Hawkins v Minister for Lands

In the same way a reservation from sale could only apply subject to existing leases and licenses, if any. If it were not for s. 188 it would follow that the reservation would be subject to the statutory right annexed to the Crown lease to apply for conversion to conditional purchase. On this view the solution of the matter would finally turn on the applicability of s. 188. But there is still the overriding contention that upon a proper understanding of s. 29 the power of reservation it contains cannot be exercisable after a Crown lease has been granted. In support of the contention it may be said that no public purpose can be fulfilled by reservation, that except by chance the land can never again come into the possession of the Crown or be open for any form of public enjoyment. Plainly a lease or licence is out of the question except in the extremely remote contingency of the destruction by surrender, forfeiture or lawful revocation of the Crown lease. Cogent as these considerations are in relation to the practical policy of the section, the difficulty is to escape from its actual words, once it is held, as I think it must be, that notwithstanding the Crown lease the land remains Crown lands.

The whole matter is therefore remitted to the construction of s. 188. Does this section apply to Crown leases or settlement leases granted before the making of the reservation?

The argument for the holder of the Crown lease is that it should not be construed so as to authorize or allow of an interference with rights otherwise vested in the leaseholder and that its language admits of, if it does not suggest, an interpretation which would limit the application of the section to cases where before the grant of the settlement lease or the Crown lease the land had been reserved from sale. As a matter of history the provision first appeared in s. 9 of the Crown Lands (Amendment) Act 1908 (No. 30). That Act made settlement leases convertible into conditional purchase. It was Act No. 27 of 1917 that made the provisions applicable also to Crown leases. In its original form what is now s. 29 was expressed a little differently. It ran - If the land comprised in a settlement lease has been reserved either wholly or in part from sale such reserved land shall not be convertible into a conditional purchase unless and until such reservation has been revoked. At first sight the expression "has been reserved" may be thought to support the view that the section was meant to apply only where the reservation was made before grant of the settlement lease. But I think that the words "has been reserved" do not properly mean more than has been reserved before conversion. In both forms of the provision the word "convertible" is relied on as describing a quality annexed to the interest granted by the lease and as therefore pointing to a characteristic which attaches from the beginning or not at all and therefore remains part of the rights granted.

I have felt not a little doubt whether s. 188 should not receive the restrictive construction contended for. But I have reached the conclusion that the considerations relied upon are insufficient to warrant the placing of any limitation upon the generality of the language in which s. 188 is expressed. As is pointed out by Jordan C.J., the rights of conversion conferred by the Crown lease are subject alike to ss. 29 and 188 and these express conditions controlling the operation of s. 184. The argument that vested rights should not be impaired throws no light on the extent of the conditions.

I am of opinion that the reservation was effective under s. 184 to prevent conversion.

It is perhaps better to state in terms of the questions submitted what is my decision upon the subsidiary questions. My opinion is - (a) that the land was "Crown Lands" within the meaning of the Crown Lands Consolidation Act 1913 at the time of the notification of the reservation from sale; (b) that the land was at the date of the application for conversion into Conditional Purchase - (i) vested in His Majesty and (ii) not granted or lawfully contracted to be granted in fee simple under the Crown Lands Acts; (c) that the land even if otherwise it were Crown Lands within the meaning of the Crown Lands Consolidation Act 1913 at the time of the notification of the reservation from sale, was at that time Crown Lands within the meaning of s. 29 of the said Act; (d) that independently of (a), (b) and (c) above, s. 29 of the Crown Lands Consolidation Act authorizes the Minister to reserve any Crown Lands which are for the time being held under a Crown Lease, being a perpetual lease, from being sold or let upon lease or licence; and (e) that the section authorizes the Minister to reserve Crown Lands from being sold in terms of the notification gazetted; (f) that the effect of ss. 29, 184 and 188 of the Crown Lands Consolidation Act is that a valid reservation by the Minister under s. 29 of the land comprised in a Crown Lease from sale generally made during the currency of the Crown Lease prevents the conversion of that Crown Lease into a Conditional Purchase.

I therefore think that the holder of a Crown lease in perpetuity of land in New South Wales may not convert it into a conditional purchase if since the grant of the Crown lease the Minister for Lands has notified that the lands comprised in the lease are temporarily reserved from sale generally.

I am of the opinion that the appeal should be dismissed.

The result of the answers given to the questions in this case in the Supreme Court is that the appellant's Crown lease was not convertible into a conditional purchase, because, before he applied to convert it, the land the subject of the lease had been reserved from sale. I am of the opinion that this result is in accordance with the proper interpretation of the provisions of the Crown Lands Consolidation Act 1913 upon which the case depends. These sections are 5, which includes the definition of the expression "Crown lands," 29, 184 and 188.

The appellant relies upon the fact that the reservation from sale was made, after the Crown lease, which he applied to convert, was granted to him. It is true that the reservation of the land intercepted the appellant's right to apply to convert the land into a conditional purchase, but the reservation was lawfully made and there is nothing in the Act which could save that right. The terms of ss. 29 and 188 are too clear to permit of any implication of a provision which would retain the convertibility of a Crown lease which, like the appellant's, was granted before the land comprised in the lease had been reserved from sale.

The reservation from sale was made under s. 29. This section is expressed to apply to any Crown lands. The application to convert was founded upon s. 184. Section 188 provides that if a Crown lease comprises land which is reserved from sale such land shall not be convertible into a conditional purchase unless and until the reservation is revoked. There was no revocation of the reservation of the land in this case.

Section 188 is the last of a series of sections beginning with s. 184, which is headed "Conversion of Settlement or Crown leases." Section 188 no less than s. 184 is part of the code in the Act relating to the conversion of any Crown lease into a conditional purchase. Section 188 contains a general rule. It is expressed to apply to any application to convert a Crown lease into a conditional purchase. The condition of its operation is that the land comprised in the Crown lease has been reserved from sale before the holder applies to convert. While the reservation stands it would be contrary to the section to accept the application. The operation of the section is not limited to Crown leases granted after the land comprised in them respectively was reserved from sale. The case comes down to the question whether land comprised in a Crown lease can be lawfully reserved from sale under s. 29 after the grant of the lease.

But independently of the question created by the existence of the grant at the time the reservation was made, the appellant raises the question whether the land comprised in a Crown lease is Crown land. Section 29 applies in terms to "any Crown lands." The expression "Crown lands" is given a meaning by s. 5. This section says that the expression is to have that meaning throughout the Act unless the context necessarily requires that it should have a different meaning. It cannot be said that the context of s. 29 requires that the words "Crown lands" should bear in its context a meaning differing from the statutory meaning. The section is obviously intended to apply to any lands which are within the statutory meaning of "Crown lands." The land comprised in a Crown lease is within the terms of the definition. The statutory nature and incidents of a Crown lease are not sufficient to produce the result that when land is disposed of in that way the Crown is wholly divested of the land. Further, such a disposal of Crown lands is not one of the methods of dealing with such lands, mentioned in the statutory definition, which takes lands "vested in His Majesty" out of the category of Crown lands. In particular, s. 184, which gives to the holder of a Crown lease the right to apply to convert it into a conditional purchase, does not make a Crown lease a grant or a contract to grant the land in fee simple. The clear assumption upon which the legislature has proceeded is that land comprised in a Crown lease is Crown land as defined by the Act. Section 188 is enacted upon that assumption. If such land were not Crown land, it would not be subject to the power of reservation from sale given by s. 29, and s. 188 could have no practical purpose.

Section 29 is expressed to apply to "any Crown lands." There is nothing in the section to justify the exception, by necessary implication, of Crown lands comprised in a Crown lease. The power to reserve land from sale would not extend to the making of a reservation from sale, of land which was the subject of a sale: it is not a power to make a reservation which would be repugnant to any disposal of the land already made in accordance with the Act. But this consideration does not justify the view that land the subject of a Crown lease cannot be reserved from sale; a grant by way of Crown lease is not a sale. The reservation from sale defeats the holder's right to apply to convert the lease into a conditional purchase. But it is evident from the language of ss. 29 and 188 that the legislative intention is that the reservation of any Crown lands from sale made under the former section is to have that result.

The appellant is the holder of Crown lease 1943/1 under the provisions of the Crown Lands Consolidation Act 1913 N.S.W., Land District of Taree, in the State of New South Wales. The lease which is a lease in perpetuity comprises 2,063 acres and is situated in the parish of Ward, County of Hawes in that district. By notification published in the Government Gazette on 10th January 1947 the Minister for Lands notified that in pursuance of the provisions of s. 29 of that Act certain Crown lands (which included the land leased to the appellant) were temporarily reserved from sale generally. On 12th November 1947 the appellant applied to have the Crown lease converted into a conditional purchase. On 11th December 1947 the Local Land Board District of Taree confirmed the application. The Board was of opinion that despite the notification the lessee had the right to convert the Crown lease into a conditional purchase because upon confirmation of the lease the land became land lawfully contracted to be granted in fee simple and was not therefore Crown lands open to be reserved from sale under the provisions of s. 29 of the Act on 10th January 1947. On 14th January 1948 pursuant to s. 20 of the Act the Minister for Lands referred the decision of the Board to the Land and Valuation Court. That court upheld the reference and returned the application for conversion to the Board for disallowance. The appellant then requested that court pursuant to s. 17 of the Land and Valuation Court Act 1921 to state certain questions of law for decision of the Supreme Court.

These questions were "(a) Whether the subject land was "Crown Lands" within the meaning of the Crown Lands Consolidation Act 1913 at the time of the notification of the reservation from sale; (b) Whether the subject land was at the date of the application for conversion into Conditional Purchase - (i) vested in His Majesty; and (ii) Not granted or lawfully contracted to be granted in fee simple under the Crown Lands Acts; (c) Whether the subject land even if otherwise it were Crown Lands within the meaning of the Crown Lands Consolidation Act 1913 at the time of the notification of the reservation from sale, was at that time Crown Lands within the meaning of s. 29 of the said Act; (d) Whether independently of the answers to questions (a), (b) and (c) above, s. 29 of the Crown Lands Consolidation Act authorizes the Minister to reserve any Crown Lands which are for the time being sold or let upon lease or license; and (e) Whether the said section authorizes the Minister to reserve Crown Lands from being sold in terms of the notification mentioned in par. 3 of this case; (f) Whether the effect of ss. 29, 184 and 188 of the Crown Lands Consolidation Act is that a valid reservation by the Minister under s. 29 of the land comprised in a Crown Lease from sale generally made during the currency of that Crown Lease prevents the conversion of that Crown Lease into a Conditional Purchase." The Supreme Court ordered that all these questions should be answered in the affirmative.

The appellant has now appealed to this Court and claims that all these questions should have been answered in the negative. In my opinion the Supreme Court was right in answering questions (a), (b) and (e) in the affirmative but should have answered questions (c), (d) and (f) in the negative. My reasons for this conclusion may be shortly stated as follows. Section 6 of the Crown Lands Consolidation Act provides that Crown lands shall not be sold, leased, dedicated, reserved or dealt with except under and subject to the provisions of the Act. Section 5 defines Crown lands to mean lands vested in His Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee simple under the Crown Lands Acts. Section 184, so far as material, provides that upon application as prescribed the holder or the owner of any Crown lease which is not liable to forfeiture may convert such lease into a conditional purchase upon confirmation by the Local Land Board the conversion shall be deemed to have taken effect as from the date of application for conversion. On such confirmation the Crown land shall be deemed to have been surrendered to the Crown as from the date of application for conversion with such application for conversion a provisional deposit shall be paid at the rate of 1s. per acre of the area proposed to be converted into a conditional purchase as payment or part payment of a deposit to be made of five per centum of the capital value of the land. The cost of any necessary survey or sub-division and any balance of the deposit shall be paid by the applicant within one month after he has been called upon to do so; and upon default the application may be declared to have lapsed and any moneys paid therewith shall thereupon be forfeited. Section 29 of the Act is in the following terms: "The Minister may by notification in the Gazette reserve any Crown lands therein described from being sold or let upon lease or license in such particular manner as may be specified in such notification; and the lands shall thereupon be temporarily reserved from sale or lease or license accordingly, and, unless the contrary is expressly declared, shall not be reserved from sale or lease generally."

It was contended for the appellant that the notification of 10th January 1947 could not affect his land because on that date it was no longer Crown land either because it was not land vested in His Majesty or alternatively because it was, as the Local Land Board held, land lawfully contracted to be granted in fee simple under the Crown Lands Acts. But on that date the Crown was still the legal owner of the reversion in the land and it was still, in my opinion, land vested in His Majesty. Further it was not land lawfully contracted to be granted in fee simple because it was still land leased by the Crown to the appellant. Provided the lease had not become liable to forfeiture, the appellant, unless prevented by the notification of 10th January 1947, had the right to apply under s. 184 of the Act to have the lease converted into a conditional purchase and upon confirmation of the application by the Local Land Board the Crown lease would be deemed to have been surrendered from the date of the application and the applicant to be the holder of a conditional purchase but it would only be at this stage that the land could be lawfully said to be land contracted to be granted in fee simple.

It was contended for the respondent, and the contention was upheld in the courts below, that although land had been let on a Crown lease so that it could no longer be reserved from leasing under s. 29 and s. 184 conferred on the holder of the lease a statutory right to apply to have the lease converted into a conditional purchase the Minister could still reserve the land under s. 29 from being sold by an appropriate notification in the Gazette at any time prior to the holder of the Crown lease applying under s. 184 to have the lease converted into a conditional purchase. In dealing with this contention it is necessary to have regard to s. 188 as well as s. 29. Section 188, so far as material, is in the following terms: "If a settlement lease or Crown-lease comprises land which is reserved from sale such reserved land shall not be convertible into a conditional purchase unless and until such reservation shall have been revoked." The meaning of s. 29 is by no means clear. The words "in such particular manner as may be specified in such notification" appear to refer to the various manners in which land may be sold or let on lease or license under the Act and therefore to authorize the Minister temporarily to reserve any Crown lands from being sold or let on lease or license in such of those manners as may be specified in the notification. The section also appears to authorize the Minister to reserve any Crown land from sale or lease generally that is to say from any form of sale or lease provided it is expressly stated that the lands are reserved from sale (as in the present case) or from lease or from sale and lease generally (it is to be noted, though nothing turns upon it, that the word "license" is omitted from the second limb of the section).

It is a principle of construction that Parliament cannot be supposed to intend, in the absence of clear words showing such intention, that one man's property shall be confiscated for the benefit of others, or of the public, without any compensation being provided for him in respect of what is taken compulsorily from him (London and North Western Railway Co. v. Evans [1] ; Halsbury's Laws of England, 2nd ed., vol. 31, p. 504.) A reservation from sale under s. 29 reserves the land from sale temporarily but the section does not place any limitation upon the period for which the land may be so reserved so that the period is quite indefinite. In the present case the appellant upon becoming the holder of the Crown lease acquired an immediate legal right to apply under s. 184 to have the lease converted into a conditional purchase and to have this application confirmed provided his lease was not then liable to forfeiture. The imposition for an indefinite period of a restriction upon the exercise of this right could be a grave detriment to the appellant and an intention should not be imputed to the legislature to interfere with such a right without compensation. Section 23 and 34 provide two instances in the Act where holders of Crown land may be deprived of existing rights and in both these instances, as one might expect, the legislature has made its intention clear and provided compensation.

Section 188 imposes an express restriction upon the right of the holder of a Crown lease to convert it into a conditional purchase. The expression "land which is reserved from sale" in that section appears naturally to refer to land which is so reserved at the date of the Crown lease. It is plainly intended to refer to such reservations and if it is intended also to include reservations after that date one would have expected the section to contain the words "or shall be" after the word "is." The words "shall not be convertible into a conditional purchase unless and until such reservation shall have been revoked" and particularly the word "convertible" instead of "converted" also appear naturally to refer to a reservation in existence at the date of the lease restricting the immediate right of conversion which would otherwise have arisen on the grant of the lease. It seems to me that the words of ss. 29 and 188 are reasonably capable of being construed so as to avoid interference with the right of the holder of a Crown lease of land which was not reserved from sale at the date of the lease to convert the lease into a conditional purchase and that the sections should be so construed. In my opinion s. 29 refers to reservations notified whilst the Crown lands in question are available for sale or for letting on lease or license because they are not at the date of the reservation sold or let on lease or license, or in other words are not the subject of any existing form of tenure authorized by the Act.

Section 30 of the Act which authorizes the Minister by notification in the Gazette to revoke or modify temporary reservations from sale or lease or license including reservations made under s. 29 contains a proviso that save as otherwise in the Act provided Crown lands temporarily reserved from sale shall not be sold before the expiration of sixty days after the reservation thereof shall have been revoked, and that the revocation of any reservation from lease or from license or from lease and license shall not take effect until the expiration of sixty days after the date of the publication in the Gazette of the notice of revocation. The purpose of the proviso appears to be to provide a period between the revocation of the restriction on the sale or leasing or licensing of Crown lands and their disposal by sale, lease or license, so that the revocation may become known and persons interested may have an opportunity of applying for the lands. In Minister for Lands v. Harrington [1] , Lord Hobhouse delivering the judgment of the Privy Council, said, with respect to this period of grace, that "their Lordships see no reason to doubt that in providing that land released from a temporary reserve shall not be sold for sixty days, the Legislature intended to say that the interest of the Crown should not be disposed of for pecuniary consideration in the ways which the reservation had precluded" [2] . But the public would not be interested where the lands were already the subject of a tenure such as a Crown lease which gave the holder the exclusive right to apply for a conditional purchase.

1. (1899) A.C. 408. 2. (1899) A.C., at p. 414.

For these reasons I would allow the appeal, set aside the order of the Supreme Court and answer questions (a), (b) and (e) in the affirmative and (c), (d) and (f) in the negative. The respondent should pay the costs of the appellant in the Supreme Court and in this Court.

Sugerman J., in his judgment in the Land and Valuation Court of New South Wales, said that before him no argument was directed to the question whether the first paragraph of s. 188 applied to a reservation made during the currency of a Crown Lease as distinct from one made prior to its commencement. He added that it might be that s. 29 would not, of its own force, have the effect of preventing conversion under s. 184 where the reservation was made during the currency of the lease; but that once the position was reached that there might be a valid reservation during the term of the lease the language of s. 188 seemed wide enough to have that effect. Earlier in his judgment he observed that s. 23 permitted the withdrawal of lands from existing leases and that s. 34 authorized the setting aside of stock routes through lands under lease; but he did not find it necessary to point out that under these two sections compensation was provided for such interference. A reservation under s. 29 of lands already comprised in a Crown lease would not prevent the lessee from using the land as before but it would postpone the time when, by purchasing it, he might add to the use to which he might put it. There is no reason that I can suggest which would warrant compensation under ss. 23 and 34 and not under s. 188 if s. 29 authorizes a reservation after the Crown lease has been granted. In view of the policy of the legislation to provide compensation when the legislation authorizes an interference with a lessee's rights which is not expressly authorized by the lease itself, if the section which is claimed to authorize such interference with or postponement of a lessee's rights is silent as to compensation, it should not, in my opinion, be held to authorize such interference or postponement, unless the Court is satisfied that the words relied upon to warrant such interference or postponement permit of no other conclusion. Further, as Mr. Badham submitted for the appellant, any denial of the right of conditional purchase is a derogation from the grant, and, although the legislature has the undoubted power to derogate from a grant or to authorize the Executive so to do, the statute should not be considered to have that effect unless the wording thereof is plain and unambiguous. Now I think that both s. 29 and s. 188 are ambiguous. As to s. 188 the words "land which is reserved from sale" may, in my opinion, be taken to refer only to lands so reserved at the time the lease is granted and, as to s. 29, I think it may be taken to refer only to Crown lands of which it can be predicated that they have been neither sold nor let, thus necessarily excluding the definition of Crown lands in s. 5.