin Cemetery on the basis that there was an identified need for the expansion of the cemetery, which evidence was said to be lacking in this case. The Applicant also distinguished Deerubbin on the basis that there was a perpetual need for the land for the internment of human remains. Strictly speaking the facts of Deerubbin Cemetery vary from this matter in that the claimed land was vacant at the date of claim and the likely need for the land for the future use as a cemetery was the subject of evidence relating to demand for that use in the future. Once again that is an important difference from this case.
In Wanaruah claims over Crown land were made on various bases. Part of the claim was refused because the land was needed for the essential public purpose of a trig station located on the Crown land at the date of claim. The Minister's expert referred to the extensive use of trig stations in departmental mapping and for survey purposes and by other authorities and private organisations: at [80]. The evidence established that the existence of the particular station was an essential public purpose for which the claimed land was needed. At the date of claim an electricity transmission line was operating on the land which was part of the electricity works maintained and administered by a statutory state-owned corporation under the relevant legislation. There was no doubt that the land traversed by the line was needed for electricity distribution. The Minister discharged the onus of proving part of the Crown land was not claimable. As the Minister identified, no issue arose of whether there had been an expression of need by any level in the NSW Government at or near the date of claim.
Evidence of general demand for facilities for supported employment for disabled persons in 2009 in is identified in the Exhibit attached to Mr Fegan's affidavit, summarised above. While not particular to Lot 7 it provides relevant information to assess the need for such facilities, and was relevant to the determination that the public purpose was essential.
In Newcastle Post Office at [194] it was said that evidence of varying purposes over time suggests that the claimed land was not needed for a particular use to a sufficient extent to satisfy the ALR Act. Similar reasoning is found in Castlereagh CA at 254 (Handley and Powell JJA). Arguably, the inverse holds true, that evidence of a singular consistent use for an essential public purpose over time suggests the claimed land is needed for the essential public purpose. Lack of knowledge of Terama Industries Inc's occupation of Lot 7 while suggestive of poor record keeping in the Crown Lands department compounded by the department's inability to undertake periodic or regular reviews of the use of Crown land does not undermine the Minister's case. A reserve manager has at all times been appointed to R88027 with the entity appointed in 1990 being incorrect. It is fair to describe this omission by the Crown Lands department as technical and able to be cured under the CL Act. The view formed in 1969-1971 about the use of Lot 7 for an essential public purpose together with the continuous use of Lot 7 satisfies the Minister's onus of proof that Lot 7 was needed for the essential public purpose relied on. I note that the Court of Appeal authorities stating that for land to be "needed" there should be an actual decision concerning use at the level of the Executive government (see Maroota CA at [50]; Berowra CA at [25]) do not state that the decision needs to occur at any particular time, other than before the date of claim. In this case, an actual decision concerning use was made and the use for an essential public purpose has continued uninterrupted for decades.
It is unnecessary to consider 'likely to be needed'. The statements in various cases referring to the 'trajectory' of decision-making within the NSW Government about a future use of land do not arise for consideration on the facts of this case.
Two further issues require consideration.

[67]

Does s 36(1)(c) require occupation of Crown land to be lawful?

A further issue requires determination in light of the Applicants' submissions at [185] that continuous use in carrying out of the essential public purpose was immaterial because Terama Industries Inc was not in lawful occupation, inferring this is a requirement in order to satisfy s 36(1)(c). The circumstance that the needed essential public purpose was being conducted on Lot 7 by an entity in unlawful occupation at the date of the claim gives rise to the issue of whether lawfulness of occupation is relevant to the assessment of need or likely need for an essential public purpose. Whether the occupation of Crown land is lawful does not change the nature of the activity which constitutes the essential public purpose, in this case of providing supported employment to disabled persons. There is nothing inherently unlawful in conducting that activity. The statutory construction issue that arises is whether the essential public purpose relied on under s 36(1)(c) contains an implied element of lawfulness of occupation of the entity carrying out the public purpose, the words 'lawful occupation' or 'lawful' not being included explicitly in the subsection or anywhere else in s 36(1) apart from s 36(1)(b). No authority appears to have dealt with this issue. The Applicant did not refer to any case. It appears this is the first time this statutory construction issue has arisen given the somewhat unusual circumstances that arise in this case.
The modern approach to statutory construction requires that the text must be construed in its broad context in the first instance, with which consideration of purpose overlaps: Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 (Sydney Seaplanes) at [26]-[32] (Bell P, Leeming JA and Emmett AJA agreeing); Herzfeld and Prince, Interpretation (2nd ed, 2020, Thomson Reuters) (Herzfeld and Prince) at [1.140]. Purpose must be considered as a matter of legislative fiat by virtue of s 33 of the Interpretation Act 1987 (NSW): at [33].
The parties made conflicting general submissions about the application of Berrima Gaol HC to statutory construction of the ALR Act. At issue in that case was whether Crown land was occupied at the claim date. A majority of the High Court constituted by French CJ, Kiefel, Bell and Keane JJ stated at [34] concerning statutory interpretation, acknowledging the beneficial objects of the ALR Act, that: 34. True it is that the words "used" and "occupied" might be said to take much of their meaning from context. But that is not to say that they are devoid of a commonly understood meaning in ordinary parlance. They require an examination of activities undertaken upon the land in question and, in the case of "occupied", factors such as continuous physical possession must be taken into account. No question of differing approaches to construction arises for limiting the ordinary understanding of that term by reference to the beneficial purposes of the ALR Act.
Writing separately, Gageler J stated at [94]: 94. The beneficial purpose of the Land Rights Act is reflected in its recital and has repeatedly been acknowledged. Yet the beneficial purpose of the Land Rights Act says nothing of itself about how far the Act goes in pursuit of that purpose. In particular, it says nothing of itself about where the precise limits of claimable Crown lands are to be drawn in applying the detail of the definition in s 36(1). The principle that, as beneficial legislation, the Land Rights Act is to be construed beneficially does not mean that the most expansive view of claimable Crown lands must be taken whenever constructional choice arises in the application of that definition. The principle was not considered by the plurality in the Wagga Wagga Motor Registry claim case to provide relevant assistance in giving precise content to the words of s 36(1)(b). The principle provides no greater assistance in giving precise content to the same words here.
Berrima HC was focused on the scope of 'use' and 'occupation' in s 36(1)(b). I take from the passages above that generally the usual principles of statutory construction apply to the ALR Act. If there is a constructional choice required, a beneficial interpretation may be warranted. I do not consider such a constructional choice arises here. Applying the usual principles of statutory construction to whether there is an implied element (there being no explicit element) of lawful occupation in s 36(1)(c), the text and context are plain in that, unlike s 36(1)(b), lawfulness is not relevant to the inquiry under s 36(1)(c). The word 'lawful' or 'lawful occupation' does not appear in any other sub-section of s 36. To adopt the Applicant's construction requires that the word 'lawful' or 'lawful occupation' be read into that subsection and no constructional basis for doing so arises in the context of s 36 as a whole, viewed also in the context of the ALR Act: see Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [35]-[40] (French CJ, Crennan and Bell JJ); Herzfeld and Prince at [5.300]-[5.340].
While I note that the Applicant relied on my finding that the test will not be satisfied if the functions could be carried out regardless of who owns the land (Darkinjung 2006 at [166]) that finding was made in relation to a minor consideration of asset protection in that case and has little relevance to the context I am considering. An important consideration in this case is that, as the Applicant accepted as it is consistent with authority, the Minister does not have to prove that the essential public purpose could not be achieved anywhere else.

[71]

Henry Parry Drive driveway

In relation to the Henry Parry Drive driveway, the experts agreed that cars and small minibuses could turn around in the widened driveway area and therefore exit in a forward-facing direction onto Henry Parry Drive, avoiding safety concerns. Mr Morgan observed that the area is marked as "existing carpark" on the 1981 DA plans and if cars were parked in that area they would not be able to turn around without the parked cars being moved (see above in [109]). Mr Nettle did say that moving the cars would not be difficult to arrange however the experts ultimately agreed that the ability of the carpark to be used as such would be disturbed by its use as a turning circle (see above in [109]). The evidence is that the driveway was used for carparking at the date of claims, including the marking as "existing carpark" on the DA plans and Mr Fealy's evidence above in [30]. The Minister submitted that it was therefore not viable for the widened driveway to be used as a turning circle by cars and small minibuses.
The experts agreed that trucks could not turn around in the widened driveway area (see above in [109]).
As to the permissibility of cars reversing onto Henry Parry Drive, AS2890.1 provided that reversing movements shall be prohibited wherever possible. Mr Nettle's evidence on this was confused but Mr Morgan's was clear that reversing was contrary to this standard (see above in [105]) and should be preferred.
As to the permissibility of trucks using the driveway to reverse onto Henry Parry Drive, the clear and unwavering effect of Mr Morgan's evidence was that it would be impermissible under the applicable standards and rules and also unsafe for trucks to reverse either into or out of the Henry Parry Drive driveway (see above in [84], [85], [98], [104]). Mr Nettle began by arguing that reversing was permissible under AS2890.2 r 3.2.2(b), the consent and the ARRs (see above in [83]). He eventually conceded that the occasional service rule limits truck movements to at most only one per day, so that it has no application where there is more than one reversing movement (see above in [101]). Mr Nettle also accepted that permissibility under the standards was dependant on safety (see above in [101]).
Ultimately, the experts accepted that Henry Parry Drive was a "major road" within the definition in AS2890.2 r 1.4.8 and therefore the relevant standard was AS2890.2 r 3.2.3, meaning that entry and exit must be in a forward direction (see above in [104]). The experts agreed that reversing was also contrary to the RTA Guide (see above in [84], [102]).
Despite the debate about the status of the RTA Guide, Mr Morgan's evidence should be preferred to the effect that the RTA Guide must be complied with in the same way as the Austroads standards.
Mr Fealy's evidence is that as at 2009 there were two trucks and the driveway was used by those trucks about three times a day, five times a week (see above in [28], [29]). Accordingly, the Respondent submits it is clearly impermissible and contrary to AS2890.2 r 3.2.2 for trucks to reverse into or out of Henry Parry Drive.
As to the safety and desirability of reversing into or from Henry Parry Drive, Mr Morgan's unwavering evidence was that reversing onto Henry Parry Drive was unsafe. His reasons for this were clear and understandable: they were that due to the speed of the vehicles on Henry Parry Drive, the downgrade of the traffic and the forward visibility, the fact that a truck reversing was likely to need two lanes, and therefore there was risk of collisions with cars and safety issues for pedestrians (see above in [85], [98]).
Mr Nettle maintained that trucks reversing was safe, but this opinion was based on a number of mistakes including the following. 1. He accepted that the SISD for the driveway should be calculated as Mr Morgan had done and therefore that the SISD was exceeded for trucks, which it must be accepted occurs from time to time through the use of Henry Parry Drive (see above in [103]). 2. He considered that the speed outside the driveway was 50km/h when it was actually 60km/h (see above in [103]). 3. He called the incline a slight downgrade (see above in [106]) when it is in fact significant, being 13.6% (par 7 of SOAF) where the maximum downgrade in the standards is 8% (Table A7, mentioned but not extracted above in [78]). 4. He relied on statistics as to crashes on parts of Henry Parry Drive (Ex D, see above in [72(10)], [106]), which do not support that trucks reversing onto or into Henry Parry Drive was safe because those statistics do not take into account the added risks of reversing onto Henry Parry Drive. If that was permitted, there would be an increased risk of accidents (see above in [107]). In any case, those were statistics as at 2016-2020 and not as at the date of claims.
When presented with a busy dual lane road of 60km with a steep downhill incline, Mr Nettle maintained that it was safe and not obstructive to traffic for a truck to reverse onto Henry Parry Drive. This is not believable.

[78]

Encroachment onto Lot 6 and 2011 Building works

According to the survey undertaken in December 2020, the southern face of the driveway's existing kerb line encroaches onto Lot 6 by up to 1300 millimetres (see above in [93], [96]). A passenger car would be able to squeeze between the retaining wall at the south-east corner of the workshop and the boundary with Lot 6 (a gap of approximately 2250 millimetres), but a pallet truck would not as the minimum gap required for a truck is 3500 millimetres (see above in [92]).
Lot 6 is owned by the Applicant. The Applicant has not given any permission to Terama Industries Inc allowing a truck or any other vehicle to traverse the boundary line into its property. There is no easement which would afford Terama Industries Inc, or any other occupier of Lot 7, that right. The Applicant has the right to refuse to give that permission if it so decides. Given that a truck cannot use Lot 8 to access Lot 7 without traversing into Lot 6, and the Applicant does not consent to that occurring, Terama Industries Inc cannot use Lot 8 for the asserted essential public purpose without committing a trespass. In order for an asserted essential public purpose to justify the refusal of an Aboriginal land claim, the activities associated with it must be able to be lawfully done.
Mr Fealy's second affidavit gives evidence of building works undertaken on the carport on level 1 in 2011. The area marked "existing carport" on level 1 facing Henry Parry Drive has been "significantly" extended, as agreed by the experts (see above in [115]-[116]). This has exacerbated the encroachment onto Lot 6. Those works enlarged the structure and widened the access roller door. The Applicant issued a subpoena to the Minister seeking documents related to approvals and development on Lot 7, as identified above in [40] in Mr Fealy's oral evidence and [69] in the Applicant's evidence. No documents were produced in response to the subpoena. The Minister acknowledges that there is no evidence of a development application for the 2011 building works and the Minister bears the onus of proving that development consent was obtained and cannot. The Applicant submitted that despite the limitations of the SIXmaps software, the evidence is that the 2011 building works on Lot 7 extended the encroachment onto Lot 6 (see above in [117]).
The objects of the ALR Act are undermined where during the period that it takes to determine claims, the Minister allowed the land to be subject to an unlawful encroachment by entities occupying the land without lawful authority such that Lot 6, the land already granted, becomes unusable for the beneficial and remedial purposes for which it was granted.

[79]

Consideration of essential public purpose - Lot 8

The Minister bears the onus of establishing that Lot 8 was being used for an essential public purpose at the date of claims. The Minister relies on the use of the driveway on Lot 8 to access the workshop on Lot 7 at the date of claims. The Applicant seeks to demonstrate that the use of Lot 8 was not needed for the essential public purpose relied on by the Minister because the operation of the workshop on Lot 7 did not require it at the date of claims. Mr Fealy's evidence clearly establishes that the driveway on Lot 8 was being used to access Lot 7 at the date of claims in a manner that had continued for several decades up to that point. The driveway on Lot 8 has been in its present location and used for as long as he could remember. The SOAF refers to the driveway being on Lot 8 in 1969-1970, at par 16. The Applicant submitted in opening that Lot 8 was not essential for the use of Lot 7, a surprising submission given it was being used for decades according to the SOAF and Mr Fealy's evidence. Two hypothetical scenarios were the subject of traffic engineering evidence. Firstly, that trucks and cars can enter and leave Lot 7 solely from Henry Parry Drive safely and presumably could have done at the date of claims and, secondly, that the roller door off Terama Place on level 3 of the workshop could have been utilised for truck deliveries and pick-ups at the date of claims. These scenarios if implemented would not require the use of Lot 8 according to the Applicant. Only the latter was ultimately pressed by the Applicant.
Paragraphs 39-44 of the SOAF contain a brief description of the layout of Lots 7 and 8, with a workshop building on Lot 7 and a driveway that runs from Terama Place on Lot 8 around the back of the workshop through a carport and onto Henry Parry Drive. The survey above in [11] shows the relationship of the lots. It is agreed that the driveway on Lot 8 was used by vehicles accessing the workshop, carport and parking on Lot 7. The workshop operates 5 days a week. Mr Fealy's first affidavit summarised above at [23]-[30] describes in some detail the number of employees and staff attending the workshop each day (56 people); what is contained on the three levels of the workshop, including level 3 which has roller door and driveway access to the street level at Terama Place to which vehicle access is prohibited as the whole floor is used daily as a workshop; and the way activities on Lot 7 were conducted with deliveries and pick-up by trucks which drive across Lot 8 from Terama Place onto Lot 7 and exit onto Henry Parry Drive. For as long as Mr Fealy can remember trucks have never used the Henry Parry Drive access to enter the site as it at is a busy main road and the site is at the bottom of a steep rise to the north. Mr Fealy also describes the parking arrangements for the employees and staff on Lot 7 at the date of claims. Employees and staff exit Lot 7 onto Henry Parry Drive, never entering the site from that road. Wheelchair access arrangements are discussed. The parties agreed that Henry Parry Road is classified as a "Main Road" in the SOAF par 7 and a "Major Road" for the purposes of cl 1.4.8 of AS2890.2 (see above in [104]).

[80]

The use of Lot 7 relied on the use of the driveway on Lot 8 at the date of claims

As submitted above in [254] by the Minister Mr Fealy's evidence establishes that the use of Lot 7 relied on the utilisation of the driveway on Lot 8 for truck access for deliveries and pick-ups at the workshop on Lot 7. Employees and staff also accessed the site in that manner, as at the date of claims.
Given the state of the traffic engineers' evidence at the end of joint evidence as set out above in [97]-[110] the experts agreed that trucks could not turn around at all in the widened driveway area. Cars and mini buses could turn around if no cars were parked in an area the evidence establishes was used as car parking. As that could not have been a viable arrangement at the date of claims the issue of reversing from the Henry Parry Drive driveway arose. It is clear that reversing of any vehicles, particularly trucks, onto Henry Parry Drive, a major road, from Lot 7 would be unsafe and not permitted under the relevant Australian standard or the RTA Guide. That is not therefore an option to be considered for access to Lot 7 in substitution for the use of Lot 8. The Minister's summary of the traffic engineering evidence as set out above in [256]-[265] is accurate. To the extent there was disagreement between the experts following joint evidence, Mr Morgan's opinion is to be preferred to Mr Nettle as I consider Mr Morgan's evidence more accurately reflected the actual circumstances of vehicle use on Lots 7 and 8 and his approach reflected a correct and greater focus on safety than Mr Nettle particularly in his application of the RTA Guide. I further take into account Mr Fealy's lay opinion summarised above in [28] concerning the lack of safe access to and from Henry Parry Drive given the location of Lot 7 at the bottom of a steep incline, the speed of traffic outside Lot 7 and the volume of traffic on the main road.
The Applicant submitted that a further entry for trucks onto Lot 7 which Terama Industries Inc could have availed itself of at the date of claims was the existing concrete driveway over a void to a garage size roller door on level 3 from Terama Place. Terama Place is safer from a traffic management perspective being a cul de sac. That entry has never been used for truck delivery or pick up purposes according to the unchallenged evidence of Mr Fealy. Regardless of whether it is technically feasible from a traffic management or engineering viewpoint, and there was no evidence of the strength of the concrete driveway over the void, the operational requirements outlined by Mr Fealy make such an approach untenable. The area on that level is occupied by employees and does not have access to the necessary equipment which enables the space to function as a pick-up and drop-off point. That the roller door aperture may have been narrowed after the date of claims as the evidence of Mr Fealy suggested has no relevance given the circumstances which existed at the date of claims. A hypothetical different use of level 3 put forward by the Applicant to be assessed at the date of claims is difficult to attribute any weight given the actual use of the land that was occurring.
The Minister has established through Mr Fealy's uncontested evidence (not the subject of cross-examination) and the traffic engineering evidence summarised above in [71]-[114] that the use of Lot 7 required the use of the driveway on Lot 8 for safe access and as a matter of utility at the date of claims.

Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act - 'Gosford 1 & 2'

At a glance

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Judgment (85 paragraphs)

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Legislation Cited (14)

Cases Cited (34)

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