Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council

Background circumstances 12Although the appeal is limited to an appeal against an order or decision of the Land and Environment Court on a question of law, the somewhat amorphous identification of the issues sought to be raised requires an understanding of the underlying factual circumstances as accepted by the trial Court. In particular, it is necessary to note the circumstances by which the police station ceased to be used as such, which gave rise to the first land claim, as well as the circumstances subsequent to the filing of that claim, which were directly relevant to the second claim, which is the subject matter of the present appeal. 13The land for the "Malabar Police Station" was originally acquired under the Public Works Act 1912 (NSW) in May 1948. The site contained two buildings, one being described as the duty officer's house and the other as the police station. The duty officer's house is in a condition which renders it unfit for use. Prior to June 2009, the police station was open 24 hours per day and was staffed by one constable. Further a "pro-active crime team" used the facility as a base. In about March 2009 the State Government decided, as a budgetary measure, to close the police station and sell the land. The intention of the Government was that the sale take place during the 2009/2010 financial year, that is at sometime after 1 July 2009. 14On 30 June 2009 the police station was closed to the public and the officers who had been using the station were relocated. Thereafter, at least until 18 August 2009, the station was used for storage, including storage of equipment which was still in use, and by the pro-active crime team. 15On 27 July 2009 the first land claim was lodged. The existence of the land claim did not come to the attention of the relevant sections of the Police Force for some weeks. Thus, on 4 August 2009 an email from an agent at United Group Services to relevant officers in the Police Force noted that the property was due to be auctioned on 17 September 2009. It appears not to have been until 14 September that the agent was advised of the land claim and the need for the proposed auction "to be pulled". 16A Ministerial briefing note dated 15 September 2009 included the following statements: "It is understood that to overcome a land claim, the law requires that the land, the subject of the land claim, must be 'in use' or 'lawfully occupied' at the time the claim was made. It is to be noted that at the time the claim was made the PAC Team was in occupation of the Malabar premises until late August 2009. Future strategy: NSWPF will defend the claim on the grounds that the building was in use at the time of the claim. Having the claim taken off the title will take sometime and if the Minister refuses the application to have the claim lifted, the applicant has the right of appeal to the Land & Environment Court. The risk is that whilst the current claim could be rejected on the grounds the site was in use at the time the claim was made, there is nothing preventing a further claim. Therefore, NSWPF will need to examine as a matter of priority options for using/re-occupation of the premises." 17Although there was some support for the claim that the pro-active crime team was using the premises on 27 July 2009, the subsequent email exchanges between United Group and the Police Force suggests that all police use and occupation had ceased by the time the existence of the claim was made known to the agent. Accordingly, the enquiry as to use and occupation properly focused on the events subsequent to 14 September 2009. 18The Minister refused the first claim on 8 December 2009, which decision was not the subject of an appeal. A second claim was lodged on 17 February 2010. The Minister refused the second claim on 4 March 2010 and an appeal was brought from that refusal. 19The activities and events relevant to use and occupation of the land may be conveniently divided into three periods, namely from 14 September until a particular event, known as 'Operation Silva', which was completed on 6 December 2009 (the first period); the 10 weeks from 6 December 2009 until the claim on 17 February 2010 (the second period) and some months after 17 February 2010 (the third period). There are circumstances in which activities after a claim is lodged can properly be taken into account as evidencing the nature of use and occupation at the date of a claim. In the present case, the post-claim activities were of little significance. Accordingly, the primary focus of the factual dispute revolved around activities in the first and second periods, being some five months in all. 20Before turning to outline those activities, it is convenient to note that the Government had during that time two putative purposes for the land. One was to continue certain limited police operations; the other was to hold the land for disposal by sale. 21The relevant officer with responsibility for any operations undertaken at Malabar Police Station between 14 September 2009 and 17 February 2010 was Superintendent McErlain, who was Commander of the Eastern Beaches Local Area Command, which included Malabar. However, Superintendent McErlain was on leave from 20 December 2009 until 30 January 2010 and was, from the latter date, Acting Commander of the South West Region: Affidavit, 30 September 2010, paragraph 2. He agreed in cross-examination that he was not "actively in command in the Eastern Beaches from the period of 20 December 2009 to the end of August 2010": Tcpt, 03/03/11, pp 19-20. 22On 17 September 2009, Superintendent McErlain was given directions in accordance with the briefing note set out at [16] above. On 18 September 2009 he emailed Assistant Commissioner Mennilli: "Boss ... do I have to comply with this? The place is an OH&S nightmare ... its been stripped of everything." 23The Assistant Commissioner responded immediately noting that: "Unfortunately we have very little options available to us. We need to show that we still use the premises or otherwise the appeal on the claim of the land will fail. My view is that we use it for storage and if need [be occasionally] even if a car crew just works out of there every now and then. Or even as a command post for briefing for operation etc. As long as we can indicate what we are using it for." 24As noted by the trial Court at [23], Superintendent McErlain gave evidence that he was reluctant to apply resources to use the premises because he "believed it was a waste of time and resources to go back into the venue and make it fully operational only to move out again after the sale". 25Nevertheless, plans were made to have the premises available for intermittent use for particular police operations and "as a forward command post": at [24]. The Court then noted at [26]: "Inspector Shane Woolbank acted immediately on that direction. Arrangements were made to clean the premises, services were restored, and appropriate security measures were introduced. Officers were briefed and instructed to visit the site daily and record their attendances in a register .... A copy of the register [included] entries between 25 September 2009 and 6 December 2009, and then between 31 May 2010 and 12 August 2010." 26The register showed that, from 25 September to 1 December 2009 every entry in the register was described as "inspection" with one noting "property maintenance info" being supplied. At least half the visits were in the early hours of the morning. Because several took place at different hours on the same day, visits occurred on only one in five days on average. From 6 December 2009 there were no visits for approximately six months, which covered the whole of the critical second period and extended well into the third period. 27During the course of Operation Silva, which took place between 3 and 6 December 2009, the property was used to some extent by police carrying out security duties during the Australian Golf Open held at the New South Wales Golf Club at La Perouse. Just what activities took place during that time was not the subject of any finding by the Court. It noted that there were only two entries in the register, namely for 3 and 6 December 2009. Superintendent McErlain gave evidence "that he operated mainly from the golf course, but was present at the Site at some point during the operation": at [29].