(2014) 254 CLR 1
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560
Commissioner of Stamp Duties (NSW) v Thomson [1927] HCA 57
(1927) 40 CLR 394
Countess of Shrewsbury's Case (1600) 5 Co Rep 13b
77 ER 68
Darkinjung v Minister Administering Crown Lands Act [2006] NSWLEC 180
(2006) 149 LGERA 162
20
Source
Original judgment source is linked above.
Catchwords
(2014) 254 CLR 1
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560
Commissioner of Stamp Duties (NSW) v Thomson [1927] HCA 57(1927) 40 CLR 394
Countess of Shrewsbury's Case (1600) 5 Co Rep 13b77 ER 68
Darkinjung v Minister Administering Crown Lands Act [2006] NSWLEC 180(2006) 149 LGERA 162
20(1959) 101 CLR 298
Maxwell v Murphy [1957] HCA 7(1957) 96 CLR 261
Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138(2009) 166 LGERA 379
Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28(2001) 50 NSWLR 665
Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359(2012) 193 LGERA 276
Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359(2012) 187 LGERA 276
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352(2012) 84 NSWLR 219
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48(2016) 260 CLR 232
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174(2012) 186 LGERA 323
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Kinchela claim) [2009] NSWLEC 46
(2011) 244 CLR 144
R Foley
Channell v Foley (1952) 53 SR (NSW) 31
State of New South Wales v Bujdoso [2007] NSWCA 44
(2007) 69 NSWLR 302
State of New South Wales v Kaiser [2022] NSWCA 86
State of New South Wales v Scharer [2003] NSWCA 328
(2003) 131 LGERA 208
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Judgment (14 paragraphs)
[1]
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379
Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665
Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359; (2012) 193 LGERA 276
Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359; (2012) 187 LGERA 276
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352; (2009) 171 LGERA 56
Minister Administering the Crown Lands Act v New South Wales Aboriginal Council (No 2) (1997) 42 NSWLR 641
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (The Goomallee Claim) [2012] NSWCA 358; (2012) 84 NSWLR 219
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285
Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1991) 75 LGRA 133
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2014] NSWLEC 58
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 the Crown Lands Act (1992) 76 LGRA 192
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Limbri) [2013] NSWLEC 67
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2015] NSWCA 349
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 1; (2012) 186 LGERA 323
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Kinchela claim) [2009] NSWLEC 46; (2009) 166 LGERA 137
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 35
New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act - Helensburgh Police Station [2020] NSWLEC 133
New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act - Waverton Bowling Club [2022] NSWLEC 130
Origin Energy LPG Ltd v Bestcare Foods Ltd [2007] NSWCA 321
Payne v Parker [1976] 1 NSWLR 191
Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 132; (2011) 244 CLR 144
R Foley; Channell v Foley (1952) 53 SR (NSW) 31
State of New South Wales v Bujdoso [2007] NSWCA 44; (2007) 69 NSWLR 302
State of New South Wales v Kaiser [2022] NSWCA 86
State of New South Wales v Scharer [2003] NSWCA 328; (2003) 131 LGERA 208
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Valuer-General v Sydney Fish Market Pty Ltd [2023] NSWCA 52
Texts Cited: D Pearce, Statutory Interpretation in Australia (9th ed, 2019, LexisNexis Butterworths)
Category: Principal judgment
Parties: Darkinjung Local Aboriginal Land Council (Applicant)
Minister Administering the Crown Land Management Act (Respondent)
Representation: Counsel:
T Prince (Applicant)
R White (Respondent)
These proceedings concern an appeal pursuant to s 36(6) of the Aboriginal Land Rights Act 1983 ("ALRA") in respect of the part refusal by the Minister administering the Crown Land Management Act 2016 ("the Minister") of a land claim ("the claim") relating to Lot 169 in Deposited Plan 726293 ("the claimed land").
The claim was lodged by Darkinjung Local Aboriginal Land Council ("Darkinjung") on 20 February 2019 ("the claim date").
On 4 December 2020 the Minister wrote to Darkinjung advising that part of the claim was refused on the following grounds:
... when the claim was made the land was not claimable Crown land as it was protected under Schedule 4, Clause 8 Savings, Transitional and Other Provisions of the Aboriginal Land Rights Act 1983. The relevant land was subject (sic) Special Lease 1965/21 Gosford (Crown account 75029), issued to Kenneth Martin Graham which commenced prior to the enactment of the Aboriginal Land Rights Act 1983 and remained in force at the date of Claim.
On 1 April 2021 Darkinjung filed an appeal from the decision pursuant to s 36(6) of the ALRA.
For the reasons that follow, I find that the land was not lawfully occupied and is therefore "claimable Crown lands" under the ALRA. I further find that the savings provision contained in cl 8 of Sch 4 of the ALRA did not apply to deem the claimed land not "claimable Crown lands" under that Act. The appeal must accordingly be upheld.
I acknowledge the assistance of Smith AC during the hearing. All findings, both legal and factual, are, however, my own.
[4]
The Claimed Land
Much of the factual background to the appeal was not in dispute.
The claimed land is located at 25 Pacific Highway, Doyalson, in the parish of Munmorah, County of Northumberland. It is approximately 7.4 ha in size.
The claimed land was previously known as Portion 140 in the Parish of Munmorah.
On 22 April 1960 the claimed land was reserved for coal mining purposes in the Government Gazette.
On 25 February 1965 Kenneth Graham prepared a declaration for a special lease. The next day, Graham applied for a special lease.
The claimed land was demised to Graham on 27 April 1967 under Special Lease 1965/21 Gosford ("SpL 1965/21"), which was granted pursuant to s 75 of the Crown Lands Consolidation Act 1913 ("CLCA"). The stated purpose of SpL 1965/21 was for a "poultry farm".
On 30 June 1967, by notification in the Government Gazette No 72, SpL 1965/21 commenced with a term of 19 years, expiring on 31 December 1986.
SpL 1965/21 was granted subject to the following conditions:
1. condition 6, "the land leased shall be used for the purposes for which the lease is granted"; and
2. condition 11, "all rights…which are conferred by any Mining Act or Acts of New South Wales, with respect to Crown Lands, are reserved with respect to the land leased".
On 15 June 1973 by notice in Government Gazette No 77, the reserve for coal mining was revoked.
On 19 July 1974, again by notification in the Government Gazette No 87, Portion 140 was reserved from sale for future public requirements (reserve 90480).
On 15 November 1974 Graham's application for conversion of SpL 1965/21 was refused.
On 7 November 1980 a small part of Portion 140 was resumed for road purposes. This land became Lot 6 in DP 607916, and the residue became the claimed land.
A complaint of unlawful land clearing and the carrying out of an illegal quarry on the claimed land was made to the Crown Lands Office on 16 November 1982.
On 18 January 1983 the illegal quarry was inspected by the district surveyor.
On 3 April 1985 the Crown Lands Office penalised Graham $3,800 for the illegal removal of 9,500m2 of fill in breach of the terms of SpL 1965/21.
[5]
Issues for Determination
Determination of the central question to the appeal of whether the subject land is claimable Crown lands under the ALRA, demands resolution of the following issues:
1. whether the Minister can satisfy the Court that as at the date of the claim Lot 169 was subject to SpL 1965/21 as granted to Graham on 27 April 1967;
2. whether the Minister can satisfy the Court that the whole or part of Lot 169 was lawfully occupied pursuant to SpL 1965/21, and therefore, was not "claimable Crown lands" within the meaning of s 36(1)(b) of the ALRA;
3. if it was not lawfully occupied, and therefore the claimed land was potentially "claimable Crown lands", whether the Minister can satisfy the Court that as at the date of the claim the land was not claimable Crown lands pursuant to cl 8 of Sch 4 of the ALRA; and
4. what the appropriate orders are for the Court to make in light of the resolution of issues (a), (b), and (c) above.
[6]
Statutory Framework Governing the Appeal
Section 36 of the ALRA sets out what relevantly constitutes "claimable Crown lands" for present purposes:
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,
…
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.
…
(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.
…
(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.
[7]
Evidence of the Parties
Further to an agreed statement of facts, Darkinjung relied upon documents comprising dealings with the claimed land and correspondence between Graham and various governmental entities and as between those entities concerning Graham's use of that land.
In addition to the material referred to above, the Minister relied upon the following affidavits:
1. an affidavit of Peter Draper, Natural Resource Management Project Officer with NSW Crown Lands, affirmed 26 August 2021, detailing reports of a tenure audit program inspection on 7 December 2017 and of a field inspection on 24 July 2018, both of which were undertaken in respect of the claimed land; and
2. an affidavit of Daniel Firli, a Revenue Project Officer with NSW Crown Lands, affirmed 27 August 2021, deposing to the rental history of the claimed land from 1 January 2017 to 3 August 2021.
Neither witness was cross-examined.
Draper deposed to an inspection of the land the subject of SpL 1965/21 on 7 December 2017, in order to determine compliance with the terms of the special lease. During that inspection Graham confirmed that he was living on the block after having sold the block of land next door where he had previously been living. The Tenue Audit Program - Inspection report noted that:
1. the property was no longer being used as a poultry farm as of "2012-13" and had been sublet to others; and
2. there was "moderate non-compliance" with the special lease conditions.
Draper undertook a second inspection on 24 July 2018 to assess compliance with the terms of the special lease and to determine if Graham had undertaken corrective action to address the breaches of the lease identified on 7 December 2017. The Field Inspection Report from that visit observed that "Mr Graham and others are living in a dwelling [sic] the poultry farm without authority to do so. Forfeiture of the lease will require removal of the tenants."
In his affidavit, Firli deposed to the assistance he gave to the Principal Legal Officer of the Department of Planning, Industry and Environment regarding the rental payment history of the claimed land. Based on his searches of the CLID he was able to generate a rental statement as far back at the CLID would permit. He was also able to generate a display of the rental history for the period between 1 January 2017 to 3 August 2021. The two documents produced showed that:
1. the "tenure status" of the special lease was "EXPIRED (Wkly Tenancy)"; and
2. at all material times rent was levied and paid in respect of the land the subject of the lease by Graham.
[8]
Fundamental Legal Principles Applicable to the Determination of the Appeal
Although well traversed, it is worth repeating some of the fundamental legal principles underpinning land claim appeals under the ALRA. First, the ALRA was enacted in an attempt to mitigate the past dispossession of land from First Nations peoples in the State. This is expressly reflected in the preamble and objects of the Act (which are not repeated here). The Act has therefore been described as beneficial and remedial legislation (see Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157B).
Nevertheless, care must be taken not to place undue emphasis on the beneficial purpose underpinning the ALRA. As was stated in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 ("Berrima Gaol") (at [33] per French CJ, Kiefel, Bell and Keane JJ, footnotes omitted. And see a similar sentiment expressed by Gageler J at [94]):
33. That is not the situation which arises with respect to s 36(1) of the ALR Act, where it is the meaning of particular words which is in question. In Victims Compensation Fund Corporation v Brown it was pointed out that to commence the process of construction by posing the type of construction to be afforded - liberal, broad or narrow - may obscure the essential question regarding the meaning of the words used. It is one thing to say that no restricted construction should be given to legislation which confers benefits; but if the focus is on the meaning of specific words, the circumstance for a liberal application may not arise.
Second, exceptions to the right to claim land should be narrowly construed (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665 at [53] ("Maroota") and Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379; ("Bathurst") at [186]).
Third, it is generally settled law that, as stipulated by s 36(7) of the ALRA, the onus of proof falls on the Minister to satisfy the Court that the claimed land is not claimable Crown lands under the ALRA. If the Minister fails to discharge this statutory onus, then the Court is bound to order the transfer of the land to Darkinjung (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 at 692D-693D ("Winbar")).
[9]
Whether Lot 169 was Subject to SpL 1965/21 as at the Date of the Claim and Whether SpL 1965/21 had "Ceased"
It is convenient to deal initially, and together, with the issues of whether, as at the date of the claim, the claimed land was subject to SpL 1965/21 granted to Graham on 27 April 1967, and if so, whether that special lease had ceased to be in force for the purpose of cl 8 of Sch 4 of the ALRA. This is because if SpL 1965/21 had not ceased to be in force, then even if the claimed land is otherwise "claimable Crown lands" for the purposes of s 36(1)(b) of the ALRA, by operation of cl 8 of Sch 4 of that Act, the claimed land is deemed not to be claimable Crown lands and the appeal must fail. Resolution of whether SpL 1965/21 was still in force as at the claim date also has a bearing on the determination of whether the claimed land was "lawfully…occupied" within the meaning of that term in s 36(1)(b) of the ALRA.
It was uncontroversial that on the appointment date (10 June 1983), the claimed land was the subject of SpL 1965/21, which had been granted to Graham pursuant to s 75 of the CLCA. The central issue, therefore, is whether the special lease had ceased to be in force as at 20 February 2019 (the claim date).
The Minister argued that by reason of cll 27 and 29 of Pt 6 of Sch 1 of the CLMA, SpL 1965/21 continued from 1 January 1997 onwards, albeit on a monthly basis. The combined operation of the CLA, the CL(CT)A, and the CLMA is to the effect that the continuation of tenure originally granted under the CLCA is provided for, including the continuation of special leases. In other words, immediately before the repeal of the CL(CT)A by the CLMA on 1 July 2018, Graham's occupation of the claimed land was pursuant to SpL 1965/21 which was still extant as at the date of the claim.
The Minister's position may be summarised as follows:
1. first, SpL 1965/21 was granted pursuant to s 75 of the CLCA which was in force on the day the ALRA commenced in 1983. Its term was extended to 31 December 1996 on 22 July 1988;
2. second, notwithstanding the repeal of the CLCA by the CLA (which commenced on 1 May 1990), cll 17 and 21 of the CLA operated to preserve SpL 1965/21 subject to the provisions of that Act;
3. third, s 41 of the CLA empowered the Minister to grant special purpose leases for a period of 100 years, not merely the 40 years permitted under the CLCA. Thus, notwithstanding that SpL 1965/21 commenced in 1967, it could continue in force until 2067, and did not expire in 2007 (that is, after the 40 year maximum term provided for by ss 75 and 229 of the CLCA). Initially the Minister relied upon s 44C of the CLA (which was similarly worded to s 41), but the concession was correctly made in oral argument in reply that the section did not apply because s 44C was inserted into the CLA in 2008 (T92:47);
4. fourth, following the expiry of SpL 1965/21 on 31 December 1996, Graham remained in possession of the claimed land pursuant to cl 6 of Pt 5 of Sch 2 of the CL(CT)A. This tenure was, as the Introductory note to Sch 1 of the CLMA indicated, preserved under cl 29 of Pt 6 of Sch 1 of the CLMA upon the repeal of the CL(CT)A;
5. fifth, Graham's tenancy was not a new and separate statutory interest. Rather, when regard is had to the savings and transitional provisions enacted since the repeal of the CLCA and the relationship between the CLMA and the CL(CT)A, it is clear that SpL 1965/21 was in existence when cl 6 of Sch 2 of the CL(CT)A commenced and its tenure was continued, subject to certain conditions (namely, that the tenancy was monthly, that rent continue to be paid at a rate equal to the rent charged under the tenancy, that the parties remain subject to the same conditions as the special lease, and that the Minister consented to the continued tenancy), when it expired on 31 December 1996; and
6. sixth, there was no requirement that Ministerial consent for the existence of the monthly tenancy be in writing or given personally. It was sufficient for consent to be granted by officers of the Minister's Department acting as his authorised agents. In this instance, consent could be implied having regard to the fact that, as the Firli affidavit demonstrates, Graham remained in possession of the land for decades after the expiry of SpL 1965/21 and had continued to pay rent during the relevant period.
[10]
No Ministerial Consent Was Given
More problematic for the Minister is the fact that irrespective of the proper construction of cl 6 of Pt 5 of Sch 2 of the CL(CT)A, a statutory precondition to both the creation of the new monthly tenure or the continuation of the tenure granted under SpL 1965/21 was the requirement for the Minister's consent.
The Parliamentary intention of the precondition is plain, that is, to afford the Minister a discretion to refuse consent and unencumber the land.
Darkinjung submitted that there was no evidence of any consent by the Minister. No documents were produced in response to a notice to produce seeking copies of all written consents by the Minister in relation to the occupation of the claimed land by Graham from 1 January 1996 to 20 February 2019.
By contrast, the Minister submitted that there is no requirement in cl 6 of Pt 5 of Sch 2 for the consent to be in writing (cf cl 2 of Sch 3 of the CL(CT)A). This may be accepted.
But the Minister also argued that there was no requirement for the consent to be given personally by the Minister and that it was sufficient for the purposes of cl 6 that consent be granted by officers of the Minister's Department acting as authorised agents (citing Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 566).
However, even accepting, without deciding, that this proposition is correct, as the facts above demonstrate, there is no evidence that anyone in the Department, either as a Ministerial delegate or in some other authorised capacity, gave consent to Graham's continued occupancy of the claimed land, or that they turned their mind to the question of consent, let alone gave it any consideration.
On the contrary, the correspondence was overwhelmingly directed to the legal basis upon which Graham remained in occupation of the claimed land and not whether he had been given Ministerial permission to do so. Consent was, at best, presumed. I accept the submission of Darkinjung that at its highest the documentary evidence demonstrates that the Department proceeded upon an assumption that there was a monthly tenancy operating with respect to the land, and moreover, that confusion and uncertainty about Graham's tenure persisted until at least 17 April 2018 (for example, at one point it was thought that the tenancy was weekly and not monthly).
[11]
Was the Claimed Land Lawfully Occupied as at the Date of the Claim?
Darkinjung denies that Graham lawfully occupied the claimed land as at the date of the claim because:
1. first, for the reasons given above, Graham did not have a legal interest entitling him to occupy the claimed land. His occupation was unauthorised and unlawful;
2. second, Graham did not have a lawful interest in the claimed land by reason of the various illegal activities he had engaged in with respect to the claimed land;
3. third, he was not in fact in occupation of the claimed land as at the date of the claim; and
4. fourth, if he was in actual occupation of the claimed land it was not for the permitted purpose for use as a poultry farm and hatchery and was therefore not lawful.
In response, the Minister relied upon evidence of occupation prior to the claim date to demonstrate that the land was actually occupied by Graham for residential and storage purposes and that Graham was in possession and control of the claimed land.
As for the lawfulness of the occupation, the Minister submitted that this was provided by Graham's right of occupation pursuant to s 1.15 and cl 29 of Pt 6 of Sch 1 of the CLMA. The Minister had consented to Graham continuing to occupy the land and he was paying rent in consideration of his right to do so. In the alternative, if the occupation by Graham at the date of the claim was not pursuant to SpL 1965/21, a tenancy at will was created which was sufficient for s 36(1)(b) of the ALRA. Furthermore, there was nothing in the language of s 36(1)(b) that demands that occupation must be consistent with the lease purpose in order to be lawful (citing Berrima Gaol at [95]).
[12]
"Lawfully Used or Occupied" - Applicable Legal Principles
The relevant legal principles derived from the authorities as to whether land is lawfully used or occupied are summarised below. They were not the subject of controversy:
1. the phrase "lawfully used or occupied" should be understood disjunctively by a separate consideration of the words "used" and "occupied". That is to say, either a lawful use or a lawful occupation of the land will defeat the claim (Berrima Gaol at [14], Minister Administering the Crown Lands Act v NSW Aboriginal Land Council ("Wagga") [2008] HCA 48; (2008) 237 CLR 285 at [69] and Bathurst at [232]);
2. whether the land is lawfully used or occupied is a question of fact. It is therefore necessary to consider the particular acts, facts, matters and circumstances said to deprive the land of the characteristic of being "not lawfully used or occupied". These must be measured against an understanding of what would constitute use or occupation of the land (Wagga at [69]);
3. in respect of the concept of "occupation", usually (but not exclusively) "a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land" (Wagga at [69]);
4. a continuous physical presence over the entirety of the land is not necessary to establish occupation. The fact that some of the land has been left undeveloped does not in and of itself mean that the whole of the land is unoccupied (Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council ("Tweed Byron") (1991) 75 LGRA 133 at 140-141);
5. the question of occupation and/or use is measured as at the date of the claim (Berrima Gaol at [25]). This is particularly important where there is, as in the present case, a long history of occupation;
6. occupation includes legal possession, that is, being able to exclude third parties (Berrima Gaol at [18]);
7. for land to be used or occupied, it must be actually used or occupied in the sense of being used in fact and not in a nominal sense or "merely to a notional degree" (Bathurst at [161]-[162] and [227]-[230], Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council ("Malabar NSWCA") [2012] NSWCA 359; (2012) 187 LGERA 276 at [45]-[47] and Berrima Gaol at [17]). Put another way, the use or occupation must be more than de minimis, that is, in light of the circumstances of the case, it must be of substance rather than "so miniscule, insignificant or token as to be disregarded" (Bathurst at [161] and Malabar NSWCA at [46]-[47]);
8. total abandonment is not required to find that the land is not lawfully used or occupied (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act ("Education Building") (1992) 76 LGRA 192 at 198); and
9. in respect of the term "lawfully", for the purposes of s 36(1)(b) of the ALRA the Minister must satisfy the Court not only that the claimed land was in use or occupied as at the date of the claim, but that such use or occupation was lawful (Bathurst at [240]). That is, that the use or occupation of the particular Crown land was legally authorised (Tweed Byron at 142).
[13]
Conclusion and Orders
For the reasons detailed above, I find that as at the claim date the claimed land was "claimable Crown lands" within the meaning of s 36 of the ALRA and that the interest that Graham held in the land was not an interest that was protected by cl 8 of Sch 4 of that Act, SpL 1965/21 having ceased to have any force on 31 December 1996. The appeal must therefore be upheld.
During the hearing Darkinjung reserved its position as to the form of the orders if it was successful on the appeal. This was because it expressed a desire to seek orders in relation to the clean-up of the claimed land, including the removal of all chattels, prior to its transfer in order to give vacant possession as one of the incidents of fee simple. Darkinjung relies upon s 39(2) of the Land and Environment Court Act 1979, which confers upon the Court "all functions and discretions which the person or body whose decision is the subject of the appeal had in the respect of the matter the subject of the appeal", as the source of the Court's power to craft the orders that it seeks.
The argument not having been fully ventilated, and the Minister not having been given the opportunity of responding to it, it is not appropriate to resolve it at this juncture.
I therefore propose to make the orders below, but grant liberty to restore to either party within 28 business days (excluding public holidays) from the date of the publication of this judgment to approach the Court for alternative orders.
The orders of the Court are therefore that:
1. the appeal is upheld;
2. the respondent is to transfer Lot 169 DP 726293 in fee simple to the applicant;
3. the respondent is to do all things necessary to enable the transfer of the claimed land in accordance with order (2) within 12 months of the date of these orders;
4. no order as to costs;
5. the parties are granted liberty to restore to approach the Court for alternative orders within 28 business days (excluding public holidays) from the date of the publication of this judgment; and
6. the exhibits are returned.
[14]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 December 2023
Parties
Applicant/Plaintiff:
Darkinjung Local Aboriginal Land Council
Respondent/Defendant:
Minister Administering the Crown Land Management Act 2016
The Department of Lands wrote to Graham on 2 December 1986 in light of the imminent expiration of SpL 1965/21 on 31 December 1986, indicating that consideration would be given to extending the term for a period of 10 years at a rent of $3,000 per annum. The extension would be subject to conditions and the letter stipulated that, "in the event that you do not apply for the extension of term for the Special Lease and extension is not granted, then your right to occupy the site will cease on 31st December 1986 and you will be required to vacate the site by that date."
On 10 December 1986 Graham lodged an application for an extension of SpL 1965/21.
The lease was subject to, among others, the following special conditions:
(a) The rent for each year should be paid in advance to the Crown Land Agent at the Lands Office, Maitland, or to the Secretary for Lands, Sydney, on or before 28th January each year; and
(b) No mining or removal of materials shall be undertaken on the site without the written approval of the Minister.
On 15 March 1988 Deposited Plan 726293 was registered.
On 11 April 1988, the Minister approved an extension of SpL 1965/21 for the purpose of "Poultry Farm and Hatchery" for a term of "10 Years to expire on 31.12.96".
The extension was in the Government Gazette on 22 July 1988. Relevantly, condition 5 stated that "the land leased shall be used only for the purposes for which the lease is granted" and condition 1 said that "a breach of any of the conditions will render the lease liable to forfeiture." Condition 44 stated that "the lessee shall not remove or permit any person to remove gravel, stone, clay…".
On 8 August 1988 the Minister lodged an application for the recording of particulars relating to SpL 1965/21.
On 8 September 1988 the Minister lodged an application with the Registrar for the recording of particulars relating to SpL 1965/21.
On 22 September 1988 the extension of SpL 1965/21 was registered on title with the following notation:
2. The term of the abovementioned lease has been extended until 31/12/96 and is SUBJECT to the special conditions, provisions, exceptions, covenants and reservations set out in the abovementioned Gazette notification.
The Department of Conservation and Land Management wrote to Graham on 17 March 1993, notifying him of a breach of the terms of SpL 1965/21 insofar as the storage of rubbish and the extraction of materials was concerned, and threatened to exercise their rights pursuant to condition 1 of the lease.
That same day, following an inspection on 13 January 1993, Report 93/72 was written by R F Scammell, a Lands Officer, which indicated that Graham was "still interested in buying the land at market value." Recommendation 2 of the Report stated that there were "no objections to disposal of site by private treaty sale to Mr Grahame (sic)."
Graham applied to purchase the claimed land held under SpL 1965/21 for the sum of $34,000 on 23 April 1993.
As at 25 January 1995 the claimed land was valued at $290,000.
On 8 May 1995 the Valuer-General provided a valuation of $1 million in respect of the claimed land.
On 5 December 1996 Wyong Shire Council ("the Council") referred to a report concerning alleged illegal dumping on the claimed land to the Environmental Protection Authority ("EPA"). As a consequence, on 17 January 1997 officers from the Council and the EPA inspected the claimed land.
On 3 March 1997 the EPA wrote to the General Manager of the Council to advise that "the EPA is concerned with the uncontrolled disposal of waste material on the premises".
Accordingly, on 14 March 1997 the EPA wrote to the NSW Department of Land and Water Conservation and relevantly stated:
[Lot 169] has been illegally used as a landfill site for a number of years. Council has been seeking to resolve this illegal land use and has sought the assistance of the Environment Protection Authority.
Investigations by Council Officers have revealed that soils contaminated with diesel and building materials containing asbestos have been dumped at the site.
Council therefore considers that this site is potentially contaminated. This may restrict development of the land.
On 7 April 1997 Landcom wrote to the State Lands Service in these terms:
Information since available, shows Lot 169 was held under Term Lease LT 075029 (previously Special Lease 1965/21 Gosford), Purpose Poultry Farm & Hatchery, term expiring 31 December 1996. The land has been extensively used for quarry operations in conjunction with the Lessee's adjoining freehold land.
Significantly, Bill Curtis, District Manager, SLS Maitland, of the NSW Department of Land and Water Conservation wrote to Paul Goudis, at the Land Revenue Branch, on 8 July 1997 in these terms:
Special Lease 1965/21 Gosford was held by Kenneth Graham.
The lease expired on 31-12-1996.
However on 23 April 1993 an application was lodged to purchase the abovementioned holding. This purchase application has not been finalised the lease should be kept current on a month by month basis until a determination is made.
Please keep the above mentioned account current from the date of expiry until further advice is received from the Maitland District Office.
As at 12 December 1997 it appeared from the records that SpL 1965/21 was terminated. This was consistent with various entries in the Crown Land Information Database ("CLID") indicating that the term of the lease was until "31-DEC-1996". One entry had the notation "TERMINATE CURRENT ACCOUNT".
On 24 March 2000 the Council wrote to the EPA noting that:
This land has been used as an illegal landfill since 1989 ... when dumping was again observed to be taking place last September Council notified the EPA and was referred to the Special Investigation Unit who investigated and confirmed that dumping was occurring again.
On 10 August 2001 the EPA issued a notice of clean-up action to Graham as the owner/occupier of the claimed land.
On 30 August 2001 an officer of the NSW Department of Land and Water Conservation wrote to the Council in these terms:
Special Lease 1965/21 Gosford has expired. Mr Kenneth GRAHAM continues in occupation on a month by month basis until an application lodged to purchase the land is determined.
On 31 August 2001 the same officer wrote to the CLID Helpdesk:
Investigations in the Maitland Office has revealed that Special Lease 1965/21 Gosford (Account 75029) was terminated on the CLID system. However approval was given to Kenneth Martin Graham to remain in occupation on a month to month basis.
A purchase application is pending from 1993 and an ALC is still pending over the land that has been prevented the purchase application being finalised.
In 2003 Graham was convicted and fined in this Court for failing to comply with a prevention notice (Environment Protection Authority v Graham [2003] NSWLEC 408). The offence arose from Graham's failure to provide the EPA with a management plan in respect of Lot 169, which he had been operating as landfill. He had been filling an old quarry on that property with waste from his demolition business.
On 9 January 2007 a Department of Lands field inspection report was prepared in respect of Graham's purchase application. The report stated:
Special Lease 1965/21 Gosford (Account 75029)
Expired 31 December 1996; currently occupied under month-to-month tenancy.
…
Disused poultry sheds
Evidence of dumping of building waste and garden waste
Overgrown vegetation; no significant native species identifiable.
Unauthorised clearing and quarrying at rear of lot and along north east boundary.
On 16 January 2007 Crown Lands wrote to the EPA advising that "Lot 169 DP 726293 is Crown land occupied under tenure by Graham on a month-by-month basis pending determination of a purchase application."
On 30 March 2007, Anne Swan from Crown Lands recommended that Graham's purchase application be refused because:
Recommendation
That the purchase application be refused on the following grounds:
• Planning and environmental objections raised by WSC;
• Contamination issues as advised by EPA, Landcom and WSC;
• Non-compliant tenant
As the lease expired 31 December 1996 consideration should be given to terminating the month-by-month tenancy. An order to clean, clear and rehabilitate the site prior to vacating the premises should be made.
On 22 March 2011 Crown Lands lodged application AG133790V for the removal of all expired special leases, including SpL 1965/21, and added a Crown Land Reserve notification as requested by the Crown Land Conversion Project. SpL 1965/21 was removed from the folio of the Register.
It was not until 10 June 2011 that the EPA was alerted to the possible unlawful dumping of waste on the claimed land.
Site inspections carried out on 1 and 14 November 2011 and 1 February 2012, revealed that approximately 15,000 tonnes of waste had been deposited on the claimed land.
As a result, on 30 November 2011 the EPA issued a clean-up notice to Graham.
The Gosford Local Environmental Plan 2014 ("the LEP") was published on 11 February 2014. Under the LEP the claimed land was zoned B2 Local Centre.
A proposed discontinuance of investigation of Graham for possible waste offence on 29 April 2014 noted that, "Mr Graham is an 80-year-old man who had occupied a semi-rural property…the Property is owned by the State of New South Wales and is leased by Mr Graham".
On 11 November 2015 Graham sold Lot 4.
On 17 January 2017 the Crown Lands Office advised the Council (which had by that stage become the Central Coast Council) that all future accounts for the land should be forwarded to Graham at Lot 137 Pacific Highway.
On 20 March 2017 Property NSW wrote to the Council stating that, "after extensive searches we cannot find a current lessee/licensee for Lot 169."
On 23 March 2017 the NSW Department of Industry - Lands wrote to Valuation Services, Property NSW in respect of Lot 169 as follows:
Please be advised Lot 169 DP 726293 is Crown land held under Special Lease 75029 with a purpose of Poultry Farm. The Crown tenure holder is Kenneth Martin Graham of Lot 137 Pacific Highway, Doyalson NSW 2262.
Thomas Haffner, from the NSW Department of Industry - Land & Forestry, wrote to Graham on 6 September 2017, advising him of a proposed tenure audit in respect of the lease over the poultry farm for Lot 169 DP 726293.
On 4 October 2017 the NSW Department of Industry - Lands & Forestry wrote to the Council providing them with a copy of SpL 1965/21 in response to a request for "a copy of a Licence which shows that Mr Kenneth Martin Graham has occupancy rights on the property".
On 7 December 2017 the claimed land was inspected by NSW Department of Industry. A report of the inspection stated:
Account: Lease - 75029 for POULTRY FARM
Holders: Kenneth Marlin Graham
Mailing Address: Kenneth Graham 25 Pacific Highway Doyalson NSW 2262
Outcome: Immediate action required: Contamination, Dumping, Pest/weeds, Soil disturbance/cultivation, Public safety issues, Condition of built assets, Use outside purpose, Encroachments, Unauthorised structures, Fencing
Inspection notes
No longer used as a poultry farm as of 2012-13.
No longer used but sublet to others.
Lesse (sic) alleged the following persons are subletting or using the site outside its purpose:
Ben Enzor (Pelican Marina) - Storing boats and pontoons on site for payment
Newark constructions - Storing shipping containers on site for payment
Mark Stewart Tree services - Dumping woodchips on site
Cornelius Smith (deceased)/Gregory Smith (Son) storing derelict house removal/transport equipment (beams and vehicles) on site
Brent Mara (unauthorised caretaker onsite in caravan.
Kenneth Graham - Dumping of non organic waste onsite (tyres, scrap etc)
Kenneth Graham - unauthorised burn piles
Storage of unauthorised vehicles - Gregory Smith including but no (sic) limited to
[blank]
Storage of boat for payment - Vessel [blank]
Encroaching earthworks into dam - Troy Allen Stockdale (neighbour and purchaser of lesse (sic) former property next door)
Conversation with Tuggerah Lakes Command Police included allegation that Blue Haven Pools is using the site to dispose of fill from excavations
A corrective action letter was sent pursuant to the audit to Graham on 17 January 2018, noting that "at the time of the tenure audit the occupation of the leased premises was found to be non-compliant with some of the terms and conditions" of SpL 1965/21.
Later, on 27 February 2018 the NSW Department of Industry wrote to the Council requesting that water and rates notices be forwarded to the tenure holder, namely, Graham.
A request as to whether "the tenure of Mr Graham under Special Lease 75029 is continuing and current" was sent from the Council to Rebecca Rooth, Property Services Officer at the NSW Department of Industry, on 28 March 2018.
On 17 April 2018 Rooth wrote to Property NSW land data team to confirm that:
I can confirm that upon the expiration of Special Lease 75029, holding over provisions were granted to Kenneth Graham Martin to remain in possession of the Crown land after the expiration of the Special Lease, as a weekly tenancy. This is subject to conditions applicable to the lease immediately before its expiration, under Schedule 2, Part 5, Clause 6 of the Crown Lands (Continued Tenures) Act 1989.
On 26 April 2018 the EPA advised the Department of Primary Industry and Environment that they had inspected the land and "did not observe any activities requiring action, and this incident is now closed."
On 25 May 2018 Graham was issued with a show cause notice by the Council in relation to the burning of a stockpile of waste.
The claimed land was inspected by the NSW Department of Industry on 24 July 2018. The inspection report stated:
The sale of the leased property to Mr Graham is considered as a preferred option due to the following reasons:
1. That the lease is expired on holding over provisions and there is currently no other future uses identified for the site by the department.
2. That the remediation of the site is likely to cost more than the sale of the premises or any future lease income.
3. That the sale provides a benefit to the State of NSW rather than the burden of remediating the site.
The claim the subject of this appeal was lodged on 20 February 2019. It was not in dispute that as at the date of the claim the land was vested in Her Majesty and that the claimed land was subject to Reserve 90480 for future public requirements.
Clause 8 of Sch 4 of the ALRA deems "claimable Crown Lands" not to have this status for the purposes of s 36(1) in certain circumstances:
8 Claimable Crown lands
Where, but for this clause, any lands would be claimable Crown lands as defined in section 36, those lands shall not, if they were, on the appointed day, the subject of a lease, licence or permissive occupancy, be claimable Crown lands as so defined until the lease, licence or permissive occupancy ceases to be in force.
The parties agreed that the "appointed day" for the purpose of cl 8 of Sch 4 was 10 June 1983 (see cl 1 of Sch 4). As at that date, the claimed land was the subject of a special lease, namely, SpL 1965/21. Accordingly, it is necessary to ascertain whether that lease had ceased as at the date of the claim.
The statutory basis for the grant of SpL 1965/21 was the CLCA, which stated that:
Special leases - For miscellaneous purposes.
75. The Minister may lease by auction otherwise Crown lands (not being in the Western Division)…or for any purpose for the time being declared by the Minister by notification in the Gazette to be a purpose within this section…and may annex to any such lease such conditions reservations and provisions as he may thing fit.
Any such condition reservation or provision annexed to such lease or any purpose as aforesaid for which any such lease has been granted may be altered, modified, revoked or added to as provided by section 182.
If it should appear to the satisfaction of the Minister that the land comprised in any such lease is not used and occupied bona fide for the purpose for which the lease was granted, such lease together with any rent paid in respect thereof shall be liable to be forfeited. …
…
The term of the lease may be fixed for any period not exceeding 40 years, and if fixed for a less period than 40 years may be extended as provided in section 229.
…
229. (1) The Minister may extend the term of a special lease - if in the first instance fixed for less than 40 years - as to the whole or part of the land comprised therein to any term not exceeding 40 years from the commencement of the lease on such terms and conditions as he may determine.
However, the CLCA was repealed by Sch 7 of the Crown Lands Act 1989 ("CLA") commencing on 1 May 1990. The latter Act relevantly provided as follows:
6 Crown land to be dealt with subject to this Act etc
Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence, reservation or dedication or other dealing is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989.
34 Powers of Minister
(1) The Minister may, in such manner and subject to such terms and conditions as the Minister determines:
(a) sell, lease, exchange or otherwise dispose of or deal with Crown land, or …
(b) grant easements or rights-of-way over, or licences or permits in respect of, Crown land,
on behalf of the Crown.
…
(3) The Minister may not, under subsection (1):
(a) sell or exchange Crown land,
(b) lease Crown land for a term exceeding 5 years, or
(c) lease Crown land for a term that, by the exercise of an option, could exceed 5 years,
unless the relevant date for the sale, exchange or lease is at least 14 days after notice of intention to sell, exchange or lease the land has been published in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State.
41 Term
The term of a lease of Crown land (including any option for the grant of a further term) granted by the Minister is not to exceed 100 years.
…
155 Offences on public land
(1) A person shall not, without lawful authority:
(a) reside on public land;
(b) erect a structure on public land;
(c) depasture stock on public land;
(d) drive stock on public land;
(e) clear, dig up or cultivate public land;
(f) enclose public land (other than a road or watercourse to which section 63 applies);
(g) fail to pay any rent due and payable in respect of the enclosure of public land that is a road or watercourse;
(h) remove from public land, or cut, dig up, disturb, displace, stack, heap or in any other way interfere with, any tree, timber, turf, stone, clay, shells, earth, sand, gravel or any other things, whether growing on or in, or being in, on or under or forming part of, public land; or
(i) deposit or leave on public land-
(i) any rubbish, litter, refuse, dead animal, filth or other similar matter; or
(ii) any matter of a prescribed class or description, whether or not of a kind referred to in subparagraph (i),
except in a place or receptacle provided for the purpose.
Schedule 8 of the CLA contained savings, transitional and other provisions. In particular, cll 17 and 21 relevantly stated:
17 Effect of repeals on sales, leases, road permits etc
(1) The repeal of a repealed Act does not of itself operate to annul, prejudice or affect any grant, sale, purchase, exchange, lease, contract, agreement or other transaction which was made, effected or validated by or under the repealed Act.
(2) Subject to this Act and the Crown Lands (Continued Tenures) Act 1989, any such grant, sale, purchase, exchange, lease, contract, agreement or other transaction remains as valid and has effect as if the repealed Act had not been repealed. …
21 References to repealed Acts, tenures etc
(1) A reference in any other Act, in any instrument made under an Act or in any other instrument to the Crown Lands Consolidation Act 1913 shall be read as a reference to the Crown Lands Act 1989.
(2) If the Minister by order published in the Gazette so directs, a reference in any other Act, in any instrument made under an Act or in any other instrument to, or to a provision of, a repealed Act or to any tenure or holding under a repealed Act:
(a) is to be read as a reference to, or to a specified provision of, or to a specified tenure or holding under, this Act or the Crown Lands (Continued Tenures) Act 1989, or
(b) is to be read as including a reference to, or to a specified provision of, or a specified tenure or holding under, this Act or the Crown Lands (Continued Tenures) Act 1989.
The Western and Crown Lands Amendment (Special Purpose Leases) Act 2008 amended the CLA in 2008 and inserted s 44C into the latter Act, which relevantly stated:
44C Minister may grant special purpose leases
(1) The Minister may, in accordance with section 34 or 34A, lease any Crown land within a development district for the purpose of enabling development for a designated purpose to be carried out on that land.
…
(3) The maximum term for which a lease may be granted under this section (including the period of any option to renew) is 100 years.
The Crown Lands (Continued Tenures) Act 1989 ("CL(CT)A") commenced the same day as the CLA, that is, 1 May 1990 (it was later repealed on 30 June 2018). It relevantly provided that:
3 Definitions
(1) In this Act:
…
holding means an incomplete purchase, a perpetual lease, a term lease or a special lease.
…
special lease means a special lease granted under the Crown Lands Consolidation Act 1913 and in force immediately before the commencement of section 10 or a special lease created by a subdivision of such a lease.
…
5 Continued tenures
(1) A tenure in force under a repealed Act immediately before its repeal remains in force subject to the provisions of this Act and the Principal Act.
(2) If the tenure is a lease or occupancy for a defined term, the tenure does not (except as provided in this Act or the Principal Act) continue beyond the end of that term.
…
(4) In this section:
repealed Act means an Act repealed by the Principal Act or the Prickly Pear Act 1987.
tenure means:
…
(b) a perpetual lease, term lease or special lease,…
10 Special leases
Part 5 of Schedule 2 applies to and in respect of special leases.
Part 5 of Sch 2 of the CL(CT)A relevantly provided:
Part 5 Special leases
1 References in folios of the Register
In a folio of the Register relating to a special lease:
(a) a reference to the Crown Lands Consolidation Act 1913 shall be taken to be a reference to the Principal Act and this Act,…
…
3 Conditions
(1) Subject to this Act and the Principal Act, a special lease remains subject to the conditions to which it was subject immediately before the commencement of this clause.
…
6 Occupancy after expiration of lease for a term
The holder of a special lease for a term who, with the consent of the Minister, remains in possession of land after the expiration of the special lease, does so as a tenant from month to month:
(a) at a rent per month equal to one-twelfth of the year rent, and
(b) subject to the conditions, applicable to the lease immediately before its expiration.
On 1 July 2018 the Crown Land Management Act 2016 ("CLMA") commenced. Among other things, it repealed the CLA and the CL(CT)A.
Section 1.15(1) of the CLMA prohibits dealings with Crown lands unless authorised by the Act:
1.15 Dealings with Crown land generally subject to Act
(1) Crown land must not be occupied, used, sold, leased, licensed, dedicated, reserved or dealt with in any other way unless it is authorised by this Act.
Section 9.2 of the CLMA details the unauthorised use of Crown land for present purposes:
9.2 Unauthorised use of Crown land
(1) A person must not do any of the following -
(a) reside on Crown land,
(b) erect a structure on Crown land,
(c) graze stock on Crown land,
(d) drive stock on Crown land,
(e) clear, dig up or cultivate Crown land,
(f) interfere with any substance on, in or forming part of Crown land,
(g) deposit or leave any of the following on Crown land except in a place or receptacle provided for the purpose -
(i) any rubbish or litter, refuse, dead animal or other similar matter,
(ii) any matter of a kind prescribed by the regulations,…
Clause 12 of the Crown Land Management Regulation 2018 prescribes the following kinds of matter for the purposes of s 9.2(1)(g)(ii) above:
12 Dumping of materials
For the purposes of section 9.2 (1) (g) (ii) of the Act, the following kinds of matter are prescribed -
(a) vehicles or parts of them,
(b) water craft or aircraft or parts of them,
(c) household effects, appliances, materials or waste,
(d) clothing,
(e) agriculture, building, commercial or industrial materials or waste,
(f) machinery, plant or equipment or parts of them,
(g) chemicals or metals,
(h) vegetable matter,
(i) stone, sand, shells, clay, earth or ash,
(j) radioactive material,
(k) hospital or biological waste,
(l) abattoir waste,
(m) toxic or hazardous waste,
(n) computers, televisions, printers and other electronic devices,
(o) liquid waste.
Schedule 1 of the CLMA contained various savings and transitional measures. The introductory note to the Schedule states that:
Introductory note -
The Crown Lands (Continued Tenures) Act 1989 made special transitional provision for certain tenures over Crown land granted before the Crown Lands Act 1989 came into force.
These tenures included specified kinds of incomplete purchases, perpetual leases, term leases, special leases and permissive occupancies. The former Act operated to continue these tenures in force even though some of these tenures could no longer be granted under the Crown Lands Act 1989.
This Schedule continues these tenures in force under this Act and makes special provision for them, including by continuing to apply some of the provisions of the former Crown Lands (Continued Tenures) Act 1989.
In addition, section 1.13 provides that the provisions of this Schedule prevail over those of Parts 5-7 of this Act to the extent of any inconsistency.
Part 1 of Sch 1 relevantly provides that:
1 Application of Schedule
(1) This Schedule applies in relation to continued tenures.
…
2 Definitions
…
continued special lease is defined in Part 6 of this Schedule.
continued tenure means each of the following:
(a) a continued incomplete tenure purchase,
(b) a continued permissive occupancy,
(c) a continued perpetual lease,
(d) a continued special lease,
(e) a continued term lease.
Part 2 of Sch 1 is concerned with "continued tenures generally". Clause 3 is in the following relevant terms:
3 Continued tenures remain in force
(1) A continued tenure over land remains in force as:
(a) for a continued perpetual lease, continued term lease or continued special lease - a lease under this Act over the same land, and
(b) for a continued incomplete tenure purchase - an incomplete purchase under this Act of the same land, and
(c) for a continued permissive occupancy - a licence under this Act to occupy the same land.
(2) A continued tenure for a term does not (except as provided by this Act) remain in force beyond the end of that term.
(3) A continued tenure for an indefinite term, or a term that exceeds the maximum term for a tenure of that kind under another provision of this Act, remains in force indefinitely or for the remainder of its term despite that provision.
(4) The terms and conditions of a continued tenure remain the same subject to any variations made by or under this Act.
…
(8) A continued tenure does not cease to be a continued tenure just because it is renewed or extended…
Importantly, Pt 6 of Sch 1 deals with "continued special leases". Clauses 27 and 29 state:
27 Application of Part
This Part applies to a continued tenure that was a special lease as defined in the Crown Lands (Continued Tenures) Act 1989 (a continued special lease) immediately before the Act's repeal.
…
29 Occupancy after expiry of special lease for term
A holder of a continued special lease for a term who, with the Minister's consent, remains in possession of the leased land after the lease expires does so as a lessee from month to month at a monthly rent of one-twelfth of the annual rent, and subject to the conditions, applicable to the lease immediately before it expired.
In this context, an issue arose during the hearing as to who bore the onus of proof under cl 8 of Sch 4 of the ALRA of demonstrating that SpL 1965/21 had "ceased" as at the date of the claim.
The Minister argued that the burden of proof fell to Darkinjung to demonstrate that the special lease had ceased, and that therefore, the land was claimable Crown lands for the purpose of cl 8 of Sch 4, whereas Darkinjung contended that, properly construed, the language of cl 8 did not give rise to an exception to the onus of proof mandated by s 36(7) of the ALRA.
Section 36(7) unequivocally speaks to the consequences of the Minister failing to satisfy the Court that the claimed lands are not claimable Crown lands. The text is clear, namely, that it is the Minister who bears the burden of convincing the Court that the subject land is not claimable Crown land, and hence, that the appeal should be dismissed.
Schedules to Acts form part of the Act and must be considered when construing the Act as a whole (Donnellan v Sydney Turf Club [1975] 2 NSWLR 375 at 376 and Origin Energy LPG Ltd v Bestcare Foods Ltd [2007] NSWCA 321 at [13]). It was once orthodoxy that where there was a conflict between provisions in the body of an Act and an operative schedule, the former prevails (Commissioner of Stamp Duties (NSW) v Thomson [1927] HCA 57; (1927) 40 CLR 394 at 427). However, more recently, it has been held that a schedule is itself a legislative enactment and its interpretation is not necessarily constrained by the Act. Thus, if the Act states that the schedule is to be used for a certain purpose, the Act and the schedule must be construed in a manner consonant with that purpose. But if the language of the schedule extends beyond that stated purpose, then the text must be given effect to (R Foley; Channell v Foley (1952) 53 SR (NSW) 31 at 36 and State of New South Wales v Bujdoso [2007] NSWCA 44; (2007) 69 NSWLR 302 at [89]).
In this context, s 64A of the Interpretation Act 1987 provides that:
64A Schedules
A schedule to an Act or instrument has effect according to its tenor when it comes into force, whether or not the Act or instrument declares that the schedule has effect.
As the learned author D Pearce AO FAAL has observed in the seminal text Statutory Interpretation in Australia (9th ed, 2019, LexisNexis Butterworths), "the purpose of this section is not immediately apparent" (p 197, 4.68). Pearce suggests that the provision means no more or less than a schedule can be unconstrained, or can be limited according to whether other provisions of the Act in which it appears impose limitations (that is, its context), and in this regard it is to be treated no differently than any other section (p 197, 4.68).
Therefore, applying ordinary principles of statutory construction, does the text and context, including its purpose, of cl 8 in Sch 4 operate to, as the Minister submitted, reverse the onus of proof prescribed in s 36(7) of the ALRA for the purpose of that clause?
Schedule 4 deals with "Savings, transitional and other provisions". Clause 8 is located in Pt 2 which is concerned with "Provisions consequent on the enactment of this Act". Plainly the purpose of Sch 4 is to preserve interests in land that had accrued prior to the enactment of the ALRA. Clause 8 furthers this purpose in respect of land that is subject to a lease, licence or permissive occupancy, and renders land that would otherwise be claimable for the purpose of the Act not to be claimable Crown lands while those rights exist, thereby preserving the proprietary status quo.
The clause says nothing about who bears the burden of demonstrating that the lease, licence or permissive occupancy has "ceased". In my view, this textual silence indicates that it is not intended to impinge upon, or in any way alter, the onus of proof set out in s 36(7) of the ALRA. That is to say, the Minister must, as s 36(7) states, show that the claimed land is not claimable Crown lands pursuant to the Act, which includes establishing that the land was subject to a lease, licence or permissive occupancy that had not ceased. This construction of cl 8 of Sch 4 is not only harmonious with s 36(7) of the ALRA, it accords with the beneficial intention of the Act and does not interfere with the purpose of cl 8.
For these reasons, I find that it is the Minister who must prove that the lease, licence or permissive occupancy referred to in cl 8 of Sch 4 of the ALRA had not ceased as at the date of the claim, and that therefore the land was not claimable Crown lands.
Fourth, the date for determining whether land is "claimable Crown lands" is the date that the claim was lodged and not the date that the claim was determined (Winbar at 691F-G and Dorrigo Plateau Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 653; (2007) 155 LGERA 307 at [9] and [44]).
Fifth and finally, the Court may take into account post-claim evidence in determining whether, as at the date of the claim, the land was claimable Crown lands (Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359; (2012) 193 LGERA 276 at [19] ("Malabar Police Station"). Specifically, the Court may consider evidence that comes into existence subsequent to the date of the land claim if it confirms attributes of the land as at the date of the claim or if it demonstrates a continuity of activity by indicating what occurred before and after the date of the claim (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171 ("Camberwell") at [62] and [125]-[127]).
By contrast, Darkinjung contended that the claimed land was not the subject of SpL 1965/21 as at the date of the claim because it had ceased to be in force on 31 December 1996 when it expired, and that no monthly tenancy was validly created pursuant to the Crown lands legislation. It reasoned that:
1. first, a special lease could neither be issued nor its term extended for a period of greater than 40 years (ss 75(1) and 229 of the CLCA). The CLCA was repealed by the CLA and existing special leases granted under the former enactment remained subject to the conditions which had previously been imposed (see cl 3(1) of Pt 5 of Sch 2 of the CL(CT)A). Before the special lease's term expired, the holder of a special lease could apply to purchase the land or to apply for a new lease under the CLA (cl 4 of Pt 5 of Sch 2 of the CL(CT)A);
2. second, s 41 of the CLA was not material because it only applied prospectively to the creation of new special leases under that Act, not retrospectively to extend the 40 year term limit to 100 years in relation to special leases already granted by the Minister under the CLCA. As at the expiration of SpL 1965/21 on 31 December 1996, there was no statutory power to extend the 40 year term limit of that lease to beyond 2007. Therefore, SpL 1965/21 was not in force and cl 8 of Sch 4 of the ALRA was not engaged;
3. third, cl 6 of Pt 5 of Sch 2 of the CLA, properly construed, provides that if the Minister consents to a monthly tenancy after a special lease has expired, the monthly tenancy is not a continuation or extension of the expired special lease. Rather, it is the creation of a new statutory lease albeit subject to the same conditions as those in existence immediately prior to its expiry. Accordingly, on its terms and in accordance with the CLA and the CL(CT)A, SpL 1965/21 expired on 31 December 1996, that is, decades prior to the date of the claim. If SpL 1965/21 did continue on a monthly basis, it was as a new interest;
4. fourth, a monthly tenancy was not created because cl 6 only allowed for the creation of a monthly tenancy where the holder of the expired special lease remained in possession after the expiry of the special lease with the consent of the Minister. In the present case there was no evidence of any Ministerial consent being provided. On the contrary, the evidence disclosed that SpL 1965/21 was recorded as having been terminated. At its highest, the evidence disclosed an intention to create a month-to-month lease and the Department was acting on the assumption that such a tenancy had been created; and
5. fifth, even if Graham held a monthly tenancy after the expiry of SpL 1965/21, it did not survive the repeal of the CL(CT)A by the CLMA on 1 July 2018, the latter of which only provided for "continued tenures" which, as defined, did not include monthly tenancies. Although Pt 5 of Sch 1 allows for the continuation of a special lease, this was only as defined in the CL(CT)A and as explained above, SpL 1965/21 had already expired and was not in force when the CL(CT)A was repealed.
I am of the opinion that the submissions of Darkinjung ought to be accepted and that SpL 1965/21 was no longer extant as at the date of the claim. Graham did not have a proprietary interest in the claimed land that was the lawful creation of the Crown lands statutory regime.
In resolving the question of whether SpL 1965/21 continued in force as at the date of the claim, it is necessary to carefully construe the relevant parts of the CLMA and the legislation preceding it, especially, the relevant savings and transitional provisions of those Acts.
The applicable principles of statutory interpretation brook no controversy. The ascertainment of the meaning of a provision commences with its text, while having regard to its context and purpose (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14]).
The principles were succinctly summarised in State of New South Wales v Kaiser [2022] NSWCA 86 (at [57]):
57. The relevant principles of statutory construction are well established and may be stated briefly. They are:
1. it is the duty of the Court to give the words of the statutory provision under consideration the meaning that the legislature is taken to have intended them to have. While, ordinarily, the grammatical meaning and the intended meaning will coincide, it is not always so: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335; [1998] HCA 28 at [78];
2. in the interpretation of a statute the Court is to prefer a construction that would promote the purpose or object underlying the Act to one that would not achieve that purpose: Interpretation Act 1987 (NSW), s 33;
3. the starting point is always the text of the provision to be construed. But the text of the provision to be construed is not to be taken in isolation. It is to be read "in the context" of the legislation as a whole. "Context" is not to be treated as something to which resort may be had when consideration of the text alone fails to yield a satisfactory answer: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; [1985] HCA 48 per Mason J; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 per Brennan CJ, Dawson, Toohey and Gummow JJ, both quoted by Gageler J in SZTAL v Minister for Immigration & Border Protection; SZTGM v Minister for Immigration & Border Protection [2017] HCA 34 at [37]; The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507; [2019] HCA 35;
4. courts must strive to give meaning to every word of the provision to be construed (Project Blue Sky at [71]) and should "strain against a construction which gives no work whatsoever to legal language": Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423 at [77] per Leeming J; if possible, some meaning and effect should be given to all the words used in a statute: The Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11, cited by Mason CJ in Chu v Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 12-13; [1992] HCA 64 ("the presumption against surplusage"). The rule is subject to the qualification that it may be displaced if there is good reason to do so: Lim, at 13.
5. a statute will not be construed so as to abrogate or curtail certain human rights or freedoms unless such an intention is clearly manifested by unambiguous language that indicates that the legislature has turned its mind to the rights or freedoms in question and has consciously decided upon abrogation or curtailment ("the principle of legality"); Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [19], per Gleeson CJ;
6. legislation that affects personal liberty will be given a strict construction: Smith v Corrective Services Commission of New South Wales (1980) 147 CLR 134 at 139; [1980] HCA 49, and the authorities there cited.
SpL 1965/21 expired on 31 December 1996. The issue that arises is whether immediately before the date of the claim, Graham's occupation of the claimed land pursuant to a monthly periodic tenancy was a continuation of SpL 1965/21, as contended for by the Minister, or was a new and different interest, as asserted by Darkinjung.
As the chronology above indicates, SpL 1965/21 was granted on 27 April 1967 pursuant to s 75 of the CLCA, and remained in force on 10 June 1983, the day cl 8 of Sch 4 of the ALRA commenced. Consistent with s 229 of the CLCA, the term of SpL 1965/21 was extended from 1 January 1987 to 31 December 1996, with the extension registered on title on 22 September 1988.
On 1 May 1990 the CLA commenced and Sch 7 of that Act repealed the CLCA. Clauses 17 and 21 of Sch 8 of the CLA contained savings and transitional provisions that had the effect of preserving the validity and effect of SpL 1965/21 "as if the repealed Act [the CLCA] had not been repealed" (cl 17) and that all references to the CLCA in any other Act or instrument were to be read as a reference to the CLA (cl 21). Accordingly, SpL 1965/21 became subject to the provisions of the CLA.
I do not accept the Minister's submission that by reason of the repeal of the CLCA, the 40 year term limit in respect of the grant of special leases under s 75 of the CLCA was also repealed and replaced with s 41 of the CLA, which provided that "the term of a lease of Crown land…granted by the Minister" was not to exceed 100 years. The power contained in s 41 of the CLA could only be exercised prospectively by the Minister, that is, in relation to new leases created under that Act. It is not to be construed as having retrospective effect automatically extending the term of previously granted special leases to 100 years from 40 years. There is nothing express or implied either in the text, context or purpose of s 41, or the relevant savings and transitional provisions of the CLA, that displaces the presumption that legislation does not have a retrospective effect (Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267, Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188 at 194 and Adco Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1 at [45]).
As a consequence, even if, which is not accepted for the reasons given below, a periodic monthly tenancy was validly created after SpL 1965/21 expired in 1996, the 40 year limit on the grant of special leases continued, and therefore, SpL 1965/21 statutorily ceased on 26 April 2007 (40 years after it commenced in 1967). This is well prior to the date of the claim.
In addition to the CLA, the CL(CT)A also commenced on 1 May 1990. That legislation provided that a tenure in force under a repealed Act immediately before its repeal remained in force (s 5(1)). However, if the tenure was for a defined term, the tenure (except as otherwise provided) did not continue beyond the end of that term (s 5(2)).
Section 10 of the CL(CT)A applied Pt 5 of Sch 2 to special leases. Part 5 of Sch 2 is notable in two ways. First, in cl 3 it stated that a special lease remains, subject to the conditions attached to it prior to the commencement of the CL(CT)A. That is to say, in this instance, SpL 1965/21 remained subject to the conditions imposed when it was granted under the CLCA. Second, cl 6 relevantly stated that the holder of a special lease for a term (for example, SpL 1965/21), "with the consent of the Minister", who remains in possession of land after the expiration of a special lease, does so as a tenant from month to month at a rent per month equal to one-twelfth of the year rent and subject to the conditions applicable to the lease immediately before its expiration.
Although the term of SpL 1965/21 expired on 31 December 1996, as the evidence discloses, Graham has remained in possession of the claimed land since that date and has continued to pay rent, albeit not consistently on a monthly basis.
By 20 February 2019, the CLA and the CL(CT)A had been repealed and replaced by the CLMA (on 1 July 2018).
As may be expected, the CLMA also contained relevant savings and transitional measures in cl 3 of Pt 2 and cll 27 and 29 of Pt 6 of Sch 1, the intention of which was set out in explicit terms to the Introductory note to Sch 1 of the legislation, which was expressly directed to, among other tenures, special leases. The Schedule continued the tenures in force under the Act and made special provision for them, including by continuing to apply some of the provisions of the repealed CL(CT)A.
More specifically, Sch 1 of the CLMA is concerned with "Continued tenures", which include a "continued special lease" (see the definition of a "continued tenure" in cl 2(d)). Clause 3 of Pt 2 of Sch 1 provides that a continued tenure, including a continued special lease, remains in force as a lease under the Act over the same land. It follows that if the special lease had expired, the CLMA did not continue it (again, see the definition of "continued tenure" in cl 2).
Part 6 of Sch 1 is expressly directed to "Continued special leases" and applies to a continued tenure that was a special lease as defined in the CL(CT)A immediately before the repeal of that enactment (see cl 27).
Clause 29 of Sch 1 deals with "Occupancy after expiry of special leases for term" and permits a "holder of a continued special lease for a term who, with the Minister's consent, remains in possession of the leased land after the lease expires does so as a lessee from month to month…subject to the conditions, applicable to the lease immediately before it expired".
Accordingly, if SpL 1965/21 was continued by cl 6 of Sch 2 of the CL(CT)A when that Act commenced on 12 December 1990 (with the same conditions attaching to the lease when it expired on 31 December 1996), the effect of Sch 1 of the CLMA was to continue the tenure of SpL 1965/21 upon the repeal of the CL(CT)A and the commencement of the CLMA on 1 July 2018, up to and beyond the date of the claim. If, however, it was not and Graham's occupation of the claimed land was pursuant to some periodic month to month tenancy, it was not preserved under the CLMA and the effect of the repeal of the CL(CT)A is that the tenancy was no longer in force.
Put another way, was SpL 1965/21 continued by cl 6 of Part 5 of of Sch 2 of the CL(CT)A? If it was, then it may be accepted that, subject to satisfaction of the statutory precondition of Ministerial consent, SpL1965/21 had not ceased for the purposes of cl 8 of Sch 4 of the ALRA. If, however, it was not, then neither the savings and transitional provisions of the CL(CT)A nor the CLMA applied, and the special lease had ceased to be in force as at the claim date, with the result being that the land is claimable Crown lands under the ALRA.
Leaving aside the issue of Ministerial consent, there are textual and contextual indicators which suggest that, properly construed, the occupancy preserved after the expiration of the term of SpL 1965/21 on 31 December 1996 was a new and different interest.
First, the language of both the heading to, and chapeau of, cl 6 of the CL(CT)A states that the provision is directed to the state of affairs that immediately follows the expiry of a special lease for a term where the holder remains in possession of the land. Clause 6 is concerned with the circumstances in which a holder of the special lease for a term can occupy the land "after the expiration of the special lease". The stipulation that the conditions applicable to the special lease "immediately before its expiration" apply to the monthly tenancy would have no work to do if the special lease continued in force (Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 132; (2011) 244 CLR 144 at [97]).
Second, cl 6 does not speak of a continuation or extension of the special lease. There was no equivalent power in the CL(CT)A to extend the lease as that contained in s 229 of the CLCA.
Third, s 5(2) of the CL(CT)A expressly states that if the special lease (see the definition of "tenure" in s 5(4)) is for a defined term (such as SpL 1965/21), the tenure does not continue beyond that term except as provided by that Act. While s 5(2) permits exceptions ("(except as provided in this Act or the Principal Act)"), the starting point is nevertheless against the continuation of tenures, including special leases, upon their expiry.
Properly construed, cl 6 of Pt 5 of Sch 2 of the CL(CT)A is not an exception to the proscription against the continuation of expired tenures. Rather, it allows for the creation of a new form of tenancy, albeit one that is subject to the same conditions as the defunct special lease, but whose tenure is less secure than that afforded under the special lease.
Fourth, cl 4 of Pt 5 of Sch 2 of the CL(CT)A allows for the holder of a special lease, prior to its expiration, to apply to purchase the land (which is what Graham applied to do in April 1993), or apply for a new lease. While in no way determinative, the ability to make such an application suggests that the purpose of the savings and transitional provisions of Pt 5 of Sch 2 was not to extend the tenure of the special lease past its expiration, but to transition to new forms of land tenure.
Fifth, the legal and practical effect of the Minister's construction would be that SpL 1965/21 continued 52 years after it was initially granted, and 23 years after it expired up to the date of the claim, notwithstanding that when it was granted there was only a 40 year limit on the term of special leases in the CLCA (s 75(1)) and that the extension of special lease terms was abolished by the promulgation of the CLA and the CL(CT)A. That the 40 year limitation was extended to 100 years under the CLA (s 41) is not relevant because as at the date of the exercise of power to grant SpL 1965/21, the 100 year term did not exist (see the reasons given earlier in this judgment).
Sixth, although the Minister relied upon cl 27 of Pt 6 of Sch 1 of the CLMA, this clause does not assist it if, as has been concluded above, there was no special lease in existence immediately before the repeal of the CL(CT)A because SpL 1965/21 had already expired.
Consequently, when SpL 1965/21 expired on 31 December 1996, it ceased to be in force for the purpose of cl 8 of Pt 2 of Sch 4 of the ALRA.
It was not saved by the CLMA because cl 29 is only directed to special leases which were in force immediately before the repeal of the CL(CT)A, and SpL 1965/21 had either ceased to be in force on 31 December 1996 or, at the very latest, by 27 April 2007. Whatever the basis of the periodic monthly tenancy in existence permitting Graham to occupy the claimed land was not covered by the Sch 1 of the CLMA. There is nothing in the content of the Introductory note to Sch 1 of that Act, or in the language of cl 3 of Pt 2 of that Schedule that warrants a contrary conclusion.
Although the issue is one of statutory construction, the above analysis is, with few exceptions, consistent with the documentary evidence before the Court that some other form of tenure applied to the claimed land upon SpL 1965/21 expiring, albeit with the same conditions as that previously attaching to SpL 1965/21 immediately prior to its expiration, viz:
1. on 8 July 1997, upon becoming aware that Graham's 1993 application to purchase the leased land had not been dealt with, the District Manager of the Department wrote to the Revenue Branch noting that SpL 1965/21 had "expired" and recommending that the "lease should be kept current on a month to month basis". No legal basis for that request was referred to in the communication and there was no power under the CLA to extend or reinstate an expired lease (which had occurred seven months earlier);
2. the description of SpL 1965/21 as "still terminated" as at December 1997, was consistent with various entries in the CLID to the effect that the term of special lease had expired on 31 December 1996, and that the current account associated with it should be terminated;
3. the letter from the NSW Department of Land and Water Conservation to the Council on 30 August 2001, explaining that SpL 1965/21 had expired but that Graham continued to occupy the site on a month-to-month basis. Similar correspondence was sent to the CLID Helpdesk;
4. the notation in a Department of Lands field inspection report dated 9 January 2007, which stated that SpL 1965/21 had expired on 31 December 1996 but that the land was currently occupied under a month-to-month tenancy. It was recommended that because the special lease had expired, the monthly tenancy should be terminated due to non-compliance by the tenant;
5. the notation by Crown Lands on 16 January 2007 that the occupation of the land was on the basis of a monthly tenure pending determination of Graham's purchase application;
6. on 22 March 2011 Crown Lands sought the removal of all expired special leases, including SpL 1965/21. The reference to SpL 1965/21 was subsequently removed from the Register pursuant to s 13G(1) of the Real Property Act 1900. Although removal was an administrative act, as Darkinjung observed, it was effected pursuant to a direction that was premised upon a belief that SpL 1965/21 had ceased to be in force;
7. on 20 March 2017 Property NSW could not "find a current lessee/licensee" for the claimed land. In response to a query, a letter was sent from the Department of Industry to Property NSW on 23 March 2017, stating that the land was held under "Special Lease 75029" by Graham;
8. a copy of SpL 1965/21 was provided to the Council on 4 October 2017, in reply to a request for a copy of the "Licence" demonstrating that Graham had occupancy rights on the property;
9. in an answer to a request from the Council enquiring whether the tenure of Graham under Special Lease 75029 (SpL 1965/21) was continuing and current, on 17 April 2018 Property NSW confirmed that the special lease had expired but that "holding over provisions" were granted to Graham to remain in possession of the land as a "weekly tenancy", subject to the same conditions as the expired special lease (relying upon cl 6 of the CL(CT)A); and
10. on 24 July 2018 the NSW Department of Industry noted that the lease had "expired" and was "on holding over provisions".
With the exception of the correspondence dated 23 March and 4 October 2017, at no juncture was SpL 1965/21 represented as having been continued or extended by any person with the authority to do so.
In addition, rent was paid in a manner inconsistent with a monthly tenancy having been created by the Minister. As the Firli affidavit indicates, rent was paid both quarterly and yearly, and not uniquely monthly as required by the tenancy asserted by the Minister.
In relation to the 8 July 1997 communication referred to above, this was no more than an intra-departmental communication of what should happen. There was no evidence that either party to the communication had delegated authority to consent on behalf of the Minister, or that it was acted upon.
The Minister further submitted that consent did not need to be actual, but could be implied from conduct. Specifically, the Minister asserted that consent can be implied if the tenant remains in possession after expiry of the tenancy and continues to pay rent. In this instance, there was considerable evidence of implied consent given that Graham had, with the knowledge of the relevant Department, remained in possession of the land for approximately 23 years following the expiry of SpL 1965/21, and had paid rent continuously. At no stage was a notice of termination in relation to the lease issued by the Minister or the Department and no steps were taken to remove Graham from the claimed land.
There is no doubt that various State departments and the Crown Lands Office were aware that Graham continued to occupy the claimed land upon the expiry of SpL 1965/21 and that he did so pursuant to some form of monthly tenancy. Representations to this effect were repeatedly made to, and by, various public entities. However, this is to conflate knowledge with consent, which is not, in my view, sufficient to establish the latter on behalf of the Minister. Ministerial consent required active engagement with the question of whether the holder of an expired special lease for a term ought to remain in possession of the land on a monthly tenancy. Any other finding would render nugatory the statutory precondition to the creation of the tenure referred to in cl 6. To reiterate, what has occurred in the present case is an assumption that the interest Graham continued to enjoy was validly created and that Ministerial consent had been given, when none had.
There is nothing remarkable about this conclusion. As was observed by Darkinjung, the cases are replete with examples of where it was presumed that interests in land were validly created, with the purported holder paying rent and incurring expenses, only to subsequently find that no valid interest existed (see for example, New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2014] NSWLEC 58 at [62]-[66], [122] and [135] and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Limbri) [2013] NSWLEC 67 at [96]).
This is because in respect of interests in Crown land there is generally a need for strict compliance with the legislation creating the interest (see the authorities cited below at [207]-[212]).
Further, I do not accept the submission made by the Minister that if consent must be actual, and not implied, it may be given at any time during the term of the lease. Read as a whole, it is tolerably clear that the Minister's consent must be given at the commencement of the tenancy for it to be validly created under the clause. For this to occur it must be given prior to the commencement of the periodic tenancy. Otherwise, it is not clear what purpose the Minister's consent would serve. If the consent can be given at any time, then it would have to operate both prospectively and retrospectively because if restricted to the former, then the lessee would be in possession unlawfully for the period of occupation absent consent. The interpretation proffered by the Minister is apt to give rise to administrative impracticalities and is to be rejected.
The Minister further argued that condition 11 of SpL 1965/21 operated to incorporate cl 6 of Pt 5 of Sch 2 of the CL(CT)A into SpL 1965/21. But, as Darkinjung correctly submitted, although condition 11 is concerned with rights reserved to the Minister, it cannot supplant the words of the statute contained in the CL(CT)A and does not have the effect of operating to hold over the tenure afforded by SpL 1965/21 in a manner that resulted in the continuation of that lease.
Finally, Darkinjung answered the Minister's claims by arguing that if Graham held a valid monthly tenancy after the expiry of SpL 1965/21, the monthly tenancy did not survive the repeal of the CL(CT)A by the CLMA on 1 July 2018, because a monthly tenancy was not included in the definition of "continued tenures" which was exclusively defined in cl 2 of Sch 1 of the CLMA, and therefore, was not captured by the savings and transitional provisions of that Act.
But this argument ignores cll 27 and 29 of Pt 6 of Sch 1 of the CLMA which allow for the continuation of a "special lease" as defined in the CL(CT)A immediately before the repeal of that legislation on 1 July 2018. If, as the Minister contends, SpL 1965/21 had not expired and was in force immediately before the repeal of the CL(CT)A on that date, then SpL 1965/21 was a "continued tenure" for the purposes of Pt 6 of Sch 1 of the CLMA and, leaving aside the issue of Ministerial consent, a monthly tenancy arose by operation of cl 29. However, as already explained, SpL 1965/21 was not in force on 1 July 2018 when the CL(CT)A was repealed.
SpL 1965/21 having ceased to be in force, was the claimed land "claimable Crown lands" pursuant to s 36(1)(a) of the ALRA?
A debate arose during the hearing as to the precise content of the statutory concept of "lawfulness". According to Darkinjung, in order for the claimed land to be lawfully occupied it was necessary for the acts relied upon to establish physical occupation to themselves be lawful. In the case of leases which are for a specific purpose, this required the acts to be for the purpose authorised by the lease. Any other conclusion would be inconsistent with the savings and transitional provisions of the ALRA which were directed to protecting leases in existence as at the date that legislation was enacted (see cl 8 of Sch 4) and would amount to a protection that was afforded to the mere existence of an interest and not its use. If the mere existence of a lease was intended to defeat a claim under the ALRA, the language of "use" and "occupation" would not have been used.
In reply, the Minister submitted that in order to constitute "lawful…occupation" under the ALRA, it was sufficient to establish either actual occupation or a right of occupation, such as pursuant to a lease. Thus, even if the occupier carried out unlawful activities on the land, provided that they enjoyed a lawful right of occupation, this was sufficient "occupation" for the purposes of s 36(1)(b) of the ALRA.
In the present case, this meant that lawfulness was not confined to lawful occupation as provided under the Crown lands legislation, but encompassed lawful occupation under some other legal regime. Because Graham's occupation of the claimed land continued over a lengthy period of time, was not objected to by the Minister or any person with authority to do so, and in respect of which rent continued to be paid, as at the date of the claim Graham was in lawful occupation of the land. That he had engaged in activities that were in breach of the conditions of SpL 1965/21 in breach of s 9.2 of the CLMA, or that on occasion he had used the land for purposes other than for a poultry farm and hatchery, was immaterial because it did not derogate from his interest in the claimed land.
The qualification of the terms "use" and "occupation" by the word "lawful" was introduced to distinguish between cases where an entity uses the land without any lawful right to do so, such as a trespasser, and an entity who enjoys a licence or permit which, while not rendering that entity an occupier, nevertheless comprises a lawful use of the land (New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act - Waverton Bowling Club [2022] NSWLEC 130 at [16]). As was opined in Tweed Byron, the concept of "lawful" is not concerned with "nice distinctions of town planning laws" but rather "whether the user of Crown land is legally authorised to do so" (at 142).
Darkinjung placed considerable reliance on the decision in Bathurst, where the Court of Appeal held that "where a Crown grant authorises the grantee not only to occupy land but also to use it for a particular purpose and no other, if he occupies and uses it for some other unauthorised purpose, his occupation (and use) becomes unlawful" (Bathurst at [179] per Tobias JA).
Bathurst concerned the Sir Joseph Banks Nature Park which was used as a fauna reserve and was subject to a trust established for the public purpose of preservation of native flora. The relevant council, who managed the Park, closed it to allow the area to revert to woodland. It had not reopened as at the date of the claim. An issue arose as to whether, at the relevant date, the council was using the land for the public purpose. If it was not, the use and occupation was in breach of the trust and therefore unlawful (Bathurst at [80] per Ipp JA).
The Court of Appeal noted that s 6 of the CLA prohibited the occupation or use of the land for any purpose not authorised by that Act and that the use of the land other than as a public reserve for the preservation of flora, was for an unauthorised purpose that rendered unlawful not only its use but its occupation. In that case, the use of the Park as a fauna reserve was therefore unlawful. Accordingly, the test of lawful occupation, as that term is understood in the context of s 36(1)(b) of the ALRA, "must include that the acts establishing actual occupation are for a purpose authorised by the statute conferring the right to occupy" (at [185] per Tobias JA). Tobias JA opined as follows (at [180]-[182] and [185]):
180 In the present case the Nature Park was reserved for a purpose which did not include its occupation or use as a fauna reserve. As I have noted, s 6 of the CL Act in effect prohibited its occupation or use for any purpose not authorised by that Act. As its occupation as a fauna reserve was not so authorised, it must follow that the effect of s 6 is to render unlawful not only the use but also the occupation of the Nature Park as a fauna reserve.
181 Although, as Sheller JA observed in Nowra Brickworks (No 2) at 653; 266, claimable Crown lands may embrace both land that is unoccupied but used, though not lawfully used, and land that is occupied, but not lawfully occupied, there is a further permutation being land that is both occupied and used but not lawfully. The present is such a case. The Nature Park was both occupied and used for an unauthorised and, therefore, unlawful purpose.
182 Although in the joint judgment of the High Court in Wagga Wagga at [73] their Honours found it unnecessary to decide whether "lawfully used or occupied" was a compound expression having a single meaning or was better understood by separate consideration of the words "used" and "occupied", they nevertheless considered that it was an expression that encompassed utilisation, exploitation and employment of land. It would be difficult to imagine a case where land was utilised, exploited and employed other than for a purpose. Where that purpose is unauthorised and, therefore, unlawful as in the present case, it is not to the point for the Minister to argue that lawful occupation is achieved merely by virtue of the status of the Trust and/or the Council.
…
185 I would therefore accept BLALC's argument at para 6.36 of its written submissions on the appeal that if
"occupation must be lawful, and also must be considered by reference to its purpose to establish that it is actually rather than merely constructively occupied, then the test of "lawful occupation" per s 36(1)(b) must include that the acts establishing actual occupation are for a purpose authorised by the statute conferring the right to occupy."
Basten JA expressed a similar view (at [240]):
240 Because s 36(1) of the Land Rights Act does not envisage use or occupation at large, but only lawful use or occupation, at least in relation to reserved or dedicated lands, the inquiry to be undertaken by the Minister (and the L&E Court) is restricted to such lawful use or occupation. Because the factual inquiry depends, as explained above, on the purpose for which lands are used or occupied, it is important to identify those lawful purposes in addressing the statutory test. Often that will occur by default because the Minister who bears the statutory onus in the L&E Court will not present a case based on use and occupation falling outside that which is lawful in accordance with the terms of the reservation or dedication.
Bathurst may be contrasted with the subsequent decision of the High Court in Berrima Gaol. The issue there was whether the claimed land was lawfully used and/or occupied if the use and occupation was directed to maintaining the land and not using the land as a gaol. The High Court accepted that for a use of land to be lawful, it had to conform to the purpose for which it was dedicated. This could not be satisfied on the facts of the case given that the land was no longer being used as a gaol.
However, the High Court did not accept the proposition put by the claimant that for land to be lawfully occupied it had to be actively used for the purpose for which it was dedicated, namely, as a gaol. This is because to do so would be to deny the distinction between the "use" and the "occupation" of the land and their separate spheres of operation (at [37]-[40] per French CJ, Kiefel, Bell and Keane JJ, footnotes omitted):
37 The NSW ALC's submissions direct attention to the terms of the dedications. It may be recalled that only one part of the claimed land was actually dedicated for "Gaol Purposes". The balance was dedicated in more passive terms, for the purposes of "Gaol Site (extension)" and "Gaol Site (addition)".
38 Clearly enough, the purpose for which lands are dedicated may be relevant to the question of whether they are occupied. The discussions in the cases referred to above show that different factors may assume importance depending upon the purpose for which land is reserved or dedicated. Thus, in the case of land reserved for public recreation, such as an extensive forestry park, fencing was not an important factor, whereas the exercise of control over the land was.
39 This is not the exercise to which the NSW ALC's argument is addressed. In reality the NSW ALC's argument is that the dedicated purpose of the land must be actively pursued by the acts which are relied on as constituting occupation of the land. The central submission is really that land dedicated for gaol purposes is to be used as a gaol and that it is not lawfully occupied unless it is actively used as a gaol. The submission again denies the distinction between the use and the occupation of land and it denies occupation its separate sphere of operation35.
40 The NSW ALC's argument also creates a further requirement for the test of use or occupation. It would necessitate the addition of words to s 36(1)(b), to read it as if it said "lands … not lawfully used or occupied for the purposes for which they are dedicated or reserved".
The plurality of the Court further elucidated the distinction between lawful use and lawful occupation as follows (at [43] per French CJ, Kiefel, Bell and Keane JJ, footnotes omitted):
43 The adjective "lawfully" which precedes "used or occupied" does not assist the NSW ALC's argument. It may be accepted that the dedication of land has a limiting effect. Its use, benefit and possession must conform to the purpose for which it was dedicated. A use which is made of land which is inconsistent with its dedicated purpose is not a lawful use of it. But the NSW ALC does not suggest that the acts relied upon as constituting occupation are inconsistent with the dedicated purposes. What it does say is that for it to be lawful occupation, those purposes must be pursued. To say that is to say that the claimed land must be actively used for those purposes if it is to be said to be lawfully occupied. There is no basis to be found in s 36(1) for that submission.
Justice Gageler (as his Honour then was) explained the difference between "use" and "occupation" for the purposes of s 36(1)(b) of the ALRA this way (at [88]-[90]):
88 The aspect of the distinction between occupation of land and use of land that assumes critical importance in the present case concerns the significance of purpose. Occupation of land can be occupation for a purpose, and the purpose for which physical acts are undertaken can inform whether those acts amount to occupation in fact. Unlike the concept of use, however, purpose is not intrinsic to the concept of occupation. Physical acts can be sufficient to amount to occupation in fact irrespective of the purpose for which they are undertaken. To expand on the illustration given by the Privy Council, a farmer might remain in occupation of his farm by staying in his farmhouse and maintaining his fences despite having chosen to cease farming and despite not yet having chosen what else he might do with the farmland.
89 Had the question here been whether the land on which Berrima Gaol is situated was used at the date of the claim, an argument of the kind now advanced by the Land Council would have been unanswerable. The only lawful use to which the land could then have been put was use for the dedicated public purposes of a gaol. What was then happening on the land could not be described as use of the land for those purposes.
90 But the question tendered for the determination of the Land and Environment Court was not one of use. The question was one of occupation. Although Corrective Services NSW was not doing anything with the land at the date of the claim, Corrective Services NSW had a continuing presence on the land and remained active in asserting control over the land. The buildings were being kept locked and were not being allowed to fall into disrepair. There was someone on site 24 hours a day. The lawns and gardens were being maintained on a weekly basis. That state of affairs had been in place for some months and it could be expected to continue until the future use of the land was settled. The evaluative conclusion of the Land and Environment Court that the land was occupied was open.
The reasoning in Berrima Gaol conforms with earlier authority. In Minister Administering the Crown Lands Act v New South Wales Aboriginal Council (No 2) ("Nowra Brickworks (No 2)") (1997) 42 NSWLR 641, referred to in Bathurst, Shellar JA said (at 653-654), "a tenant may be in lawful occupation of the land the subject of a lease, even though the tenant carries out unlawful activities on the land such as the cultivation of a prohibited plant in contravention of s 23 of the Drug Misuse and Trafficking Act 1985. The expression speaks of the status of the person who has the right for the time being to occupy" the land.
In Nowra Brickworks (No 2) the claimed land was the subject of a mining lease granted in 1976 under the Mining Act 1906 for the mining of brick clay and connected purposes. In 1987 the land was claimed under the ALRA. At issue was whether the land was lawfully used or occupied within the meaning of s 36(1)(b) of that Act. At first instance, Bignold J held that the land was not lawfully used because although being used for the purpose of mining/brickworks, permission to extract clay and shale had lapsed because there had been no substantial commencement of the development. Consequently, as at the date of the claim, the land was not being lawfully used for mining/brickworks purposes.
On appeal, Shellar JA held that the term "lawfully" could mean either used and occupied for lawful purposes or a person who had the right to occupy land (653 F). In his Honour's opinion, "I can see no reason why claimable Crown lands should not embrace both land that is unoccupied but used, though not lawfully used, and land that is occupied, but not lawfully occupied. Thus the expression would embrace land occupied by trespassers" (at 653F). Lawfully occupied land is where a person is in lawful occupation. In that case, the Mining Act 1906 provided the holder of a mining licence with the lawful right to occupy or use Crown land for specified mining purposes. Had the lessee used the land for some other purpose, that use would have been unlawful, but because there was no evidence to this effect, the land was being lawfully used (654B-C).
The reasoning in Berrima Gaol and Bathurst is not readily reconciled. One proposition that plainly emerges from both authorities is that if land is dedicated or reserved for a particular purpose and if, as at the date of the claim, that land is being used for some other purpose, then its use is unlikely to be lawful under s 36(1)(b) of the ALRA.
Although the authorities are directed to the misuse of dedications and reservations of Crown lands, the logical corollary of the decisions is that land that is the subject of a statutory lease granted for a special purpose must be used for that purpose while that lease is in force.
In the present context, the evidence plainly discloses that the claimed land was not being used or occupied for the purpose for which it was leased in SpL 1965/21, namely, as a poultry farm and hatchery. The affidavit of Draper indicates that the land had ceased being used as a poultry farm in 2012-2013 and that at the time of the inspections in December 2017 and July 2018, Graham was living with others in a dwelling on the land without any authority to do so. Moreover, none of the previous identified breaches of SpL 1965/21 had been remedied by Graham and the land had been used in a number of ways that were contrary to the conditions of the special lease. Although past uses of the claimed land are not relevant to any assessment of the use and occupation to which the land is being put as at the date of the claim (other than to assist in the drawing of an inference as to use and occupation at the relevant time), there is, on any view, insufficient evidence that the claimed land was being used or occupied as a poultry farm and hatchery as at the claim date.
On the contrary, the evidence strongly supports a finding of unlawful use insofar as the land was being used as a waste disposal site, was subject to contaminants, had been sublet to third parties (for example, for the storage of shipping containers and boats for payment), and had been subjected to unlawful clearing and construction. It is no doubt for this reason that the Minister relies solely on Graham's lawful occupation of the claimed land to defeat s 36(1)(b) of the ALRA.
There is ample direct evidence that from the grant of SpL 1965/21 in 1967 until 24 July 2018, Graham was occupying the claimed land. For example (see the affidavit evidence of Draper):
1. until 2012 the land was being used in part to rear poultry;
2. rent was paid throughout;
3. quarrying and other activities took place on the land;
4. waste was deposited on the land;
5. the clearing of vegetation occurred on the land;
6. structures were built on the land;
7. he had sold the lot next door (Lot 4) and from 2017 until at least 24 July 2018, he was living on a dwelling on the land; and
8. Graham sublet out the land to third parties.
From 25 July 2018 to 20 February 2019, however, there is no direct evidence of Graham's occupation of the claimed land.
Darkinjung was critical of the Minister for not having obtained evidence from Graham as to his occupation of the claimed land as at the claim date and it invited the Court to draw the inference that Graham's evidence would not have assisted the Minister (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171 at [75]). In response, the Minister submitted that Graham could equally have been called by Darkinjung, there being no expectation that the Minister would necessarily do so (citing Payne v Parker [1976] 1 NSWLR 191 at 201E-F).
But this latter submission ignores the statutory burden of proof that falls on the Minister, which in the circumstances makes it more realistic that the Minister, rather than Darkinjung, would call Graham as a witness.
I am prepared to draw the adverse inference sought by Darkinjung. No reason was proffered by the Minister as to why Graham was not called to depose as to his status as an occupier of the claimed land on 20 February 2019. The evidential lacuna as to who, if anyone, was occupying the land as at the claim date could easily have been answered by the Minister.
The Minister invited the Court to infer that, given the evidence of Graham's long history of occupation of the claimed land, including his continued payment of rent, he remained in occupation of it as at the claim date.
But as Darkinjung submitted and which I accept, even having regard to the factual chronology at its highest, the most that the evidence discloses is that on 20 February 2019, Graham was in occupation of a dwelling on the land. The evidence is not sufficiently cogent, in my view, to permit the drawing of any other inference as to the occupation by Graham (or anyone else lawfully entitled to do so) of the remainder of the claimed land at the relevant time.
While a continuous physical presence over the entirety of the land is not necessary to demonstrate occupation, and total abandonment is not required to find that the land is not occupied, there remains a six month evidential gap where the Minister has failed to establish actual occupation of almost all of the land as at the date of the claim. Even if the Court were to entertain an inference that Graham was occupying the dwelling on the land on 20 February 2019, although this would amount to occupation to more than a de minimus or notional degree of that portion of the land, it would not assist the Minister in establishing that the whole of the claimed land was occupied as at that date, which is what the Minister seeks to do.
The Minister relied upon the continual payment of rent to show occupation of the land and to invite the Court to draw the inference that he was residing on the claimed land as at the date of the claim. However, rent was equally paid by Graham when he was not living on the land, and this evidence provides a weak basis to draw the inference sought by the Minister. The payment of rent is, in any event, no more than evidence of legal possession and not actual possession, the latter of which is not sufficient for the purposes of s 36(1)(b) of the ALRA. Were it otherwise, a claim under s 36(1)(b) of the ALRA could be readily defeated by the existence, without more, of a lease agreement.
Accordingly, I do not find as a matter of fact that the Minister has discharged the statutory onus of proof of demonstrating that there was actual occupation of the claimed land by Graham as at the claim date.
Turning to the question of the lawfulness of the occupation, resolution of this issue is more problematic in light of the apparent disparity of opinions expressed in Bathurst and Berrima Gaol, as discussed above.
Assuming occupation is established by the Minister (which I have found that it was not), the gravamen of the dispute between the parties is whether the claimed land was being lawfully occupied in light of the illegal activities being carried out upon it (the unsanctioned deposition of waste, the clearing, the development, and the occupation of the land by third parties).
Having regard to the language of s 36(1)(b) of the ARLA as construed by Berrima Gaol, I am of the opinion that the submission by Darkinjung that the lawful occupation of the claimed land is constricted to the narrow purpose of the subject-matter of SpL 1965/21, namely, as a poultry farm and hatchery, ought not be accepted. As the High Court opined in Berrima Gaol, to circumscribe the composite term "lawfully…occupied" in this way is to effectively conflate the concepts of lawful use and lawful occupation in a manner that was not intended by their distinct and separate identification in s 36(1)(b) of the ALRA.
Divorced from its statutory context, Graham enjoyed a right of occupancy to the claimed land pursuant to the holding over of SpL 1965/21 which resulted in the creation of some form of periodic tenancy. For the reasons explained earlier in this judgment, the interest held by Graham in respect of the land was not the continuation of SpL 1965/21, but a wholly new interest in the land.
This gives rise to an enquiry into the nature of the interest created upon SpL 1965/21 ceasing to be in force. The Minister agreed with Darkinjung that Graham's continuing occupation of the land did not give rise to an equitable interest that could be raised against the Minister in the present circumstances (T106:20). Nor did the Minister rely on some form of licence having been created thereby giving Graham a relevant interest in the land for the purposes of the ALRA.
In my view, a new periodic monthly lease arose by reason of Graham's continued occupation of the claimed land, his continued payment of rent (as demonstrated by the Firli affidavit), and the continued knowledge by the Crown Lands Office and various State departments of his occupation and use of the land (see the factual chronology above) after SpL 1965/21 expired. Although the Minister has not proven Ministerial consent sufficiently to engage cl 6 of Pt 5 of Sch 2 of the CL(CT)A, Graham nevertheless had right to occupy the land. To suggest otherwise is to deny the correspondence between a multitude of public authorities indicating not only their knowledge of Graham's continued occupation of the claimed land, but also any holding over rights that appeared to be afforded to him (see, for example, the communication dated 17 April 2018 from Rooth to Property NSW and the inspection report by the NSW Department of Industry dated 24 July 2018).
Where a tenant remains in occupation after the expiry of a lease for a term, such as SpL 1965/21, which does not contain provision for the holding over, a new agreement is implied into which are imported, so far as relevant, the terms and conditions of the original lease (Easy Buy International Pty Ltd v Macquarie Goodman Property Services Pty Ltd [2006] NSWSC 148 at [65] and Gill v Wright [1964-5] NSWR 1500 at 1503).
Therefore, at common law, Graham held a lawful right to occupy the claimed land. This was so irrespective of the fact that as at the claim date the land was no longer being used for the purpose for which it was leased pursuant to SpL 1965/21 in breach of that lease (see condition 6). It remains the case that Graham's tenancy was neither determined by notice given by anyone with the authority to do so nor were any steps taken by any party to terminate it.
This finding does not, however, assist the Minister. The word "lawful" in s 36(1)(b) of the ALRA is restricted only to lawful occupation as provided by the CLMA. Section 1.15 of the CLMA essentially prohibits the occupation, use, and other dealings (which includes, for example, leases) with Crown lands unless authorised by the Act. Section 9.2 details uses of Crown land that are unauthorised for the purposes of the CLMA, including residing on Crown land, the clearing of Crown land, the leaving of rubbish or litter, and the dumping of materials (as to the latter proscription, see s 9.2(1)(g)(ii) of the CLMA and cl 12 of the Crown Land Management Regulation 2018).
A similar provision was contained in s 6 of the CLA and s 6 of the CLCA, albeit omitting any reference to "occupied" or "used" in the latter Act.
The almost sacrosanct nature of the prohibition on the dealing with Crown lands other than in accordance with the Crown lands statutory regime was described in State of New South Wales v Scharer [2003] NSWCA 328; (2003) 131 LGERA 208 (at [59]-[60]):
59 Furthermore, s 6 of the CLC Act prohibits any dealing with Crown lands "except under and subject to the provisions of" that Act. That prohibition is tempered by the requirement of s 54(4)(b)(i) of the MWS&D Act that before any lease, licence or permit is granted in respect of Crown lands within a catchment area, the concurrence of the Board must be obtained. But that requirement does not subvert the prohibition on the dealing with Crown lands other than under and subject to the provisions of the CLC Act. Any purported dealing with Crown land other than in accordance with that prohibition is unlawful. Therefore, to the extent that either the Department or the Board purported to promise Miller a proprietary interest in the nature of an easement or right of way in the road, it was doing so other than in accordance with the proscription contained in s 6. This is particularly so given that the CLC Act contains no power authorising the Governor or the Minister to grant easements or rights of way over Crown land: see [31] above. Consistent with the decision of the Privy Council in Chalmers and the overriding control of s 6 referred to by Bryson J in Fensom, it thus follows that no proprietary estoppel could arise from the conduct of the Board for which a court of equity could or would provide a remedy.
60 Authority extending for a century in this State supports the foregoing conclusions, that the Crown has no power to create interests in Crown lands except under the Crown lands legislation. In Lukey v Sydney Harbour Trust Commissioner (1902) 2 SR (NSW) 152 at 165, Owen J (with whom Darley CJ agreed) rejected the trial Judge's finding that an interest in certain Crown land was created in the plaintiff and enforceable against the Crown who was estopped from denying it. He did so on the basis that the effect of such a finding would be to repeal ss 5 and 6 of the Crown Lands Act 1884 (reproduced in s 6 of the CLC Act):
"for the Crown could then deal with Crown lands otherwise than under and subject to the provisions of that Act. Not only are the powers of the Crown limited by that Act, but the Crown is thereby expressly prohibited from leasing or dealing with Crown lands, except under and subject to the provisions of the Act."
In the opinion of Barrett J (as his Honour then was) in Georgeski v Owners Corporation SP49833 [2004] NSWSC 1096, the addition of the concepts of "occupation" and "use" in s 6 of the CLA, served to reinforce Parliament's intention to "regulate not only the Crown's right to create interests in Crown land but also rights at large to occupy and use such land" (at [88]).
The Minister relied upon Darkinjung v Minister Administering Crown Lands Act [2006] NSWLEC 180; (2006) 149 LGERA 162 (at [26]-[29]) in support of the submission that the word "lawful" in s 36(1)(b) of the ALRA was not restricted only to lawful occupation as provided under the Crown lands regulatory regime, but that it allowed for other lawful occupation. However, there has since been departure from this case in subsequent authorities.
In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act ("Shoalhaven") [2008] NSWLEC 35 Jagot J (as her Honour then was) held that lawful use and occupation for the purposes of s 36(1)(b) of the ALRA was to be assessed in accordance with s 6 of the CLA (at [71]):
71 These facts fall for assessment in the face of s 6 of the Crown Lands Act. Section 6 discloses in terms the legislature's consideration of the need to control the use and occupation of Crown land. The section operates on all of the provisions of the Act (including ss 10 and 11 emphasised by the Minister). There is no reason not to give effect to s 6 according to its terms. Supplemented by s 159 of the Crown Lands Act the Crown (through authorised persons) has power to ensure that any unlawful use or occupation of Crown land is brought to an end. In context, such unlawful use or occupation is any use or occupation not authorised under that Act.
The approach in Shoalhaven was subsequently adopted by the Court of Appeal in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council ("Berowra") [2009] NSWCA 352; (2009) 171 LGERA 56 (at [40] and [170]-[171]); Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (The Goomallee Claim) [2012] NSWCA 358; (2012) 84 NSWLR 219 (at [34]-[38]) and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act ("Berrima") [2015] NSWCA 349 (at [19]-[26]). And in this Court in, for example, New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act ("Goomallee LEC") [2012] NSWLEC 1; (2012) 186 LGERA 323 (at [72]-[79]) and New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act - Helensburgh Police Station [2020] NSWLEC 133 (at [134]).
In short, there is a need for strict compliance with Crown lands legislation (Valuer-General v Sydney Fish Market Pty Ltd [2023] NSWCA 52 at [70]-[71]). In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Kinchela claim) [2009] NSWLEC 46; (2009) 166 LGERA 137 Lloyd J opined as follows (at [71]-[73]):
71 In Project Blue Sky, the joint judgment of McHugh, Gummow, Kirby and Hayne JJ, approved at [93] the criticism by the New South Wales Court of Appeal in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24, of the continued use of the "elusive distinction between directory or mandatory requirements". The joint judgment adopted as a test for determining the issue of whether an act done in breach of a statutory power is valid: "whether it was a purpose of the legislation that an act done in breach of the provision should be invalid".
72 In relation to Crown lands legislation, however, both before and after Project Blue Sky, the courts have insisted on strict conformity with the relevant statute. A failure to comply with the statutory process will invalidate any purported exercise of the power to grant an interest in Crown land. In Mabo v Queensland (No. 2) (1992) 175 CLR 1, Brennan J (Mason CJ and McHugh J concurring) said at 63: "The validity of a particular grant depends upon conformity with the relevant statute"; and at 72 his Honour added, "a purported lease granted without statutory authority is ineffective to dispose of any interest in land". I am inclined to the view that if strict conformity with the statute is required for a grant, then the same principle should apply to a sale of Crown lands.
73 In New South Wales v Scharer (2003) 131 LGERA 208, the New South Wales Court of Appeal (Tobias JA, with Sheller and Ipp JJA concurring) held at [59] - [60]:
Furthermore, s 6 of the [Crown Lands Act] prohibits any dealing with Crown lands "except under and subject to the provisions of" that Act. ...Any purported dealing with Crown land other than in accordance with that prohibition is unlawful...
Authority extending for a century in this State supports the foregoing conclusions, that the Crown has no power to create interests in Crown lands except under the Crown lands legislation.
Because the CLA and the CLMA must be strictly complied with in respect of dealings with Crown land (see s 6 of the CLA and s 1.15(1) of the CLMA, provisions of wide import), and given that the claimed land is Crown land, this means that any dealings with the claimed land, including the leasing or creation of interests in that land, must be in conformity with those enactments. If, as has been held above, the monthly tenancy pursuant to which Graham used and occupied the land was not granted under the Crown lands legislation, then the interest created in the claimed land was not authorised under either the CLA or the CLMA and is therefore unlawful. Applying the authorities above, this renders the occupation of the claimed land by Graham also unlawful.
There is no evidence that the power of the Minister to "lease…or otherwise dispose of or deal with Crown land" in s 34(1)(b) of the CLA, upon which the Minister relied, (the Act in force when SpL 1965/21 expired on 31 December 1996) to create the monthly tenancy at will was in fact exercised by the Minister. No notice of intention to sell, exchange or lease the land published in a newspaper, was, for example, produced in evidence by the Minister. In any event, even if the power was exercised, the lease could only be for a term of five years or less (s 34(3)(b) of the CLA) and there was no evidence of any assessment under Pt 3 of the CLA of the land as necessitated by s 35(1) of the CLA. The presumption of regularity has no application, contrary to the submissions of the Minister, because at issue is whether there was the creation of statutory lease at first instance and not whether it continued.
Although not necessary to determine in light of the conclusion reached above, were it necessary to do so, I would find in favour of Darkinjung's submission that even if a tenancy at will was created in Graham's favour, at common law a tenancy at will terminates automatically if the tenancy is subjected to voluntary waste (Countess of Shrewsbury's Case (1600) 5 Co Rep 13b; 77 ER 68 and Doe and Mellersh v Redman (1829) 8 LJ (OS) KB 154). Having regard to the evidence of unsanctioned waste being deposited upon the claimed land as a result of Graham's occupation of it (see, for example, the Draper affidavit), the tenancy would have been terminated prior to the date of the claim.
A similar argument was made by Darkinjung having recourse to s 9.2 of the CLMA. That is, any lease claimed to exist by the Minister by reason of Graham's occupation of the claimed land and payment of rent was not authorised under that Act as required by s 1.15(1) of the CLMA because his use of the land was contrary to s 9.2 of that Act, and therefore, unlawful.
But although s 9.2 makes it an offence to engage in certain acts on Crown land, the section is silent as to the consequences for a person's tenure if conviction ensues. No doubt there is provision in the CLMA to terminate or rescind a person's interest in Crown lands if breach of s 9.2 is proven, but there is nothing in the language of either ss 9.2 or 1.15 that causes this to occur automatically. I do not accept Darkinjung's submissions in this regard.
The Minister emphasised that the provision was directed in the heading to the "unauthorised use" of Crown land and not its 'unauthorised occupation'. However, while the heading to a section may assist in determining the meaning of a provision in certain circumstances (see s 35 of the Interpretation Act 1987), it does not permit the adoption of a meaning that the words of the operative provision cannot reasonably bear. The language of s 9.2(1) is silent with respect to both 'use' and 'occupation' and to read the provision in the manner contended for by the Minister would be to import words into the section that cannot be supported having regard to its text.
In any event, as explained above, the claimed land was not lawfully occupied by Graham pursuant to the CLMA as at the date of the claim. As a consequence, the claimed land is therefore "claimable Crown lands" as that phrase is defined in s 36(1)(b) of the ALRA, the Minister having failed to discharge the onus of proving otherwise.