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

Court of Appeal (NSW)|2007-02-14|Before: Biscoe J, Mr J

Introduction 1 HIS HONOUR: The Aboriginal Land Rights Act 1983 (ALR Act) is intended to provide a means to remedy the past dispossession of Aboriginal people. The preamble recites that: (1) Land in the State of New South Wales was traditionally owned and occupied by Aborigines: (2) Land is of spiritual, social, cultural and economic importance to Aborigines: (3) It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land: (4) It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation:

2 The primary mechanism for giving effect to the legislative intention is the claims process in s 36 which allows for Aboriginal Land Councils to claim "claimable Crown lands", as defined.

4 The land is a rectangular parcel of approximately 815 square metres in area, located on the corner of Beckwith and Gurwood Streets. A two storey building, which was once a motor registry, exists on part of the subject land. The site has a bitumen surfaced carpark and is fenced.

5 Section 36(1)(b) of the ALR Act relevantly provides: claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division: … (b) are not lawfully used or occupied, … 6 By s 36(5), a Crown Lands Minister to whom a claim for lands is referred shall, if satisfied that the lands claimed are not claimable Crown lands, refuse the claim. If the Minister is satisfied that the lands claimed are claimable Crown lands, the Minister shall grant the claim by transferring lands to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council. Section 36(7) provides: (7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council. 7 Thus the Minister bears the onus of satisfying the Court that the land is not claimable Crown land. The word "may" in s 36(7) means "shall" and thus the power in s 36(7) conferred upon the Court is not a discretionary power but a power which it is bound to exercise in favour of the claimant in the circumstances detailed in the subsection: NSW Aboriginal Land Council v Minister [The Winbar Claim] (1988) 14 NSWLR 685 (CA) at 693.

8 The only question in this case is a question of law: were the lands "claimable Crown lands" within the meaning of s 36(1)(b) when the claim was made on 23 May 2005? "Claimable Crown lands" relevantly mean land "not lawfully used or occupied": s 36(1)(b).

9 In March 2006, the Minister refused the claim on the basis that at the date of the claim "the land was lawfully used and occupied by the Department of Lands in preparing the land for sale".

10 In this appeal, the Minister submits that the subject land was not "claimable Crown lands" because it was "lawfully used or occupied" within the meaning of s 36(1)(b) for two reasons: a The fact that steps were in place to sell the subject land means that it was "lawfully used" when the claim was lodged. b The mere fact that there was a building on the land which was locked, maintained and not abandoned means that the subject land was "lawfully used or occupied" when the claim was lodged.

MINISTER'S FIRST SUBMISSION: STEPS IN PLACE TO SELL THE LAND Crown Lands Act 1989 11 The Crown Lands Act 1989 regulates the sale of Crown land and erects as a principle, in s 11(f), that Crown land is to be sold in the best interests of the State consistent with the principles earlier listed in s 11. It is necessary to refer to the following provisions of the Act in order to identify these principles and understand some of the steps that were taken in relation to the sale of the subject land: 6 Crown land to be dealt with subject to this Act etc Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence, reservation or dedication or other dealing is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989 .

The objects of this Act are to ensure that Crown land is managed for the benefit of the people of New South Wales and in particular to provide for: … (d) the regulation of the conditions under which Crown land is permitted to be occupied, used, sold, leased, licensed or otherwise dealt with …

11 Principles of Crown land management For the purposes of this Act, the principles of Crown land management are: (a) that environmental protection principles be observed in relation to the management and administration of Crown land, (b) that the natural resources of Crown land (including water, soil, flora, fauna and scenic quality) be conserved wherever possible, (c) that public use and enjoyment of appropriate Crown land be encouraged, (d) that, where appropriate, multiple use of Crown land be encouraged, (e) that, where appropriate, Crown land should be used and managed in such a way that both the land and its resources are sustained in perpetuity, and (f) that Crown land be occupied, used, sold, leased, licensed or otherwise dealt with in the best interests of the State consistent with the above principles.

32 Assessment of the capabilities of land (1) The particulars relating to land as contained in the inventory shall be assessed by the Department to determine the land's capabilities, having regard to prescribed land evaluation criteria. (2) For the purposes of this section, assessment of the capabilities of land includes assessment of the land's use for community or public purposes, environmental protection, nature conservation, water conservation, forestry, recreation, tourism, grazing, agriculture, residential purposes, commerce, industry or mining.

34 Powers of Minister in relation to Crown land (1) The Minister may, in such manner and subject to such terms and conditions as the Minister determines: (a) sell, lease, exchange or otherwise dispose of or deal with Crown land, or (b) grant easements or rights-of-way over, or licences or permits in respect of, Crown land, on behalf of the Crown. (2) (Repealed) (3) The Minister may not, under subsection (1): (a) sell or exchange Crown land, (b) lease Crown land for a term exceeding 5 years, or (c) lease Crown land for a term that, by the exercise of an option, could exceed 5 years, unless the relevant date for the sale, exchange or lease is at least 14 days after notice of intention to sell, exchange or lease the land has been published in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State. (4) For the purposes of subsection (3) the relevant date: (a) for a sale or exchange by private treaty is the date on which the Minister enters into a contract to sell or exchange the land, (b) for a sale by auction is the date of the auction, … 35 Assessment of land (1) The powers of the Minister under this Part may not be exercised in respect of Crown land unless the Minister is satisfied that the land has been assessed under Part 3. (2) Subsection (1) does not apply if: (a) the Minister is satisfied that it is in the public interest to exercise the powers without assessing the land under Part 3 and the Minister, in exercising the powers, has had due regard to the principles of Crown land management, or …

87 Power of Minister to reserve land (1) The Minister may, by notification in the Gazette, reserve any Crown land from sale, lease or licence or for future public requirements or other public purpose. (2) The reservation takes effect on publication of the notification.

90 Revocation of reservation (1) The Minister may, by notification in the Gazette, revoke the whole or part of a reservation of land under this Act. (2) The Minister may not publish a notification under subsection (1) unless at least 14 days have elapsed after notice of intention to publish the notification has been published in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State. (3) The revocation takes effect on publication of the notification in the Gazette. The Evidence 12 The facts lie within a small compass and essentially are not in dispute.

13 Until approximately 1985, pursuant to s 87 of the Crown Lands Act 1989, the subject land was reserved from sale for the purpose of "Public Buildings (Motor Registry)" and was used as a motor registry. In September 1985, the reserve from sale was revoked pursuant to s 90 and was replaced by a reserve notified on the same day for "Public Buildings (Government Supply Department Office and Workshop)".

14 From 1985 until approximately 1998 (according to the evidence of the former Principal Lands Officer), the subject land was used for storage by the NSW government Supply Department and then by an entity called the Technical Repair Service which continued to perform functions previously undertaken by the Supply Department. Thereafter, when the Technical Repair Service vacated the subject land, the Department of Lands began using the subject land for storage.

15 In 1999, the Department of Land's regional office advised that the building was surplus to its requirements and that action should be taken to dispose of the land and improvements. Shortly afterwards, the Department reviewed its position and decided to use the building for a Field Activities Centre (sometimes referred to in the evidence as a laboratory). This required some refurbishment. The Department of Public Works was engaged to undertake an assessment of the structural alterations required. The refurbishment works commenced in March 2000. Approximately $12,229 was expended on the building from March 2000 until notice was received on 31 May 2000, of the lodgement of Aboriginal Land Claim 6460 on 19 May 2000, by Wagga Wagga Local Aboriginal Land Council under the ALR Act.

16 On 23 June 2003, the Minister refused this claim on the ground that the subject land was, as at the date of the claim, used by the Department of Land and Water Conservation for storage and refurbishment as a Field Activity Centre. In the period between 31 May 2000 and 23 June 2003, the proposal for refurbishment and use and occupation of the subject land was placed in abeyance pending determination of the May 2000 claim.

17 In that same period, responsibility for the laboratory operations, which had been proposed for the subject land, was reassigned from the Department of Lands to the Department of Infrastructure, Planning and Natural Resources (DIPNR).

18 On 7 January 2004, the Principal Lands Officer, Wagga Wagga district office, Department of Lands forwarded a memorandum to DIPNR to ascertain its intentions concerning the subject land.

19 The General Manager of the Department of Lands, Wagga Wagga district office, indicated that the subject land should be disposed of "as quickly as possible".

20 On 13 February 2004, DIPNR advised that it had no further interest in using the subject property and therefore would not be finalising the renovations commenced in 2000.

21 Between 17 March and 10 May 2004, the Department of Lands advised Wagga Wagga City Council that it was investigating the potential disposal of the subject land and sought and obtained zoning details from the council.

22 On 6 October 2004, the Department of Lands advised the State Valuation Office that it was investigating the disposal of the subject site including the possibility of rezoning it to maximise returns and sought valuations based on alternative zonings. These valuations were provided on 26 November 2004.

23 On 1 December 2004, following receipt of the valuation, the Principal Lands Officer concluded that the figures did not justify a rezoning application and the consequential delay. He recommended a waiver of the land assessment (which was otherwise a pre-condition of sale under the Crown Lands Act ss 30 - 33 and 35) and sale "as is". His report recorded: "The building has not been used and has been vacant for a number of years, and has fallen into a state of disrepair as a consequence"; "the site has been identified as being surplus to departmental needs"; and "there is no known reason for [the subject land] to be retained by the State of NSW".

24 On 23 December 2004, that recommendation was endorsed by the Director General and other senior officers of the Department of Lands.

25 On 28 January 2005, a Department of Land report noted: "The reserve is no longer being used for its intended purpose and waiver of land assessment has been approved to allow sale of the land"; "there is no current occupant of the building"; and "prior to any sale of the land it is necessary to revoke the reservation for Public Buildings". In that report, the Senior Lands Officer, on behalf of the Minister, approved:

(i) Placement of a notice advising of the proposed revocation in the Wagga Wagga Daily Advertiser; and (ii) Revocation of that reservation, "subject to the satisfactory review of any submissions received following the advertisement".

26 On 1 February 2005, for the purpose of permitting the future disposal of the subject land, the Department of Lands conducted an investigation into whether or not Native Title rights and interest might subsist in the subject land, and recommended a determination that Native Title had been extinguished.

27 On 1 February 2005, for the purpose of permitting future disposal of the subject land, notice of intention to revoke reservation of the subject land was published in the Wagga Wagga Daily Advertiser pursuant to the Crown Lands Act s 90(2).

28 On 3 February 2005, the Principal Lands Officer, Department of Lands, recommended to the Department's Regional Manager the sale of the subject land by public auction with a reserve price of $200,000 and the calling of expressions of interest from local real estate agents to market and conduct the auction sale. On 15 February 2005, those recommendations were accepted.

29 On 22 February 2005, the Principal Lands Officer sent invitations to 13 local real estate agents to express interest in acting for the vendor on the sale of the subject land by public auction.

30 On the 23 February 2005, the Principal Lands Officer sought copies of plans, titles and dealings for the purpose of preparing a contract for sale of the subject land by public auction.

31 On 7 March 2005, the Principal Lands Officer wrote to the local council requesting certificates concerning drainage, building rates and zoning of the subject land for the purpose of preparing a contract for sale.

32 On 14 March 2005, LJ Hooker Wagga Wagga wrote to the Department of Lands providing a marketing submission including proposal for "an on-site auction to be held 5 - 6 weeks after our appointment". The attached marketing submission proposed a four-week marketing campaign immediately prior to the auction date.

33 On 17 March 2005, the Principal Lands Officer prepared a table comparing the information received from seven real estate agents in response to the invitations, and made a recommendation to the Department's Manager, Southern Inland, that L J Hooker be appointed.

34 On 24 March 2005, the Principal Lands Officer wrote to L J Hooker Real estate on behalf of the Manager, Southern Inland, advising that approval had been given to its appointment as agent for the property subject to certain terms, which were set out therein. On 29 March 2005, LJ Hooker signed its agreement to those terms and condition.

35 On 30 March 2005, LJ Hooker wrote to the Department of Lands stating, "During the course of marketing the property it is imperative that you are kept fully informed of all developments as they occur. You will receive this information by way of written activity reports and regular discussion. I will make contact with you on Monday 11th April 2005 to discuss timing for the auction and marketing campaign".

36 On 4 April 2005, an identification survey was carried out by the Department's surveyor.

37 On 28 April 2005, the Principal Lands Officer requested the Land Titles Office create and issue a certificate of title in respect of the subject land to permit its sale and transfer.

38 On 29 April 2005, notice of revocation of the 1985 reservation in respect of the subject land was published in the Government Gazette, pursuant to s 90 of the Crown Lands Act 1989.

39 On 2 May 2005, the keys to the subject land were given by the Department of Lands to LJ Hooker to permit them to assess the property and show it to prospective buyers.

40 On 9 May 2005, LJ Hooker wrote to the Department confirming collection of the keys and recommending a general clean-up.

41 On 18 May 2005, the Registrar-General issued a certificate of title.

42 Prior to the keys to the building being given to LJ Hooker and at all times up to and including 23 May 2005, the building was secured by locked doors.

43 Prior to 23 May 2005, and soon after he had discussions with representatives of LJ Hooker, the Principal Lands Officer decided that the subject land would be offered for sale by auction on 8 July 2005 and had prepared, but not caused publication of, a notice of intention to sell Crown land pursuant to s 34(3) of the Crown Lands Act 1989. That draft notice referred to the auction date of 8 July 2005.

44 On 23 May 2005, the applicant's claim, the subject of these proceedings, was lodged.

45 The marketing submission enclosed with the letter dated 30 March 2005 from LJ Hooker to the Department, referred to earlier, proposed a four week marketing strategy leading to the auction date. As the date fixed for auction was 8 July 2005, that campaign had not commenced at the time that the applicant's claim was lodged and thereafter obviously fell by the wayside.

46 On 20 June 2005, the office furniture, which had been stored on the site, was taken away to sell by auction. It was old, damaged, disused furniture from the time that the Department refurbished the building in 2000. The furniture had been stored on two levels in the building. The removalists charged for two hours work.

47 The subject building was in a state of disrepair as at, and for some time before, the claim date of 23 May 2005, as the following evidence indicates: (a) On 30 November 2003, a neighbour complained of the state of the building and the fact that ornamental stones from the property were being used as projectiles. Photographs taken on 12 December 2003, show damage to windows and broken tiles strewn on the staircase. (b) A report prepared on 1 January 2004, noted that since 31 May 2000, " no works have been done on the building since that date (save the removal of stones from gardens by Wagga Wagga District Staff, which had been used as projectiles) ". (c) The valuation report dated 26 November 2004, obtained by the Department of Lands (referred to above) stated that the building " has been vacant and fallen into disrepair as of today's date. The building could not be rented in its current condition and is considered a detriment to the value of the land ". (d) A Report For Waiving Land Assessment of 6 December 2004, noted that the building had fallen into a state of disrepair.. (e) On 9 May 2005, L J Hooker wrote to the Department of Lands (referred to above) stating: " We have since inspected the property and wish to bring to your attention the current state of the property, which is rather dirty and in need of a tidy up. In particular we are concerned about the fallen tiles on the staircase as they pose a potential risk to prospective purchasers. We would like to recommend a general clean up to be undertaken to remove rubbish including the fallen tiles. We also note there to be a number of broken windows at the property, some have been boarded-up whilst other [sic] appear to have been broken more recently ". Legal Principles

48 The question is whether the subject lands were "claimable Crown lands" within the meaning of s 36(1) of the ALR Act when the claim was made on 23 May 2005. The answer is in the affirmative if those lands were "not lawfully used or occupied" on that date, within the meaning of s 36(1)(b).

49 Those words should be construed with an appreciation that the ALR Act is beneficial and remedial legislation. In Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 (CA) at 157, Kirby P stated: "The Aboriginal Land Rights Act 1983 is beneficial and remedial legislation. Clearly, it was enacted to give important rights in Crown land to the representatives of the Aboriginal people. By common acknowledgement, such people have suffered substantial injustice and loss consequent upon the deprivation of their land following the settlement of Australia". That the ALR Act is beneficial and remedial legislation has been repeated in decisions of this Court: Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 20 at [97] - [98] per Lloyd J; and Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2006) 149 LGERA 162 at [14] - [15] per Pain J. The beneficial purpose of the ALR Act suggests that exceptions to the right to claim land under the ALR Act should be construed narrowly: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] (2001) 50 NSWLR 665 (CA) at [53] - [54] per Spigelman CJ.

50 There are four key decisions of the NSW Court of Appeal on the meaning of the words "not lawfully used or occupied" in s 36(1)(b): Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 (Daruk); Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 (Tweed Byron); Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 (Nowra Brickworks No 1); Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [No 2] (1997) 42 NSWLR 641 (Nowra Brickworks No 2). The only other case in which a claim over improved urban land has been the subject of a decision by this Court was in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 (the Department of Education case), where Stein J dismissed the appeal against refusal of the claim.

51 These decisions furnish the following guide to the interpretation of the words "not lawfully used or occupied" in s 36(1)(b), substantially as submitted for the Minister. First, the word "lawfully" qualifies both use and occupation: Nowra Brickworks No 2 at 653F.

52 Secondly, the word "or" is disjunctive; it is sufficient for the land to be lawfully used or lawfully occupied: Nowra Brickworks No 2 at 653F.

53 Thirdly, the word "lawfully" has two meanings. In addition to actual use or actual occupation for a lawful purpose, it also means use or occupation by a person who has a legal right to use or occupy the land: Nowra Brickworks No 2 at 653G.

54 Fourthly, mere proprietorship is not sufficient to establish that lands are "occupied": Tweed Byron at 140.

55 Fifthly, "occupied" means actually occupied "in the sense of being occupied in fact and to more than a notional degree": Daruk at 162E. The same is true of "use": Daruk at 164D. "Depending upon the purpose, use may or may not be synonymous with physical occupation and enjoyment. In the case of mining activities the lands presently used are not only those being physically mined at any particular point of time but those held as a reserve for mining for some time into the future": Nowra Brickworks No 1 at 120F.

56 Sixthly, there may be actual occupation or use notwithstanding that nothing is physically occurring on the land. "[T]he answer to the question whether or not the ML2 land has been used within the meaning of s 36(1)(b) depended on whether the lands or the relevant part of the lands, taken as a whole, had been devoted to mining purposes rather than whether they were being immediately physically used for those purposes": Nowra Brickworks No 2 at 649E. Thus, a passive use may still amount to a relevant "use".

57 Seventhly, in determining whether land has been used, it is necessary to take into account the purpose for which it is claimed the lands have been used. "The purpose will dictate the degree of immediate physical use required to decide whether they are actually used in more than notional sense": Nowra Brickworks No 1 at 121E - F. Thus, it has been held that land which was not being physically used at all, but which had been held in reserve for many years for excavation when clay deposits on other lands were exhausted, was nevertheless actually used in more than a notional sense: Nowra Brickworks No 2 at 646A and 647F.

58 Finally, the question as to whether land was, at the relevant time, lawfully used or occupied, is a question of fact. "[E]ach case must very much depend on its own facts and circumstances. Questions of fact and degree will inevitably arise for consideration": the Department of Education case at 1999.

59 The Minister submits that the fact that steps were in place to sell the subject land means that it was "lawfully used" when the claim was lodged.

60 The appellant's submissions may be summarised as follows. The land was "surplus" land, "vacant", in a state of disrepair and in the process of being prepared for sale. The assertion that surplus Crown land ceases to be claimable when steps are taken to dispose of it by sale, or that land is being used or occupied by virtue of steps being taken to dispose of it, is antithetical to the scheme of the Act. Land that is surplus Crown land is precisely the type of land which is intended to be available for claim. The matters relied on by the appellant fall within the dictum of Stein J in the Department of Education case at 199, that the "mere endeavour to sell land may not amount to a use of land as land". Preparation for sale is not a use. The steps taken and procedures followed for the purpose of selling the subject land are merely administrative steps which are part of the process of disposing of the land and are not, for the purposes of s 36(1)(b), either an actual "occupation" or "use" of land as land. Once vacant land is put up for sale it is claimable Crown land.

61 Suppose that the appellant's claim had arrived on the morning of 8 July 2005, that is, on the day of the auction? Could it be said that the land was claimable Crown land? If not, is there any point of distinction between the day of the auction or, say, the week before the auction or, as here, five and a half weeks before the auction when all the necessary or appropriate steps for sale were under way? This raises a question, if not a doubt, about the appellant's case at the level of initial impression.

62 I do not accept the appellant's submission that preparation for sale cannot be a use of land within the meaning of s 36(1)(b). In the Department of Education case at 199 Stein J said: However, there are in this case a number of facts relied on by the Minister as constituting a lawful use of the land. In addition to the minimal physical occupation, there is the continued maintenance and cleaning of the whole of the building. Its services and utilities were also maintained. Additionally, there was the active marketing of the building by the agents which involved not infrequent access being given to prospective lessees and their consultants. All of these activities were occurring at the relevant time of the claim. Moreover, the building was controlled by security personnel and the central car parking area was utilised, including by the Lands Department. Office furniture was still stored in part of the building although being progressively removed.

It may be doubted that any of these matters taken individually may amount to a lawful use of the land. For example, the mere endeavour to sell land may not amount to a use of the land as land. However, the various factors may obviously be considered cumulatively since they were all occurring at the relevant time of the land claim. When so considered, it is my opinion that they add up to a sufficient "use" of the whole of the land to satisfy the definition and remove it from the category of claimable Crown land. I am satisfied that the Minister has established that the land was being lawfully used at the date of the land claim. Stein J stated that the mere endeavour to sell land " may not" amount to a use of the land as land, not that it did not amount to a use. Furthermore, His Honour considered that the relevant factors, including endeavours to sell the land, led to the conclusion that the land in that case was being lawfully used at the date of the land claim.

63 The Crown Lands Act 1989 weighs against the appellant's submission because s 34(1)(a) empowers the Minister to sell Crown land. Section 35(2)(a) requires the Minister to have due regard to principles of Crown land management when selling Crown land. Section 11(f) states as a principle that Crown land be sold in the best interests of the State. Under s 10(d), one of the objects of the Act is to provide for the regulation of the conditions under which Crown land is permitted to be sold. Under s 6, Crown land is not to be sold unless the sale is authorised by the Act. It would be paradoxical if the exercise of the Minister's power of sale was not relevantly a "use" of the land. It would mean that whenever Crown land was in the process of being sold, without otherwise being used, it would be claimable Crown land and would be lost to the Crown if a claim was made under the ALR Act during that period.

64 The appellant's submission also seems inconsistent with Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2006) 149 LGERA 162 at [29] where Pain J stated that s 36(1)(b) is consistent with "use" by a person who has the right to use the land which arises without any dealing (such as a sale) necessarily taking place.

65 It is clear that from 2004, the Department had the purpose of selling the land and thereafter took the steps referred to earlier in order to effect that purpose. The purpose dictates the degree of immediate physical use required to decide whether land is actually used in more than a notional sense: Nowra Brickworks No 1 at 121E - F. The issue is whether the steps taken by the Department to effectuate that purpose were sufficient to make the use of the land a use in fact and to more than a notional degree. Steps towards the sale of the subject land were well advanced by the time the claim was made. Zoning had been investigated. Expert opinion had been obtained to ascertain whether rezoning might improve the return to the State from a sale. Consideration of matters relevant to the waiver of the requirement for assessment of the land under s 35 of the Crown Lands Act had been undertaken and a decision to waive assessment had been made. Notice of revocation of the existing reservation affecting the subject land had been published. The possible presence of Native Title rights and interests had been investigated and ascertained not to be an impediment to sale. The decision to sell the land by auction had been taken. Agents had been invited to express interest in acting on the sale and expressions of interest had been considered. An agent had been appointed and provided with the keys to the premises. Steps had been taken to secure council certificates and other documentation for the purpose of the sale. The date for the proposed auction sale had been selected. Notice under s 34(3) of the Crown Lands Act (the final statutory precondition for the proposed sale) had been prepared and was ready for publication. These actions were not responsive to the claim. They were undertaken in the ordinary course of events and in the ordinary course of the discharge by the Department of its ordinary functions. There was also a minimal physical use of the building by the storage of some furniture.

66 In the Department of Education case, comparable steps sufficed to constitute "use" even though there no date had been set for auction nor had possession been given to estate agents. The present case may also be compared with Nowra Brickworks No 2. There, a lease had been granted of land for the purpose of extraction of brick-making clay. It was held that the land was being "used" in circumstances where nothing had occurred on the land for decades and the owner intended, years in the future, to excavate pursuant to a statutory right.

67 In my opinion, the decision to sell the subject land and the steps taken in furtherance of that intention were an actual use of the land, notwithstanding that they were passive in the sense the land was not physically being used apart from storage of some furniture.

68 Accordingly, I uphold the Minister's first submission. That is sufficient for the appeal to be dismissed.

Minister's Second submission: A locked, maintained and not abandoned building 69 The Minister's second submission is that the fact that the building was locked, maintained and not abandoned means that the subject land was "lawfully used or occupied" when the claim was lodged. That submission would require me to disagree with the contrary decision of Stein J in the Department of Education case at 198 where his Honour held: [Counsel for the respondent] submits that a government building could be wholly decommissioned but kept locked and this would amount to a lawful use or occupation thus defeating any land claim. It seems to follow from what he says that nothing short of a total abandonment of a building would suffice to avoid it being categorised as being in lawful use or occupation at the time of a claim. I cannot accept this submission. If it be right then virtually no land claim could succeed where improvements in the nature of a building are involved. A building would have to be virtually abandoned and left unsecured to permit a successful claim. This could not have been the intention of the legislature given the remedial nature of the enactment discussed earlier. Something more than a mere locking of a decommissioned building must be required. It is of course difficult to say with any precision where the line should be drawn and each case must very much depend upon its own facts and circumstances. Questions of fact and degree will inevitably arise for consideration.

70 As I have upheld the Minister's first submission, it is unnecessary to pass judgment on the Minister's second submission CONCLUSION 71 I acknowledge the assistance of Acting Commissioner Jurotte in this matter.

72 The appeal is dismissed. The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Set aside by Appeal : [2007] NSWCA 281 - Appeal allowed

CITATION : New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 158

Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2006) 149 LGERA 162; Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140; Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133; Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] (2001) 50 NSWLR 665; CASES CITED: Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [No 2] (1997) 42 NSWLR 641; Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106; Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192; NSW Aboriginal Land Council v Minister [The Winbar Claim] (1988) 14 NSWLR 685 (CA); Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 20

(2006) 149 LGERA 162

At a glance

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Before

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Judgment (77 paragraphs)

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Cases Cited (10)