New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016

Court of Appeal (NSW)|2024-12-02|Before: Adamson JA, Stern JA, Preston CJ, Pepper J

Solicitors: Chalk & Behrendt Lawyers and Consultants (Appellant) Crown Solicitor's Office (Respondent) File Number(s): 2024/184167 Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 3 Citation: New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 ("Jannali") [2024] NSWLEC 41 Date of Decision: 23 April 2024 Before: Pepper J File Number(s): 2021/271970

[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.]

HEADNOTE [This headnote is not to be read as part of the judgment] In December 2016, the NSW Aboriginal Land Council (the Land Council) filed two land claims in respect of land located in Jannali (the claimed land). At the date of the claims, the claimed land was owned by the Department of Primary Industry - Crown Land and was occupied by the St George & Sutherland Community College Inc (the College) (which leased an adjacent lot) as part of a site which comprised three lots, including the claimed land. The College, which was privately owned, provided community education services at the site. In early 2016, prior to the filing of the land claims, the College offered to purchase the site, including the claimed land. In August that year, the Minister for Education was provided with a briefing note which recommended the sale. In October 2016 the Minister for Education signed the briefing note, accepting the recommendation that the claimed land be declared "surplus to educational requirements" and that it be sold to the College on the terms offered by the College. In May 2021 the land claims were refused by the Minister on the basis that the claimed land was not "claimable Crown lands" within the meaning of s 36 of the Aboriginal Land Rights Act 1983 (NSW) (the Act). The Land Council challenged that finding in the Land and Environment Court and Pepper J (the primary judge) found in favour of the Minister. Her Honour held that the claimed land was not claimable Crown lands on the basis of s 36(1)(c), because it was needed, or likely to be needed, for an essential public purpose, namely that of education, as evidenced by its sale to the College. The Land Council appealed from the primary judge's decision, alleging error in her Honour's application of s 36(1)(c) as follows: (1) error in failing to address a critical integer of the test in s 36(1)(c), being the existence of a decision of the executive government that the claimed land was needed for an essential public purpose; (2) error in finding the requirements of s 36(1)(c) were capable of being satisfied by the evidence of the proposed sale to the College; and (3) legal unreasonableness in finding that the claimed land did not constitute claimable Crown lands for the purposes of s 36(1)(c). The Court held (Adamson JA, Stern JA and Preston CJ of LEC agreeing), allowing the appeal: Ground 1: error in failing to find the executive government decided the claimed land was required for an essential public purpose (1) The primary judge correctly identified the principles which apply to s 36(1)(c) of the Act, including that the executive government is required to form a positive opinion that claimed land is needed for an essential public purpose: at [39], [47] (Adamson JA). Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 (2022) 110 NSWLR 535; [2022] NSWCA 275, applied. (2) However, her Honour's reasons did not disclose a finding that an actual decision was made or positive opinion formed that the claimed land was needed for the essential public purpose of education. Her Honour failed to ask and answer the correct question in deciding whether the Minister established the requirements of s 36(1)(c). This ground is made out: at [48]-[49] (Adamson JA). Ground 2: error in concluding s 36(1)(c) was satisfied by the sale of the claimed land to the College (3) The primary judge erroneously relied on evidence of the nature of the College's services, which did not bear on the executive government's opinion whether the claimed land was needed for an essential public purpose. The primary judge asked the wrong question and this ground is made out: at [51], [54]-[55] (Adamson JA). Ground 3: legal unreasonableness in concluding the claimed land was needed for an essential public purpose under s 36(1)(c) (4) The primary judge's conclusion that the claimed land was not claimable Crown lands within the meaning of s 36(1)(c) of the Act was legally unreasonable. The evidence (relevantly, the briefing note) merely indicates the land was to be sold because it was surplus to educational requirements and could be sold to the College (a private body). The Minister's decision was inconsistent with the claimed land being needed for an essential public purpose and is incapable of discharging the Minister's onus under s 36(7) of the Act: at [63]-[69]. Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council (2012) 193 LGERA 276; [2012] NSWCA 359; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2016] NSWCA 253, applied.

JUDGMENT

ADAMSON JA: The appellant, New South Wales Aboriginal Land Council (the Land Council), appeals against the decision of Pepper J (the primary judge) in the Land and Environment Court (the Court below) that Lot 3 in Deposited Plan 1001659 in Jannali (Lot 3, or the claimed land) does not constitute "claimable Crown lands" within the meaning of s 36 of the Aboriginal Land Rights Act 1983 (NSW) (the Act). The respondent to the appeal is the Minister Administering the Crown Land Management Act 2016 (NSW) (the Minister).
The grounds of appeal (omitting particulars) are: "1. The primary judge erred in law in accepting the Minister's claim that the claimed land was not 'claimable Crown lands' by reason of s 36(1)(c) of the [Act] without addressing a critical integer of the statutory test, namely the existence of a decision by the executive government of the day that the land was needed for the particular purpose. 2. The primary judge erred in law in concluding that the requirements of s 36(1)(c) of the [Act] were satisfied by reason of the purpose of the proposed sale of the claimed land to St George & Sutherland Community College Inc (SGSCC) being to enable it to continue to provide educational services. 3. The primary judge erred in law in concluding that the Minister had established that the claimed land was needed or likely to be needed for an essential public purpose pursuant to s 36(1)(c) of the ALR Act because that conclusion was not reasonably open on the evidence before the primary judge."
The proceedings before the primary judge were Class 3 proceedings: s 19(g2) of the Land and Environment Court Act 1979 (NSW). As such, an appeal to this Court lies against an order or decision on a question of law: s 57(1) of the Land and Environment Court Act.
The appeal turns on the application of s 36(1)(c) of the Act. Section 36(1) relevantly defines "claimable Crown lands" as: "… lands vested in Her Majesty that, when a claim is made for the lands under this Division - … (b) are not lawfully used or occupied, … (c) are not needed, nor likely to be needed, for an essential public purpose, and …"
The Land Council "may make a claim for land on its own behalf or on behalf of one or more Local Aboriginal Land Councils": s 36(2).
If the Minister is satisfied that all or part of the lands claimed are claimable Crown lands, the Minister must grant the claim, or part of the claim, by transferring to the claimant Land Council the whole or part of the lands claimed: s 36(5)(a).
If the Minister is satisfied that all or part of the lands claimed are not claimable Crown lands, the Minister must refuse the claim, or part of the claim: s 36(5)(b).
An Aboriginal Land Council may appeal to the Land and Environment Court against a refusal of a claim under s 36(5)(b), as occurred in the present case: s 36(6).
Section 36(7) provides: "The [Land and Environment 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 …"
Section 36(5A), which is relevant only if the Court, exercising the Minister's function, is not satisfied that all or part of the lands is claimable Crown lands, provides: "Where, under subsection (5), a Crown Lands Minister is not satisfied that the whole or part of the lands claimed is claimable Crown lands because the lands are needed, or likely to be needed, for an essential public purpose, but that the need for the lands for the public purpose would be met if the claim were to be granted in whole or in part subject to the imposition of a condition (whether by way of covenant or easement or in any other form) relating to the use of the lands, the Crown Lands Minister may, notwithstanding that subsection, where the condition is agreed to by the Aboriginal Land Council making the claim, grant the claim under that subsection subject to the imposition of the condition."

The use of the site as a public school

On 18 October 1935, Lot 3 was included within a dedication of lands for public purposes under the Crown Lands Consolidation Act 1913 (NSW) (the CLCA) and the Public Trusts Act 1897 (NSW) by notification in the New South Wales Government Gazette. The purpose nominated was for use as a public school. In January 1959, Jannali Girls High School opened at a location which comprised Lot 3 and two other lots, Lot 51 in DP 1034575 (Lot 51) and Lot 1238 in DP 824066 (Lot 1238) (together the site). Lots 51 and 1238 were owned by the Department of Education but Lot 3 was Crown land.
On 4 September 1964, "public school purposes" was declared to be a public purpose pursuant to s 233 of the CLCA. In December 1991, Jannali Girls High School closed.

The lease to the College

In April 1994, St George & Sutherland Community College Inc (the College) began providing adult and community education at the site. On 1 January 2011, the Minister for Education and Training granted a lease over Lot 51 to the College for a term of five years with an option to renew for a further five-year term (the lease). The lease specified the following permitted use: "(t)he conduct of adult and community education and child minding, car parking, administration and other activities incidental to the conduct of adult and community education". The lease expired on 31 December 2015 and was not renewed. The College remained in occupation of the site during the holding over period and became a monthly lessee of Lot 51.

The College's offer to purchase the site

In early 2016, the College offered to purchase the site from the Department of Education (in the mistaken belief that the Department of Education owned all three lots). On 8 April 2016, Kit Wong, Manager of Property and Asset Management at the Department of Education, wrote to Terry Higgins of the College, as follows: "As discussed in our phone call this morning, we are in the process of getting the appropriate approvals to document the agreed transaction of the property. There are 3 parcels of land involved and one of the parcels belong to Crown Lands where we will need to get their consent to the lease and sale. I'm not sure how long this will take but we won't be able to accept your down payment until the documents are finalised. …."
On 17 May 2016, Kristiaan Letsch, a public servant in Commercial Transactions at Property NSW, wrote to Thomas Delgatto, the Manager, Strategic Sales and Disposals, in the Department of Primary Industry and Crown Lands, in respect of Lot 3, as follows: "… Thanks for your time today. Below was the property that Hugh and I spoke to you about today. I know we has [sic] some early discussions regarding options in late April. Can you please advise the required process that Property NSW will need to undertake to vest into our name before we transfer to the purchaser and how long would the timeframe be? …."
On 18 May 2016, Mr Delgatto wrote to Ms Letsch and said: "For the purposes of securing this site for the continued operation of the school, it may be best served to leave the dedication noted on title in place and leave the site as Crown land for the time being. The dedication provides for continued use for purposes which in my understanding of the circumstances, support and align with the existing schools uses. …"
On 20 May 2016, Belinda Kelly, a Property Development Project Officer at the Department of Primary Industries, sent the following email to Mr Delgatto: "Hi Thomas A preliminary status investigation for Lot 3 DP1001659 and Lot 1248 DP824066 has determined that both parcels are Dedicated for Public School, Notified 18th October 1935 (copy of investigation attached). No Trust is in place, and no Crown Lands Tenure exists over the land. The land is not currently subject to Aboriginal Land Claim. As mentioned one option for consideration is that the Department of Education acquire the land under Section 125 of the Education Act 1990, or Section 125 of the Education Reform Act 1990, or Section 27 of the Technical & Further Education Commission Act 1990 - all in accordance with Section 29 of the Land Acquisition (Just Terms Compensation) Act 1991. Note the Dedication is revoked by act of acquisition (see Section 20 of the LAJTC Act 1991). Let me know if you require anything further." (Emphasis added.)

The Ministerial briefing note recommending the sale to the College

On 4 August 2016, the Executive Director of Asset Management in the Department of Education recommended to the Minister for Education, in a briefing note prepared for that purpose, that the site be sold to the College. The recommendation was endorsed by a Deputy Secretary of Corporate Services. On 11 October 2016, the Minister for Education accepted the recommendation and signed the briefing note.
Because of the importance placed by both parties on the briefing note, I propose to reproduce it in full. The briefing note said as follows: "Briefing for the Minister DGS16/517 Disposal of the former Jannali Girls High School site The former Jannali Girls High School site was identified on the Department's Asset Sales Program approved by Cabinet Standing Committee on Expenditure Review (ERC) on 16 August 2015. The Minister's approval is required for the site to be declared surplus to educational requirements and for the direct sale of the site to the St George and Sutherland Community College. Key Information The former Jannali Girls High School closed over 20 years ago. The site as outlined on the attached map (TAB A) comprises of: • Lot 3 DP 1001659 owned by DPI Crown Lands comprising 1,838m2 • Lot 51 DP 1034575 owned by the Department of Education, comprising 6,391 m2 • Lot 1238 DP 824066 owned by the Department of Education, comprising 5,664 m2 The site is leased to the St George and Sutherland Community College [the College], who have occupied the site since 1993. The current lease to the College expired on 31 December 2015 and the [College] is currently on a holdover basis. The [College] have approached the Department with an offer to purchase the site (TAB B). The offer is: • A sale price of $3.2 million with an 8 year settlement period. • The College will make a non-refundable deposit of $350,000 to the Department at the execution of the contract. • The College remains on the site with an 8 year lease with 1 year + 1 year options on the current rent of $79,822 per annum plus GST with no rent increases over the term. • At the end of Year 8 the College must settle the purchase of the entire site at the agreed price of $3.2 million plus GST. An independent market valuation of the site by PNSW indicates a current market value of $2million, based on the current lease arrangement. This indicates an increment in value of $1.2 million over the 8 years. If Ministerial approval is granted to dispose of the former Jannali Girls High School site to the [College], a disposal plan will be prepared for Property NSW (PNSW) to endorse in accordance with Premier's Memorandum M2012-20. Financial Implications The College will remain in occupation under a lease arrangement until the end of Year 8. The Department will prepare ·the new lease for the College and will complete the transfer of the property to the College at the agreed price of $3.2 million at the end of Year 8. A number of assets approved by the ERC have been sold above the original valuations. These additional funds will make up for the funds that will be deferred for the Jannali sale. Recommendation That the Minister declares the former Jannali Girls High School site surplus to educational requirements, approves of its disposal to the [College] and signs the attached letter to the Local Member. Rationale The former Jannali Girls High School which closed over 20 years ago, sits on 3 separate lots of land comprising: • Lot 3 DP 1001659 owned by DPI Crown Lands comprising 1,838m2 • Lot 51 DP 1034575 owned by the Department of Education, comprising 6,391 m2 • Lot 1238 DP 824066 owned by the Department of Education, comprising 5,664m2 The sites are zoned SP2 Special Uses (Educational Establishment) with dedication on title for educational uses, which precludes the site from any development which are not educational use. The site is leased to the [College], who have been in occupation since 1993. [The College] is a not-for-profit entity currently providing a range of community education and care for the community including people with disabilities. The buildings on the site are old and will require substantial ·capital investment for upgrade and refurbishment. Property NSW (PNSW) has commissioned an independent market valuation that indicates a current value of $2 million, based on the current lease provisions to [the College]. A commercial arrangement between the Department and [the College] has been negotiated for the sale of the property to [the College] at the end of 2024 for $3.2 million. This negotiated price exceeds the current independent market value and also takes into account the delayed settlement period. One of the lots [Lot 3] is owned by DPI Crown Lands and it will be recommended that this lot be vested to PNSW for management. PNSW will liaise with DPI Crown Lands regarding the vesting of Lot 3 to PNSW. The Department will prepare a new 8 year lease to [the College] based on the proposed terms. At the end of 2024, the Department will transfer the property to [the College] at the agreed price of $3.2 million with a proportion of the proceeds to be remitted to either DPI Crown Lands or PNSW for Lot 3."

The acceptance of the College's offer

On 30 November 2016, Robert Fraser of the Department of Education wrote a letter to Dennis Szabo, Executive Director Commercial Transactions at Property NSW, which said: "I refer to the recent discussions regarding the disposal of the former Jannali Girls High School site to St George & Sutherland Community College. The Minister has approved of the sale to the College on the following basis: 1. A sale price of $3.2 million with an 8 year settlement period. 2. The College will make a non-refundable deposit of $350,000 on execution of the Contract. 3. The College remains on the site with an 8 year lease with 1 year + 1 year options on the current rent of $79,822 per annum plus GST with no rent increases over the term. 4. At the end of Year 8, the College must settle the purchase of the entire site at the agreed price of $3.2 million plus GST. Could you arrange for the preparation of the appropriate documentation to implement the Minister's approval."
I understood it to be common ground that the dedication of the claimed land for the purposes of a public school would be revoked upon sale: s 3.42 of the Crown Land Management Act.

The Land Council's claims over Lot 3

On 15 December 2016, Aboriginal Land Claim 42455 (the first land claim) was lodged in respect of land including Lot 3.
On 19 December 2016, Aboriginal Land Claim 42491 (the second land claim) was lodged, also in respect of Lot 3.
As at the date of the claims, the claimed land was occupied by the College.

The refusal of the land claim on the ground that it was lawfully used and occupied

On 27 May 2021, a Department of Planning, Industry and Environment brief entitled "Partial determination of Aboriginal Land Claims 42455 and 42491" was approved by the Executive Director of Strategy and Policy, Crown Lands, under the delegation of the Minister for Planning and Public Spaces. The brief recommended that the Minister's delegate "[p]art refuse" the first and second land claims, "with the balance to remain undetermined", and that a letter be sent to the Land Council as follows: "Following the assessment of the Claims, I am satisfied that when the Claims were made the land was not claimable Crown land as it was lawfully used and occupied for public schooling purposes. The relevant land was part of the St George and Sutherland Community College."
A letter in those terms was sent to the Land Council in respect of the first and second land claims. The reason given for refusing the claims, that the land was lawfully used and occupied pursuant to s 36(1)(b) of the Act, was rejected by the primary judge ([121]-[122]). The Minister has not filed a notice of contention challenging that rejection.
However, at the hearing before the primary judge, the Minister also relied on s 36(1)(c) of the Act in support of its contention that Lot 3 was not claimable Crown lands. That criterion had not been relied on by the Minister in refusing the claims, the Departmental brief noting "this criterion has not been fully assessed". The primary judge accepted the Minister's argument and dismissed the Land Council's appeal on the basis of s 36(1)(c): namely, that the claimed land was needed for the essential public purpose of education so was not claimable Crown lands.

The evidence before the primary judge

The evidence adduced on behalf of the Minister in the Court below comprised, together with documentary evidence (including that referred to above), an affidavit by Bernadette Mills affirmed 18 February 2022, who was appointed as the Chief Executive Officer of the College on 9 July 2021. She deposed to the activities of the College on the site, which included providing education to those with disabilities.

The primary judge's reasons for decision

The primary judge said, at [62]: "Mills's evidence is central to the resolution of the claim. As a consequence, it merits close scrutiny. Prior to her appointment as the CEO of [the College] in 2021, she was the Manager of Vocational Education and Business of the College for approximately ten years."
In the following paragraphs, [63]-[80], the primary judge summarised the evidence of Ms Mills as to the activities of the College on the site and the services it provided to members of the public, including those with disabilities.
The primary judge concluded that "education" was an "essential public purpose" within the meaning of s 36(1)(c) of the Act ([130]) and that "the fact that the courses were offered by a private organisation did not in and of itself mean that the claimed land was not needed for the essential public purpose of education" ([137]). Her Honour continued at [142] that: "The [College] was, and continues to, provide educational services on behalf of the Government, including the Department of Education. The land was, as at the date of the claims, being sold because of its need for the public purpose of education."
The primary judge, in substance, accepted the Minister's submission that since, as at the date of the claims, the Department of Education's intention was to sell the claimed land (it being found surplus to the Department's own requirements), specifically to the College so that the College could continue using the site to deliver education to members of the public, the proper conclusion was that the claimed land was needed for the public purpose of education ([140]-[143]).
The primary judge continued: "144 The submission by the [Land Council] ignores the context in which the declaration of surplusage was made and the concomitant decision by the Department of Education to sell the entire site, including the claimed land, to the [College], and only the [College], so that the College could continue to operate in the manner that it had done so for many years. This was evident from the material before the Court from 16 August 2015 onwards up until the date of the claims. The Department had determined to sell the land on this narrow and exclusive basis. 145 This conclusion is consistent with the chronology set out earlier in the judgment. As early as 16 August 2015 (and if not by 8 April 2016) up until 30 November 2016 (and thereafter), the Jannali Girls High School site was identified as an asset to be sold by the Department of Education to the [College] and no other entity. There was no sale at large to the public, or even to other educational providers. The sale was for the sole purpose of enabling the [College] to continue providing the educational services that it did. No change of use was mooted. It was for this reason that, for example, on 15 May 2016, Property NSW wrote to the Department of Primary Industries - Crown Lands seeking advice on the process that it needed to undertake to vest the land into its name in order to transfer it to the [College]."
The primary judge said further, at [146]: "The post claim evidence is consistent with this intention, that is, the vesting and transfer by sale to the SGSCC of the claimed land for the essential public purpose of education. There is nothing in the reasoning in Moira Park [Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2016] NSWCA 253] or Gosford CA [Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 (2022) 110 NSWLR 535; [2022] NSWCA 275] that derogates from this finding."

Whether the grounds of appeal raise questions of law

Ms Graycar, who appeared for the Minister before the primary judge and with Dr Wong in this Court, submitted that the orders made by the primary judge were on questions of fact and were therefore not amenable to appeal, which lies to this Court only on a question of law: s 57(1) of the Land and Environment Court Act.
The relevant principles were expressed by Griffiths AJA (Meagher and Kirk JJA agreeing) in Kudrynski v Orange City Council [2024] NSWCA 33: "42 Unlike an appeal 'on a question of law', it is not enough for the purpose of s 57 to show error of law at large. Rather, appeals under s 57(1) are predicated on the existence of an order or a decision on a question of law. This necessarily requires close attention to be paid to the primary judge's reasoning in support of the impugned order or decision. 43 However, the 'decision' does not have to be explicit, as held by the High Court in Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32. An appeal was available if a decision on a question of law was 'necessarily implicit' in making the finding that was made (at [69] per Hayne, Heydon, Crennan and Kiefel JJ). … 50 Whether or not there is an appeal against an order or decision of the LEC on a question of law for the purposes of s 57 should be approached as a matter of substance and not merely form …"
Ground 1 alleges that the primary judge erred in failing to address a critical integer of the statutory test: whether the executive government of the day, having turned its mind to the issue, had decided that the claimed lands were needed or likely to be needed for an essential public purpose. This was to fail to ask the correct question. Ground 2 alleges that the primary judge erred in finding that the statutory test was capable of being satisfied by the evidence adduced as to the purpose of the proposed sale to the College. This was to ask the wrong question. Ground 3 alleges legal unreasonableness in the finding of the primary judge that the claimed land did not constitute claimable Crown lands for the purposes of s 36(1)(c) of the Act.
Grounds 1 and 2 allege, in substance, that the primary judge's decision was based on an erroneous construction and application of s 36(1)(c). Ground 3 alleges that the evidence adduced was not legally capable of discharging the onus cast on the Minister by s 36(7) that the lands were not claimable Crown lands within the meaning of s 36(1). In my view, each of the grounds alleges an error on a question of law in the primary judge's decision and falls within s 57(1) of the Land and Environment Court Act.

The relevant principles

In Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 (2022) 110 NSWLR 535; [2022] NSWCA 275 (Gosford), this Court (Preston CJ of LEC, Gleeson JA and Basten AJA agreeing) identified the principles which apply when a land claim is made on the basis of s 36(1)(c) of the Act as follows: 1. the need or likely need of the land to be used for an essential public purpose is to be determined at the date when the land claim was made: [65]; 2. the question of need is to be determined by reference to the view of the executive government of the State at the appropriate level as at the date of the land claim and, depending on the alleged need or likely need, may require the Minister to show that a decision of the executive government on that matter has been made prior to the date of the land claim: [66]-[67]; and 3. holding a view or deciding that land is needed for an essential public purpose involves the formation of a positive opinion to that effect, with the result that the Minister must show that the executive government has, prior to or as at the date of the land claim, turned its mind to the question and formed the opinion that land is needed for an essential public purpose: [68].
The primary judge set out these principles correctly in her Honour's reasons. However, the Land Council submitted that the primary judge's application of these principles was erroneous.

Ground 1: alleged failure to find that the executive government had decided by the date of the land claims that the claimed land was required for an essential public purpose

Mr Wright SC, who appeared with Mr Jones for the Land Council, submitted, in support of ground 1, that the primary judge was required to determine whether the executive government had positively decided that the claimed land was needed for an essential public purpose and that her Honour had failed to make any such determination. Mr Wright noted that no witness capable of giving evidence as to the views or decision of the executive government had been called by the Minister. He submitted that the only document capable of being understood as reflecting the views of the executive government was the briefing note signed by the Minister for Education on 11 October 2016 and the letter advising Property NSW of the decision to sell dated 30 November 2016.
He submitted that these documents were not only manifestly insufficient to discharge the onus of proof which lay on the Minister by reason of s 36(7) of the Act to prove that the claimed land did not fall within s 36(1)(c), but that they established the contrary proposition: that the claimed land was surplus to the requirements of the executive government because it was identified as such and because the sale to the College was, in substance, unconditional.
Ms Graycar reiterated the submission she made to the primary judge (which was accepted by her Honour) that the briefing note established that Lot 3 was not claimable Crown lands because, as at the date of the claim, it was required for the essential public purpose of education. She submitted that it followed from the circumstance that the claimed land was to be sold to the College and that the activities of the College were educational, that the purpose of the sale to the College was so that it could (and would) carry on its educational activities, which amounted to an essential public purpose within s 36(1)(c) of the Act.
Ms Graycar submitted orally, when asked whether there was any decision of the government at the time of the land claims that the claimed land was needed for an essential public purpose: "The decision is one that can be inferred from the fact that every time the sale was mentioned or every time the word 'surplus' was used it was coupled with the fact that it was to be transferred to the college for its purposes, which are education purposes."
Ms Graycar also submitted that: "… there was a consistent view all the way along that the need was for the school to be secured for the essential public purpose of education and that the way to do that was to sell it to the college. That is basically the case we put, yes, and that is how her Honour determined it."
As to [144] of the primary judge's reasons (a finding that the Department of Education had decided to sell Lot 3 on the "narrow and exclusive basis" that the College could continue to operate there), Ms Graycar submitted: "Then 144, and this is critical, this is actually the nub of the argument that my friend makes that the land was surplus. But the surplusage, and that's the word her Honour used, the submission ignores the context in which the declaration of surplusage was made, and the concomitant decision to sell the entire site to the college, and only the college, so it could continue to operate in the manner that it had done. This was evident from the material before the Court, the department had determined to sell the land on this narrow and exclusive basis."
As is evident from the primary judge's statement of the applicable principles derived from Gosford, her Honour can be taken to have appreciated the significance of the requirement that the Minister prove that the executive government had decided by the date of the claim that the claimed land was required for an essential public purpose.
However, her Honour's reasons did not disclose any of the following: 1. a finding that an "actual decision" had been made by the government that the claimed land was needed for an essential public purpose; 2. a finding that the government "held the view" that the claimed land was needed for an essential public purpose; or 3. an identification of: 1. a "positive opinion" held by the executive government that the land was needed for an essential public purpose; 2. the person or persons at the appropriate level within the executive government who were said to have made such a decision, or held such a view or opinion; or 3. the time at which such a decision, view or opinion had been made or formed, whether as at (or prior to) the date of the claims (as required) or otherwise.
The legal and evidentiary onus which lay on the Minister under s 36(7) of the Act could not be discharged without these findings having been made. The primary judge thereby failed to ask and answer the correct question in deciding whether the Minister had established the requirements of s 36(1)(c). For these reasons, ground 1, which constitutes an error of law, has been made out.

Ground 2: alleged error in concluding that the requirements of s 36(1)(c) of the Act were satisfied by reason of the purpose of the proposed sale being to enable the College to continue to provide educational services

Mr Wright submitted that the primary judge erred in concluding, on the basis that the objective purpose of the proposed sale of the claimed land to the College was to enable it to continue to provide educational services, that the land was not claimable within s 36(1)(c) of the Act. He submitted that the objective purpose was not determinative since the relevant matter for s 36(1)(c) purposes was whether the executive government had formed a positive opinion that the claimed land was needed for an essential public purpose. The primary judge thereby asked the wrong question.
Mr Wright submitted that the primary judge's erroneous approach was revealed by her Honour's reasons, including the observation in [62] (extracted above) that Ms Mills' evidence was "central to the resolution of the claim", and the recitation of the nature of the College and the educational services it provides in [140] and [141], in circumstances where, in his submission, her evidence could have no possible bearing on the view of the executive government as to whether the claimed land was needed or likely to be needed for an essential public purpose at the relevant time.
Ms Graycar submitted that the primary judge's finding that the claimed land was needed for an essential public purpose was a question of fact and therefore was not amenable to appeal to this Court. For the reasons given above, I reject this submission.
Ms Graycar submitted that the briefing note and letter (both of which were produced prior to the Land Council submitting its claims) were sufficient to establish that the claimed land was not claimable Crown lands within s 36(1)(c). She submitted that the present case was distinguishable from Gosford, in which it was found that the evidence did not establish that government officers responsible for administering a charitable disability support program had decided that the land was needed or likely to be needed for the program (which was accepted to be for an essential public purpose): Preston CJ of LEC at [61]. Ms Graycar submitted that while in Gosford there was no contemporaneous evidence of a decision by the executive government that the land was needed for an essential public purpose, in the present case the briefing note constituted such evidence and the task of finding a decision of the government ought be "undertaken by reference to what inferences can be drawn from the available evidence."
In light of the parties' submissions summarised above, it appears to have been common ground that the view of the executive government could be divined, if at all, from the briefing note, since it was signed by the relevant Minister (being the Minister for Education, as the only public purpose suggested was the purpose of education) at a time shortly before the filing of the land claims. This much may be accepted. None of the emails set out above, which were tendered in the Court below, are capable of establishing the view of the executive government at the relevant time for the purposes of s 36(1)(c) of the Act.
Ground 2 is, in substance, a converse way of putting the error alleged in ground 1. In having regard to the objective purpose of the College in providing the services on the site, instead of making the findings set out above (which were required having regard to the wording of s 36(1)(c) as interpreted by this Court), the primary judge misapprehended the effect of s 36(1)(c) and asked the wrong question. This was an error in a decision on a question of law. Ground 2 has been made out.

Ground 3: alleged legal unreasonableness in concluding that the Minister had established that the claimed land was needed or likely to be needed for an essential public purpose pursuant to s 36(1)(c) of the Act

An allegation of legal unreasonableness, in the present context, amounts to an allegation that the primary judge misunderstood either s 36(1)(c) of the Act or the evidence, or both, and that her Honour's conclusion that the Minister had established that the claimed land was needed for an essential public purpose lacked any rational basis: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [68], [76], [91], [105]. Such an allegation amounts to a claim that the primary judge's decision was erroneous on a question of law.
The following facts were agreed or found by the primary judge: 1. The claimed land was dedicated solely for "public school purposes": [8]. The Jannali Girls High School operated on the claimed land from January 1959, until its closure in December 1991: [11]. As at the date of the claims the College was not using the land for "public school purposes": [103]-[105], [111]. 2. There was no evidence that, at any time before 8 April 2016, anyone at the Department of Education or the Department of Primary Industries - Crown Lands was even aware that the College occupied the claimed land, much less turned their mind to the question of the College's occupation: [113]. 3. On 11 October 2016, on the recommendation of the Department of Education contained in an internal briefing note to the Minister for Education, the Minister for Education declared the site of the former Jannali Girls High School to be "surplus to educational requirements" and approved its sale to the College: [30], [131]. This approval was communicated to Property NSW by letter dated 30 November 2016: [32]. 4. As at the dates of the claims, the College's use of the site was unlawful because it was used for a purpose other than public school purposes, being the purpose for which it was dedicated: [111]. 5. As at the dates of the claims, persons within the Department of Education and the Department of Primary Industry and Crown Lands, were aware that the College occupied the claimed land and that the land needed to be vested in Property NSW so that it could be transferred to the College: [115].
Her Honour went on to conclude that the sale of Lot 3 to the College satisfied s 36(1)(c). That finding was incorrect and unsupported by the evidence, for the reasons that follow.
In substance, the primary judge's path of reasoning (in the sense used in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [48]) can be reduced to the following: 1. education is capable of amounting to an essential public purpose and therefore so too is community education, even if it is provided by a private entity on its own behalf; 2. the College was providing community education services on the site; 3. although the executive government did not, at the relevant time, itself need the claimed land for an essential public purpose of public education or consider that the claimed land was likely to be needed for that purpose, the fact that it was prepared to sell the land to the College which was using and intended to use the claimed land for the purpose of providing community education services indicated that it regarded the College's purpose as an essential public purpose; 4. thus, the College's purpose ought be accepted as proving that the executive government held the opinion at the relevant time that the claimed land was necessary for an essential public purpose.
Integers (3) and (4) are erroneous (and the correctness of (1) need not be addressed) and at odds with the evidence and none, taken together or in any combination, is capable of discharging the Minister's onus of proof under s 36(7) of the Act. The primary judge's acceptance of Ms Graycar's submission that the sale to the College compelled the conclusion that the government was only prepared to sell the claimed land to the College because it provided educational services and that it ought thus be inferred that the government needed the College to do so to fulfil an essential public purpose not only does not follow but also lacks any rational basis in the evidence.
Knowledge of the College's occupation (and its activities) and an intention to transfer the land to the College cannot rationally establish that the executive government had decided that the claimed land was needed for an essential public purpose. Indeed, the conditions of the transfer did not, as Ms Graycar accepted, contain any relevant limitation on the College's use of the site. The College, as purchaser, could have used the site (and therefore the claimed land) for any available private purpose, including sale to a third party (subject to the College's obligation to remain on the site which it included in its offer). I accept Mr Wright's submission that there is nothing in the evidence which indicates that the Minister's decision involved the imposition of any requirement, whether as a term of the lease or as a condition of the ultimate sale, that the claimed land be used in a particular way.
I understood Ms Graycar to accept the Land Council's submission that the intention of the executive government could not be proved by Ms Mills' evidence and that the briefing note was the best (and possibly only) evidence of the view of the executive government with respect to the claimed land.
The evidence goes no higher than to indicate that the reason the Department was prepared to sell the claimed land was that it was surplus to its educational requirements and that the College had made an offer which the Department regarded as providing value which was equivalent to the market value of the claimed land. No evidence was adduced by the Minister which was capable of proving that the executive government considered that the claimed land was necessary for the public purpose of community education. As such, the evidence was not capable of discharging the Minister's onus of proof under s 36(7) of the Act.
As this Court (Basten JA, Beazley, McColl and Macfarlan JJA agreeing) observed in Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council (2012) 193 LGERA 276; [2012] NSWCA 359 (Malabar) at [29]: "… Establishing a likely future need can avoid the difficulties which might arise in resisting a claim for land which has not been committed to an existing public purpose. Where land has been earmarked as surplus to government needs and is proposed to be sold, seeking to resist a claim based on future needs for any public purpose is likely to be implausible. However, the Minister's submission that it would be 'breathtaking' … if surplus Crown land could not be sold without rendering the land 'claimable Crown lands' appears to deny legal effect of s 36(1)(a) of the Act that, if otherwise claimable, Crown land which is not lawfully used or occupied, can be claimed: see Wagga Wagga Motor Registry Claim, [2007] NSWCA 281 at [24] (Mason P)."
While the passage from Malabar extracted above arose in the context of s 36(1)(a) of the Act, the reasoning also applies to s 36(1)(c). It is difficult to see how land which the Minister was advised could be sold because it was surplus to educational requirements could, at the same time, qualify as land which was needed, or likely to be needed, for an essential public purpose. The implausibility becomes even greater once it is appreciated that the conditions of sale imposed no restriction on the College's use of the land following the proposed sale (subject to the terms of the College's offer), with the result that the College would be at liberty to sell it.
In Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2016] NSWCA 253 (Moira Park), Leeming JA (Meagher JA agreeing), said of present relevance, at [98]: "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."
Ms Graycar sought to distinguish Moira Park from the present case on the basis that Moira Park concerned the residential lands exception in s 36(1)(b1) of the Act: being "lands which, in the opinion of a Crown Lands Minister, are needed or likely to be needed as residential lands". In Moira Park, the primary judge's conclusion that the Minister had not discharged the onus under s 36(7) of the Act in relation to s 36(1)(b1) was not amenable to challenge in this Court because it was held to be a factual matter. Leeming JA's reasons in [98] turn on the exception in s 36(1)(c). I do not consider that there is any proper basis to distinguish what his Honour said at [98] from the considerations which apply in the present case. The College's purposes were its own private purposes (although the provision of those services may have benefited those members of the public to whom the services were provided). The Minister's decision that the claimed land was surplus to educational requirements and could be sold to a private body (the College) for its own purposes is, in my view, inconsistent with a decision of the executive government that the claimed land was needed for an essential public purpose.
Further, the circumstance that, as the primary judge found (at [111]), the claimed land was used by the College for a purpose which was unlawful because it was not used in accordance with its dedication for "public school purposes" tells against the conclusion that the executive government had the view that the claimed land was needed for the essential public purpose for which the College was occupying and using the land: Gosford at [99]-[100].
The primary judge's conclusion that the claimed land was not claimable Crown lands within the meaning of s 36(1)(c) of the Act was legally unreasonable. The only available conclusion on the evidence was that the Minister has not discharged the onus of proof under s 36(7) of the Act that the claimed land did not constitute claimable Crown lands under s 36(1)(c). In these circumstances, there would be no utility in remitting the matter to the Court below under s 57(2)(a), there being only one conclusion rationally open on the evidence. Accordingly, this Court ought order, pursuant to s 57(2)(b) of the Land and Environment Court Act, that the Minister transfer the claimed land to the Land Council.

Further matter

Mr Wright submitted that, if the appeal were dismissed, the question whether s 36(5A) of the Act (set out above) applied, ought be remitted to the Court below. As I propose that the appeal be allowed, this question need not be addressed.

Proposed orders

For the reasons given above, I propose the following orders: 1. Allow the appeal. 2. Set aside the orders made by Pepper J on 23 April 2024. 3. Order the Minister Administering the Crown Land Management Act 2016 (NSW) to transfer to the New South Wales Aboriginal Land Council Lot 3 in Deposited Plan 1001659 within 90 days of the date of this order. 4. Order the respondent to pay the costs of the appellant of the proceedings in this Court and in the Land and Environment Court.
STERN JA: I agree with Adamson JA.
PRESTON CJ of LEC: I agree with Adamson JA.

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: 11 December 2024

Order the Minister Administering the Crown Land Management Act 2016(NSW)

Crown Lands Consolidation Act 1913(NSW)

Public Trusts Act 1897(NSW)

Minister Administering the Crown Land Management Act 2016(NSW)

(2022) 110 NSWLR 535

(2012) 193 LGERA 276

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