New South Wales Aboriginal Land Council v Minister Administering the Crown... [2026] NSWLEC 69 | Case summary | Zoe

NSWNSWLEC

New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act (“Leeton Courthouse claim”)

[2026] NSWLEC 69

Land and Environment Court (NSW)|2026-06-12|Before: Pritchard J

View on NSW CaselawOr email me a plain-English summary of this case

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2026-06-12

Before

Pritchard J

Catchwords

ABORIGINAL LAND RIGHTS – s 36(1) of Aboriginal Land Rights Act 1983 (NSW) – land used as a carpark adjacent to courthouse – whether land claimable Crown lands – whether land vested in Her Majesty – claimed land registered in the name of the State of New South Wales – relationship between s 42 of Real Property Act 1900 (NSW) and s 43 of Public Works Act 1912 (NSW) – whether claimed land lawfully used or occupied within the meaning of s 36(1)(b) of ALRA – whether rights to use or occupy claimed land conferred by Court Security Act 2005 (NSW) – meaning of “court premises” in s 4 of Court Security Act – right of State of New South Wales through employees or agents of the NSW Police Force and Department of Communities and Justice to use or occupy Crown land – whether employees or agents of the NSW Police Force or Department of Communities and Justice can use or occupy Crown land without authorisation of Minister administering the Crown Land Management Act 2016 – appeal upheld

Email me a plain-English summary of this case

Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.

General information, not legal advice.

Or create a free account to save it and ask Zoe follow-up questions.

Catchwords

ABORIGINAL LAND RIGHTS – s 36(1) of Aboriginal Land Rights Act 1983 (NSW) – land used as a carpark adjacent to courthouse – whether land claimable Crown lands – whether land vested in Her Majesty – claimed land registered in the name of the State of New South Wales – relationship between s 42 of Real Property Act 1900 (NSW) and s 43 of Public Works Act 1912 (NSW) – whether claimed land lawfully used or occupied within the meaning of s 36(1)(b) of ALRA – whether rights to use or occupy claimed land conferred by Court Security Act 2005 (NSW) – meaning of “court premises” in s 4 of Court Security Act – right of State of New South Wales through employees or agents of the NSW Police Force and Department of Communities and Justice to use or occupy Crown land – whether employees or agents of the NSW Police Force or Department of Communities and Justice can use or occupy Crown land without authorisation of Minister administering the Crown Land Management Act 2016 – appeal upheld

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act (“Leeton Courthouse claim”) [2026] NSWLEC 69

Hearing dates: 28 and 29 July 2025, further written submissions on 15 December 2025 and on 9 June 2026

Date of orders: 12 June 2026

Decision date: 12 June 2026

Jurisdiction: Class 3

Before: Pritchard J

Decision: See [207]

Catchwords: ABORIGINAL LAND RIGHTS – s 36(1) of Aboriginal Land Rights Act 1983 (NSW) – land used as a carpark adjacent to courthouse – whether land claimable Crown lands – whether land vested in Her Majesty – claimed land registered in the name of the State of New South Wales – relationship between s 42 of Real Property Act 1900 (NSW) and s 43 of Public Works Act 1912 (NSW) – whether claimed land lawfully used or occupied within the meaning of s 36(1)(b) of ALRA – whether rights to use or occupy claimed land conferred by Court Security Act 2005 (NSW) – meaning of “court premises” in s 4 of Court Security Act – right of State of New South Wales through employees or agents of the NSW Police Force and Department of Communities and Justice to use or occupy Crown land – whether employees or agents of the NSW Police Force or Department of Communities and Justice can use or occupy Crown land without authorisation of Minister administering the Crown Land Management Act 2016 – appeal upheld

Cases Cited: Anthony Hordern and Sons Limited v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9
Bankstown Airport Ltd v Noor Al Houda Islamic College Pty Ltd [2003] NSW Conv R 56-038; [2002] NSWSC 193
Birrigan Gargle Aboriginal Land Council v Minister Administering Crown Lands Act (1999) 102 LGERA 33; [1999] NSWLEC 12
Breskvar v Wall (1971) 126 CLR 376; [1971] HCA 70
Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (2013) 247 CLR 149; [2013] HCA 11
City of Canada Bay Council v F & D Bonaccorso Pty Ltd (2007) 71 NSWLR 42; [2007] NSWCA 351
Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1
Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54; [1959] HCA 63
CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64
Cudgen Rutile (No 2) Pty Ltd v Chalk (1974) 4 ALR 438
Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 (Doyalson) [2023] NSWLEC 134
Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Land Management Act (Mt Irvine Claim) (2024) 262 LGERA 244; [2024] NSWLEC 127
Fensom v Cootamundra Reserve Trust & Ors [2000] NSWSC 1072
Forrest & Forrest Pty Ltd v Wilson (2017) 262 CLR 510; [2017] HCA 30
Georgeski v Owners Corporation SP4983352 (2004) 62 NSWLR 534; [2004] NSWSC 1096
Hicks v Minister for Immigration and Multicultural Affairs [2003] FCA 757
La Perouse Aboriginal Land Council v Quarry St Pty Ltd (2025) 264 LGERA 44; [2025] HCA 32
La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) (2016) 220 LGERA 1; [2016] NSWLEC 137
Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812
Minister Administering the Crown Land Act v New South Wales Aboriginal Land Council (2009) 171 LGERA 56; [2009] NSWCA 352
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2014] NSWCA 69
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285; [2008] HCA 48
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Muli Muli Local Aboriginal Land Council v Minister Administering the Crown lands Act (2010) 176 LGERA 182; [2010] NSWLEC 172
New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act (Leeton Courthouse) [2025] NSWLEC 69
New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act (2014) 204 LGERA 205; [2014] NSWLEC 144
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2009) 166 LGERA 137; [2009] NSWLEC 46
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2014) 88 NSWLR 125; [2014] NSWCA 377
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Berrima) [2014] NSWLEC 188
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Boggabri) (2014) 202 LGERA 273; [2014] NSWLEC 58
New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act [2022] NSWLEC 130
New South Wales Aboriginal Land Council v Minister Administering the Crown Land Act (Jannali) [2024] NSWLEC 41
New South Wales v Bardolph (1934) 52 CLR 455; [1934] HCA 74
NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (2012) 186 LGERA 323; [2012] NSWLEC 1
NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 35
NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (2015) 215 LGERA 103; [2015] NSWCA 349
NSW Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 – Helensburgh Police Station [2020] NSWLEC 133
Pratten v Warringah Shire Council (1969) 17 LGRA 371
Quarry St Pty Ltd v Minister Administering the Crown Land Management Act 2016 (2024) 114 NSWLR 534; [2024] NSWCA 107
Russell v Russell (1976) 134 CLR 495; [1976] HCA 23
South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia (1939) 62 CLR 603; [1939] HCA 40
St Alder and Others v Waverley Local Council (2010) 172 LGERA 147; [2010] NSWCA 22
State of New South Wales v Scharer (2003) 131 LGERA 208; [2003] NSWCA 328
The Queen v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; [1956] HCA 10
Traderight Pty Ltd v Bank of Queensland [2010] NSWSC 139
Trieste Investments Pty Ltd v Watson (1963) 64 SR (NSW) 98; [1964] NSWR 1226
Watson’s Bay and South Shore Ferry Co v Whitfield (1919) 27 CLR 268; [1919] HCA 69
Wilson v Anderson (2002) 213 CLR 401; [2002] HCA 29
Worimi Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2022] NSWLEC 126

(b) the vehicular entrance point had a gate which Mr Paniz never observed to be closed or locked and which has since been removed. He always observed Lot 1 to be accessible and open for use by persons to park their vehicles, and said that “vehicles could be and were parked on Lot 1 at all times of the day and night and at any time of the year, including public holidays”; (c) Lot 1 was an “active carpark” as at the date of claim in that it was “actually used as a carpark and constituted part of the site of the Leeton Courthouse and the Leeton Police Station by provid[ing] for the Leeton Courthouse, for the Leeton Police Station and for members of the public generally”; (d) when sitting at the courthouse, he would park his car on Lot 1 and then walk to the side entrance of the courthouse indicated by the letter “C”; (e) the Registrar of the courthouse does not use the main entrance of the courthouse indicated by the letter “B”, but uses the side entrance which leads to the back entrance “to ensure the safety of the Registrar and because the front entrance cannot be unlocked from the outside”; (f) on every occasion he visited the courthouse, he observed vehicles parked on Lot 1, and there was no occasion he recalled when there was not at least one car parked on Lot 1; (g) during sitting days, other persons attending the courthouse such as court staff, magistrates, sheriff and corrective officers and members of the public would use Lot 1 to park their cars; (h) when prisoners were brought to the courthouse, it was common for police cars to be parked on Lot 1 and for the prisoners to be taken to the courthouse through Lot 1 using the side entrance; (i) between the bushes at letter “D” (this appears to have been incorrectly marked by Mr Paniz as letter “B”), there was a gap where people can walk directly from Lot 1 to the footpath of the courthouse; (j) people would park on Lot 1 and then walk through the bushes to the footpath and then into the main entrance of the courthouse; (k) he observed people parking their cars and leaving Lot 1 by walking through the vehicular entrance, or down the footpath through the gap in the bushes and across the road at the front of the courthouse on Church Street; (l) people would return to their vehicles via the vehicular entrance and via the footpath and gap between the bushes; (m) once or twice during his time at the courthouse, he asked the staff to contact the gardener to request that he trim or prune the bushes at letter “D”; and (n) as at the date of claim, a diagram similar to the evacuation diagrams reproduced below depicting Lot 1 as the evacuation point existed;

In relation to Issue 1, the Minister submitted that as Lot 1 was “vested in the Minister for Public Works”, it was not land “vested in the Crown” within the meaning of the Crown Lands Act 1989 (NSW). Whilst Lot 1 was originally Crown land, its resumption under the Public Works Act was published in the Gazette on 6 February 1925. By operation of s 42, Lot 1 was appropriated for the purposes of carrying out “authorised work”, being the erection of a courthouse at Leeton. Pursuant to s 43, the effect was to immediately vest in the Minister for Public Works an estate in fee simple in possession “freed and discharged from all trusts, obligations, estates, interests, contracts, charges, rates, rights-of-way, or other easements whatsoever with the intent that the legal estate was so vested”.
In reconciling the tensions between the competing provisions in ss 40(1A)(b), (2) and (3) of the Real Property Act [9] which the Minister accepted were “at the heart of the notion of indefeasibility of title” embodied in the Real Property Act, and ss 42 and 43 of the Public Works Act, the Minister submitted that the heading to Part 5A of the Real Property Act, [10] “Certification of title to resumed land”, which forms part of the Act, [11] suggests that what is done by the Registrar-General (“certifying”) merely “attests to” a transfer of title which depends for its legal force upon other statutory provisions. In Part 5A, the effect of s 31A and the definition of “resumption” and “resumption application” was, the Minister submitted, that a “resumption application” is an application “to cause to be registered as proprietor of land the person entitled to the land by virtue of a resumption or by virtue of any further vesting of resumed land by the operation of any Act”. In the case of land already under the provisions of the Real Property Act, the statutory duty imposed upon the Registrar-General by s 31A(3)(b) was to “make such recording in the Register as may be necessary to give effect to the resumption application”. The provision recognises that the relevant entitlement to land that is the subject of the “resumption application” is an entitlement that already exists by force of another statute. [12]
Accordingly, the Minister submitted, the Real Property Act operates on the basis that interests may be acquired under the provisions of other enactments authorising the compulsory acquisition or appropriation of land. While the transfer of title may come to be recognised or certified on the Register, those provisions of the Real Property Act recognise that transfer has already occurred by force of statutory provisions which operate independently of the Real Property Act, such as the Public Works Act. So much was submitted to have been accepted by Pepper J in Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [13] (Tomaree Head) at [111] to [115] in the context of the Just Terms Act.
The Minister also referred to Pepper J’s discussion in Tomaree Head of the doctrine of implied repeal where her Honour said in obiter (at [118]) that if the Just Terms Act and the Real Property Act could not be read in conformity with each other, then the Just Terms Act impliedly repealed the Real Property Act to the extent of any inconsistency, and s 20 of the Just Terms Act provided an exception to the indefeasibility provisions of the Real Property Act. Here, the Minister submitted, as in Tomaree Head, Parliament had in s 46 of the Public Works Act expressly dealt with the relationship between the two enactments, and it did so in a way that made plain that interests in land may be acquired by reason of the operation of the Public Works Act. The two enactments were submitted to operate harmoniously in that way. In any event, even if there were any inconsistency with the indefeasibility provisions of the Real Property Act, the later enacted Public Works Act impliedly repealed those provisions.
In relation to s 42(3) of the Real Property Act, the Minister submitted that as explained by Pepper J in Tomaree Head at [120] to [121], the sub-section was not engaged because there was no inconsistency with the Just Terms Act (the legislation pursuant to which the claimed land was acquired in that case). That was because s 42 of the Real Property Act did not require registration of the interest in the land acquired pursuant to the Just Terms Act for the interest to vest with the Minister for Family and Community Services. If that conclusion were wrong, the Minister submitted, by operation of the doctrine of implied repeal, s 42(3) of the Real Property Act did not apply.
The Minister submitted that this case was indistinguishable from Pratten v Warringah Shire Council [14] (Pratten), which concerned a council’s statutory title under s 398 of the Local Government Act 1919 (NSW) to a drainage reserve. Street J held that that statutory title prevailed over the title of the registered proprietor of the land on which the reserve was situated even though the registered proprietor had registered the transfer and obtained a certificate of title after the vesting in the council by operation of s 398. [15] Significantly, the Minister submitted, at no point did the Minister for Public Works here seek to avail themselves of s 14 of the Real Property (Amendment) Act 1921 (NSW) which Street J in Pratten considered to have the effect of “putting the fee simple back into the register”. Pratten has not been disapproved by subsequent authorities, and was submitted to cohere with observations made by the High Court in South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia [16] (South-Eastern Drainage Board). In particular, Justice Starke reasoned (at 622) as follows (emphasis added):

In relation to this passage, the Minister submitted that the contrast being drawn was with a “once and for all breach of a statute prohibiting a dealing with Real Property Act land”, s 45(1) of the Local Government Act 1993. That provision was engaged at the point of dealing. Once the dealing had occurred, the transaction was voidable up to the point of registration under the Real Property Act, but not beyond: Bonaccorso at [86], [88]. As Pepper J explained in Tomaree Head at [108], the effect of the Just Terms Act was ongoing. Likewise here, the Minister submitted, the effect of the Public Works Act was ongoing. Here, by way of “cumulative application” of ss 42 to 43 and 133 and 137 of the Public Works Act, once land was appropriated by the Minister for Public Works, such land was to remain with the Minister unless disposed of under the Minister’s various powers; for example, s 31A of the Real Property Act which might otherwise have had the effect of “putting the fee simple back into the register, whereafter registered dealings would have their normal effect and significance in accordance with the provisions of the Real Property Act”.
In relation to the effect on Lot 1 of the folio conversion on 26 May 2010 which resulted in the creation of Folio 1/42/758606 in the name of the State of New South Wales, the Minister anticipated that the applicant would rely upon decisions suggesting that in those circumstances, the registered interest prevails: La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [18] (Matraville); New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act [19] (Moonbi); and Birrigan Gargle Aboriginal Land Council v Minister Administering Crown Lands Act [20] (Birrigan Gargle). The Minister accepted that the effect of a subsequent registration on the certificate of title was not an issue in Tomaree Head, but was in Matraville, Moonbi and Birrigan Gargle. However, the Minister submitted that in Birrigan Gargle, Moonbi and Matraville, the issues in Pratten, South-Eastern Drainage Board and Bonaccorso were not closely considered.
The Minister submitted that the conclusions in those decisions were now “very much open to question” in light of the arguments put and accepted by Pepper J in Tomaree Head. Those arguments were not put in Moonbi, Birrigan Gargle or Matraville. For that reason, the “Moonbi line of authority” did not govern the outcome of this case. [21] Alternatively, that line of authority was plainly wrong and should be departed from.

The applicant submitted that the recording of the State of New South Wales as the registered proprietor, many decades after the resumption under the Public Works Act, was determinative of the question as to whether the land was vested in Her Majesty at the date of claim. The applicant relied in particular on s 40(1A)(b)(iii) of the Real Property Act, as well as ss 40(2), 42 and 43(3), and submitted that as at the date of claim, Lot 1 was vested in Her Majesty because the State of New South Wales was recorded in a folio on the Register of land titles as the registered proprietor. It was not, and by operation of ss 40 and 42 Real Property Act could not be, vested in anyone else, referring to Breskvar v Wall [22] at 385 to 386 (Barwick CJ) and Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [23] at [20] (Hayne, Crennan, Kiefel and Bell JJ) and [53] (Gageler J).
The Minister’s contention that the recording of the State of New South Wales as the registered proprietor of the land under the Real Property Act was not determinative required them to establish two propositions: first, that the recording of the State of New South Wales as registered proprietor pursuant to the Real Property Act was “incorrect”; secondly, that the vesting of the land in the Minister for Public Works under the Public Works Act (in 1925) “takes precedence” over later registration under the Real Property Act (in 2010).
As to whether the recording of the State of New South Wales as registered proprietor was “incorrect”, the applicant submitted that the Minister’s case assumed that since 1925, the land had always been treated by the State as land owned by the Minister for Public Works, and that the registration of the land in the name of the State of New South Wales in 2010 was “some sort of error”. The Court can properly presume, the applicant submitted, that absent evidence to the contrary, public powers (such as those of the Registrar-General under the Real Property Act) have been exercised validly and lawfully: Minister for Natural Resources v New South Wales Aboriginal Land Council [24] at 164 (McHugh JA). That was particularly so where, as here, Crown Lands Newcastle “proactively advised” the Land Registry that a notification be added to the title to the effect that the land was a current Crown reserve. The Minister had not led any evidence from Crown Lands Newcastle suggesting that they had acted “in error”.
Further, there were various ways in which the Crown may have acquired an interest in the land between 1925 and 2010. By the time the land was registered in the name of the State of New South Wales in 2010, 85 years after the resumption, the Department of Public Works had been abolished by proclamation published on 5 April 1995. [25] The office of the Minister for Public Works had also been abolished by proclamation published on 2 April 2003. [26] As the Minister accepted, the Minister for Public Works had “wide powers” to dispose of land pursuant to s 133 of the Public Works Act. This was in addition to the Minister’s powers under s 98 of the Public Works Act. Moreover, prior to the registration of the land in the name of the State of New South Wales in 2010, the land had not been brought under the provisions of the Real Property Act. As such, the applicant submitted, it was “conceivable” that a legal or equitable interest was acquired by the Crown in the land at some point after 1925 and prior to 2010. Whether or not this occurred was “simply unknown”. As a result, there was no evidence to substantiate the Minister’s assertion that the recording of the registered proprietor of the land as the State of New South Wales was “some sort of mistake”.
By contrast, in Moonbi the Minister led evidence from the Manager of the Titling Conversion Project, a 40 year employee of Land and Property Information, to explain a purported error in registering the land in the name of the “State of New South Wales”. Similarly, in Matraville, there was extensive affidavit evidence, including from the Registrar General of New South Wales at that time. In Moonbi, Justice Craig (at [33] and 59]) placed no weight on speculation about an alleged error by a witness from the Department. In Matraville (at [108] to [109]), Justice Sheahan adopted the same approach. Further, both Moonbi and Matraville demonstrate that there may be inter-agency agreements in relation to dealings with land. [27] Matraville (at [57] to [64]) highlights that dealings can be authorised by “long standing inter-departmental arrangements”.
In relation to whether the vesting of the land in the Minister for Public Works under the Public Works Act (in 1925) “takes precedence” over later registration under the Real Property Act (in 2010), the applicant submitted that the issue was whether the title created by ss 43 and 44 of the Public Works Act had paramountcy over the indefeasibility of title created by the registration in 2010 of the State of New South Wales as the proprietor of the land under the Real Property Act. As the Minister acknowledged, to find that it did would require the Court to find that three prior decisions of the Court were either not binding or incorrectly decided. The applicant submitted that each of Birrigan Gargle (which was cited with approval in Bankstown Airport Ltd v Noor Al Houda Islamic College Pty Ltd [28] ), Moonbi, and Matraville dealt with circumstances where subsequent to a statutory vesting, a dealing occurred under the Real Property Act to register title in the name of the State of New South Wales. In each case, the Court held that the dealing was effective and that the recording of the registered proprietor under the Real Property Act was conclusive of the question of in whom the land was vested.
In relation to the Minister’s reliance on Tomaree Head, the applicant submitted that the facts in that case were distinguishable from those in Birrigan Gargle, Moonbi, Matraville and the present case where, as acknowledged by the Minister, the effect of a subsequent registration of an estate in the land under the Real Property Act was not an issue. As a result, the reasoning of Pepper J in Tomaree Head in relation to s 31A of the Real Property Act had no application to the present case and, in any event, s 31A of the Real Property Act was not enacted until 1970 and so could have no bearing on the proper construction of the Public Works Act or the effect of the acquisition under that Act in 1925. The reasoning of Pepper J in relation to the implied repeal of the Real Property Act by the Just Terms Act did not apply to any subsequent recording in the Register following the resumption of land by the Minister for Public Works.
In relation to the Minister’s reliance on Pratten, the applicant submitted that there was no analogy to be drawn between the operation of the provisions of the Local Government Act that were in issue in Pratten, and the provisions of the Public Works Act that are relevant in the present case. In relation to the Minister’s reliance on South-Eastern Drainage Board, the applicant noted that in that case, the statutory charges in issue were “unregistrable”: Tomaree Head at [106]. As a result, those charges were inconsistent with and prevailed over the terms of the Real Property Act 1886 (SA). [29]
The applicant further submitted that Pratten and South-Eastern Drainage Board were concerned with an “ongoing vesting” as a result of the “ongoing effect of a statute”, whereas a vesting under the Public Works Act was a “one-off disposal”, the distinction between a “one-off” vesting and an “ongoing” vesting having been noted in Bonaccorso at [52] (Young CJ in Eq, Mason P and Tobias JA). In any event, any application to the reasoning in Pratten or South-Eastern Drainage Board might have had to the present case was superseded by the introduction of s 42(3) of the Real Property Act by the Real Property Amendment Act 2009.
Finally, the applicant submitted, the approach of Pepper J to s 42(3) in Tomaree Head did not have the result that the approach of Craig J in Moonbi is “now very much open to question”, as the facts in Tomaree Head which led Pepper J to say that s 42(3) had no application in that case were distinguishable from the facts in the present case. The correct outcome in the present case was governed by the reasoning in Birrigan Gargle, Moonbi and Matraville. The decisions were not plainly wrong and should be followed as a matter of judicial comity. [30]

In reply, the Minister submitted that the claimed land was vested in the Minister for Public Works as a matter of law, and any inquiry as to whether the recording in the Register was “incorrect” or the result of a “mistake” was unnecessary. Unlike the Minister’s case in Moonbi and Matraville, the correctness of the Register was “simply beside the point” because “the only way the land can enter the universe of the RPA is if the Minister avails herself or himself of a provision akin to the provision considered in Pratten (most obviously s 31A of the RPA)”. There was nothing in the evidence that would suggest that the Public Works Minister ever sought to engage such a procedure.
The Minister submitted that the fact that s 31A of the Real Property Act was enacted after the Public Works Act did not detract from the analysis for the following reasons. First, the Public Works Act itself recognised the potential interaction between its vesting provisions and the operation of the Real Property Act (ss 45 and 46), albeit that they only applied to “resumed” private land and not to “appropriated” Crown land. Secondly, s 31A was inserted into the Real Property Act in 1932 by the Conveyancing (Amendment) Act 1932 (NSW). As enacted, that legislation referred to “the compulsory acquisition of land for an estate in fee simple under the provisions of the Public Works Act, 1912, or any other Act authorising the compulsory acquisition of land….”. It also provided that the provision applied to land “resumed before or after the commencement of the [amending Act]”: s 31A(6). Thirdly, and accordingly, s 31A of the Real Property Act “more fully addressed the mischief sought to be addressed by ss 45 and 46 of the Public Works Act, including in respect of appropriated Crown land”. That continued to be the position as at the dates the entries were made in the Register and as at the date of claim. Fourthly, the Real Property Act “plainly recognised” that an “acquiring authority already holds an interest in land anterior to any question concerning the effect of registration” (Tomaree Head at [116]) and also confirmed “the legislative design that the provisions are to be read and applied harmoniously”.
The Minister accepted that until 1980 there was no facility for Crown land to be brought under the Torrens system. The more relevant point, however, was that s 13 of the Real Property Act, as enacted, brought within its ambit “lands unalienated from the Crown ‘when alienated in fee’”. [31] This was submitted to be the position of the claimed land after the notice was published in the Gazette on 6 February 1925. There was potential for inconsistency between the operation of the Real Property Act and the Public Works Act from that point in time which was addressed comprehensively in s 31A of the Real Property Act.
In relation to the applicant’s submissions on implied repeal, the question for the Court concerns the possible inconsistency between statutory provisions in different enactments: Tomaree Head at [101]. Such inconsistency was submitted necessarily to arise on the applicant’s proposed construction. On that construction, the Real Property Act is to be read as denying the “very thing” the Public Works Act provides for; that is, the vesting, on an ongoing basis, of the land in the Public Works Minister or that Minister’s successors. The cumulative effect of ss 42 to 43 and 133 and 137 of the Public Works Act was that once land was appropriated by the Minister for Public Works, that land was to remain with the Minister (unless disposed of under the Minister’s various powers). That created “an absolute and indefeasible priority” over all other interests, including those conferred or created under the Real Property Act. The provisions could not stand together unless the Real Property Act accommodates the interests vested by other enactments in the way contended for by the Minister. To the extent it did not, the Public Works Act impliedly repealed those (earlier enacted) provisions of the Real Property Act. That position could not be altered by s 42(3) of the Real Property Act for the reasons given by Pepper J in Tomaree Head at [120] and [121].
The Minister submitted that the reasoning in Tomaree Head was applicable to this case, the decision dealing with the effect of a like provision, s 20(1) of the Just Terms Act, in the absence of any registered dealing giving effect to that statutory vesting under the Real Property Act. In particular, the decision confirmed that s 31A “contemplates and seeks to accommodate the conferral of an entitlement to land created by another statute” (at [117]), here s 43 of the Public Works Act; and to the extent of any inconsistency, a statute conferring such an entitlement “provides an exception to the indefeasibility provisions of the RPA”. The Real Property Act was therefore impliedly repealed to the extent of such inconsistency (at [118]). Her Honour’s reasoning in Tomaree Head at [134] was submitted also to cohere with Pratten to the effect that “unregistered resumptions take precedence over later registered interests”. “More importantly”, the decision in Pratten was submitted to be “directly analogous”.
As to South-Eastern Drainage Board, the fact that the charges were “unregistrable” was not determinative of the reasoning in that case: Starke J at 622, and Dixon J at 627 to 628. In the view of Starke J, the determinative factor was that “[t]he charges [did] not depend upon registration nor upon the execution or entry of any instrument”, and they were “complete and effective by reason of the provisions of the Acts creating them”. The same could be said here, the Minister submitted, of the interest of the constructing authority which was vested under s 43 of the Public Works Act.
As to Bonaccorso, the Minister submitted that the decision had nothing to say about “one-off vesting” or “ongoing vesting”. It concerned a “once and for all breach of a statute prohibiting a dealing with Real Property Act land” (at [52]) which had the effect of rendering a dealing voidable up until the point of registration (at [86], [88]). In contrast, the present case was submitted to concern the effect of a vesting provision, s 43 of the Public Works Act, and whether a subsequent registration under the Real Property Act had any effect on that earlier vesting. Again, the ongoing effect of ss 42 to 43, 133 and 137 of the Public Works Act, whether by reason of being read harmoniously with the indefeasibility provisions of the Real Property Act or through implied repeal, meant that the land continued to be vested in the Minister for Public Works, unless disposed of under the Minister’s various powers.

In relation to whether Lot 1 was “lands vested in Her Majesty”, the starting point is that as at the date of claim, the State of New South Wales was recorded as the registered proprietor of the land under the Real Property Act. Dealing CA154539, a conversion action, which was registered on 26 May 2010 resulted in the creation of Folio 1/42/758606 in the name of the State of New South Wales.
On 13 September 2012, Dealing AH 236637 was registered on the title for Lot 1, adding to the second schedule of the title for Lot 1 a notation that “The land is a reserve within the meaning of Part 5 of the Crown Lands Act 1989”, and a further notation “To add a notification that the subject land is a current Crown Reserve on advice from Crown Lands Newcastle”. On 13 May 2009, s 42(3) of the Real Property Act was inserted by the Real Property Amendment Act 2009*.* Section 42(3) provides that s 42 of the Real Property Act “prevails over any inconsistent provision of any other Act or law unless the inconsistent provision expressly provides that it is to have effect despite anything contained in this section”. Section 42(1) provides for the paramountcy of the estate of the registered proprietor “[n]otwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority”. Schedule 3 to the Real Property Amendment Act 2009 specified 23 other Acts which were amended by the insertion of the words “[t]he provisions of this [clause/section/Schedule] have effect despite anything contained in section 42 of the Real Property Act 1900”. As in Moonbi, the enumerated Acts did not include the Public Works Act.
It next arises to consider the effect of the earlier resumption of the claimed land by notification on 6 February 1925 under the Public Works Act 1912. The Minister placed particular reliance on the decision of Street J in Pratten which was submitted to be “indistinguishable” from the present case. In Tomaree Head, Pepper J raised the question at [134] of whether Birrigan Gargle, Moonbi and Matraville were in conflict with Pratten, but noted that the issue did not arise on the facts of Tomaree Head. I accept, as submitted by the applicant, that the reasoning in Pratten does not apply to the present case. In Pratten, Street J held at 379:

Thus, in Pratten, Street J held (at 379) that s 398 of the Local Government Act had the effect of overriding the provisions of the Real Property Act, regardless of the fact that the land was then registered under the Real Property Act in the name of another party. However, as submitted by the applicant, the original registered proprietor did not have the fee simple in the land and was not “able by transfer to call back, so to speak, the fee simple and vest it in a transferee” (at 379), and the statutory vesting in the Council meant that “the fee simple had, by overriding statute, been in effect removed from the registration system” (at 379). Further, the Registrar-General similarly could not “trench in any way upon the council’s fee simple”. That reasoning does not apply to the present case. As submitted by the applicant, the Public Works Act did not need to, and did not, override any provision of the Real Property Act. In 1912, Crown land was not under the Real Property Act, and the Public Works Act did not need to address the effects of an appropriation of Crown land in the context of the Real Property Act. In relation to privately held land, the Public Works Act in s 46 “expressly contemplated” that this land would be dealt with in accordance with the Real Property Act. It was not contemplated that an acquisition under the Public Works Act would override any provision of the Real Property Act. The land, once acquired, could be sold and, assuming that the land was not already under the Real Property Act, could be brought under the Real Property Act “in the usual way”. If the Minister was to exercise the powers of sale in s 133 of the Public Works Act to effect a transfer to another person, then the land would need to be brought under the Real Property Act.
Further, unlike the situation in South-Eastern Drainage Board, the interest of the Minister for Public Works in the present case was one capable of registration and there were procedures available to enable it to be registered. [32] A vesting under the Public Works Act was a “one-off disposal” which purported to vest the title once and for all in a single act. Again, as submitted by the applicant, were it otherwise, any of the subsequent dealings which were anticipated by the Public Works Act or which might otherwise be authorised would be of no effect because the land would always remain vested in the Minister. The distinction between “one-off” vesting and an ongoing vesting was noted in Bonaccorso (Young CJ in Eq, Mason P and Tobias JA) at [52]. The “one-off” vesting in this matter was in contrast to South-Eastern Drainage Board and Pratten in which, as the Court of Appeal noted in Bonaccorso at [52], there was an ongoing effect of a statute.
As submitted by the applicant, the Public Works Act did not need to, and did not, override any provision of the Real Property Act. As Pepper J said in Tomaree Head at [102], there is a strong presumption that the legislature intended both Acts to operate, as a consequence of which a construction that permits the provisions to be read harmoniously or with separate spheres of concurrent operation is to be preferred. In the present case, the second reading speech for the Real Property and Conveyancing Legislation Amendment Bill 2009 (NSW) explained the purpose of s 42(3) as follows (emphasis added): [33]

In relation to the contentions advanced by the Minister as to why Birrigan Gargle, Moonbi and Matraville were not binding or were incorrectly decided, I find as submitted by the applicant that in Tomaree Head, in contrast to Birrigan Gargle, Moonbi and Matraville, the effect of a subsequent registration on the certificate of title was not an issue. In Tomaree Head, the claimed land had been acquired under the Community Welfare Act 1987 (NSW) prior to the date of claim, but the Register had not been updated to record the Minister administering the Community Welfare Act as the registered proprietor. There was no subsequent act under the Real Property Act that was said to have effect following the acquisition under the Community Welfare Act.
In Tomaree Head, Pepper J held that the terms of the Just Terms Act by force of which the claimed land was vested the land in the Minister with immediate effect operated consistently with the indefeasibility of title provisions of the Real Property Act because of the operation of s 31A of that Act. Pepper J (at [114]) reasoned that, having regard to its text and context, s 31A recognises and accommodates the fact that interests in land may be acquired by reason of the operation of other enactments, such as the Just Terms Act that authorises the compulsory acquisition of land. The process of formally recording or certifying the title on the Register was separate to the transfer of that title which may have already occurred by force of an independently operating statutory provision. The “express and unambiguous” language of s 20(1) of the Just Terms Act and the text and context of s 31A of the Real Property Act contemplated and sought to accommodate conferral of an entitlement to land created by another statute (at [117]).
Here, however, I find, as submitted by the applicant, that her Honour’s reasoning in Tomaree Head has no application to the present case. It was not in dispute that the Gazette notification in 1925 had the effect of vesting the fee simple in the claimed land in the Minister for Public Works. The question that arises in the present case and which did not arise in Tomaree Head [34] concerns the effect of the subsequent registration of an estate in the land under the Real Property Act. In the present case, the Register was updated in 2010 to record the “State of New South Wales” and not the Minister for Public Works as the registered proprietor. Section 31A of the Real Property Act was not enacted until 1970 by the Real Property (Amendment) Act 1970 (NSW) which commenced on 1 July 1970, and does not bear on the proper construction of the Public Works Act or the effect of the resumption in 1925.
The Minister needed therefore to establish that the Public Works Act operated to impliedly repeal and thus deny the effect of s 42 of the Real Property Act in relation to any subsequent recording in the Register following the resumption of the land by the Minister for Public Works. The reasoning of Pepper J in Tomaree Head does not assist the Minister in this regard. In Tomaree Head, Pepper J held that the application of s 42 would have rendered s 20(1) of the Just Terms Act “all but otiose” ([116]). In the present case, the resumption under the Public Works Act had effect until 2010 upon the folio conversion.
In relation to inconsistency, s 42(3) of the Real Property Act provides that the section prevails over any inconsistent provision of any other Act or law unless the inconsistent provision expressly provides that it is to have effect despite anything contained in the section. By s 42(3), Parliament specified the circumstances in which a statutory vesting pursuant to other legislation will prevail over s 42 and the principle of indefeasibility of title upon registration. Section 42(3) was enacted subsequent to the enactment of s 43 of the Public Works Act. In accordance with orthodox principles of statutory construction, it overrides any inconsistent provision of the Public Works Act which was not subject to amendment following the enactment of s 42(3) of the Real Property Act. It follows that s 43 of the Public Works Act cannot have been intended to override s 42 of the Real Property Act. The Public Works Act was not one of the 23 other Acts which were amended to ensure that they have effect despite anything contained in s 42 of the Real Property Act, and which are set out in Schedule 3 to the Real Property Amendment Act 2009.
Finally, I do not accept the Minister’s contention that the approach of Pepper J in Tomaree Head to s 42(3) of the Real Property Act has the result that the approach of Craig J in Moonbi is “now very much open to question”. Tomaree Head is clearly distinguishable from the facts here and those in Birrigan Gargle, Moonbi and Matraville. In Tomaree Head, Pepper J at [120] to [123] said that s 42(3) of the Real Property Act had no application to the facts in that case for three reasons.
The first reason stated by Pepper J was that s 42(3) was not engaged because there was no inconsistency between the two provisions there under consideration, s 42(3) of the Real Property Act and s 20(1) of the Just Terms Act. Here, I find that there is an inconsistency between s 42(3) of the Real Property Act and the provisions of the Public Works Act, cumulatively ss 42, 43, 133 and 137. In Tomaree Head, Pepper J held at [116] that s 42(1) of the Real Property Act must be interpreted in a way that avoids conflict with the Just Terms Act, especially s 20(1) of the Just Terms Act in relation to the effect of an acquisition notice. Her Honour said:

However, the construction of s 42 of the Real Property Act with which her Honour was concerned in Tomaree Head was not one which concerned a provision of an Act which had not been enacted prior to the alleged vesting under another Act. Here, there is an inconsistency between s 42(3) of the Real Property Act and the provisions of the Public Works Act, cumulatively ss 42, 43, 133 and 137, in relation to the proprietor of the claimed land.
The second reason stated by Pepper J was that s 42(3) of the Real Property Act was impliedly repealed by the Just Terms Act. Here, however, I find that the Public Works Act did not have any similar effect. That is because in Tomaree Head, when the land was vested in the Minister in 2006 by operation of s 20(1)(a) and (b) of the Just Terms Act, s 42(3) of the Real Property Act had not been enacted. Here, s 42(3) had been enacted and commenced on 13 May 2010, prior to the conversion action on 26 May 2010.
The third reason stated by Pepper J was that in Tomaree Head, when the land was vested in the Minister in 2006 under the Just Terms Act, s 42(3) of the Real Property Act did not exist. That is not so in the present case. Here, the notification of the resumption of the claimed land under the Public Works Act was published in the Gazette on 6 February 1925, prior to the date of claim. However, s 42(3) of the Real Property Act commenced on 13 May 2010 and the subsequent conversion action on 26 May 2010, Dealing CA154539, resulted in the creation of Folio 1/42/758606 in the name of the State of New South Wales, and the recording of the State of New South Wales as registered proprietor of the claimed land. Section 42(3) had been enacted prior to the registration of the land in the name of the State of New South Wales in 2010.
For these reasons, I find that the facts of Tomaree Head are readily distinguishable from those of this case, and I do not accept the Minister’s submission that s 42(3) of the Real Property Act has no application to the facts of this case. The correct approach in the present case is governed by the reasoning in Birrigan Gargle, Moonbi and Matraville. Those decisions were not plainly wrong, and should be followed as a matter of judicial comity. [35] The decision of Craig J in Moonbi, in particular, is plainly correct, and the facts in that case relevantly identical to those here.
For the foregoing reasons, I find that as at 26 August 2020, the date of claim, Lot 1 was lands vested in Her Majesty within the meaning of s 36(1) of the ALRA.

Jagot J, likewise in the majority, said at [214] that lands are “used” within the meaning of s 36(1) “only if, at that time, there is an actual use in fact of the physical mass or tract of ground the subject of the claim in the sense described above (that is, the land as a physical mass or tract of ground must be presently, and not in a mere future or contingent sense, physically deployed for a purpose, whether that present physical deployment be active or passive, to more than merely a notional degree)”. Her Honour said at [250] that “it has long been conventional that the correct approach to ‘use’ does not require any physical activity on the land because the fact of ‘use’ depends on the purpose of the use”.
Whether Crown land is lawfully used or occupied is to be assessed having regard to the statutory scheme for the management of Crown land. The need for strict compliance with Crown lands legislation has been frequently emphasised. [41] As at the date of claim, the Crown Land Management Act provided the statutory scheme for the management of Crown land. Section 1.15 provided that Crown land must not “be occupied, used, sold, leased, licensed, dedicated, reserved or dealt with in any other way unless it is authorised by this Act”. Section 1.15 was relevantly identical to s 6 of the Crown Lands Act 1989. A similar, although not identical, provision was contained in s 6 of the predecessor to the Crown Lands Act 1989, the Crown Lands Consolidation Act 1913. The reference to “used or occupied” in s 36(1)(b) of the ALRA has been held to have the same meaning as the reference to use or occupation in s 6 of the Crown Lands Act 1989, and as in s 1.15 of the Crown Land Management Act. [42]
In Fensom v Cootamundra Reserve Trust & Ors [43] (Fensom), Bryson J said (at [5]) that s 6 of the Crown Lands Consolidation Act 1913 “should be regarded as a constitutional principle for New South Wales”. In State of New South Wales v Scharer, [44] the Court of Appeal described s 6 as a “prohibition” on the dealing with Crown lands other than in accordance with the Crown Lands Consolidation Act 1913. Tobias JA (Sheller and Ipp JJA agreeing) said at [59] to [60] that:

The Minister submitted that there could be little doubt that the land was used or occupied, and that the primary dispute concerned the “lawfulness” of that use or occupation. To the extent that it was disputed by the applicant, and having regard to the principles set out above in relation to what constitutes use or occupation to more than a notional degree, I am comfortably satisfied that the evidence summarised above at [66] establishes that the claimed land, Lot 1, was used or occupied as at the date of claim.
In relation to the lawfulness of that use or occupation, the Minister submitted that the evidence established that Lot 1 was “open to the public” at the date of claim. Registrar Paniz parked his vehicle on Lot 1 and performed his duties at the courthouse. Lot 1 was used by Nadia Brighenti in her role as a Community Corrections Officer supervising the Leeton area. Lot 1 was known as the “Leeton Courthouse Carpark”, being “a parking area located immediately adjacent to and forming part of the site and place of the location of the Leeton Courthouse from around the time of vesting”. Lot 1 formed part of the courthouse public and staff emergency assembly point. There was no physical boundary or fence between Lot 1 and the courthouse “that would infer that the two lots were treated as separate parcels of land”. Rather, the evidence suggested that Lot 1 “was used in an integrated manner with the Leeton Courthouse which was further enclosed by way of an approximately 1 metre high fence around Lot 1 and Lot 2”. The entrance and gate to the “Leeton Courthouse Carpark” located on Oak St on Lot 38 was “left open and unlocked”, acts which were “consistent with facilitating access to the courts”.
Those uses or occupations of Lot 1 were submitted to be authorised as follows: first, as the registered proprietor of Lot 1, “the State of New South Wales” had a right to occupy and use the land without additional statutory permission, and did so through employees or agents of the NSW Police Force and the Department of Communities and Justice, including Corrective Services NSW; secondly, “and/or” through the provisions of the Court Security Act.
In relation to the first of those authorisations, the Minister submitted that the reasoning of the majority in Berrima Gaol HCA applied equally to the acts of use or occupation undertaken by the staff employed by the Department of Communities and Justice located at the Leeton courthouse, including Corrective Services NSW, and the NSW Police Force.
In relation to the second of the authorisations relied upon by the Minister, that the use or occupation of Lot 1 was authorised by operation of the Court Security Act, the Minister referred to the objects of the Act in s 3 and to Part 2 of the Act governing the entry and use of court premises. In relation to the definition of “court premises” in s 4, the Minister submitted that the definition is designed “so as to be ambivalent about the title to the land on which those various ‘uses’ takes place”. The type of “uses” envisaged taking place includes such acts as “parking” or “entry to or exit from” not only the court, but also those premises or place where the court is held or used in relation to its operations. Lot 1 met the definition of “court premises” by reason of subs 4(a): “parking area … or other area used in conjunction with the premises of place”; subs 4(b): “a part of premises or place used as an entrance to or exit from the premises or place where the court is held or used in relation to the operations of the court”; or subs 4(d): “any part of premises or a place used in relation to the operations of a court referred to in the preceding paragraphs, that is also used for other purposes”. That Lot 1 met the definition of “court premises” in s 4 of the Court Security Act was submitted to be established by Registrar Paniz, Nadia Brighenti and Inspector Cornes; the agreed statement of fact s; the Leeton courthouse air conditioning plans dated 19 March 1983; the site plans for the Leeton courthouse drafted in 1922; street and aerial imagery of Lot 1; and the description of the address of Lot 1 by Land Registry Services as “LEETON COURT HOUSE CAR PARK”.
The right of a person (and vehicle) to enter and remain in an “area of court premises” was governed by a number of provisions in the Court Security Act, “most importantly” s 6, and also ss 7 and 10. The right of a person to access and remain in an area of court premises was submitted to reflect the common law principle of open justice articulated by Gibbs J in Russell v Russell [48] (at 520). The Minister submitted that by operation of ss 3, 6 and 10 of the Court Security Act, any person has a right to enter and remain in an area of court premises that is open to the public, which authority extends to areas defined to include a “parking area” which is “precisely what Lot 1 is”. The conferral of such right for a person (and their vehicles) to enter and remain on Lot 1 did not depend upon a form of prior permission from the legal owner of the land. It was a particular form of statutory authority.
The Minister submitted that the Court Security Act was drafted to ensure access to the courts and to “court premises”, not only the premises or place where the court is held, but also additional premises or places including a parking area or other areas are used in conjunction with the premises or place. As such, the use of Lot 1 by persons to park their vehicles for access to the court was an authorised use of the land conferred on all members of the public. The authority to occupy Lot 1 was further conferred on those persons, namely judicial officers and security officers, granted power under the Court Security Act to control, access, or restrict access of persons and vehicles to Lot 1: ss 6 to 7, s 10.
Further, in written submissions, the Minister submitted that the use or occupation of Lot 1 was not inconsistent with the reserve purpose of Reserve 751742 for future public requirements, and was not for “some other unrelated purpose”: Goomallee at [37]. In oral submissions, however, the Minister submitted that the notification of R1011448 and R751742 in 2006 and 2007 respectively did not operate to bring Lot 1 within those reserves because Lot 1 was not Crown land at the time of the notification of those reserves, it not having yet been subject to the conversion action on 26 May 2010, Dealing CA154539, registering Lot 1 in the name of the State of New South Wales. As a result, the Minister submitted that the Court did not need to consider the submissions on whether the use or occupation of Lot 1 was consistent with the reserve purpose of future public requirements.

As set out above at [137], I am comfortably satisfied that the evidence summarised at [66] establishes that the claimed land, Lot 1, was used or occupied as at the date of claim. I need not further consider the parties’ submissions in relation to the question of use or occupation.
In relation to the lawfulness of the use or occupation of Lot 1, the applicant referred in oral submissions to the Minister’s “resiling” from the position that Lot 1 was not within R1011448 and R751742 as Lot 1 was not Crown land when those reserves were notified, and so the Court did not need to consider whether the use or occupation of Lot 1 was consistent with the reserve purpose of future public requirements. The applicant submitted that the Minister had not established that Lot 1 was not Crown land in 2007, referring to the notation on the departmental dealing on 13 September 2012, dealing AH 236637, which showed that Crown Lands Newcastle was of the view that Lot 1 was a “current Crown Reserve”. The applicant thus proceeded on the basis that the land was reserved for future public requirements.
The applicant submitted that the existence of a reserve of Crown land has the effect that the lawful use or occupation of the land is limited by reason of s 2.12 of the Crown Land Management Act. The applicant referred to the Minister’s submission that the use or occupation of Lot 1 to park cars was “not inconsistent” with the reserve purpose, and submitted that the correct test pursuant to s 2.12 is whether the land was used for a purpose “incidental or ancillary to” the purpose of “future public requirements” for which it was reserved. Nothing in the evidence established that the use or occupation of Lot 1 as a carpark was undertaken by any person with authority for purposes of, or in furtherance of, or incidental or ancillary to, the purpose of “future public requirements”.
In relation to the Minister’s contention that Lot 1 was lawfully used or occupied by certain “State departments” because the State was the registered proprietor of the land, relying on Berrima Gaol HCA, the applicant submitted that there were a number of flaws in the Minister’s approach. First, the observations in Berrima Gaol HCA related to “occupation” by the executive government of the State, not merely to use by individuals, whether or not employees or agents of the State. Secondly, the rights of occupation referred to in Berrima Gaol HCA were subject to limits imposed by statute, [49] including s 2.12 of the Crown Land Management Act. Thirdly, Berrima Gaol HCA was concerned with the Crown Lands Act 1989. Since then, s 5.3(1) of the Crown Land Management Act has been enacted and provides that “the Minister can do anything with Crown land that a registered proprietor of land can do”. This provision makes clear that the power to authorise the use or occupation of land lies with the Minister administering the Crown Land Management Act pursuant to s 15(2) of the Interpretation Act, and not with any other member, employee or agent of the executive Government of the State. These “affirmative words” were submitted to have a negative force and forbid the doing of the thing otherwise. [50] If any Minister of the Crown could lawfully take such action simply because the Crown holds the fee simple, then the limits placed on the exercise of executive power in relation to Crown land in s 5.3 of the Crown Land Management Act would be redundant. [51] Fourthly, the Minister’s approach ignored the context in which the comments in Berrima Gaol HCA and NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [52] (Berrima Gaol CA) were made which “demonstrates that there must be some specific authorisation of the relevant conduct at the level of the executive government of the State”, relying particularly on the discussion of Leeming JA in Berrima Gaol CA at [48], and the facts set out at [68], [82] and [100] in his Honour’s judgment.
In relation to the Minister’s reliance on the Court Security Act, the applicant submitted that such reliance was wrong for the following reasons. First, s 6 of the Court Security Act does not confer a general right of access to “court premises”, rather the section applies only to premises that are “open to the public”. Lot 1 was Crown land governed by the Crown Land Management Act and not “open to the public”. As Jagot J explained in Shoalhaven at [95], the public has no general right of access to Crown land, even where “it happens not to be enclosed or signposted”. The Court would not accept that the fact that the gate on Lot 36 was “left open and unlocked” was “consistent with facilitating access to the courts”. There was no evidence that could establish that “the fact that the gate was broken in the open position, not repaired, and then ultimately removed, was designed to facilitate access to the courts”. Secondly, the Court Security Act does not confer any right on a person to bring their vehicle onto any part of “court premises”. The reference to a “parking area” in the definition of “court premises” was properly construed as a reference to an area where people have otherwise been lawfully authorised to park. The Court Security Act does not provide authorisation to a person to park a vehicle anywhere on court premises. Were it otherwise, “the CSA would authorise members of the public to drive their vehicles onto Queens Square, or the pathways surrounding it, and leave them there”.
Thirdly, the applicant submitted, whilst the Court Security Act provides a person with a right to enter and remain on court premises, it does not provide any right for a person to use or occupy court premises. Fourthly, the Court would not be satisfied that Lot 1 was “used in relation to the operations of a court” just because some people “who may attend the Court park there” (along with members of the public who have no business in the Court at all). Lot 1 was not a designated carpark, was not managed as part of the Court, and was “a vacant lot with no lawful access”. In oral submissions, the applicant said that “court premises” in s 4 cannot mean “anywhere that is used in relation to the operations of court by any person”, and must instead mean “areas that are used by the court for the operations of a court”. Fifthly, the Court would not be satisfied that Lot 1 was in fact a “parking area”. The fact that a person parks there without authority (or refers to the land as a “carpark”) cannot confer on the land a status it does not otherwise have. Lot 1 possessed “none of the indicia of what a parking area would ordinarily be expected to possess”. Sixthly, ss 7 and 10 of the Court Security Act did not confer any right to access court premises. They confer powers on court officers in relation to court premises.

In relation to whether the use or occupation of the claimed land was lawful, the Minister accepted that the dedication of land has a limiting effect (Berrima Gaol HCA at [43]), however submitted that in distinguishing between “use” and “occupation”, the High Court in Berrima Gaol HCA observed at [43] that land need not be “actively used” for its dedicated purpose for it to be lawfully occupied. Further, the “use, benefit and possession must conform to the purpose for which it was dedicated”. For that reason, a “use” inconsistent with the dedicated purpose will be unlawful. It was, however, unnecessary that any lawful use involve pursuit of the purposes for which land is dedicated or here reserved. In that context, the Minister submitted that the use or occupation of Lot 1 was not inconsistent with the reserve purpose of Reserve 751742, relying on the decision of Macfarlan JA (Basten JA agreeing) in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [53] at [27] to [29].
Further, the Minister submitted, s 2.12(c) of the Crown Land Management Act contemplated that another Act could authorise occupation or uses of Crown lands, a relevant Act being the Court Security Act which authorised the use or occupation of Lot 1. Contrary to the applicant’s submissions, the evidence demonstrated that Lot 1 was an area of court premises open to the public. The applicant conflated the notion of being “open to the public” with the right to enter and remain. The right to enter and remain in open areas of court premises was the subject of specific provision in s 6 of the Court Security Act. Members of the public were not otherwise restricted from being in an area of court premises that is open to the public (for example, under s 7 in relation to the closure of court premises by a judicial officer for security reasons).
Sections 3, 6 to 7, and 10 of the Court Security Act authorised persons to use Lot 1 as a carpark, “parking” being “part and parcel of the public being able to access a court” which was the “mischief to which the Act was directed” and the “obvious reason” for specifically including “parking area[s]” in the definition of “court premises” in s 4. That did not mean that one can park on any land adjacent to a Court contrary to the “colourful example” given by the applicant of parking in Queens Square. Other laws, most notably traffic laws, may prohibit such uses. That was not the case here where Lots 1 and 2 had since at least 1925 effectively comprised a single parcel of land where “a court is held” and that was “used in relation to the operation of a court”, within the definition of “court premises” in s 4. The effect of s 6 was to confer relevant “right[s]” (the right to enter and remain) in respect of land used in that way, and regardless of whether the legal owner of the land had granted prior permission.
Further, in reply, the Minister submitted that while the majority in Berrima Gaol HCA caveated its observations by reference to any “statutory prohibition” on occupation (or here use), the applicant could not point to any express prohibition, and was left to seek to erect one by implication. The applicant’s attempt to discern such a prohibition in the Crown Land Management Act failed, the permissive power of the Minister in s 5.3(1) of the Crown Land Management Act in substance replicating the position which existed at the time of Berrima Gaol HCA under s 34(1) of the Crown Lands Act 1989. Neither provision operated as a relevant prohibition and neither imposed any relevant statutory limit on the executive power to occupy and use Crown land. For that reason, the applicant’s invocation of the Anthony Hordern principle of statutory construction [54] was misplaced. The evidence established that employee agents of the State, which owned the fee simple and enjoyed all corresponding rights, powers and privileges in relation to the claimed land, undertook acts of use or occupation. Here, as in Berrima Gaol HCA, the analysis did not depend on Ministerial authorisation, Gageler J observing in Berrima Gaol HCA at [142]: [55] “[t]he Executive Government of the State having non-statutory executive power to occupy the land, subject to statute, that power was capable in law of being exercised by any of its Ministers or through any of its Departments”.

On 1 June 2026, my chambers sent an email to the parties requesting that they provide a short submission in relation to the consequences of the decision of the High Court in Berrima Gaol HCA and the right of the State of New South Wales and its agents to use or occupy Crown land, noting that the claimed land in Berrima Gaol HCA was dedicated for a public purpose and so did not fall within the definition of “Crown land” in s 3 of the Crown Lands Act 1989: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Berrima) [56] (Berrima Gaol LEC) at [150] (Pain J). In the present case, the claimed land was not dedicated for a public purpose. The Crown Land Management Act 2016, which did not apply at the time of Berrima Gaol, explicitly includes lands dedicated for a public purpose in the definition of “Crown land”: s 1.7(b) and cl 6(1)(a) of Sch 7 to the Crown Land Management Act.
In written submissions filed on 9 June 2026, the Minister said that “[n]either a lack of dedication for a public purpose in respect of the claimed land or the introduction of s 1.6 [sic] and cl 6(1)(a) of Ch 7 [sic] of the [Crown Land Management Act] abrogated the effect registration of the State of New South Wales as the proprietor of the claimed land had to the claimed land at the Date of Claim”. Referring to Berrima Gaol HCA at [61] to [62] (French CJ, Kiefel, Bell and Keane JJ), the Minister submitted that the position of the plurality in Berrima Gaol had not changed or been limited by reason of any provisions in the Crown Land Management Act or a lack of dedication for a public purpose: “The CLMA did not disable any member of a government department who had pure non-statutory executive power to lawfully occupy or use the claimed land as at the Date of Claim”. No statutory prohibition arose in the present case, and no provisions in the Crown Land Management Act “denie[d] the results found to exist in Berrima Gaol”.
In written submissions also filed on 9 June 2026, the applicant submitted that the Court in Berrima Gaol HCA was concerned with land that had been dedicated for certain public purposes, and that at the relevant time, land that had been dedicated for a public purpose was expressly excluded from the definition of “Crown land” in s 3 of the Crown Lands Act. Because the claimed land in Berrima Gaol HCA was not Crown land, it was not “subject to the ‘constitutional principle’ enacted in s 6 of the CLA requiring that any occupation or use of the land be ‘authorised by [the CLA]’” (quoting Bryson J in Fensom at [5]). The position had changed under the Crown Land Management Act. Now, land that is dedicated for a public purpose is expressly included in the definition of “Crown land”: s 1.7 and cl 6(1)(a) of Sch 7 to the Crown Land Management Act. Under the Crown Land Management Act, land which is dedicated for a public purpose is subject to s 1.15 which prohibits the occupation or use of land unless authorised by the Act. This “key provision” had no application in Berrima Gaol HCA. In the present case, the applicant submitted, the claimed land is subject to the restrictions on occupation and use set out in the Crown Land Management Act and, as a result, the principles arising from Berrima Gaol HCA have no application. No department or agent of the Crown could have lawfully used or occupied the claimed land without express authorisation under the Crown Land Management Act, and there was no such authorisation.

The provisions of the Court Security Act are relevant to both types of use or occupation relied on by the Minister.
In relation to the Court Security Act, the Minister’s submissions centred on the definition of “court premises” in s 4, together with other provisions in Parts 2 and 3 of the Act, most importantly s 6. Section 4 defines “court premises” as “the premises or place where a court is held or that is used in relation to the operations of a court” (the Minister’s emphasis), which includes a “parking area” or “other area used in conjunction with the premises or place”. Section 6 provides that a person “has a right to enter and remain in an area of court premises that is open to the public” so long as they comply with the orders of judicial officers and the directions and requirements of security officers. The Minister submitted that the effect of ss 4 and 6 is to confer rights on people to enter and remain on “any land that is used in that way” – that is, any land that is used in relation to the operations of a court – and that such rights exist “regardless of whether the legal owner of the land has granted prior permission”. The use of Lot 1 as a carpark for access to the courthouse was thus lawful, as I understand the submission, regardless of whether or not there was any authorisation outside the Court Security Act for that use.
Likewise, the Minister submitted that s 6 (where the right to enter and remain in an area of court premises is subject to the orders of judicial officers and the directions and requirements of security officers), s 7 (a judicial officer may close court premises for security reasons) and s 10 (security officers may stop and search persons and vehicles), and other provisions giving powers to judicial officers and security officers in relation to court premises, gave those persons authority to occupy Lot 1 in order to fulfill those security functions. Any such occupation was thus lawful, the Minister submitted, regardless of whether or not there was any authorisation outside the Court Security Act for that occupation.
I find that the Minister’s construction of the Court Security Act, if accepted, would have undesirable consequences that could not have been the intention of Parliament. As submitted by the applicant, the Minister’s construction would mean that any premises or place could in effect become “court premises”, with the accompanying statutory rights and powers conferred under the Court Security Act, merely by its use or occupation as such. Apart from the “colourful example” of Queens Square raised by the applicant, one can imagine a private dwelling or business with an unenclosed area adjacent to a courthouse. On the Minister’s construction, if that area was used or occupied by members of the public or employees or agents of the NSW Police Force and the Department of Communities and Justice in relation to the operations of the adjacent courthouse, the area would constitute “court premises” within the meaning of the Court Security Act regardless of whether or not there was any authorisation outside of that Act for the area to be used or occupied as court premises or in relation to the operations of a court. People would have the right to enter and remain on the area regardless of whether the owner or occupier of the dwelling or business gave consent. Security officers (the Sheriff or a person appointed by the Sheriff) could lawfully occupy the area in order to exercise their court security powers in Part 3 of the Court Security Act. Residents of the dwelling and owners and patrons of the business parking on the unenclosed area would be subject to searches of their persons and vehicles pursuant to s 10 of the Court Security Act. And as the applicant suggested in oral submissions, s 9 would make it an offence to record sound or images (or both) in that area.
I proceed on the basis that it is to be presumed that Parliament does not intend to enact legislation with consequences that are “absurd”, “capricious” or “unreasonable”, and that where two constructions of a provision are open, courts will prefer that which avoids such consequences: Herzfeld and Prince, Interpretation, 3rd edition, at 210 to 211 and cases there cited. I also proceed on the presumption that absent unmistakable and unambiguous language to the contrary, Parliament does not intend to abrogate or curtail fundamental rights, freedoms and immunities such as personal liberty or property rights: Herzfeld and Prince, Interpretation, 3rd edition, at 214 to 218 and cases there cited. Hence, I prefer a construction of “court premises” that avoids the consequences raised in the scenario set out immediately above over the Minister’s construction of the provisions of the Court Security Act.
I find that the definition of “court premises” in s 4 as “the premises or place where a court is held or that is used in relation to the operations of a court” should be construed as referring to a premises or place which has been lawfully authorised for use or occupation as court premises or in relation to the operation of a court. I find that such lawful authorisation must come from outside the Court Security Act. Section 3 of the Court Security Act provides that the objects of the Act are “(a) to provide for the secure and orderly operation of courts, and (b) to confer certain functions on judicial officers and security officers for that purpose”. It is not an object of the Act to authorise the use or occupation of any premises or place as court premises or in relation to the operations of a court. There is no provision in the Court Security Act authorising the proclamation or designation of a premises or place as court premises: cf ss 224, 225 and 225A of the Crimes (Administration of Sentences) Act 1999 (NSW) and the corresponding definitions of “correctional complex” and “correctional centre” in s 3 of that Act.
Further, the second reading speech for the Court Security Bill 2005 does not evince any intention for the Act to designate or authorise the use or occupation of any place or premises as court premises or in relation to the operation of a court in the manner contended for by the Minister. The Act was “designed to ensure greater protection for court facilities and the people who use them”, where previously “sheriff's officers rel[ied] upon the inherent jurisdiction of the court and limited legislative powers in exercising court security functions”. This mischief was addressed by providing a “sound statutory basis for the exercise of court security powers in New South Wales courts”, and providing “court security officers with a range of new powers that are specifically directed at ensuring the secure and orderly operation of courts”. [57] Indeed, the Minister submitted that the definition in s 4 was “designed so as to be ambivalent about the title to the land on which [the] various ‘uses’ [in s 4] takes place”. Properly construed, the Court Security Act operates on the assumption that a premises or place has already been lawfully authorised for use or occupation as court premises, and only then provides a statutory basis for the exercise of court security powers on that premises or in that place. In the absence of such lawful authorisation, I find that Lot 1 could not have been “court premises” within the meaning of s 4 of the Court Security Act.
It is thus unnecessary to consider the parties’ competing constructions of “open to the public” in s 6 of the Court Security Act. That is because I have found that in order for there to be “an area of court premises that is open to the public”, there must be “court premises” in the first place. Subject to what I say immediately below in relation to the right of employees or agents of the NSW Police Force and the Department of Communities and Justice to use or occupy Lot 1 in relation to the operations of the Leeton courthouse, Lot 1 could not have been “court premises” within the meaning of the Court Security Act and that Act could not have conferred rights of use or occupation upon members of the public or employees or agents of the NSW Police Force and the Department of Communities and Justice.

The applicant did not “quarrel with that headline proposition”, but emphasised the caveat “subject to any statutory prohibition upon occupation”. The applicant submitted that one such prohibition was in s 2.12 of the Crown Land Management Act, as well as in s 5.3(1) which makes it clear “that the power to authorise the use or occupation of the land lies with the Minister administering the [Crown Land Management Act]”. In reply, the Minister submitted that the lawfulness of the use or occupation of Lot 1 did “not necessarily depend on substantiating compliance with the Minister’s obligations under the Crown Lands Management Act 2016 (NSW); and any lack of evidence of such compliance here does not bear on the issues in question”. The Minister accepted that the right of the State of New South Wales as owner of the estate to use or occupy Crown land was subject to “any statutory prohibition”, but said that the applicant could not “point to any such express prohibition”, and that any “attempt to discern such a prohibition in the [Crown Land Management Act] fail[ed]”. Section 2.12 did not “detract from the ‘lawful’ use or occupation of Lot 1”, and s 5.3(1), like s 34(1) in the previous Crown Lands Act 1989, did not impose “any statutory limit on the executive power to occupy and use Crown land identified in Berrima Gaol”.
In relation to the caveat in Berrima Gaol HCA at [61] that the right of the State of New South Wales as owner of the estate to occupy Crown land is “subject to any statutory prohibition”, in their original written submissions and at the hearing neither party referred to the statutory prohibition in s 1.15 of the Crown Land Management Act (previously s 6 of the Crown Lands Act 1989) – the “constitutional principle” [58] that Crown land must not be used or occupied, inter alia, unless it is authorised by the relevant Crown lands legislation. However, as set out above at [155] to [157], following a request from the Court for a written submission in relation to the significance, if any, of Lot 1 not being dedicated for a public purpose unlike the claimed land in Berrima Gaol HCA, and the explicit inclusion of land dedicated for a public purpose in the definition of Crown land in the Crown Land Management Act (s 1.7(b) and cl 6(1)(a) of Sch 7) which did not apply at the time of the decision in Berrima Gaol HCA, both parties provided a further written submission.
As set out above at [156] to [157], the Minister submitted that no statutory prohibition contemplated by the plurality in Berrima Gaol HCA at [61] arose in the present case, but did not refer to the prohibition in s 1.15 of the Crown Land Management Act or explain why that prohibition did not apply to Lot 1. The applicant submitted that under the Crown Land Management Act, land which is dedicated for a public purpose is subject to the prohibition in s 1.15. This “key provision” had no application in Berrima Gaol HCA. In the present case, however, this key provision did apply, and no department or agent of the Crown could have lawfully used or occupied Lot 1 without express authorisation under the Crown Land Management Act.
It is true that the “constitutional principle” in s 6 of the Crown Lands Act 1989 (now in s 1.15 of the Crown Land Management Act) was not referred to in Berrima Gaol HCA or in Berrima Gaol CA as a statutory prohibition limiting the executive power to occupy Crown land. [59] However, a significant fact distinguishing the Berrima Gaol cases and the present case is that the claimed land in the Berrima Gaol cases was dedicated for a public purpose, while Lot 1 in the present case was not. As at the date of claim in the Berrima Gaol cases, land that had been dedicated for a public purpose was expressly excluded from the definition of “Crown land” in s 3 of the Crown Lands Act 1989. Section 3(1) defined “Crown land” as land that was vested in the Crown or acquired, “not in either case being: (a) land dedicated for a public purpose …”. Hence, at first instance in Berrima Gaol LEC, the Minister made the following submission (at [131]) (emphasis added):

On the basis that the Minister had “no statutory obligations for the land” under the Crown Lands Act 1989, Pain J held that the Crown and Corrective Services NSW could lawfully occupy the land without additional statutory authorisation (at [163] to [164] and [167] to [168]). The land was public land which the Crown owned, and the Crown could occupy the land, including through its agents, pursuant to its rights as owner without restriction under the Crown Lands Act 1989. This premise was not challenged on appeal in Berrima Gaol CA where the two grounds of appeal in relation to lawfulness were based on: first, s 2 of the New South Wales Constitution Act 1855 (Imp); and secondly, whether Corrective Services NSW could lawfully occupy the land (at [110] and [140]).
In Berrima Gaol HCA, NSWALC submitted that the claimed land was not lawfully occupied: first, because Corrective Services NSW “was not empowered or authorised to occupy the claimed land”; and secondly, because the claimed land “could not lawfully be occupied without statutory authorisation” by reason of s 2 of the New South Wales Constitution Act (at [47] to [48]). Hence, the finding of Pain J in Berrima Gaol LEC at [154] to [155] that once land was dedicated for a public purpose under the Crown Lands Act 1989 (which then applied), the restrictions on the use of Crown land under that Act did not apply, and the Minister had no statutory obligations for the land under that Act, was unchallenged in Berrima Gaol CA and Berrima Gaol HCA.
The Crown Land Management Act had not been enacted at the time of the Berrima Gaol cases. Unlike the Crown Lands Act 1989, the Crown Land Management Act defines “Crown land” to include both dedicated and reserved Crown land. Section 1.7 of the Crown Land Management Act defines “Crown land” as, inter alia, “(b) land that becomes Crown land because of the operation of a provision of this Act or a declaration made under s 4.4”. Clause 6(1)(a) of Sch 7 provides (emphasis added):

The explanatory note to the Crown Land Management Bill 2016 provided that the Bill would “consolidate in one Act the statutory provisions applicable to the ownership, use and management of the Crown land of New South Wales”. The Bill would “increase the current inventory of the Crown land of New South Wales and bring it into one statutory regime”, the “land to be added” including “land vested in the Crown dedicated for a public purpose” (emphasis added). It appears to have been the clear intention of Parliament to bring dedicated Crown land such as that which was the subject of the Berrima Gaol decisions within the statutory regime concerning the “ownership, use and management” of Crown land in the Crown Land Management Act.
It follows that the effect of the prohibition in s 1.15 of the Crown Land Management Act (the successor to s 6 of the Crown Lands Act 1989) on the right of the State of New South Wales through employees or agents of the NSW Police Force and the Department of Communities and Justice to use or occupy dedicated or reserved Crown land did not arise to be considered in the Berrima Gaol cases. In Berrima Gaol HCA the claimed land was expressly excluded from the definition of “Crown land” in the Crown Lands Act 1989, and the Court was not required to consider the powers of the Crown (as the owner of the land) to occupy Crown land with reference to what is now s 1.15 of the Crown Land Management Act.
That is not the present case. In relation to Issue 1, I have found that Lot 1 was lands vested in Her Majesty within the meaning of s 36(1) of the ALRA. Lot 1 also satisfied the definition of “Crown land” within the meaning of s 1.7 of the Crown Land Management Act, being “land that was Crown land as defined in the Crown Lands Act 1989 immediately before the Act’s repeal” (s 1.7(a)), where s 3 of the Crown Lands Act 1989 defined “Crown land” as, relevantly, land “vested in the Crown” that is not “(a) land dedicated for a public purpose”.
It follows that the prohibition in s 1.15 of the Crown Land Management Act on the use or occupation of Crown land otherwise than in accordance with the Act applied to Lot 1. Hence, unlike in Berrima Gaol LEC, the Crown Land Management Act provided a compulsory mechanism for the management of Lot 1, and, as at the date of claim, the Minister had statutory obligations under that Act in relation to the care, control and management of the land. As submitted by the applicant, Lot 1 is subject to the restrictions on use or occupation set out in the Crown Land Management Act. In determining the effect of those obligations and restrictions on the right of the State of New South Wales through employees or agents of the NSW Police Force and the Department of Communities and Justice to use or occupy the claimed Crown land, it is useful to set out the drafting history and relevant provisions of the Act concerning the management of Crown land.
As referred to above at [179], the explanatory note to the Crown Land Management Bill 2016 identified the purpose of the Bill as to “consolidate in one Act the statutory provisions applicable to the ownership, use and management of the Crown land of New South Wales”. The second reading speech for the Bill provided that the aim of the Bill was to “fundamentally improve the management of Crown land” and “address the delays, duplication and poor practices of Crown land management”. [60] In relation to the objects of the Bill in cl 1.3 (s 1.3 of the Act), the second reading speech said that the objects were: [61]

In relation to the appointment of Crown land managers, the second reading speech referred to Part 3 of the Bill which it said “implements a modern approach to the management of dedicated or reserved Crown land”. Reserve trusts and trust managers would be replaced by a “single incorporated manager responsible for each Crown reserve, known as the Crown land manager”. Despite the appointment of Crown land managers, “Ministerial oversight [would] remain to ensure that reserves are managed effectively and are protected”, and cl 3.15 (s 3.15 of the Act) would enable “the Minister to create Crown land management rules that can apply to any Crown land manager”. [62]
The second reading speech also referred to Part 4 of the Bill which would provide for the “acquisition and vesting of Crown land”, including a new provision for “vesting in other agencies”. This new provision would contain “express safeguards to ensure that vesting in other agencies takes place only in appropriate circumstances”, requiring that the Minister “be satisfied that vesting the land is in the public interest, and the agency to whom it will be vested is an appropriate owner and manager of the land”, inter alia. [63]
Against this drafting history, I turn to consider the following provisions of the Crown Land Management Act. In Part 1 “Preliminary”, s 1.3 provides for the objects of the Act as set out in the second reading speech. Section 1.4 provides the principles of Crown land management for the purposes of the Act. Section 1.15 (like its predecessor, s 6 of the Crown Lands Act 1989) sets out the “constitutional principle” [64] that “Crown land must not be occupied, used, sold, leased, licensed, dedicated, reserved or dealt with in any other way unless it is authorised by this Act” (s 1.15(a)), or by another Act (s 1.15(b)).
In Part 2 “Dedicated or reserved Crown land”, s 2.12 provides that dedicated or reserved Crown land may be used only for (a) the purposes for which it is dedicated or reserved; (b) any purpose incidental or ancillary to those purposes; or (c) any other purposes authorised by the Crown Land Management Act or another Act. Section 2.18 provides that the Minister may grant an interest over dedicated or reserved Crown land for (a) any facility or infrastructure, or (b) any other purpose the Minister thinks fit if the conditions in subs (2) are fulfilled. Section 2.19(2) provides the conditions that must be fulfilled before the Minister can grant a secondary interest over dedicated or reserved Crown land.
In Part 3 “Management of Crown Land”, s 3.1(2) provides that the Minister is responsible for the care, control and management of (a) all Crown land that is not dedicated or reserved Crown land, and (b) all dedicated or reserved Crown land for which there are no Crown land managers. Section 3.3(1) provides that the Minister may appoint qualified persons to be Crown land managers for specified dedicated or reserved Crown land. Section 3.3(2)(i) provides that a “qualified person” includes “the head of a government sector agency”. Section 3.13(2) provides that a Crown land manager must exercise their functions in accordance with various requirements, including any Crown land management rules made by the Minister pursuant to s 3.15. Sections 3.26(2) and 3.27(2) provide the functions that can be exercised by non-council Crown land managers such as the head of a government sector agency without the written consent of the Minister.
In Part 4 “Acquisition of land and vesting of Crown land”, s 4.12 provides that the Minister may vest Crown land in a government agency if the preconditions in (a) and (b) are satisfied. In Part 5 “Dealings involving Crown land and other related land”, s 5.3 provides that, subject to the Act (particularly, Part 2), the Minister can do anything with Crown land that a registered proprietor of land can do.
I find that the provisions of the Crown Land Management Act, read as a whole and in context, and to the extent of any ambiguity in accordance with the intention of Parliament evinced in the explanatory note and second reading speech, make clear that absent authorisation from another Act, the power to authorise the use or occupation of Crown land rests solely with the Minister or a Crown land manager appointed by the Minister. Unless authorised by another Act, the lawfulness of any use or occupation of Crown land by the State of New South Wales through employees or agents of the NSW Police Force and the Department of Communities and Justice depends on whether the Minister, or a Crown land manager appointed by the Minister, has authorised the use or occupation, and has complied with their statutory obligations under the Crown Land Management Act.
If any employee or agent of the NSW Police Force or the Department of Communities and Justice could use or occupy Crown land in the absence of authorisation by another Act or the authorisation of the Minister or a Crown land manager appointed by the Minister, the intention of Parliament to “address the delays, duplication and poor practices of Crown land management” through a “clear legal framework … providing for the ownership, use and management of Crown land” would be frustrated. The effect of the construction of the provisions of the Crown Land Management Act contended for by the Minister would allow employees or agents of different departments or agencies of the State of New South Wales to use or occupy Crown land beyond the oversight of the Minister or a Crown land manager. Such a construction would potentially conflict with the objects of the Act in s 1.3, including the object in (c) to “require environmental, social, cultural heritage and economic considerations to be taken into account in decision-making about Crown land”. It would also likely conflict with the principles of Crown land management in s 1.4, or all Crown land management rules made by the Minister pursuant to s 3.15.
Such a construction would also make largely redundant the preconditions in s 2.18(2) to the exercise by the Minister of the power to grant an interest over dedicated or reserved Crown land for the purpose of any facility or infrastructure or any purpose the Minister thinks fit, such as the requirement to consult a Crown land manager or the Minister responsible for a government agency that is using, occupying or administering the land: s 2.18(2)(a). It would make largely redundant the preconditions in s 2.19 to the exercise by the Minister of the power to grant a secondary interest over dedicated or reserved Crown land. Where a Crown land manager is the “head of a government sector agency” pursuant to s 3.3(2)(i), the construction contended for by the Minister would make largely redundant the requirements in ss 3.26 and 3.27 for Crown land managers that are the head of a government sector agency to obtain the written consent of the Minister before exercising functions not identified in ss 3.26(2) and 3.27(2).
It would also make largely redundant the preconditions in s 4.12 to the exercise by the Minister of the power to vest land in a government agency, including that the Minister must be satisfied that the agency would be an appropriate owner and manager of the land: s 4.12(a)(ii). As submitted by the applicant, it would make largely redundant s 5.3 and the proviso that, subject to the Act, the Minister administering the Crown Land Management Act 2016 (as opposed to any Minister) can do anything with Crown land that a registered proprietor of land can do.
Turning to the claimed land in the present case, there was no evidence capable of suggesting that a Crown land manager had been appointed for Lot 1. Thus, the person responsible for the care, control and management of Lot 1 was the Minister: s 3.1(2). In the absence of authorisation under another Act, in order for the use or occupation of Lot 1 by employees or agents of the NSW Police Force and the Department of Communities and Justice to be lawful, the Minister needed to establish: first, some authorisation from the Minister permitting such use or occupation; and secondly, some provision in the Crown Land Management Act which authorised the Minister to permit such use or occupation: Goomallee LEC at [73] to [74] (Biscoe J). Contrary to the Minister’s submission, in the absence of authorisation under another Act, the lawfulness of such use or occupation did “necessarily depend on substantiating compliance with the Minister’s obligations” under the Crown Land Management Act, and “any lack of evidence of such compliance” did “bear on the issues in question”. I consider that the Minister’s submissions in relation to this question did not grapple with the context in the Berrima Gaol cases where the lawfulness of the occupation of the claimed land did not depend on the Minister substantiating compliance with the Crown Lands Act 1989. That was because s 6 of that Act did not apply to the claimed land, with the consequence that the Minister had “no statutory obligations for the land” under that Act: Berrima Gaol LEC at [150], [154] to [155] (Pain J).
The Minister did not identify any authorisation from the Minister permitting the use or occupation of Lot 1 by employees or agents of the NSW Police Force or Department of Communities and Justice. Nor did the Minister identify any provision of the Crown Land Management Act which would authorise the Minister to permit that use or occupation of Lot 1. The only provisions of the Crown Land Management Act referred to by the Minister were ss 2.12 and 5.3 which the Minister submitted in reply did not “detract from” the lawfulness of or “prohibit” such use or occupation.
In relation to s 2.12(a) and (b) of the Crown Land Management Act, the parties made lengthy submissions in relation to whether the use of Lot 1 was “not inconsistent with” (in the Minister’s submission), or “in furtherance of, or incidental or ancillary to” (in the applicant’s submission), the reserve purpose of future public requirements. There was also a dispute between the parties as to whether Lot 1 was reserved for future public requirements in light of the circumstance that it had not yet been registered in the name of the State of New South Wales when R1011448 and R751742 were notified in the Gazette. I have concluded that it is not necessary to determine these questions. That is because even if Lot 1 was reserved for future public requirements as at the date of claim, there was no suggestion that s 2.12 alone authorised the use of Lot 1 for purposes that were not inconsistent with, or in furtherance of, or incidental or ancillary to, the reserve purpose of future public requirements. Section 2.12, which uses the language “may only”, is not such a permissive provision. Rather, it is a limitation upon the power of the Minister to authorise the use of dedicated or reserved Crown land. [65] Accordingly, the limitation in s 2.12 does not arise for consideration in relation to the issue of authorisation of the use or occupation of Lot 1 by employees or agents of the NSW Police Force and the Department of Communities and Justice.
It is correct, as submitted by the Minister, that ss 1.15(2) and 2.12(c) of the Crown Land Management Act contemplate that the use or occupation of Crown land may be authorised by another Act. The only other Act relied on by the Minister as authorising the use or occupation of Lot 1 by employees or agents of the NSW Police Force and the Department of Communities and Justice was the Court Security Act. For the reasons set out above at [165] to [167], in the absence of lawful authority outside the Court Security Act for Lot 1 to be used or occupied as court premises or in relation to the operations of a court, the Court Security Act could not authorise the types of use or occupation relied on by the Minister.
It follows that I find that the use or occupation of Lot 1 by employees or agents of the NSW Police Force and the Department of Communities and Justice, including Corrective Services NSW, was not authorised either by the Minister or by another Act. And so such use or occupation was not authorised by the Crown Land Management Act. Accordingly, the first type of use or occupation of Lot 1 relied on by the Minister was in contravention of the statutory prohibition in s 1.15 of the Crown Land Management Act, and unlawful within the meaning of s 36(1)(b) of the ALRA.

The second type of use or occupation relied on by the Minister was the use of Lot 1 by members of the public. The only basis of authorisation of that use contended for by the Minister was the operation of the Court Security Act. As I have found above at [165] to [167], in the absence of lawful authorisation outside the Court Security Act for Lot 1 to be used or occupied as court premises or in relation to the operations of a court, that Act could not have conferred any rights of use in relation to Lot 1 upon members of the public. I have found that the use or occupation or Lot 1 by employees or agents of the NSW Police Force and the Department of Communities and Justice, including in relation to the operations of the Leeton courthouse, was not authorised by the Crown Land Management Act or any other Act. It follows that there was no lawful authorisation outside the Court Security Act for the use or occupation of Lot 1 as court premises or in relation to the operations of a court, and the Court Security Act could not have conferred any rights of use in relation to Lot 1 upon members of the public.
Apart from any rights conferred upon members of the public by the Court Security Act to use Lot 1 as a carpark and to access the courthouse, the Minister (who was responsible for the “care, control and management” of Lot 1 pursuant to s 3.1(2) of the Crown Land Management Act irrespective of whether Lot 1 was (a) Crown land that is not dedicated or reserved Crown land, or (b) dedicated or reserved Crown land for which there are no Crown land managers) did not advance any other legal basis for the use of Lot 1 by members of the public.
In Shoalhaven Jagot J held that the mere use of unenclosed land by the public not objected to by the Crown or the operation of Crown lands legislation was not lawful within the meaning of s 36(1)(b) of the ALRA. As her Honour said at [71] in relation to s 6 of the Crown Lands Act 1989, “[s]ection 6 discloses in terms the legislature's consideration of the need to control the use and occupation of Crown land”, and “unlawful use or occupation is any use or occupation not authorised under that Act”. It is true that Shoalhaven concerned land that was not dedicated or reserved, whereas the claimed land in the present case may have been reserved for future public requirements (which the Minister disputes, and it is unnecessary to decide). However, as submitted by the applicant and not challenged by the Minister, a reservation for future public requirements does not confer on the public an entitlement to use land as of right: see Council of the Municipality of Randwick v Rutledge [66] at [10] (Windeyer J). Further, s 2.17(c) of the Crown Land Management Act provides that the “dedication or reservation of Crown land under this Part for a purpose that permits or requires its use by members of the public does not … (c) entitle members of the public to have unrestricted access to the land”.
Consistent with the decision of Jagot J in Shoalhaven, an informal arrangement to use Crown land without any legal authority under Crown lands legislation cannot constitute lawful use or occupation within the meaning of s 36(1)(b) of the ALRA. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Boggabri), [67] Craig J held (at [148] to [151]) that the occupation of a grazier who was liable to be evicted from a common but whose occupation was “tolerated” by the common administrator [68] did not “qualify as a lawful use and occupation in the sense required to disqualify land as being claimable Crown land under the Land Rights Act”. In NSW Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016, [69] Pain J held (at [134] to [136]) that a casual arrangement between the sergeant of the police station and a local butcher for the latter to agist a horse on land reserved for “court-house and police station” did not constitute a lawful use, as the arrangement “had no legal basis under s 6 of the [Crown Lands Act 1989]”. In New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act, [70] Duggan J held (at [43]) that the public use of the claimed land “facilitated in part by the Council opening the grounds” was not lawful as that “opening to the public was not lawful”. [71]
For the foregoing reasons, the second type of use or occupation relied on by the Minister, the use of Lot 1 by members of the public, cannot have been lawful within the meaning of s 36(1)(b) of the ALRA.

Parties

Applicant/Plaintiff:

New South Wales Aboriginal Land Council

Respondent/Defendant:

Minister Administering the Crown Land Management Act (“Leeton Courthouse claim”)

Legislation Cited (46)

Aboriginal Land Rights Act 1983(NSW)

Real Property Act 1900(NSW)ss 13, 31A, 40, 41, 42, 43

Public Works Act 1912(NSW)ss 41, 42, 43, 44, 45, 46, 133, 137

Court Security Act 2005(NSW)ss 3, 4, 6, 7, 10

Cited:** Aboriginal Land Rights Act 1983(NSW)s 36

Community Welfare Act 1987(NSW)

Conveyancing (Amendment) Act 1932(NSW)

Crimes (Administration of Sentences) Act 1999(NSW)ss 3, 224, 225, 225A

Crown Land Management Act 2016(NSW)ss 1.3, 1.4, 1.7, 1.15, 2.12, 2.17, 2.18, 2.19, 3.1, 3.3, 3.13, 3.15, 3.26, 3.27, 4.12, 5.3

Crown Lands Act 1989(NSW)ss 3, 6

Crown Lands Consolidation Act 1913(NSW)ss 6, 25A

Interpretation Act 1987(NSW)ss 3, 15, s 35(1).

Land Acquisition (Just Terms Compensation) Act 1991(NSW)s 20, Sch

Local Government Act 1919(NSW)s 398

Local Government Act 1993(NSW)s 45

Public Works Act 1888(NSW)

Real Property (Amendment) Act 1921(NSW)s 14

Real Property and Conveyancing Legislation Amendment Act 2009(NSW)

Land Acquisition (Just Terms Acquisition Compensation) Act 1991(NSW)

Minister Administering the Crown Land Management Act 2016

Land Rights Act 1983

Land Management Act 2016

Works Act 1912

Property Act 1900

Lands Act 1989

Lands Consolidation Act 1913

Lands Act 1901

Acquisition (Just Terms Acquisition Compensation) Act 1991

Property and Conveyancing Legislation Amendment Act 2009

Property Amendment Act 2009

Real Property Amendment Act 2009

Land Tax Management Act 1956

Lands (Continued Tenures) Act 1989

Security Act 2005

Government Act 1919

Property (Amendment) Act 1921

Government Act 1993

Property Act 1886

(Amendment) Act 1932

Works Act 1888

Welfare Act 1987

Property (Amendment) Act 1970

(Administration of Sentences) Act 1999

Lands Management Act 2016

South Wales Constitution Act 1855

New South Wales Constitution Act 1855

Cases Cited (85)

New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act (“Leeton Courthouse claim”)

At a glance

Court

Decision date

Before

Catchwords

Email me a plain-English summary of this case

Catchwords

Judgment

Source

JUDGMENT

Introduction

Issues for determination

Outcome

Factual background

The claimed land (Lot 1)

History of the claimed land

Use of the claimed land

Relevant legislation

Aboriginal Land Rights Act 1983 (NSW)

Public Works Act 1912 (NSW)

Land Acquisition (Just Terms Acquisition Compensation) Act 1991 (NSW)

Real Property Act 1900 (NSW)

Crown Lands Act 1989 (NSW)

Crown Land Management Act 2016 (NSW)

Court Security Act 2005 (NSW)

Evidence

Minister’s evidence

Applicant’s evidence

Issue 1: Whether Lot 1 was “lands vested in Her Majesty” within the meaning of s 36(1) of the ALRA

Minister’s submissions in relation to whether Lot 1 was “lands vested in Her Majesty”

Applicant’s submissions in relation to whether Lot 1 was “lands vested in Her Majesty”

Minister’s submissions in reply in relation to whether Lot 1 was “lands vested in Her Majesty”

Consideration and conclusions in relation to issue 1: Whether Lot 1 was “lands vested in Her Majesty”

Issue 2: Whether Lot 1 was lawfully used or occupied within the meaning of s 36(1)(b) of the ALRA

Principles in relation to whether claimed lands are not lawfully used or occupied

Minister’s submissions in relation to whether Lot 1 was lawfully used or occupied

Applicant’s submissions in relation to whether Lot 1 was lawfully used or occupied

Minister’s submissions in reply in relation to whether Lot 1 was lawfully used or occupied

Further submissions in relation to Berrima Gaol HCA

Consideration and conclusions in relation to whether Lot 1 was lawfully used or occupied

The Court Security Act

Use or occupation of Lot 1 by employees or agents of the NSW Police Force and the Department of Communities and Justice

Use of Lot 1 by members of the public

Conclusion

Costs

Conclusion and orders

Endnotes

Amendments

12 June 2026

Parties

Legislation Cited (46)

Cases Cited (85)