New South Wales Aboriginal Land Council - Little Bay v Minister Administering the Crown Land Management Act

Relevant legislative provisions

1. The objects of the ALR Act are contained in s 3 as follows: 3 Purpose of Act The purposes of this Act are as follows - (a) to provide land rights for Aboriginal persons in New South Wales, (b) to provide for representative Aboriginal Land Councils in New South Wales, (c) to vest land in those Councils, (d) to provide for the acquisition of land, and the management of land and other assets and investments, by or for those Councils and the allocation of funds to and by those Councils, (e) to provide for the provision of community benefit schemes by or on behalf of those Councils.
2. The basis upon which the Claim was refused by the Respondent was that the land claimed was not relevantly claimable Crown land is contained in s 36(1) of the ALR Act which relevantly provides: 36 Claims to Crown lands (1) In this section, except in so far as the context or subject-matter otherwise indicates or requires - claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division - (a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901, (b) are not lawfully used or occupied, (b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands, (c) are not needed, nor likely to be needed, for an essential public purpose, and (d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and (e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands). Crown Lands Minister means the Minister for the time being administering any provisions of the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 under which lands are able to be sold or leased.
3. The nature of the appeal to the Court from the refusal of a land claim and the power of the Court in such an appeal is dealt with in s 36(7) of the ALR Act, which provides: (7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council.

Issues for determination

1. By a Statement of Agreed Issues prepared by the parties and dated 18 May 2022 it was agreed that the only issue for determination in the proceedings was: …whether the Minister can satisfy the Court that, as at the date of the claim, the whole or any part of Lot 91 was lawfully used and/or occupied by Surf Life Saving Sydney Incorporated and was therefore not "claimable Crown lands" within the meaning of s 36(1)(b) of the ALR [Act].
2. At the hearing, the Applicant conceded that the Building and an outdoor paved area was lawfully used or occupied by the SLSS. The basis of the Claim was said to relate to the area of the Claimed Land to the west of the Building (the Western Curtilage).
3. In light of the concession made by the Applicant the nominated issue for determination only requires determination in so far as it relates to that part of the Claimed Land not occupied by the Building area (the Curtilage).
4. Whilst the Applicant's reformulated claim identified the Western Curtilage, in response to a question from the bench, the parties agreed that the Court had power (and an obligation) to consider whether, if it determined that the Curtilage was relevantly claimable Crown land, whether the totality of the area not occupied by the Building (including external paved areas) and a reasonable Curtilage around it for access and maintenance (the Building Area) should be the subject of any order.

Was that part of the Claimed Land not occupied by the Building Area lawfully used and occupied at the Claim Date?

1. The Respondent bears the onus of satisfying the Court that the relevant part of the Claimed Land was not claimable Crown land.

Evidence

1. The evidence adduced in the proceedings was largely comprised in a bundle of agreed documents and the Statement of Agreed Facts.
2. The documentary bundle contained evidence of the nature of the use by the SLSS of the Building including evidence that established that the Building was used regularly for training and meetings including outside normal business hours and at weekends.
3. The documentary bundle included the Lease to the SLSS relating to the Claimed Land. The principle relevant lease provisions were identified in the Statement of Agreed Facts at point 15 of [7] above. However, the parties agreed the totality of the Lease was relevant to the determination of the facts in this matter.
4. In addition, the Respondent read the affidavit of Mr Peter Agnew, President of the SLSS affirmed 11 November 2021. Mr Agnew's affidavit was read (without objection) and he was not cross-examined. Mr Agnew gave evidence as to the uses conducted within the Building undertaken by or on behalf of the SLSS. With respect to uses outside of the Building Mr Agnew deposed at pars 5 to 8 of his affidavit: 5 I am familiar with the Surf Life Saving Sydney office on Murra Murra Place in Little Bay (the SLSS Office). In and around 2016, I attended the SLSS Office at least fortnightly. The SLSS Office is a hub for the activities of SLSS and the surf life­ saving clubs. 6 The SLSS Office building is configured in an L shape. The longer part of the L contains a large open room, which is used for meetings and courses. The shorter part contains three office areas. In between these spaces, in the corner of the L, there is a kitchen, bathroom and storage area. 7 The SLSS Office is orientated towards Murra Murra Place. There is a pathway to the SLSS Office from Murra Murra Place. In front of the SLSS Office, there is a paved area and a large tree. Sometimes, the paved area was, and continues to be, used for group activities during training or education courses, or for lunchbreaks and I have personally observed such use. 8 I have observed that people attending the SLSS Office usually park their vehicles on Murra Murra Place and enter via the pathway. Occasionally, if the area was busy, parking might be found on Lister Avenue.

Applicable legal principles

1. The parties were largely in agreement as to the applicable legal principles to be applied in the determination of these proceedings. The parties disagreed on the outcome of the application of the relevant principles to the facts of the case.
2. The relevant date for determining whether land is "claimable Crown lands" is the date when the Claim was made. This requires the Respondent, and the Court on appeal, "to look at a state of facts as they existed at the date of claim", and not at some later date.

Lawfulness

1. For the purposes of s 36(1)(b) of the ALR Act, it is incumbent on the Respondent to satisfy the Court not only that the Claimed Land was used or occupied as at the Claim Date, but also that any such use or occupation was lawful: NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 35 (Shoalhaven) at [72]; and Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379 (Bathurst) at [240]. This requires consideration of "whether the user of the particular Crown land is legally authorised": Minister Administering Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1991) 75 LGRA 133 (Tweed Byron) at 142.

Use and occupation

1. The relevant legal principles in relation to whether land is "used or occupied" within the meaning of s 36(1)(b) can be summarised as follows: 1. Whether land is lawfully used or occupied is a question of fact; 2. In order to determine whether land is used or occupied, it is necessary to consider the particular acts, facts, matters and circumstances which are said to deprive the land of the characteristic of being "not lawfully used or occupied" (within the meaning of the statute) and to "measure those acts, facts, matters and circumstances against an understanding of what would constitute use or occupation of the land": Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285 (Wagga Wagga) at [69]; and Bathurst at [232]. This requires a qualitative assessment of what is said to amount to use or occupation; 3. The reference to "used or occupied" in s 36(1)(b) is a reference to different concepts rather than a composite phrase. Either "a lawful use or a lawful occupation of the land will defeat a claim": New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 (Berrima) at [14]; 4. Generally speaking, the matters considered in determining "occupied" for the purpose of s 36(1)(b) will also be relevant to determining "use". However, that will not always be the case: Bathurst at [248]-[249]; 5. For land to be used, it must be "actually used" in the sense of being "used in fact" and not used in a "nominal sense" or to a "merely notional degree": Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 (Daruk) at 164D-E; Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 (Nowra) at 108D-E and at 119D-G; Bathurst at [161]-[162], [227]-[230], and [256]; Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council (2012) 193 LGERA 276 (Malabar CA) at [45]-[46]; and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2015) 215 LGERA 103 (Berrima CA) at [17]; 6. A constructive use is insufficient: Daruk at 164B-D; Malabar CA at [43]-[47]; and Berrima CA at [16]; 7. A constructive occupation is insufficient: Daruk at 162D-E; 8. In order for land to be used or occupied, there must be actual use or occupation which is more than de minimis. That is, "the relevant use or occupation must in the circumstances of the particular case, and in terms of its nature, quality and extent, be of some substance rather than so miniscule, insignificant or token as to be disregarded": Bathurst at [161]. A use or occupation that is "limited, casual and sporadic activity" has been held to be insufficient: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 241 (Berowra LEC) at [143]; 9. Assessing whether land is used or occupied requires an examination of the activities undertaken upon the land in question, and in considering whether land is "occupied", factors such as continuous physical possession must be taken into account: Berrima CA at [17]; 10. According to Wagga Wagga at [69] (citations omitted): recurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land. And a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land. 1. "Total abandonment" is not a requirement for finding that land is not lawfully used or occupied: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Department of Education Claim) (1992) 76 LGRA 192 (The Department of Education Claim) at 198; and NSW Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 - Helensburgh Police Station [2020] NSWLEC 133 (Helensburgh Police Station) at [130]; 2. Not every part of land needs be used in order for the whole of the land to be lawfully used: Malabar CA at [39]; 3. There need not be a physical presence on or use of every part of land in order for the whole of the land to be occupied: Tweed Byron at 140-141; and 4. The concept of "use" in the ALR Act requires an actual "use of the land as land" for some purpose: Education Building at 199; Griffith Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 108 (Hillston) at [50]-[57] and [70]-[71]; and Wagga Wagga at [73].

Applicant's submissions

1. The mere existence of a lease does not satisfy the requirements of s 36(1)(b). This is consistent with the requirement that s 36(1)(b) is only satisfied where land is used or occupied in fact to more than a notional degree. This conclusion is also supported by the fact that the savings provisions in the ALR Act protects leases and licences in existence at the date the ALR Act was enacted: see Sch 4 cl 8 of the ALR Act. That protection arises by virtue of the existence of the interest, rather than its use. If the mere existence of a lease was intended to defeat a land claim, a similar mechanism would have been employed in s 36(1)(b), rather than the statutory language of use or occupation.
2. The terms of the SLSS Lease are significant in the context of s 36(7) of the ALR Act which requires assessment as to whether the whole or any part of the Claimed Land meets the statutory definition of "claimable Crown Land". The terms of the SLSS Lease prevented the whole of Lot 91 being put to a single purpose. It treated the Building as being separate to the Curtilage and limited any use of the Curtilage to ingress and egress. It should not be accepted that evidence of the "active use" of the SLSS Office as a "busy office" constitutes evidence of use or occupation of the Curtilage. That evidence goes only to the use of the Building itself.
3. Furthermore, the fact the SLSS Lease is subject to s 109 of the Crown Land Management Act 2016 (NSW) (CL Act) meant that at any time the Respondent could revoke the whole or part of the Reserve, at which stage that part could be excised from the Lease, or the Lease would terminate. The SLSS Lease therefore anticipated the possibility of further subdivision which had been an ongoing feature of the Landcom Development.
4. In light of those matters and the terms of s 36(7) of the ALR Act, the Court would scrutinise carefully whether the Respondent has discharged his statutory onus in relation to the whole of the land, and in particular the Curtilage. Those same matters strongly militate against adopting an approach that the Respondent's evidence of use and/or occupation of the SLSS Office is evidence of lawful use or occupation of the entirety of the Claimed Land, and in particular the Curtilage within the meaning of s 36(1)(b) ALR Act.
5. As at the date of claim Lot 91 was Crown land which was reserved for "Community Purposes, Heritage Purposes" as part of Reserve 1014868. Use or occupation of the land was therefore governed by the CL Act: Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee) (2012) 194 LGERA 1 (Goomallee) at [25]-[26] and [37]. Section 6 of the CL Act prohibited the use or occupation of the Claimed Land unless it was authorised by the CL Act. It is well established that there is a need for strict compliance with Crown lands legislation.
6. The Respondent's assertion that the whole of the Claimed Land was not "claimable Crown lands", is premised only on the proposition that the lawful use or occupation of the whole of the Claimed Land is by the SLSS. It is not asserted that the Claimed Land is lawfully used or occupied by any other entity. The only use or occupation that the SLSS could lawfully exercise in relation to the Claimed Land was that authorised by the SLSS Lease, which was itself limited to the "[c]onduct of the affairs and activities of the Lessee, involving the administration of the Surf Life Saving Australia Sydney Incorporated and related activities."
7. The Court should not be satisfied on the evidence that the Curtilage was used or occupied by the SLSS within the meaning of s 36(1)(b) of the ALR Act at the Claim Date, for the following reasons: Use 1. The Curtilage is vacant land, which is not enclosed. There is no evidence before the Court that it was used by the SLSS at all, let alone that there were any "recurring physical acts on the land, by which the land is made to serve some purpose" or that it was utilised "as land" in any way. Indeed, the Respondent's own evidence is clearly to the contrary; 2. Clause 13(2) of the SLSS Lease prohibited the use of the Curtilage by the SLSS for "any purpose", other than ingress and egress to and from the Building, without the Lessor's prior consent. There is no evidence that any consent was given by the Reserve Trust to enable the SLSS to use the Curtilage; 3. There is no evidence before the Court that any officers of the SLSS traversed the Curtilage to access the Building. Nor having regard to the location of the Building, its access paths and its proximity to the northern road frontage, would there be any need to traverse the Curtilage to access the Building given the road frontage to Murra Murra Place and the proximity of street parking there; 4. Clause 23(3)(f) of the SLSS Lease required the SLSS to maintain the Curtilage area in a clean and tidy condition. There is no evidence before the Court that they did so, let alone to an extent which would establish that the SLSS used or occupied that area within the meaning of s 36(1)(b) of the ALR Act; 5. It is well established that constructive use is insufficient for the purposes of s 36(1)(b) of the ALR Act. In this matter there is no evidence of "actual use" by which the Court could determine the requirements of s 36(1)(b) of the ALR Act are satisfied, let alone evidence of actual use which is more that "nominal" or "of some substance rather than so miniscule, insignificant or token as to be disregarded"; Occupation 1. A similar conclusion must follow in relation to the contention that the SLSS occupied the Curtilage; 2. Constructive occupation is insufficient for the purposes of s 36(1)(b) of the ALR Act; 3. The SLSS is not in actual occupation of the Curtilage. There is no evidence of any physical presence of the SLSS on the Curtilage, let alone physical presence with a level of continuity which would constitute occupation by the SLSS within the meaning of s 36(1)(b) of the ALR Act. Again, the Respondent's own evidence is clearly to the contrary. The absence of actual use is equally relevant to demonstrating an absence of actual occupation; 4. Nor is there evidence that could satisfy the Court that the SLSS is in actual possession of the Curtilage. The Curtilage is not enclosed. It has a small wooden boundary railing on two sides which appears to serve as a boundary marker rather than a barrier, it can be simply stepped over. The remainder of the Claimed Land is completely unfenced and unsecured. There is no evidence before the Court that the SLSS exercises any control over the Curtilage or that it excludes any one from it.
8. For those reasons, the Respondent has failed to discharge its burden to establish that the Claimed Land was not claimable Crown land.

Respondent's submissions

1. The Respondent's argument involved two steps of analysis, namely: 1. The Claimed Land is not divisible for the purposes of applying the definition of "claimable Crown lands" in s 36(1) of the ALR Act; and 2. When the Claimed Land is considered as a whole, there was use and/or occupation at the Claim Date that was of "some substance rather than so miniscule, insignificant or token as to be disregarded".
2. The Respondent accepted that the mere existence of the Lease over the whole of the Lot did not operate to preclude a consideration of whether only part of the Claimed Land was used or occupied. Rather, the Respondent contended that the existence of the Lease was a relevant consideration in determining whether the areas of the Claimed Land should be treated as part of a single unit or treated as separate divisible areas.
3. As to the first step, that is, identifying the relevant parcel or unit of land to which the definition of "claimable Crown lands" is to be applied, the Respondent submitted that: 1. The Lease was evidence of the lawful possession of the whole of the Claimed Land by the SLSS; 2. Under the Lease, the Claimed Land was occupied by the SLSS as a single parcel or unit and should be treated as a single whole and is not divisible into parts; 3. The whole of the Lot is used and/or occupied by the SLSS by virtue of the Lease that extends to the whole of the Lot and the uses to which the land external to the Building is put are consistent with the rights and obligations conferred by the Lease; 4. There was significant actual use of the Claimed Land by the SLSS, focussed in and about the Building; 5. The limited nature of the physical acts on the Curtilage must be understood in the context of the Claimed Land being used and occupied by the SLSS to conduct its affairs and administration. It is not surprising, in those circumstances, that the activities of the SLSS were focussed in and around the Building which served as its office; 6. The Claimed Land is a single urban lot of approximately 2288 square metres. It is not a large area that naturally lends itself to separate sites of occupation or that requires particular efforts towards control, beyond the actual physical occupation of the Building near the centre of the lot; and 7. There was no treatment of the Curtilage as a whole or the Western Curtilage that indicated a treatment of that part of the site differently than the Building - or the western part of the Curtilage was not treated differently from the remainder of the site.
4. Section 36(7) of the ALR Act permits the success of a claim in respect of part only of the land the subject of the Claim. It is, however, well-established that, in some cases, it is appropriate to view parts of claimed land disjunctively or separately for the purposes of considering whether the criteria for claimable Crown lands in s 36(1) of the ALR Act is established. In Daruk the Court reached the view that one parcel of the land was claimable, while another was not. The two parcels were "quite distinct", including because they were separated by a road. The position with respect to the parcel of land to the south of the road was remitted to the Land and Environment Court. In that context, Priestly JA (with whom Cripps JA agreed) observed at 165: It … seems to me that it was open in regard to the land south of the road for parts of it to be treated as separate and distinct from other parts, and, possibly, for the court to arrive at different conclusions in regard to different parts. Questions that therefore need to be dealt with in regard to the land south of the road are: (i) whether it should be treated as one unit of land or dealt with as two or more separate units of land for practical purposes; (ii) if the answer to (i) is that the land south of the road should be treated as one unit only, then the question must be answered whether the use or occupation of that land in fact at the relevant date was of sufficient significance to warrant being called actual use or actual occupation; (iii) if the conclusion is that the land south of the road should be treated as more than one unit for practical purposes, then the same question as in (ii) in regard to each portion.
5. The Claimed Land should not be analysed as two separate units or parcels of land for the purposes of determining whether there was lawful use and occupation of it at the Claim Date. There is no separate or distinct unit of land such that it should be treated as more than one unit for practical purposes. As such, it should not be analysed separately and in isolation for the purposes of this appeal.

Was the whole of the Claimed Land used and/or occupied?

1. Whether the whole of the Claimed Land was occupied involves a qualitative assessment in which the acts, facts, matters and circumstances said to comprise the occupation must be considered in light of the purpose of the occupier and the surrounding circumstances: Malabar CA at [35]-[40]; Berrima CA at [19]; and Bathurst at [240]. The limited nature of the physical acts on the Curtilage must be understood in the context of the Claimed Land being used and occupied by the SLSS to conduct its affairs and administration. It is not surprising, in those circumstances, that the activities of the SLSS were focussed in and around the Building which served as its office.
2. This is not a case where occupation, although actual and physical, ought to be described as nominal or notional: see Bathurst at [158]-[161]. The nature, quality and extent of the SLSS occupation of the Claimed Land was substantive: it was not so miniscule, insignificant or tokenistic as to be disregarded and it did not relate to so small a portion of the land as to be insufficient to constitute occupation of the whole.
3. Generally speaking, occupation for the purposes of s 36(1)(b) of the ALR Act requires a combination of legal possession, conduct amounting to actual possession and a degree of permanence and continuity: Wagga Wagga at [69]. It is not disputed that the SLSS enjoyed legal possession of the whole of the Claimed Land. It is also not disputed there was conduct that amounted to actual possession on that part of the Claimed Land that does not constitute the Curtilage. There was a degree of permanence and continuity to the presence and activities of the SLSS on the Claimed Land. On that basis, the Court should be satisfied that the whole of the Claimed Land was lawfully used and occupied at the Claim Date.
4. The question for the Court is whether the use and/or occupation of the Claimed Land by the SLSS considered as a whole was of sufficient significance and substance to warrant the description of actual use and/or occupation that was more than nominal at the Claim Date. That question should be answered in the affirmative.
5. At the Claim Date there was legal possession by the SLSS; conduct amounting to actual possession by the SLSS; and a degree of permanence to the activities of the SLSS on the Claimed Land, those being the commonly accepted elements of lawful occupation. The fact that the Curtilage was only able to be used for ingress to and egress from the Building, and for maintenance, does not detract from the conclusion that the Claimed Land was lawfully used and occupied by the SLSS.
6. It must be acknowledged on the authorities that land may be used and/or occupied where only part of the land is used or the subject of physical presence. It is apparent that there is an analytical difficulty with applying the definition of "claimable Crown lands" in s 36(1) of the ALR Act to parts of land disjunctively, without limitation. By way of example, in Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1, Gibbs J observed at 22-23, that an expanse of land acquired for the purposes of quarrying could be characterised as being used for that purpose in its entirety, even where only one tract was being excavated. Contrary to that reasoning, if the remaining tracts were considered in isolation, their use and/or occupation might rightly be said to be merely constructive.
7. In the present case, it should not be accepted that the evidence of the use and occupation of the Claimed Land by the SLSS which is not challenged by the Applicant goes only to the use and occupation of the Building and can be put to one side when considering the position of the Curtilage. In Tweed Byron at 140-141, it was accepted that "continuous physical presence on every part of the land does not have to be shown to establish occupation" and that: [a]lthough it may be possible to conceive of situations where part of a reserve vested in trustees is unoccupied while another part is occupied, prima facie, the fact that some of the land has been left undeveloped will not detract from the conclusion that the whole is occupied.
8. In that case, Clarke JA considered that "the fact that portion of the reserve, of which the contested land formed part, was undoubtedly both occupied by the shire council and lawfully used" was a factor providing "powerful support" for the conclusion that the whole of the land was occupied: Tweed Byron at 141-142.
9. Similarly, in Berrima CA the claimed lands covered 2.2 hectares, consisting of two lots, and the buildings occupied somewhat less than half of that area. At first instance, Pain J reasoned that the acts, facts, matters and circumstances relied on by the Respondent to establish occupation had to be considered "collectively rather than individually" and even transitory activities on parts of the land should be given "some weight in the cumulative assessment". Her Honour concluded that, "[w]hen assessed as a whole all the activity taking place at the date of claim was more than nominal and was not insubstantial". The Court of Appeal accepted at [97] that Pain J was right to assess "all of the acts taking place on the land in their totality".
10. The correct approach in the present case is to consider all of the acts, facts, matters and circumstances pertaining to the Claimed Land collectively and in their totality, and then to ask whether the occupation of Lot 91 by the SLSS, "in terms of its nature, quality and extent … [was] of some substance rather than so miniscule, insignificant or token as to be disregarded": Bathurst at [161]; and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Newcastle Post Office Claim) (2014) 204 LGERA 1 at [157]. The occupation by the SLSS was not "so slight" or related to so "miniscule [a] portion" of the Claimed Land as to not constitute occupation of the whole: The Department of Education Claim at 198.
11. In The Department of Education Claim, Stein J concluded that a block of land in Sydney was not occupied, in circumstances where the large building housed only 6 officers from the Department of Education, using about 3.5% of the space with the balance of the building remaining vacant. His Honour reasoned at 198: some actual physical occupancy of the land is required. This does not need to be an occupation of the whole of the land but, in my opinion, the mere exercise of control over or maintenance of the land without any actual occupation is insufficient. Here the actual physical occupation of the land - which is capable of accommodating over 900 people and in fact housed some 400-500 public servants in June 1989 - is a mere six officers occupying a miniscule portion of the floor space of the building. These officers of the media unit, and the darkroom gentleman, were also permitted to continue to occupy their small spaces on the date in question on an informal basis pending relocation to alternative premises. The rest of the building was completely vacant of human occupation. In my opinion their occupation (that is the six officers) is so slight as to be insufficient to constitute an occupation of the land as required by the definition in s 36(1).
12. By contrast, the SLSS office on the Claimed Land, being the central hub for its activities, involves actual and active utilisation of a significant part of the Claimed Land. There was a continuous physical presence through the administrative employees of the SLSS and there was regular congregation of persons on the Claimed Land for the purposes of meetings and training courses. Indicia of the use and actual physical occupation of the Building as an office are well-documented in the evidence before the Court.

If the Curtilage is treated as divisible the Western Curtilage should be treated differently than the balance

1. If, contrary to the Respondent's primary position, that the Claimed Land should be analysed as a whole, the Respondent contends that the only appropriate analytical division of the Claimed Land is to view that part of the Claimed Land to the west of the Building as a separate parcel to the remainder of the Lot. That is consistent with the approach taken by the Applicant in identifying the Western Curtilage (although, as was proposed by the Applicant, it would be necessary for there to be a survey of the land to enable the precise location of that boundary for the purposes of the transfer to be drawn and agreed).
2. It is first necessary to note that the power to impose a condition on the transfer under s 36(5A) of the ALR Act would not be available to the Court if the Court concluded that part of the Claimed Land was lawfully used and/or occupied by the SLSS. The power conferred by s 36(5A) is confined to circumstances in which the need for claimed land for an essential public purpose could be met if the Claim were granted subject to the imposition of a condition. Accordingly, it would not be possible for the Court to transfer the open space of the Claimed Land subject to conditions for access to the Building by way of easement.
3. In those circumstances, any division of the Claimed Land for the purposes of a transfer to La Perouse Aboriginal Land Council should not include the open space between the Building and Murra Murra Place. The evidence establishes that the Building was usually entered from Murra Murra Place and that the area in front of the Building towards Murra Murra Place was used by the SLSS. The open space between the Building and Murra Murra Place cannot be viewed as separate and distinct from the Building for practical purposes.
4. Next, it is necessary to consider whether the open space in the east and north-east of Lot 91 should be considered a parcel of land which is separate and distinct from the Building for practical purposes. This question must be answered in the negative. The L shape of the Building is orientated towards the north-east. It enjoys views with large windows to the east and north-east of the Claimed Land. There is no barrier being the paved area around the Building and the grassed open space to the east, in contradistinction to the raised area and small wall towards the Curtilage. The orientation of the Building, and the windows on its north-eastern side, can be seen from the photographs in evidence.
5. The open space to the north-east contributes to the use and enjoyment of the Building itself, in so far as that open space may be viewed from the Building and is also relevant to the visual privacy of the Building.
6. Due to the angle of the eastern boundary of the Claimed Land, any separate parcel of land in the north-eastern corner of the Lot would be impractical. If the Building's Street frontage to Murra Murra Place is maintained, as well as some area around the Building, the separate parcel in the north-eastern corner of the Lot would likely be non-contiguous with the Curtilage. The division of the Claimed Land, which comprises 2288 square metres into, effectively, three separate and distinct parcels is not a conclusion this Court should prefer when determining how the land should be treated for practical purposes.

Findings on claimable Crown land

1. As identified in the applicable legal principles, in order to determine whether the Respondent has, on the evidence, established that the Claimed Land is either lawfully used or lawfully occupied it is necessary to consider the particular acts, facts, matters and circumstances which are said to deprive the land of the characteristic of being "not lawfully used or occupied" and to "measure those acts, facts, matters and circumstances against an understanding of what would constitute use or occupation of the land". In this case, the evidence is clear and on the basis of that evidence the following factual findings are able to be made (and largely uncontested): 1. The Building is both used and occupied by the SLSS for purposes relating to the purposes for which it was leased. This use is constant (including outside of normal business hours) and includes the attendance at the Building of persons employed and invitees for training and SLSS business purposes. This use is substantial both in relation to its physical manifestations and with regard to the degree of permanence. At the Claim Date the use and occupation as described was being lawfully carried out pursuant to the Lease. The SLSS was entitled to exclusive possession of the whole of the Claimed Land pursuant to the Lease; 2. The paved area immediately adjacent to the northern face of the Building was also used and occupied by the SLSS for uses ancillary to its use under the Lease including for lunch breaks and more formal instruction of persons attending the premises for training. This use is also substantial both in relation to its physical manifestations and with regard to the degree of permanence. At the Claim Date the use and occupation as described was being lawfully carried out pursuant to the Lease; 3. Access to the Building is obtained via the path from Murra Murra Place which is connected to the paved area referred to above. There is no evidence that access was obtained to the Building or for any other purposes of the SLSS otherwise than via the designated path; and 4. There is no evidence of any formal or informal activities or access taking place outside of the Building other than that referred to relating to the paved area above. There is no evidence that the SLSS: maintained the grounds; secured the grounds; exercised any form of control over the grounds; or utilised the grounds for the purposes of the provision of an amenity to the users of the Building or for the maintenance of visual privacy.
2. Taking those facts matters and circumstances into account it is necessary to determine whether the whole of the Claimed Land is relevantly used or occupied or whether the Claimed Land not comprising the Building Area should be considered separately and if so, whether it is relevantly used or occupied.
3. The Respondent contends that the Lease is not a determinative indicator that the land outside the Building should be treated separately from the uses inside the Building. The Respondent relies heavily upon the Lease and its terms as an indication that the Claimed Land is used and occupied as a whole parcel. Whilst I consider the Lease is relevant to establish that the occupation and use relied upon is lawful (and in this case, there is no dispute that the SLSS's use and occupation is lawful in that it is authorised by the terms of the Lease) I do not consider that it is appropriate to consider the Lease divorced (either actually or notionally) from the facts, matters and circumstances of the actual use or actual occupation of the Claimed Land by the SLSS.
4. The relevant enquiry is not what the Lease requires or anticipates as the use but whether the actual use or occupation being conducted pursuant to the Lease is one that is capable of establishing that the whole of the land the subject of the Lease is being used or occupied in the manner anticipated by the relevant provisions of s 36(1) of the ALR Act.
5. The Respondent relied upon the SLSS's right to exclusive possession as significant in the circumstances of this case. In light of the legislative provisions, however, I do not consider the mere entitlement to exclusive possession as significant. As is provided for in s 36(1)(a), claimable Crown land includes land which is able to be leased. An essential requirement of any lease is the grant of exclusive possession to the Lessee, absent such entitlement there is no lease, merely a licence or some other right or permission to occupy. If exclusive possession, without more, was all that was required the provisions of s 36 would, in terms, exclude land that is in fact leased from land that is claimable Crown land, it has not done so. Therefore, having regard to the provisions of the whole of s 36(1) what is required is more than exclusive possession, there must be actual use and actual occupation.
6. As use and occupation must be more than constructive, there must be actual acts, matters and circumstances which are consistent with the right to exclusive possession. Absent such factors, the rights under the Lease indicate a constructive use or occupation rather than actual use or occupation as is required by the terms of s 36(1)(b).
7. In this case, the Lease itself treats the land within the Building and that outside the Building quite separately. Clause 13(3) provides: Curtilage Area (3) To the extent that the Leased Premises include any open space curtilage areas around the Building, those areas may not be used by the Lessee or its servants, agents or invitees for any purpose other than ingress to and egress from the Building without the Lessor's prior written consent. And the Building is relevantly defined in cl 1 of the Lease as: "Building" means the building or buildings constructed on the Lease Premises, including (where applicable) the Lessor's Fixtures, and the Lessor's chattels, plant, equipment, property and amenities located in or around the Building.
8. The parties agreed that for the purposes of the construction of the Lease the paved area would be included as either a fixture or an amenity and would, therefore, form part of the Building as defined in the Lease. Having regard to the provisions of the Lease this construction is accepted as to construe it otherwise would be to give a too narrow construction of the defined term "Building" in circumstances where the paved area comprised both retaining walls and construction to render it level and paving to render it habitable. The location immediately adjacent to the primary entrance of the Building also lends it to the construction of the Lease that this area was intended to be construed as part of the leased Building as opposed to the Curtilage area referred to in cl 13(3).
9. This specific provision of the Lease indicates that the Curtilage is not to be used for purposes other than access without the Lessor's consent. This provision provides an actual distinction between the uses authorised under the Lease within the Building and those beyond the confines of the Building. The Lease, to the extent that it informs the nature of the anticipated user or occupation under the Lease, indicates that the Curtilage was to be used for access only unless a further consent was obtained, indicating that the Curtilage, whilst forming part of the demised premises under the Lease, was not an area to which the Lessee had unrestricted or unconstrained rights to use or occupy.
10. The Respondent indicated that the provisions of cl 13(3) were related to use, but unrelated to occupation of the Claimed Land. It was contended that, even if the Lessee was not entitled to use the Curtilage it still occupied it under the Lease and it relied upon the provisions of the Lease that required the SLSS to occupy the Curtilage area notwithstanding the provisions of cl 13(3).
11. Having regard to the provisions to which the Respondent relied, those provisions of the Lease that imposed obligations of securing the leased premises (cl 20) and repair (cls 22 and 23) whilst applying to the whole of the leased premises primarily imposed obligations in respect of the Building. The exception being an obligation at cl 23(3)(f) to maintain the curtilage areas in a clean and tidy condition. Even taken at its highest, whilst the Lease may have imposed such obligations, as indicated above, there was no evidence that the SLSS exercised any control over the Curtilage to secure it from third parties, nor that it provided any passive surveillance for litter or other matters, or taking any active actions, that would indicate that it was undertaking its obligation to keep the land clean and tidy.
12. The suggestion that the use was "focussed on the building as the hub of activities" and that such activities could be attributed to the Curtilage as the Curtilage formed part or was incidental to those uses is not borne out by the evidence. Not only was there no evidence of use for access over the Curtilage (which was a use that was permitted without the need for further Lessor's consent) there was no evidence that the Curtilage was treated as co-existent with the Building either by acts of use or occupation consistent with the permitted use under the Lease or by the carrying out of control or maintenance as required under the Lease. The SLSS, on the evidence, not only focussed on the Building as the hub of activities - the Building was the sole area within which those activities were undertaken either in pursuance of the primary use or uses and activities ancillary to the use and occupation under the Lease.
13. It was further stated that the Claimed Land was a small lot in an urban area and it would be consistent with that configuration and character that the use and occupation would be focussed on the Building. Such an observation, however, is not borne out on the facts of this case. Whilst the Claimed Land is an urban lot, it is a lot of a size larger than that which is apparent in the locality. Further, the size of the Building is not occupying the majority or even a high proportion of the area of the Claimed Land. The Curtilage has a larger area than the Building in pure square meterage and the presence of the Building does not indicate, as was submitted, that the focus would be as a matter of course within the Building.
14. For all of those reasons, the Lease does not indicate either by its terms or by the actual use and occupation under the Lease that the Claimed Land was intended or required to be considered as a single parcel of land, rather by its express terms and the nature of the use and occupation the Claimed Land was two distinct areas: the Building and the Curtilage.
15. The question then arises, having regard to the Curtilage as an area that is capable of being considered as a separate or divisible component of the whole of the Claimed Land, is the Curtilage used or occupied within the meaning of s 36(1) of the ALR Act?
16. As indicated above, taking the evidence as a whole there is no identified use or occupation of the Curtilage of the Claimed Land with the exception of the use of the path from Murra Murra Place to the Building. The use of the path is a defined area designated by a formed path. The evidence is that the path is the access used by persons attending the Building. The use of the path is sufficient to indicate for the purposes of s 36(1) that the part of the Claimed Land to which the path relates is relevantly lawfully used and occupied for access by the SLSS. However, I do not consider that the use of the path is sufficient to indicate that the balance of the Curtilage areas is also used and occupied for any purpose including access. Whilst it is not necessary that all parts of parcel of land are required to be used or occupied in order for the relevant land to be used and occupied in the meaning of s 36(1) where a use of some part of the land is relied upon to demonstrate use of the whole, that particular use must have some characteristic that warrants treating the use of part as use of the whole. In this case, the use and occupation for access is limited and does not require or import a characteristic to the balance of the Curtilage area such that the balance of the Curtilage would be also considered as being used and occupied by the SLSS. For those reasons, and the reasons outlined above, I find that the Curtilage is not actually used or occupied except to the extent of the access path from Murra Murra Place.
17. The final matter is whether such a finding applies to the whole of the Curtilage of the Claimed Land or only the Western Curtilage. The initial submissions of the Respondent were critical of the designation of the Western Curtilage as there was no foundation in fact as to why the Western Curtilage should be treated as distinct from the balance of the Claimed Land. When enquiry was made as to whether, if the Court was against the Respondent as to the capacity to treat the Curtilage distinctly from the Building and, therefore, the whole of the Curtilage should be treated as not claimable, the Respondent changed its position to rely upon the desirability of treating the Western Curtilage separately from the balance. The position of the Respondent in this regard is difficult to reconcile.
18. The particular factors that the Respondent relied upon to distinguish the Western Curtilage from the balance cannot be accepted. The reference to the desirability or need to retain the Curtilage to the east for privacy or amenity of the Building is not made out on the evidence. The Building is used for business purposes and does not require, on any of the available evidence, a particular amenity or privacy.
19. Further, the reference to the resulting land areas being undesirable from a practical point of view imports into the statutory exercise a discretion that is not available. If satisfied that the Claimed Land is claimable Crown land the only power vested in the Court is that provided for in s 36(7) which obliges the transfer of the land if the land is found to be claimable Crown land.
20. For all of the reasons outlined above, I find that the Respondent has failed to establish on the evidence that that part of the Claimed Land comprising the open space areas outside the Building, including the paved area, and the access path from Murra Murra Place is lawfully used or occupied such that it is not claimable Crown land. Accordingly, I find that such part of the Claimed Land is Claimable Crown land and must, as a consequence, be transferred to the Applicant.

Formulation of appropriate orders for transfer of land

Nature of consideration

1. During the course of the hearing, it became apparent that the Claimed Land was burdened by two positive covenants. The parties requested the opportunity to provide further evidence and submissions on the impact of the positive covenants on any order that the Court may make in relation to the transfer of any claimable Crown land. The parties provided such evidence and further submissions.
2. Of particular concern was the positive covenant in the following terms: 12.1 Each of the lots burdened by this covenant is designated in: - The Master Plan for development of the land in the Plan adopted by Randwick City Council ("Council") at its meeting held on 27 May 2003 and as varied at its meeting held on 18 October 2005 ("Master Plan") and - The Development Control Plan for the land in the Plan adopted by the Council at its meeting held on 23 July 2004 ("DCP") to remain in public ownership. Accordingly each lot burdened must remain in the ownership of the current registered proprietor Landcom, a Reserve Trust established under the provisions of the Crown Lands Act or some other public entity approved by the Council. 12.2 Each of the lots burdened must be used for the public purposes designated in respect of that lot in the Master Plan and (where applicable) the DCP and for no other purpose, and must remain subject to any easements, restrictions and covenants affecting each lot created by the registration of the Plan and this Instrument. 12.3 The proprietor of each lot burdened must comply with the terms of any Conservation Management Plan and/or Specific Elements Conservation Policy endorsed by the NSW Heritage Council having application to that lot. Name of Authority whose consent is required to release, vary or modify the terms of this covenant numbered 12 in the Plan: Randwick City Council.
3. As a consequence of that evidence and those submissions there remains a dispute between the parties as to the enforceability and continuing effect of the positive covenants. However, it was agreed that the Minister has the power to remove the covenants. It was also essentially agreed that the position in connection with the enduring operation or the validity of the positive covenants was not a matter with which this Court need make any finding in order to discharge the duties required by the ALR Act in the event a finding was made that any part of the Claimed Land was claimable Crown land.
4. I also note that the Applicant, upon being vested with the fee simple may make an application of its own motion to remove the covenant with the consent of the Randwick City Council or to the Court pursuant to s 89 of the Conveyancing Act 1919 (NSW).
5. It was the common position of the parties that a longer time period to effect the transfer of any such land should be incorporated into the orders so as to ensure that any issues relating to the positive covenants could be resolved. The parties agreed that a 12-month period would be sufficient to enable such issues to be addressed.
6. For those reasons, it not being necessary that I make any findings as to the positive covenants in order to resolve these proceedings I will make no further findings and will accede to the agreed position of the parties to permit a 12-month period to give effect to the orders.

Form of orders

1. As to the form of the orders it is necessary that the part of the Claimed Land identified by me be surveyed. To that extent the part of the Claimed Land not claimable Crown land comprises the Building, the paved area to the north of the Building and the access path to Murra Murra Place, together with a reasonable area around these features to enable the care and maintenance of these features.
2. As to the issue of the covenants, it is apparent that the Minister can vary or release each of the covenants, however, with respect to the ALR Act it is only Covenant No 12 that the parties are interested in releasing. To that extent, reference should be made to the release of that covenant such that if, contrary to expectations, further time is required to give effect to the release of that covenant an application to extend time for that purpose may be sought.
3. For those reasons, I consider that the orders sought by the Applicant that: 1. The Minister transfer the land to La Perouse Local Aboriginal Land Council in fee simple with vacant possession; and 2. The Minister shall do all things necessary to enable the transfer of the land, including to survey it and to take such action as is necessary to remove Covenant No 12, within 12 months or such other time as agreed between the parties; should be made subject to a modification to order (1) to reflect the identification of that part of the Claimed Land that is determined to be claimable Crown land as identified by me in [82] above. I also propose to delete the reference to vacant possession as it is agreed that the Lease to the SLSS will not continue with respect to the Claimed Land upon the necessary revocation of the reservation and it therefore not being a necessary order.

Costs

1. Neither party indicated that an order for costs should be made in the circumstances of this case. It is appropriate that each party bear its own costs and accordingly, I make no order for costs.

Conclusion and orders

1. For the reasons outlined above, I find that as at the Claim Date part of the Claimed Land was claimable Crown land within the meaning of s 36 of the Aboriginal Land Rights Act 1983 (NSW).
2. The Court orders that: 1. The Appeal is upheld; 2. The Respondent transfer that part of Lot 91 in DP 270427 excluding the Building, the paved area to the north of the Building and the access path between the Building and Murra Murra Place, together with a reasonable area around these features to enable the care and maintenance of these features in fee simple to the La Perouse Aboriginal Land Council; 3. The Respondent shall do all things necessary to enable the transfer of the land, including to survey it and to take such action as is necessary to remove Covenant No 12, within 12 months or such other time as agreed between the parties; 4. The exhibits are returned; and 5. No order as to costs.
3. The Court directs that the parties are to collect the exhibits from my Associate within 14 days of the making of these orders.

Amendments 31 October 2023 - Cover page - typographical error - amend Class 4 to Class 3 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: 31 October 2023