Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council

Solicitors: Crown Solicitor's Office (NSW) (Appellant) Chalk & Fitzgerald (Respondent) File Number(s): 2015/370299; 2015/370306 Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 3 Citation: [2015] NSWLEC 179 Date of Decision: 20 November 2015 Before: Moore AJ File Number(s): 2014/30617; 2014/30619

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

1. BASTEN JA: In February 2009 claims were made by an Aboriginal Land Council in relation to three parcels of land near the centre of Morisset in the Lake Macquarie local government area. In April 2014 the Crown Lands Ministers jointly responsible for determining such claims asserted their satisfaction that the bulk of the lands were "needed or likely to be needed for residential land", an opinion which meant the lands were not claimable under the Aboriginal Land Rights Act 1983 (NSW) ("Land Rights Act").
2. An appeal by the State Land Council to the Land and Environment Court was upheld, and orders were made requiring that the land be transferred to the Biraban Local Aboriginal Land Council. [1]
3. The Minister appealed from that judgment. The appeal must be dismissed and the Minister must pay the respondent Land Council's costs. Subject to what follows, I agree with the reasons given by Leeming JA.

Residential lands exception

1. The statutory definition of "claimable Crown lands", to be found in s 36(1) of the Land Rights Act, is set out by Leeming JA at [23] below. The primary ground of exclusion relied upon by the Minister was that contained in par (b1) namely that, in the opinion of the Minister, the lands were needed or likely to be needed as residential lands.
2. As explained by this Court in The Winbar Claim (No 2), [2] subject to establishing as a matter of fact that the land was claimable Crown lands at the date of claim, an Aboriginal land council claimant had a right to have the claim granted. Depending on whether or not the relevant facts were established, the claim must either be granted or refused. [3] There was no exercise of a discretionary power required. Two things followed from that decision: first, the right to the land was not affected by any change in the proper characterisation of the land for the purposes of the statutory definition after the claim was lodged and, secondly, the question of characterisation was a matter to be determined by the Minister and, on appeal, the Land and Environment Court.
3. Subject to the Minister (and on appeal, the Court) correctly construing the language of the statute, the characterisation of the land would depend on questions of fact, albeit questions involving evaluative judgment. The Minister bore the onus of proof that the land was not claimable. The right of appeal to this Court from a decision of the Land and Environment Court requires identification of an error of law on the part of that Court. [4] So far as the application of the exception relating to residential lands was concerned, the primary judge (Moore AJ) was not satisfied that the Minister held the relevant opinion at the time the claims were lodged. In doing so, he correctly construed the legislation and made no error of law in identifying the question to be determined.
4. As explained by Leeming JA, the first two grounds of appeal challenged the fact-finding exercise undertaken by the primary judge and must be rejected as failing to invoke the jurisdiction of this Court.
5. There are two further matters, however, which should be noted. The first concerns the scope of the exception from claimable Crown lands in s 36(1)(b1). Unlike the other paragraphs in the definition, par (b1) does not require the Court to characterise the land according to objective circumstances, but rather to inquire whether the Crown Lands Minster held, at the time of the claim, the relevant opinion. As this Court held in the Nelson Bay Claim [5] it was only the opinion of the Minister personally, formed no doubt on the basis of information and advice supplied by departmental officers, which could preclude a successful land claim under s 36(1)(b1).
6. It is not necessary to consider the ways in which such an opinion may be established, whether directly or by inference. In this case, the Minister sought to rely upon a specific form of proof, namely that the Minister with whom the claim was lodged in 2009 actually held the relevant opinion in 2004 and, it was to be inferred, retained that opinion five years later when the present claims were lodged. The opinion formed in 2004 related to a claim made in 1989. (The relevant opinion should have been addressed to the date of claim, but the decision was not challenged and nothing turns on that error.) The trial judge accepted that approach, something of which the Minister could not (and did not) complain. However, the trial judge did not accept on the evidence that the inference as to the Minister's state of mind in 2009 was proven. It is neither necessary nor appropriate to consider how else, in different circumstances, the relevant exception might be established. [6]
7. The second observation relates to the manner in which the primary judge considered the opinion formed by the Minister in 2004. In part, the complaint was that the judge asked himself whether the earlier opinion was "valid" and "available" five years later. That was said to impose an undue constraint, based on some unarticulated concept of capacity, not to be found in the legislation.
8. This complaint misconceived the nature of the exercise required of the primary judge, on the case presented by the Minister. Put broadly, the Minister's case was that his earlier opinion remained operative and determinative because no relevant change had occurred in the circumstances affecting the land between 2004 and 2009. The primary judge was not bound to accept that submission: he was entitled and arguably required to consider whether there had been changes in the circumstances affecting the land in that period. Indeed, apart from those considerations, the land the subject of the earlier claim was not identical with the parcels the subject of the later claims. In these circumstances, it was appropriate for the judge to articulate his considerations according to whether the earlier opinion was still valid and available to the Minister in 2009.
9. It is trite law that a state of satisfaction of a public officer which is legally flawed cannot satisfy the precondition to the engagement of a statutory power. In The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd, [7] Latham CJ, after referring to passages in an earlier authority, [8] stated: [9] "Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist."
10. As later explained by Gibbs J in Buck v Bavone, [10] the opinion will not be lawfully formed if, in reaching it, the officer has failed to consider matters that he or she was required to consider, or taken into account matters which he or she was required to disregard. [11]
11. A similar approach has been adopted over many years with respect to certificates granted under s 36(8) of the Land Rights Act. A statement of principles may be found in the judgment of Jagot J in Jerrinja Local Aboriginal Land Council v Minister Administering the Crown Lands Act, [12] quoted with approval by Hodgson JA in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council. [13] Jagot J returned to that issue in NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2). [14]
12. The references by the primary judge to whether the opinion was valid and available to the Minister in 2009 should be understood as addressing such questions. That was so because the central dispute between the parties was whether nothing of relevance had occurred in that period (as contended by the Minister) or whether very significant changes had occurred (as contended by the Land Council), which could not have been properly disregarded by the Minister in forming an opinion in 2009. There was no legal error on the part of the primary judge in approaching the matter in this way.

Essential public purpose

1. The Minister also contended at trial that the lands were excluded from the category of claimable Crown lands, because they were needed for an essential public purpose, namely as residential lands. The primary judge rejected that categorisation, saying that the purpose did not fall within par (c). As Leeming JA explains, the judge did not err in that regard. However, one further observation may be made concerning the reliance placed by both parties on the Minister's second reading speech introducing the 1986 amending legislation which inserted the new par (b1) into s 36(1). It is clear that the Minister did not consider that residential lands fell within par (c) (identifying lands that are needed or likely to be needed for an essential public purpose) and that the exclusions were, accordingly, being expanded. However, in other respects, the statements made in the second reading speech should be treated with caution. For example, in referring to "land earmarked for residential development", the Minister was referring imprecisely to the scope of the new provision. The colloquial term "earmarked" provided no assistance in understanding the scope of the new exclusion.
2. MEAGHER JA: I agree with Leeming JA.
3. LEEMING JA: These appeals concern two claims made in 2009 by the New South Wales Aboriginal Land Council (NSWALC) under the Aboriginal Land Rights Act 1983 (NSW) (Act) for adjoining parcels of land near the town centre of Morisset, within Lake Macquarie City Council on the New South Wales Central Coast. The first claim is for lot 489 in DP755242, which has an area of some 4.7 hectares. The second claim comprises lots 7043 and 7044 in DP93598, which have a combined area of some 3.9 hectares. The claims were refused by the joint Crown Lands Ministers in 2014, but were upheld by the primary judge after a hearing lasting five days: New South Wales Aboriginal Land Council v The Minister Administering the Crown Lands Act (Moira Park Road No 1 and Moira Park Road No 2 claims) [2015] NSWLEC 179. Because that decision was in the exercise of Class 3 of the Land and Environment Court's jurisdiction, an appeal to this Court is confined to questions of law: Land and Environment Court Act 1979 (NSW), s 57(1).
4. I would dismiss the Minister's appeals, essentially because none of the grounds, save for one, discloses a question of law vitiating the ultimate decision, and in relation to the remaining ground, the conclusion of the primary judge was correct.
5. Although there was a single hearing at first instance, and the primary judge delivered a single judgment and ordered both of the decisions refusing the claims to be set aside, the Minister brought two identical appeals, each filed on the same day and purporting to be from the whole of the decision below. The duplication was unnecessary, although nothing turns on that. In what follows, I shall refer for simplicity to there being a single appeal, except where precision is necessary.

Relevant statutory provisions

1. The Act gives to land councils the right to obtain title to certain Crown lands. Subsections (2) and (3) of s 36 of the Act authorise either NSWALC or a Local Aboriginal Land Council to make a claim for "claimable Crown lands". Section 36(5) imposes a duty upon a Crown Lands Minister to grant the claim if satisfied that the land is claimable Crown land, or to refuse the claim if satisfied that the land is not claimable Crown land. Provision is also made for dealing with cases where only part of the claimed land is claimable Crown land.
2. Section 36(6) gives a right of "appeal" to the Land and Environment Court to the claimant Land Council against a refusal under s 36(5). That appeal is an exercise of original jurisdiction by the Land and Environment Court. It is well settled that in any such appeal, the Minister bears the onus of satisfying the Court that the land is not claimable Crown land: s 36(7). However, in discharging that onus, the Minister is not confined to either the grounds or the evidence relied on in refusing the claim; it is a "full reconsideration of the merit of the land claim": Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Nambucca) [2009] NSWCA 151 at [32].
3. The definition of "claimable Crown lands" in s 36(1) is therefore of central importance. At the time the claims were made, the definition was as follows: "claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division: (a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901, (b) are not lawfully used or occupied, (b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands, (c) are not needed, nor likely to be needed, for an essential public purpose, and (d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and (e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands)."
4. This appeal concerns pars (b1) and (c), and the relationship between them. It was common ground that the lands answered the description of "lands vested in Her Majesty" in the opening words of the definition, that the inclusive par (a) applied, and that none of the exclusive pars (b), (d) or (e) applied.
5. It is convenient to note at the outset that one of the essential elements of land being claimable Crown land is the absence of a claim for, or a determination of, native title. That follows from pars (d) and (e) of the definition. The beneficial purpose of the Act is not to restore land with which members of the land council enjoy a continuing connection. The opposite is the case. The beneficial purpose of the Act is economic, something which was equally apparent from the provisions (now spent) in Part V of the Act as originally enacted, requiring the payment of seven and a half per cent of land tax to a bank account maintained by NSWALC over the period from 1984 to 1998. Land which is claimed by a land council may, and often will, be sold and the proceeds used by the land council in the furtherance of its purposes. As will be seen below, that informs the approach to be taken to construing par (c) and explains the inclusion of par (b1).

The history of claims under the Act over the land

1. The errors of law said to have vitiated the decision of the primary judge require some understanding of two aspects of the history of the land: the steps directed to achieving a residential subdivision, and an earlier claim over lot 489 lodged in 1989. That said, given the limited nature of the appeal to this Court, a highly abbreviated account will suffice (notwithstanding there being in excess of three thousand pages of historical documents in eight volumes of the appeal books, to most of which no reference was made during the course of the appeal).
2. For many years, consideration had been given and steps had been taken directed to achieving a residential subdivision over much of the land claimed in 1989. That land had been zoned residential in September 1982, at the request of the Home Sites Branch within the Land Board Office in East Maitland. In 1984, the Home Sites Branch was removed from the Department of Local Government and Lands and added to the Land Commission of New South Wales, a body established under the Land Commission Act 1976 (NSW). In 1986, the Land Commission was abolished, and a new corporation, NSW Land and Housing Corporation, was established under the Housing Act 1985 (NSW). The new corporation was entitled to use the title "Landcom" (see Sch 1, cl 4(3)), and acts done by members, officers or employees of the former commission were deemed to have been done by the new corporation (Sch 1, cl 4(2)). Subsequently, there have been further changes. The corporation known as Landcom is now constituted under the Landcom Corporation Act 2001 (NSW) as a statutory State Owned Corporation. However, it suffices for present purposes to observe that the steps on which the Minister relied were taken at all times after 1984 by a body which was consistently known as "Landcom", although its legal nature changed. In what follows, I shall adopt the same approach as was taken by the Minister's witnesses, and simply refer to "Landcom".
3. No later than 1986 an area including the whole of lots 489, 7043 and 7044 on the parish map maintained by departmental officers was edged in blue and annotated "Dept of Housing Project 807 MD88H433". There was uncontroversial evidence that the annotation indicated that "the Department accepted the incorporation of this land in the [Crown Land Homesites Program]". There was equally uncontroversial evidence that that program had flowed from a direction by the Premier in 1977 concerning the development and production of homesites on the Government's behalf in specified urban centres. Speaking generally, the Department was to support the activities of Landcom on a fee for service basis.
4. On 17 April 1989, Koompahtoo Local Aboriginal Land Council lodged claim 3378 over land which included the whole of lot 489, but not lots 7043 and 7044. That land claim also included a larger adjoining area to the west of those lots, such that the total claim was for some 26 hectares.
5. On 7 July 2004, more than 15 years after it had been lodged, the Minister refused the claim, relevantly on the basis that "[t]he land was needed, or likely to be needed, as residential lands". The letter refusing the claim was signed by the then Minister for Lands, Mr Tony Kelly MLC.
6. The ministerial briefing note, which proposed refusing the claim on that basis, stated that the entire 26 hectares was "capable of providing up to 240 residential allotments in a staged development". It advised that Landcom had undertaken various planning studies, surveys and investigations and had sought approval for the acquisition of the land from the Crown. The briefing note stated that in analysing the need for the land, a number of factors had been taken into account, and that allowance had been made for land unlikely to become available due to environmental, topographical and infrastructure constraints. Using data from a number of sources, the note stated that the "existing substantial population in Lake Macquarie City Council area is increasing rapidly and at the same time the available land bank is diminishing fast", and stated that the supply of vacant residential land would be nearing exhaustion by 2016, perhaps earlier if "the current downward trend of household occupancy sizes continues". The briefing note then stated: "3.17 In view of the foregoing it is considered that the Minister can reasonably form the opinion that in terms of Section 36(1)(b1) Aboriginal Land Rights Act 1983 the land was needed, or likely to be needed, as residential lands. On this basis the land was not claimable. 3.18 While the Aboriginal Land Rights Act commenced operation on 10 June 1983, Section 36(1)(b1) was only inserted on 2 May 1986 by the Aboriginal Land Rights Act (Amendment) Act 1986. According to the second reading speech on the introduction of the then Bill to amend the principal Act, the purpose of the Section 36(1) amendment was to bring the Act into greater conformity with Government policy by removing residential land from the category of claimable Crown land. In the explanatory notes to that Bill, it was stated that the conditions under which claims to Crown land are made will, in the future, be varied. It was the intention that land earmarked for residential development will be made not claimable. It was further stated that land is a scarce source and access to it should be through normal channels in accordance with government policy. Copies of the second reading speech and explanatory notes are herein. 3.19 It would appear that the claimed land falls within the category of land envisaged by Section 36(1)(b1) in that it had been earmarked for residential development. On this basis alone the land would effectively be removed from the category of claimable Crown land."
7. It was not suggested that the former Minister had formed the view that the land was needed, or likely to be needed, as residential lands in 1989 when the claim had originally been made. To the contrary, the briefing note was primarily directed to the Minister forming an opinion in 2004 at the time the claim was refused.
8. No appeal was lodged against the Minister's 2004 decision. Further steps were taken relating to the land over the next five years. One matter which seems to have emerged was the presence of Tetratheca juncea on the land. Tetratheca juncea was listed as a vulnerable species in Schedule 2 of the Threatened Species Conservation Act 1995 (NSW) when that legislation was enacted, but it is not clear precisely when populations of the plant were identified on the land. However, the more detailed planning documents disclose that the claimed land, which is to the east of the 26 hectare site which was subject to the 1989 claim, was not intended itself to be used as residential land. For example, a document approved by Lake Macquarie City Council on 3 November 2008, the Morisset Structure Plan, made it plain that the considerable majority of the claimed land was described as "land with biodiversity values" and was not intended for residential use.
9. Separate claims were made on 17 and 20 February 2009 over lot 489, and over lots 7043 and 7044. Nothing turns on the fact that they were lodged three days apart. Part of the claim for lot 489 was refused because a small part of the land was required for sewerage works. That aspect of the claim fell away during the hearing at first instance, and formed no part of the appeal.
10. Each claim was refused by the joint Crown Lands Ministers on 14 April 2014. Putting to one side the land required for sewerage reticulation, the letter refusing the claims stated that each Minister was satisfied that the land was "needed or likely to be needed for residential land". NSWALC appealed.

The decision at first instance

1. The Minister's case at trial had two limbs. The first limb was based on s 36(1)(b1) and turned upon the happenstance that Mr Kelly MLC was the Crown Lands Minister in 2009, when the two claims were lodged. It was contended that nothing had been shown to have come to the Minister's attention to cause him not to hold the view which he undoubtedly held in 2004 when refusing the claim on the basis of the land being needed as residential lands. Although the 2004 refusal did not extend to lots 7043 and 7044, the Minister said they should be treated in the same fashion, since all were part of the same project in the Crown Land Homesites Program.
2. Alternatively, the Minister relied upon s 36(1)(c) and sought to demonstrate that the land was needed or likely to be needed for an essential public purpose. The essential public purpose nominated was "residential use or development, including for subdivision purposes".
3. The primary judge heard and determined both appeals concurrently, and delivered a single judgment, promptly, on 20 November 2015. His Honour rejected both limbs of the Minister's case. In summary, although satisfied that the Minister had formed the opinion in 2004 that the land was needed, or likely to be needed, as residential lands, the primary judge was of the view that a "fundamental factual discontinuity" between the proposed future use of the land stood in the way of the inference for which the Minister contended. Secondly, the primary judge concluded that pars (b1) and (c) were mutually exclusive, such that par (b1) alone was the only exclusionary paragraph available. On that basis, his Honour declined to evaluate the evidence advanced by the Minister on this limb of his case.

The orders at first instance and the Minister's appeal

1. The Court ordered that lot 489 (excluding that part which was used for sewerage reticulation) and the whole of lots 7043 and 7044 be transferred to Biraban Local Aboriginal Land Council, with the Minister to do everything necessary to enable those transfers to occur within six months. (Between the making of the claims and their determination, Koompahtoo Local Aboriginal Land Council had been dissolved and Biraban Local Aboriginal Land Council had been constituted: see Aboriginal Land Rights Amendment (Regions) Order 2014.)
2. On 11 April 2016, a stay was ordered of the orders made by the primary judge, by consent, reflecting the practical sense in resolving the Minister's appeal before the land is transferred.
3. The Minister's appeal contains four grounds. The first three grounds challenge in various ways the failure of the inferential process of reasoning which the Minister had advanced on the first limb of his case. In response, NSWALC did not dispute that the Minister had held the opinion in 2004, but maintained that none of those three grounds disclosed a question of law. The fourth ground, in contrast, undoubtedly contains a question of law. The alleged error of law was the reasoning that the limbs in subss 36(1)(b1) and (c) were, at least in their application to the claimed land, mutually exclusive.
4. There is one last preliminary matter. Although the substance of the reasons is identical, the paragraph numbering of the judgment at first instance as available on Caselaw is significantly different from the certified copy contained in the appeal books (this is because separate paragraph numbers have been given to various pdf images and headings in the version posted online). I have taken the view that it is better to refer to the paragraph numbering in the online version, which any reader could follow, rather than to the numbering in a version which, although certified, appears only to be available to the parties.

Grounds 1 and 2 - the absence of the opinion required by par (b1)

1. Grounds 1 and 2 each purported to identify errors of law in the primary judge's conclusion that it had not been shown that the Crown Lands Minister held the requisite opinion in 2009 for the purposes of par (b1). The grounds are related and may conveniently be addressed together. They were formulated as follows: "1. The Court below erred in law by concluding, on the basis of a change in the residential subdivision layout made after the Minister formed an opinion that the lands 'are needed or are likely to be needed as residential lands', that there was no 'opinion of a Crown Lands Minister' for the purpose of s 36(1)(b1) of the Aboriginal Land Rights Act 1983 (NSW) ('the ALRA'). 2. The Court below erred in law by taking into account an irrelevant consideration in determining whether there existed the relevant opinion under s 36(1)(b1), namely a change in the residential subdivision layout between when the Minister formed his opinion and the claim date, particularly when the residential subdivision layout proposals at the time that he formed his opinion and at the claim date were not before him or known to him."

The reasons of the primary judge

1. It will be recalled that the Minister had contended at trial that the opinion held by the Minister in 2004 when refusing the 1989 claim continued to February 2009 when the current claims were lodged. In order to assess that issue, the primary judge framed the inquiry as follows (at [56]-[57]): "To enable, in the context of the present proceedings, consideration of whether the adopted opinion of the Minister concerning the 1989 claim could be regarded as carrying forward for future availability concerning the 2009 claims requires a detailed consideration of: (1) the expression of the Minister's opinion in the letter of refusal; (2) the briefing note proposing that the Minister adopt the opinion; (3) the supporting material submitted to the Minister providing information to support the proposal to form that opinion; (4) additional material from various locations in the Evidence Books that establish what are the foundations for that supporting material that was provided to the Minister - known as underlying source materials; and (5) any other relevant material in the Evidence Books. Only by considering all these elements and understanding what was the essential underpinning factual foundation for the opinion is it possible to turn to consider whether there is sufficient factual continuity to permit the conclusion that the 2004 opinion could provide a valid basis for rejection of the claims that are the subject of these proceedings."
2. The primary judge reviewed the documents in each of those five categories in considerable detail, most of which may be omitted from these reasons. His Honour concluded that there had been an important change in the planning of the residential subdivision. His Honour found that in 2004 the proposed residential use was based on a 1984 subdivision allotment design, which envisaged "intensive residential development east of the south-north running line" (at [103]), which is to say, extending throughout lots 489, 7043 and 7044. That was demonstrated clearly by the plan which is reproduced at [92] (which is the 1984 subdivision) and a document created in 2004 (reproduced at [100]) which was attached to a letter from Crown Lands to Landcom dated 10 June 2004 and which, to use the language of the primary judge at [101], "makes it obvious that, as at the date of that letter, Crown Lands understood that Landcom's proposed project remained the same with the allotment layout design being that first drafted in 1984." However, his Honour also found that "[n]o plan was appended to either the briefing note or the supporting material demonstrating any indicative subdivision layout footprint and how that footprint might have fallen on all or part of the land the subject of the claim": at [75].
3. That was to be contrasted with the position in 2009. At [104]-[124] the primary judge reviewed documents relating to the planning process between 2004 and 2009, including business plans produced by Landcom in November 2006 and November 2008. Once again, I pass over the details. It suffices to state his Honour's conclusion at [124]: "Critically for the purposes of my consideration of whether the 2004 Ministerial opinion, for the purposes of s 36(1)(b1), can validly be regarded as carrying forward to be applicable to the 2009 land claims, the subject of these proceedings, it is appropriate to note that this business plan proposes, conceptually, no development whatsoever to the east of the south-north running drainage line." [Emphasis added.]
4. The primary judge then summarised this limb of the Minister's case as follows at [125]: "The Minister's case in these proceedings is that the s 36(1)(b1) element of the rejection of the 1989 claim refusal remains validly available to the Minister as a basis for rejecting both of the present claims. Although the 1989 claim included Lot 489 and not Lots 7043/4, Mr Stewart submits, for the Minister in these proceedings, that: Although expressly for Lot 489, as the basis of refusal was founded on contemplation of the use of a broader potential development site that also encompassed Lots 7043/4, those allotments were encompassed within that basis for the refusal of the 1989 claim; It is to be seen that, at the time of execution of the instrument of that refusal in 2004, that basis for refusal remained valid; and There is a sufficient evidentiary chain to enable drawing the conclusion that, as at February 2009 (there being no basis for considering the present claims separately although they were lodged a week or so apart), the 2004 ministerial opinion should be regarded as continuing to be held specifically for Lot 489 and, by continuing necessary inference, for Lots 7043/4." [Emphasis added.]
5. The Minister maintained on appeal that submissions to that effect had not been advanced at first instance, either in writing or orally.
6. His Honour accepted that the letter of refusal signed by the Minister in 2004 demonstrated that the requisite opinion was held at that time and then framed the inquiry as follows at [128]: "Having established that there was an effective continuity of proposed use as residential lands between 1984 and 2004, it is then necessary to consider to what extent that use, in a Chamwell sense, is carried forward for determining whether or not the 2004 refusal (as at 1989) can be established to have continuing validity as a basis for refusal in 2014 of a 2009 land claim." [Original emphasis.]
7. After dealing with what his Honour described as the "radical change" in the subsequent Landcom business plans, his Honour's conclusion was at [139]: "As a consequence, assuming (but without needing to consider and determine in the circumstances of these proceedings) that a ministerial opinion validly formed for the purposes of s 36(1)(b1) for one land claim could subsist to have effective validity for a subsequent land claim, made some twenty years after the initial claim and five years after the initial claim was refused, the fundamental factual discontinuity described above means that a refusal of the 2009 claims on the basis of the 2004 ministerial opinion was not available to the Minister at the time of refusal of the 2009 claims." [Emphasis added.]

The Minister's submissions on appeal

1. The Minister pointed to the repeated references to "validity" and "available" (which I have emphasised in the passages extracted above) in support of the conclusion that this challenge amounted to an error of law. In substance, the Minister contended that the language indicated an unduly restricted approach to fact finding, being one which wrongly prevented his Honour from making the ultimate findings sought by the Minister.
2. The Minister also submitted that to the extent that the primary judge had regard to material in categories (4) and (5) of the classes of documents listed at [56] (reproduced above), which had not been shown to have come to the attention of the Minister personally, there was legal error. In particular, he maintained that there was legal error in relying on the detailed planning between 2004 and 2009, which had not been shown to have come to the Minister's attention in 2009, although it was of course accepted that they were available to the Minister, had he asked for them.
3. On those two bases it was said that the primary judge "asked the wrong question and/or took into account an irrelevant consideration".
4. The Minister was alive to the limitations upon this Court's appellate jurisdiction, and the difficulty in characterising the error of which he complained as an error of law. The following oral submission was commendably candid: "The error is hard to identify. We fess up to that and one only has to read what we've written to see how we've struggled to do that and that may be because it's one of those implied errors. In other words it's not expressed. It's not where one can point to a particular sentence and say that sentence is wrong or that sentence leading onto that sentence is wrong. It's the manner in which he did it which has the effect that it has and ultimately it is, as we say in para 60, the trial Judge asked the wrong question and/or took into account an irrelevant consideration in that he asked whether the subdivision layout within the development footprint remained the same or substantially the same between 2004 and 2009."
5. In his written submissions, the Minister went further (and, arguably, beyond the scope of any ground of appeal, although no objection was raised on that ground). It was put that "[t]he evidence taken as a whole compelled an inference that the Minister's opinion did not change in the period 7 July 2004 to 17 February 2009". That submission was based upon the consideration that all of the subsequent steps taken in that period were consistent with the development of the larger (26 hectare) site as a whole for residential development.

Resolution of grounds 1 and 2

1. The starting point is that the identification of a decision "on a question of law" is not merely a precondition to the right of appeal but "identifies the subject matter of the appeal" and limits the power of the Court "to the correction of … legal error": Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (Bathurst) [2009] NSWCA 138; 166 LGERA 379 at [195].
2. It is also clear that an erroneous finding of primary fact, and the drawing of illogical or inappropriate inferences, will not constitute an error of law. As Glass JA said in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-157, in determining the facts by way of primary findings and inferences: "[T]he determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law". The same constraints apply to proceedings in Class 3 of the jurisdiction of the Land and Environment Court: see for example Bathurst at [196]-[201]. As Beazley and Tobias JJA said in Nambucca at [6], another case which turned on the absence of an opinion for the purposes of s 36(1)(b1): "Even if her Honour's finding of no relevant opinion with respect to the Lackey Street lots was perverse or unreasonable, it would not constitute an error of law."
3. Plainly enough, the Minister challenges the finding that an opinion which is accepted to have been held in 2004 was not held in 2009. That is a matter of fact. Since no direct evidence was called as to the Minister's state of mind in 2009, it was inevitably a matter of inference based on the evidence tendered at trial. It is not for this Court to express a view on the reasoning process of the primary judge, except insofar as that reasoning process discloses a question of law.
4. I do not accept the Minister's submission that the primary judge asked himself the wrong question. To the contrary, this portion of the inquiry was squarely directed to the right question, which was whether an opinion was held by the Minister in 2009 at the time the claims were lodged.
5. True it is that the primary judge framed this aspect of the case, and the dispositive findings, in terms of "validity" and "availability". It is apparent that his Honour did so because that was how he understood the Minister's case had been advanced at first instance. It is not necessary to determine whether the primary judge was in error in proceeding on that basis, because I do not consider that in so doing the primary judge somehow circumscribed the factual inquiry posed by the Act. Although the language is infelicitous, I consider that his Honour was expressing the view that he was not satisfied, on the basis of the entirety of the evidence before him, that the Minister in 2009 held the requisite opinion.
6. I also consider that the ground based on taking into account an irrelevant consideration is not made out. It is to be recalled that the point of that formulation is to engage the limited appellate jurisdiction of this Court; it is not sufficient (as might be sufficient in a full appeal by way of rehearing) to point to some irrelevant matter being relied on in the course of the making of findings of fact. Of course, if something legally irrelevant, in the sense that term is used in judicial review, had been taken into account, then the reasons would disclose an error of law. But in that context it is trite that "where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard": Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40. The Minister could point to no statute which (expressly or impliedly) precluded a judge hearing and determining an appeal under s 36(7) of the Act from considering the change in residential layout. There is no such provision; once again, this formulation is an attempt to characterise a claimed error of fact as an error of law.
7. I would add that the Minister himself tendered the documents said on appeal to amount to irrelevant considerations, and no steps were taken to explain that his Honour would be falling into error if he relied on those documents. I struggle to see how the party who tenders a document without restriction can later complain of an error of law when the judge relies on the document.
8. Nor can I accept the submission that the evidence compelled a single finding, namely, that the same opinion was held in 2009 as was held in 2004. The Minister's submission proceeds on the basis that the opinion was required to be held of the site as a whole - that is to say, the entire 26 hectare area which was part of the Crown Land Homesites Program. That is inconsistent with a number of matters. First, it is inconsistent with the Act, which proceeds on the basis that the Minister, and the Land and Environment Court on appeal, may be obliged to allow the claim in part. Secondly, it is inconsistent with what occurred in this very case, in relation to the part of lot 489 which both parties accept is required for sewerage reticulation. Thirdly, it is inconsistent with the level of detail which is regularly required in claims under the Act, as senior counsel correctly acknowledged during the course of submissions.
9. The parties proceeded at all times, in accordance with what was held in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the Nelson Bay Claim) (2014) 88 NSWLR 125; [2014] NSWCA 377, on the basis that it was necessary for the Minister to show that his predecessor had personally held the opinion required by par (b1) in 2009. That decision represented a change in the perceived construction of the Act. Without being exhaustive, as much may be seen in two earlier decisions based on that paragraph. In Nambucca, the parties accepted that it was sufficient if the officer responsible for dealing with Crown lands had held the relevant opinion: at [35]. In Awabakal Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 124, the decision turned upon an opinion held by an officer in the department: see at [102] (there was no appeal).
10. At least some of the submissions advanced on appeal by the Minister are consistent with a view that the Minister's opinion must have been actually and subjectively held in 2009. That was, ultimately, the force of the complaint that there was legal error in the primary judge considering documents which had not been shown to have been disclosed to the Minister. The point was raised during the appeal: "BASTEN JA: ... There is a constructive opinion being investigated in a sense here, isn't there: what would the Minister have decided had he looked at this question in 2009? The way he would have decided it, we are told, is that he would have given consideration to all this material which pre-dated the claim, and particularly that which he already knew about from the 2004 decision, which he would then have updated. Isn't that what's happening? The Court says, 'Well, if I'm satisfied then I can infer that the minister would have decided' - acting reasonably, no doubt - 'that nothing had changed, and that what I thought in 2004 about 1989 still applies, then I, as the Court, can be satisfied that 36(1)(b)(1) is satisfied.' STEWART: Your Honour, the case was not put on the basis of a constructive opinion. It was put on the basis of an actual opinion."
11. Further, in reply, senior counsel for the State confirmed that: "[W]e didn't approach the case and don't now approach it on the basis of the hypothetical, to say, well, what would the minister have said had he been asked in February 2009 whether this land was needed or was likely to be needed?"
12. Lest the outcome of this appeal be taken as establishing the limits of s 36(1)(b1), it is as well to make clear that I do not consider that the proper construction of the paragraph requires an opinion actually and subjectively held by the Minister.
13. Two matters guide my reasoning on this point. The first is that par (b1) is to be construed so as to subtract from land which would otherwise be claimable Crown lands. It was no small thing to introduce a further exception to the definition of claimable Crown lands, and when the Minister did so, he squarely acknowledged that "some of these new measures are firmly opposed by [NSWALC]". The second is that at the time a claim is lodged, the Minister will, almost certainly, not have formed an actual opinion about the claimed land. It is improbable in the extreme that Mr Kelly turned his mind to lot 489 on 17 February 2009, or to lots 7043 and 7044 three days later. He had absolutely no reason to do so.
14. I consider that it cannot be the case that par (b1) of the definition is satisfied only if the Minister can show that the Minister personally formed an actual opinion at the time the claim was lodged, for I would not conclude that par (b1) can perform no work in any realistic case. It therefore must be the case that the requisite opinion is one which can be imputed to him, on the relevant day. That said, and as Basten JA has observed, the mode of drafting in par (b1) may make it harder for the Minister to establish that the exception is made out: Nelson Bay at [43]. As will be seen further when addressing ground 4, it is quite a different thing for an exclusionary paragraph of the definition to turn not on the fact that the land was needed or was likely to be needed as residential land at a particular time, but on the Minister being of that opinion at the particular time.

Ground 3 - misapplication of Chamwell

1. Ground 3 of each appeal referred to the distinction employed by the primary judge throughout his reasons between use and purpose. The ground was in the following terms: "3. The Court below erred in law by applying 'use' in the sense in which it was used in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 to s 36(1)(b1) and on that basis concluding that if a portion of the claimed lands was identified for other than physical residential 'use' in the Chamwell sense then there could be no basis for an opinion by the Minister that the lands 'are needed or are likely to be needed as residential lands'."
2. Planning law has long distinguished between use and purpose. When Mason J examined these principles in Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 at 143-147, his Honour explicitly had regard to the references to "use" and "purpose" in s 309(2) of the Local Government Act 1919 (NSW). Likewise, Kitto J's analysis in Shire of Perth v O'Keefe (1964) 110 CLR 529 at 535-536 was explicitly tied to the references to "use" and "purpose" in by-law 372 made by the Perth Road Board. The distinction has led to the formulation of principles governing the appropriate generality of the characterisation of use. A familiar example, to which Kitto and Mason JJ both referred, is the contrast between use as professional offices and as a shop; no greater degree of particularity may be required for the former as a matter of planning law, but for the latter, it matters whether, say, the shop is a butcher's shop.
3. I do not regard Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 as establishing any particular principle of planning law. It was merely an example of the application of these principles in a particular zoning regime.
4. More importantly, I accept the Minister's submission that none of this is relevant to the factual inquiry required by s 36(1)(b1). No distinction between use and purpose is to be found in that paragraph. NSWALC did not contend to the contrary; it submitted that the references served no purpose other than: "simply to illustrate the point that, even though there was, as the Minister had submitted, a general continuation of a purpose of residential development, consideration at a more granular level showed that the uses of the land in the furtherance of that purpose had changed."
5. I do not accept NSWALC's characterisation of the reasoning process. It seems to me, reading the reasons as a whole (including those to which ground 4 of the appeal is directed to which I shall refer below), that the primary judge regarded some principle emerging from Chamwell to be a necessary element of the application of the definition of "claimable Crown lands". For example, as noted above, his Honour said at [128]: "Having established that there was an effective continuity of proposed use as residential lands between 1984 and 2004, it is then necessary to consider to what extent that use, in a Chamwell sense, is carried forward for determining whether or not the 2004 refusal (as at 1989) can be established to have continuing validity as a basis for refusal in 2014 of a 2009 land claim." [Original emphasis.]
6. I disagree. The question posed by s 36(1)(b1) is much more direct. It is whether in light of all the evidence the Minister has discharged the onus of establishing that the requisite opinion was held in 2009. There is no occasion to introduce distinctions framed in planning law in order to answer that question, and to do so runs the risk of distracting attention from the correct inquiry.
7. However, although to that extent the reasoning departs from the legal questions presented by the statute, amounting to error of law, that is not sufficient in order for the Minister to succeed on appeal. The appeal will only be allowed if there is shown to be vitiating error of law. In Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 254-255, Handley and Powell JJA reiterated and applied what had been said in Yates Property Corporation Pty Ltd v Darling Harbour Authority (1991) 24 NSWLR 156 at 177, in turn applying what had been said in Leichardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419: "It is not sufficient to show that some error of law appears in the judgment … The error has to be one upon which the decision depends, so the decision is vitiated by the error."
8. Notwithstanding the way in which the primary judge considered that a Chamwell analysis was necessary, I would still conclude that the primary finding of fact was that the Minister had failed to show that the requisite opinion had been held in 2009 because of the substantial changes in planning on site. In the dispositive paragraph, [139] (reproduced above), the primary judge expressly put to one side questions of "validity" and said that the fundamental factual discontinuity meant that "a refusal of the 2009 claims on the basis of the 2004 ministerial opinion was not available to the Minister at the time of refusal of the 2009 claims". The Minister maintained that "available" in this sentence carried the same meaning as valid. I do not agree with the Minister that the change in language from "validity" to "available" may be disregarded. In this dispositive paragraph, the primary judge was saying that the opinion held in 2004 was not one which engaged par (b1) of the definition of "claimable Crown lands" in 2009. That was because what was proposed had "radically changed".
9. That conclusion is supported by the way in which, in my view, the opinion is to be imputed to the Minister. If the Minister had been asked, in 2009, whether he held the view that the lands were needed or likely to be needed as residential lands, being the view he had held five years previously in respect of a 26 hectare site which included part of the claimed land, then the Minister should be taken to have asked whether anything had changed in the last five years. The reasons of the primary judge squarely engage with that analysis, although framed in terms of "validity".
10. I acknowledge that where legal error is disclosed in the process of reasoning leading to a factual finding, it may not be straightforward to conclude that the finding is unaffected by the error. However, in the present case, I consider that the erroneous reliance upon Chamwell did not impact upon what was essentially a factual conclusion. It follows that this ground of appeal does not suffice to set aside the conclusion of the primary judge.

Ground 4 - essential public purpose

1. Ground 4 was that: "The Court below erred in law in construing the words in s 36(1)(c) 'essential public purpose' as not being capable of including 'residential use or development, including for subdivision purposes'."

Reasons of the primary judge

1. The primary judge addressed this question at [141]-[185]. His Honour first referred to the legislative history of par (b1) and the decisions dealing with that paragraph, commencing with that of Bannon J in La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (La Perouse) (1991) 74 LGRA 176. I return to this below.
2. The primary judge then reproduced in some detail the parties' written submissions on the question. His Honour formed the view that the parties' written and oral submissions "miss[ed] the substantive proposition to be drawn from the operative timing of the insertion of s 36(1)(b1) as viewed in the context of the decision of Bannon J and the limited subsequent consideration of it" (at [162]). His Honour stated that Bannon J had concluded that "put broadly, residential development was not an 'essential public purpose'", which was confirmed by the extrinsic parliamentary material.
3. The primary judge then returned to the distinction in Chamwell. His Honour said, by reference to an example of housing at a remote Defence facility, at [170] (emphasis in original): "Such circumstances might well be ones that could engage a s 36(1)(c) barrier to claimability. In such a context, a proper Chamwell analysis would disclose that such a use of land would be for residential development but the purpose the use was serving was the Defence facility to which it was ancillary."
4. The primary judge summarised this element of his reasoning as follows (at [174]): "In summary, in a Chamwell analysis fashion, the position to be derived is that, when use and purpose are both simply for residential development (whether subdivision or some later development stage being irrelevant, in my view), such use and purpose combination is incapable of invoking the claimability exclusion of s 36(1)(c) of the Land Rights Act. That is not to say that, in some circumstances, such a use in support of some different purpose may not be able to invoke the protection of the provision. However, in this instance, that is simply not the case."
5. On that basis, his Honour said that there was "an entirely new exclusionary capacity" created by the insertion of par (b1) in the definition of "claimable Crown lands", something which was consistent, in his Honour's view, with the extrinsic legislative materials. His Honour's ultimate conclusion at [181]-[182] was: "Viewed in this context, it is unsurprising that the necessary conclusion concerning the lands that are the subject of these claims is that a proper understanding of s 36(1)(c) does not render them unable to be claimed. It therefore follows that, on this proper statutory construction of s 36(1)(c), the Minister does not have this provision available as a basis to reject these claims."
6. Having decided the matter as a matter of statutory construction, the primary judge observed at [183] that: "[I]t is unnecessary to consider either of the other two potential bases pursuant to s 36(1)(c) for rejecting the Minister's view that the land in either appeal was unable to be claimed. Those potential bases were: • Whether the land was, in fact, not capable (to sufficient probability on the facts) of being used for the purpose of residential development for it to be able to support the conclusion that it was 'needed or likely to be needed' for that purpose; or • That the planning evidence (written and oral) and the planning documents did not demonstrate that the land was 'needed or likely to be needed' (as opposed to be desired by Urban Growth) for that purpose."
7. It was common ground on appeal that if error were shown in the approach to construction, then it would be necessary to remit the matter in light of the limitations on this Court's jurisdiction and the failure by the primary judge to make findings of fact.

Paragraphs 36(1)(b1) and (c): legislative history and decisions

1. New par (b1) was inserted by the Aboriginal Land Rights (Amendment) Act 1986 (NSW). The Minister who introduced the amending legislation in 1986 referred to the new par (b1), as well as two other amendments, in the following terms: "Further amendments will bring the Act into greater conformity with government policy by allowing claims in the Western Division to be granted under lease; by removing residential land from the category of claimable Crown Land; and by resolving outstanding questions involved in the issuance of certificates under s 36(8) of the Act": New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 16 April 1986 at 2042. [Emphasis added.]
2. An additional explanatory note incorporated within Hansard contains the following paragraph directed to new par (b1): "The conditions under which claims to Crown Land (proposed section 36(1)(b1)) are made will, in future, be varied. It is intended that land earmarked for residential development be made non-claimable. This is a scarce resource and access to it should be through normal channels in accordance with Government policy": at 2044.
3. La Perouse was a case based on par (c), in respect of a claim made before par (b1) had been inserted, although determined after the amendment. Bannon J said that he was "unable to find that at the relevant date the land was needed, although it is proper to say it was suitable and desired for housing": at 183. His Honour went on to say that: "However, governments take upon themselves activities which while desirable are not essential or fundamental as public purposes. It is by no means clear to me that land development might not be handled just as well by private developers, especially if holding charges and council fees were reduced. While it may be desirable for the Department of Housing and the Land Commission to appropriate and develop Crown land, the evidence does not convince me that residential development is an essential public purpose in the City of Sydney."
4. The Minister submitted that La Perouse turned - and was expressed to turn - on the finding of facts in the particular case, and did not stand in support of a general principle that residential development could never be an essential public purpose. So much may be accepted.
5. Similarly, the Minister submitted that more recent statements to similar effect should likewise be put to one side. In Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 180; 149 LGERA 162, Pain J said at [140]: "If the observations of Bannon J in La Perouse are considered these reinforce, in my view, that urban development generally is not an activity that equates to public purpose. That case concerned a government body undertaking residential development so that the facts of this case are obviously different but his Honour's observations distinguish clearly between 'public' and 'private' activity."
6. Further, in Nelson Bay at [33], Basten JA, within whom Beazley P and Preston CJ of LEC agreed, referred to par (b1) as follows: "Paragraph (b1) was introduced in 1986, presumably on the assumption that residential use did not constitute an 'essential public purpose' within par (c)". His Honour cited the parliamentary debates and La Perouse.
7. It will be seen that the Minister was correct to submit that there is no authority, either at first instance or in this Court, which "precludes the conclusion that residential use or development is capable of constituting an essential public purpose". Hence the issue falls to be addressed as a matter of principle.

The construction of par (c)

1. The starting point is the text of par (c) in its present form. Contrary to some of the Minister's submissions, no useful purpose is served by identifying the legal meaning of par (c) as originally enacted, and then asking whether that meaning changed following the insertion of par (b1). It is trite that the Act as amended and the amending Act must be read together as a combined statement of the will of the Legislature: Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 463. As Bathurst CJ said in R v Seller; R v McCarthy [2013] NSWCCA 42; 232 A Crim R 249 at [100], "the effect of the amending act may be to alter the meaning which the remaining provisions of the amended act bore before the making of the amendments". Those propositions have been regularly applied (for recent examples in this Court, see Simon v Condran (2013) 85 NSWLR 768; [2013] NSWCA 388 at [26] and Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [16]-[17]) and I did not understand the Minister, ultimately, to take issue with them.
2. The Minister invoked authorities directed to "public purposes" being activities normally carried out by government or regarded as a governmental function, and maintained that "[t]here is nothing inherent in residential use or development that necessarily excludes it from constituting an essential public purpose in every case". He submitted that the Court should have regard to (a) the Government's identification of the land through the Crown Lands Homesites Program, (b) the statutory context in which Landcom operates, and (c) the Government's recognition of the need for land for housing in Morisset in planning strategy documents, both at state and local government level.
3. The large difficulty confronting this submission is that it was at all times intended that the subdivided land be sold, either directly to owners who would build residences on the land, or "englobo" to developers who would on-sell the land to owner occupiers or other investors. In other words, at all times, all of the steps upon which the Minister placed reliance were intended to facilitate a purpose whereby the majority of the land is vested in private ownership.
4. It is to be recalled that the purpose of the Act is to provide economic compensation to land councils, and that the land transferred to a land council may and often will be sold. Land which is needed or likely to be needed for an essential public purpose is land which is excluded from claimable Crown lands. As a matter of the ordinary meaning of the statutory language, I would not consider that land which is proposed to be sold (whether to developers for on-sale or directly to owner occupiers) for private residential purposes would amount to land which is needed or likely to be needed for an essential public purpose.
5. Nor can I accept the submission that the requisite public purpose exists because government is involved in the planning process. The sole purpose of the planning process is to achieve a sale of the land to the private sector. The character of the acts undertaken by governmental officers is coloured by that ultimate purpose.
6. My views accord with what was said by Bannon J, Pain J and Basten JA in the decisions referred to above. They are fortified by the conventional principle of construction of the Act that where there is a choice between a broad and a narrow construction to be given to a paragraph exempting land from the category of "claimable Crown land", then the narrower construction is to be preferred: see Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665; [2001] NSWCA 28 at [53]-[54].
7. A variety of additional considerations strengthen that conclusion. The first is the presence of par (b1). The fact that a different exclusionary paragraph is expressly directed to residential land serves to confirm that "essential public purpose" does not extend in the manner for which the Minister contends.
8. Secondly, there is the extrinsic material accompanying the introduction of par (b1). Both parties invoked it in support. In truth, it does not support the Minister's construction, and supports that upheld by the primary judge. Indeed, I would accept NSWALC's submission that this is one of those relatively rare cases where the extrinsic material is squarely on point. Both the Minister's speech to the Chamber and the additional explanatory note proceed expressly on the basis that the new paragraph within s 36(1) had the effect of altering the existing law, by removing residential land from the category of claimable Crown lands or making land earmarked for residential development non-claimable. That material may be used to deduce the purpose of the amending Act, and s 33 of the Interpretation Act 1987 (NSW) requires this Court to prefer a construction that would promote the purpose or object underlying the Act over a construction that would not promote that purpose or object. I also agree with what Basten JA has written concerning essential public purpose.
9. Thirdly, pars (b1) and (c) have a different structure. NSWALC submitted that in accordance with ordinary principles of statutory construction, the more elaborate provision in par (b1) by which land was excluded from the definition of claimable Crown lands should not be subverted by a broad construction being given to the exclusion in par (c). NSWALC pointed to the qualified obligation upon the Minister to transfer the land the subject of a claim, in the event that he or she was satisfied that it was claimable Crown lands, and relied upon what Dixon J had said in The King v Wallis; ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 550: "If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s.38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course. This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction."
10. That mode of reasoning has frequently been applied: see for example BP Australia Ltd v Brown (2003) 58 NSWLR 322; [2003] NSWCA 216 at [44]-[45] and the cases there cited. NSWALC emphasised the concluding words in the quote from Dixon J's reasons, observing that the Act imposed a duty on the Minister to transfer claimed land if it answered the description of "claimable Crown lands". Again, I agree.
11. Fourthly, NSWALC relied upon the principle of construction by which an earlier provision should not be construed in such a way as would render subsequent amending legislation unnecessary: Grain Elevators Board (Vict) v Dunmunkle Corporation (1946) 73 CLR 70 at 85-86. Against this, the Minister submitted that par (b1) served a different purpose from par (c). He submitted that unlike with regard to par (c), there was no requirement in par (b1) for governmental consensus; it turned instead upon the individual "earmarking" by the Minister administering the Act. For the reasons already given, I cannot agree. The Minister's submissions do not undercut the distinction between the essential public purpose in par (c) and the private purpose of ordinary residential housing.
12. On that point, both parties accepted during the hearing of the appeal that it was unnecessary to determine whether a purpose of housing in which the land would continue to be owned by the Crown (for example, social housing) could fall within par (c). There are a number of ways in which social housing objectives may be effected, some of which may involve a transfer of ownership of land to a private entity. These reasons do not address questions of that nature. It will be clear from the foregoing that my reasoning is based upon a rejection of the proposition that ordinary private sector residential ownership, whether land be owned by developers or owner occupiers, falls within an essential public purpose.
13. Finally, it will have been seen that, once again, the primary judge referred to and relied upon an analysis based on Chamwell in this part of his reasons. That has no place in the analysis required by the Act. However, his Honour's conclusion on the unavailability of par (c) in the facts of this case was correct. This ground of appeal is not made out.

Orders

1. For those reasons, I propose that the appeals be dismissed, with costs.

Endnotes

1. New South Wales Aboriginal Land Council v The Minister Administering the Crown Lands Act (Moira Park Road No 2 and Moira Park Road No 2 claims) [2015] NSWLEC 179.
2. New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 (Hope JA, Samuels and Clarke JJA agreeing).
3. Land Rights Act, s 36(5).
4. Land and Environment Court Act 1979 (NSW), s 57(1).
5. New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the Nelson Bay Claim) (2014) 88 NSWLR 125; [2014] NSWCA 377 at [36] (in my judgment, Beazley P and Preston CJ of LEC agreeing).
6. Cf Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Nambucca No 3) [2009] NSWCA 151 at [34].
7. (1944) 69 CLR 407.
8. Reid v Sinderberry (The Man Power Case) (1944) 68 CLR 504.
9. Hetton Bellbird at 430.
10. (1976) 135 CLR 110 at 118-119.
11. See further Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [130]-[137] (Gummow J).
12. [2007] NSWLEC 577; 156 LGERA 65 at [84], [89]-[91] and [95].
13. [2009] NSWCA 352 at [11].
14. [2008] NSWLEC 13 at [95] ("Nambucca No 2").

Amendments 13 September 2016 - Cases cited - "Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32" deleted

[40] - amended. As originally published, [40] of the reasons was in the following terms: "No stay was sought of the orders made by the primary judge, but the transfers have not occurred pending the determination of the appeal. NSWALC raised no complaint about this, and I acknowledge the practical sense in resolving the Minister's appeal before the land is transferred, but nevertheless a stay should have been sought of the order prior to the Minister being in breach of it. The order was an order of a superior court and, irrespective of the success of the Minister's appeal, had to be obeyed until and unless it be set aside: see Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 at [11]." 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: 13 September 2016