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

CASES CITED: Wanaruah Local Aboriginal Council v Minister Administering the Crown Lands Act (2001) 113 LGERA 163

APPLICANT: Dr S E Pritchard (barrister) SOLICITORS: Chalk & Fitzgerald

LEGAL REPRESENTATIVES: RESPONDENT: Dr M J Leeming SC and A Mitchelmore (barrister) SOLICITOR: I V Knight Crown Solicitor

JUDGMENT:

• 16 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

NEW SOUTH WALES ABORIGINAL LAND COUNCIL V MINISTER ADMINISTERING THE CROWN LANDS ACT ("The Tuncurry claim") [2008] NSWLEC 168

JUDGMENT 1 HIS HONOUR: On 13 July 2005, New South Wales Aboriginal Land Council lodged Aboriginal Land Claim 7481 with the Aboriginal Land Rights Registrar pursuant to s 36(3) of the Aboriginal Land Rights Act 1983 ("the Act"). On 20 December 2006, the Minister refused the claim on a number of grounds. The Land Council now appeals against the refusal of the claim. The question for determination is whether the land is claimable Crown land within the meaning of s 36(1) of the Act. The onus is on the Minister to satisfy the Court that the land or part thereof, is not claimable Crown land: s 36(2). 2 The subject of the claim is a large parcel of land in the mid north coast of New South Wales, near the township of Tuncurry. The area extends in a northerly direction for approximately 12.5 kilometres and varying in width between about 350 metres and one kilometre, parallel to Nine Mile Beach and the Pacific Ocean. 3 In view of the size of land and for the purpose of understanding the Minister's determination, the claim was divided into three sections, section C1 being the northern part of the claimed area, section C2 in the middle and section C3 being the southern part. 4 Although the Land Council's appeal initially covered the Minister's grounds of refusal for all three sections, it has withdrawn its challenge in respect of sections C1 and C3. It maintains, however, its challenge in respect of section C2 except for two areas - that part of C2 being Reserve 91232 for Rubbish Deport (lot 278) and that part of C2 (lot 279) which the Minister has now advised will be granted to the Land Council. 5 The remaining part of section C2 is unreserved Crown land of approximately 230 hectares, extending approximately 3.8 kilometres in the northerly direction and of variable width between about 350 metres and one kilometre.

Claimable Crown lands 6 Section 36(1) of the Act defines "claimable Crown lands" as follows: claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division: (a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 .

(b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands, (c) are not needed, nor likely to be needed, for an essential public purpose, and (d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and (e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands). Crown Lands Minister means the Minister for the time being administering any provisions of the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 under which lands are able to be sold or leased. 7 The Minister initially said that the land shown on the map depicting section C2 is not claimable Crown land for the following reasons:

(i) At the date of the claim, the land shown by a single broken black line was at the date of the claim held under licence 381220 for access, granted to G Gock and others on 19 May 2005 and was thus lawfully used or occupied;

(ii) At the date of the claim, the land shown by broken green lines was lawfully used for the purpose of access tracks;

(iii) At the date of the claim, the land shown by a yellow line was lawfully used or occupied by MidCoast Water for a sewerage transfer pipeline between the Tuncurry sewerage treatment plant and the Hallidays Point waste water treatment plant; and was needed for the essential public purpose of the transfer of sewerage between the two treatment plants and the inspection and maintenance of the pipelines.

(iv) At the date of the claim, the land shown by brown hatching was needed or likely to be needed for essential public purposes associated with MidCoast Water's waste water treatment plant operation, including buffer zones and exfiltration ponds. 8 At the commencement of the hearing, however, the Minister abandoned reason (ii) above; and as to reasons (i) and (iii) conceded that a conditional grant under s 36(5A) subject to an easement to accommodate these uses would be sufficient. Reason for refusal (iv) above became the sole issue in the case. The area of land shown by brown hatching on the map comprises the whole of the balance of the land within section C2, and as noted above, has an area of approximately 230 hectares.

The evidence 9 The evidence is that of Mr B S Guiney, the Manager of Planning and Development of MidCoast Water, and some additional documentary evidence. MidCoast Water is a county council. The functions of MidCoast Water as constituted by proclamation in the Government Gazette of 2 May 1997 are: "the provision, care, control and management of water supply and sewerage works, services and facilities" within the area. 10 The evidence focuses, of course, on the date that the claim was made - 13 July 2005 - since that is when the determination must be made as to whether the land was claimable Crown land. 11 At the date of the claim and until February 2007, MidCoast Water operated two sewerage treatment plants in the region - Tuncurry sewerage treatment plant ("the Tuncurry STP") to the south of section C2 and the Hallidays Point sewerage treatment plant ("the Hallidays Point STP") to the north of section C2. 12 On 7 February 2001, MidCoast Water resolved to close the Tuncurry STP and the effluent be transferred to an upgraded Hallidays Point STP. The upgrade to the Hallidays Point STP involved a number of elements; as follows:

(ii) Acquiring buffer zones for noise reduction and management of odours.

(iii) Constructing exfiltration basins. The basins exist as dry, bare sand excavations with flat floors into which treated effluent is periodically discharged. The treated effluent travels through the floors of the sand basins and mixes with the natural ground water below where it disperses and the nutrients are broken down by natural degradation so that it becomes indistinguishable from natural ground water a few hundred metres from the site.

(iv) Constructing pipelines between the decommissioned Tuncurry STP and the Hallidays Point STP. 13 On 26 June 2003, the Minister for Infrastructure and Planning granted development consent to clear native vegetation for construction of the upgraded Hallidays Point STP and the pipelines. The pipelines, of course, traverse the C2 land, the need for which became the third ground of refusal of the claim, noted in par [7] above. 14 In 2004, MidCoast Water decided to compulsorily acquire a large parcel of land for the upgraded treatment works and to acquire an easement for the pipelines. On 20 December 2004, the Department of Lands consented to the compulsory acquisition and the construction of the pipeline. The land is still not vested in MidCoast Water, however, due to a backlog of acquisitions within the Department of Local Government. 15 Although the upgrading of the Hallidays Point STP included decommissioning the Tuncurry STP, MidCoast Water wished to make use of the exfiltration basins at the Tuncurry STP for the discharge of treated water to the groundwater table. For this purpose MidCoast Water needs a pipeline to send treated water from the Hallidays Point STP to the Tuncurry STP as well as a pipeline to carry sewerage from the decommissioned Tuncurry STP to the Hallidays Point STP. The width of the necessary easement for the pipelines, access and a power supply corridor is 20.005 metres and a length of 11 kilometres, of which about five kilometres traverses the C2 land. The reference to power supply is the need to supply power to the Hallidays Point STP and the general region. This need was identified before the date of the claim in an email from Mr R Powell of MidCoast Water to the Department of Lands dated 2 July 2005. Installation of the pipelines and power cables was well under way, although not completed at the date of the claim. The amount spent on the construction of the pipelines to the date of the claim was $2,389,646.32. The access road is the only access to the Hallidays Point STP and is used by staff of MidCoast Water at least two to three times a week. About ten to twenty service vehicles per week also use the access road. 16 According to Mr Guiney, whose evidence I have no reason to doubt, MidCoast Water must have long-term infrastructure plans in place to manage the risk that growth in development will outstrip sewerage system capacity. It then implements those plans in stages to ensure the efficient use of infrastructure, having regard to: (a) long-term population growth rate; (b) the potential for short-term booms in population growth rates; (c) the potential for entry of development proposals not previously included in MidCoast Water's development servicing plans; (d) the ability to augment sewerage scheme capacity in affordable steps; (e) the operational risk of short-term overloads; and (f) increasingly more stringent regulatory provisions. 17 Importantly, Mr Guiney made the following uncontested statement in his affidavit: Once MCW [MidCoast Water] has made a decision as to the course of expansion, it takes ten years, on average, to develop the infrastructure for sewerage purposes on previously undeveloped land. The time frame required includes the need to study the land in detail, obtain the land by treaty or compulsory acquisition and then design, fund, construct and commission multi-million dollar sewerage infrastructure. 18 MidCoast Water had commissioned a number of studies relating to future planning and population forecasts in its area. A 1996 study reviewed options for augmenting the region's sewerage treatment capacity. One of the options, identified by the Department of Public Works (which carried out the study) included, in the management of effluent, disposal via existing exfiltration beds and disposal to new beds between North Tuncurry and Hallidays Point. 19 In a report prepared by PPK Environment and Infrastructure Pty Ltd in February 2000 entitled "Hallidays Point WWTP's Groundwater Investigations to Assess Dune Exfiltration Expansion Options", the consultants state that there appears to be only limited options to provide long-term solutions to cater for the effluent generated. Those options include a third effluent exfiltration scheme in the area just north of the Tuncurry landfill but that further investigations and groundwater modelling would be required. The area just north of the Tuncurry landfill is within section C2. 20 In March 2002, Acacia Environmental Planning produced a review of environmental factors for the Stage 2 upgrade of the Hallidays Point STP. The review noted the options identified in the previous study and that MidCoast Water had decided to proceed with the option of transferring sewerage from Tuncurry to the Hallidays Point STP for treatment and discharge. The review then stated (at pp 20-21): Effluent would be discharged to the Hallidays Point sand exfiltration basins until the discharge limit is reached. After that time, additional treated effluent would be either returned to Tuncurry and discharged to sand exfiltration beds at the Tuncurry WWTP [Waster Water Treatment Plant] site or discharged at new exfiltration sites between Hallidays Point and Tuncurry. ... Hallidays Point WWTP [Waste water Treatment Plant] would be upgraded to treat anticipated sewage loads from Tuncurry, North Tuncurry, Hallidays Point and the Wallamba Sewerage Scheme. Existing exfiltration systems would be expanded to provide capacity until about 2011 to 2016. After that time, either treated effluent would be returned to the Tuncurry WWTP site for exfiltration to the existing system (which would require further investigation to limit groundwater degradation) or additional exfiltration sites would be provided between Hallidays Point and Tuncurry, south of the six exfiltration basins proposed in this REF [Review of Environmental Factors]. 21 The review then continued (at p 31): Under the stage 2 upgrade, the exfiltration limit of 56L/s peak ADWF would be reached by 2011 while the treatment capacity limit would not be reached until 2021. The proposed activity would be sustainable and not cause significant adverse effects on groundwater levels up to 2011. To discharge treated effluent beyond 2011, MidCoast Water would need to further investigate expanding exfiltration areas to the south of the proposed exfiltration basins or return treated effluent to the exfiltration basins at the Tuncurry WWTP.

Although these options are not a part of this REF, MidCoast Water is presently undertaking strategic investigations into locating additional areas to exfiltrate treated effluent in preference to returning treated effluent to the Tuncurry WWTP exfiltration basins. PPK (2001) identified sustainable load rates for the exfiltration basins at the Tuncurry WWTP using a combination of exfiltration (40 L/s ADWF) and reuse (12 L/s ADWF) at the Tuncurry Golf Course. This exceeds the capacity required for identified growth to 2031 . 22 Mr Guiney does not agree that reuse at the Tuncurry Golf Course will achieve the estimated rate of exfiltration, as reuse is not required in wet weather. 23 In February 2003, Parsons Brinckerhoff produced for MidCoast Water a plan of management for the operation and management of the existing and proposed exfiltration basins. The plan of management includes the following (at p 3): Hallidays Point WWTP is to be upgraded in the Stage 2 works program to treat anticipated sewage loads from Tuncurry, North Tuncurry, Hallidays Point and Wallamba Sewerage Scheme. Existing exfiltration systems will be expanded to provide capacity until about 2011 to 2016 (an extra six basins are envisaged south west of the existing exfiltration basin in previous sand mined areas). After that time, treated effluent would be returned to the Tuncurry WWTP/Golf Course area for reuse, exfiltration at the Tuncurry Basins, additional exfiltration at new sites between the Tuncurry landfill and Hallidays Point WWTP or deep well discharge sites (if suitable sites are located). 24 In December 2003, MidCoast Water obtained a report on sewerage servicing strategy prepared by Ellis Karm & Associates Pty Ltd. The report was prepared to assist MidCoast Water with its planning of sewerage infrastructure works to meet growth and development needs over the next 30 years. The reports notes (at p 15): The only option currently identified for managing the excess effluent flow is by transfer to storage and exfiltration via the existing exfiltration beds at Tuncurry WWTP. No other suitable exfiltration sites or alternative effluent management options closer to Hallidays Point have been identified at this time. 25 The report stated that the hydraulic capacity of the Hallidays Point exfiltration beds is forecast to be reached in 2010, when the use of the Tuncurry effluent ponds will be required. As I read the report, this arrangement would last until 2023, when further upgrading will be required to cater for a population of 38,000 equivalent persons. 26 I observe that there is a difference between the Parsons Brinckerhoff estimate and the Ellis Karm estimate in that the latter envisaged a part transfer of effluent to Tuncurry by 2005, whilst the former assumed that the Hallidays Point upgrading would not require any transfer of effluent back to Tuncurry until "about 2011 to 2016". Since both are estimates, however, I do not attach much importance to this difference, although I note that the Ellis Karm estimate is based on projected equivalent populations. It is not clear what the Parson Brinckerhoff estimate is based on. 27 Mr Guiney states that the currently upgraded Hallidays Point STP has the capacity to manage the effluent of a population of 25,000. I note that this is consistent with the Ellis Karm report, which states that the upgraded Hallidays Point STP will cope with 25,000 equivalent persons, but with part effluent transfer to Tuncurry. The population that the Hallidays point STP currently services is about 12,000 in winter and peaks at 18,000 in summer. 28 The reports generally indicate an estimate of about two per cent per annum in the rate of population growth for the region. On this basis Mr Guiney agrees with the Parsons Brinckerhoff estimate that the Hallidays Point STP will meet the needs of the population until about 2011 to 2016, at which point the Tuncurry exfiltration facilities will be required. Mr Guiney states that further facilities will be required for the discharge of treated effluent to manage a population of more than 39,000. This is consistent with the Ellis Karm report. Mr Guiney states that, bearing in mind the time frame required for the planning and construction of future infrastructure, MidCoast Water selected the land in section C2 for the expansion of that infrastructure, namely, additional exfiltration basins. 29 Mr Guiney describes in his affidavit the various options for effluent disposal to accommodate the additional population and concludes for various technical reasons - which the Land Council does not dispute - that the construction of exfiltration basins on the C2 land is the only feasible option. 30 MidCoast water does not need all of the C2 land. Mr Guiney stated that four to five exfiltration basins will be required, each having typical dimensions of 300 metres by 75 metres, with a 50 metre vegetated space between each basin to facilitate fauna movement, together with the required buffer zones, as shown on annexure "L" to his affidavit. As I understand his oral evidence, the total area of the C2 land is about 230 hectares. The total gross area required for four basins, including the vegetated spaces between each basin and an appropriate buffer, as shown on annexure "L" is 113 hectares or 49 per cent of the total area of the C2 land. If a 250 metre buffer is required, the gross area required is about 106 hectares or 46 per cent of the total area of the C2 land.

31 Although MidCoast Water does not need all of the C2 land, it has long been its intention to compulsorily acquire all of it. According to Dr M J Leeming SC, appearing for the Minister, it is the practice for MidCoast Water to acquire whole parcels of land rather than part whenever land is required for its purposes.

Agreed considerations 32 As noted above, the question for determination is whether, at the time when the claim was made - 13 July 2005 - the land was needed or likely to be needed for the essential public purpose of the treatment and disposal of sewerage. It is self evident - and no one sought to argue to the contrary - that the provision of facilities for the treatment and disposal of sewerage is an essential public purpose. 33 The parties agree that the word "needed" means "required" or "wanted". This in turn brings with it an element of necessity, as distinct from something merely desirable or suitable. It also imposes an element of immediacy - a present, as distinct from a future, need. 34 The Minister relies, however, on the second limb of s 36(1)(c) - that the land is "likely to be needed" for the essential public purpose, namely the provision of exfiltration basins for the disposal of effluent from the Hallidays Point STP. 35 The parties agree that the word "likely" means "a real and not remote chance" and not the extended meaning of "more probable than not". So the question becomes: as at 13 July 2005, was there a real and not remote chance that the land would be needed for the provision of the exfiltration basins?

The Land Council's submissions 36 Dr S E Pritchard, appearing for the Land Council, submits that there was not any real and not remote chance that the land would be needed for the provision of the exfiltration basins. As I understand it, she relies upon the following submissions:

(a) There is a need for some process endorsed by a relevant decision- maker to undertake steps to put into effect the essential public purpose. In the present case no final decision has been taken by anyone to compulsorily acquire the land, there has been no allocation of funds to even investigate the suitability of the land for the purpose and none of the processes required by the Local Government Act 1993 have been put in train, such as the requirement to obtain the approval of the Minister for Land and Water Conservation to construct or extend any water or sewerage treatment works (s 60), or the requirement to obtain the approval of the Minister for local Government to compulsorily acquire land (s 187(2)).

(b) The need for the land is acknowledged to be a possibility, but such a possibility falls far short of a real and not remote chance that the land is likely to be needed for the stated purpose.

(c) Although the reports, such as the Acacia report, identify additional exfiltration basins as the preferred option for expansion, the Minister has provided no evidence of any investigation as to the suitability of the area for exfiltration, or the impact of exfiltration on groundwater, or on flora and fauna habitat. The Acacia report identifies a desire to use an unspecified amount of the C2 land rather than any real need for the construction of a specific number of exfiltration basins on the land. The various studies and reports refer to the steps to be taken in determining the suitability of the land for sewerage purposes, but no such steps have been taken to either investigate the land in detail or to design the infrastructure.

(d) The 1996 study was a preliminary assessment of the strategies and options for the management of effluent and biosolids in the future and it suggested that a number of additional studies would be needed. The study noted that " archaeological, flora and fauna studies will be required ."

(e) The 2001 PPK report, in referring to " a third effluent exfiltration scheme in the area just north of Tuncurry ", states : " options appear limited given the low elevations in this area ", and: "[a] dditional groundwater investigations and groundwater modelling is required to assess this option if this area is to be seriously considered ".

(f) The 2002 Acacia report similarly identified the areas underlying the Hallidays point STP as being low lying, where the groundwater table may break out and cause surface ponding or water logging. The same report states that the combined capacity of the exfiltration beds at the Tuncurry STP together with reuse at the Tuncurry Golf Course exceeds the capacity required for identified growth to 2031.

(g) The Ellis Karm study did not identify any suitable exfiltration sites closer to Hallidays Point (other than those at Hallidays Point itself and at Tuncurry); and it did not refer to any plan to extend exfiltration into the C2 land within the 30 year period under review.

(h) The Minister has not filed any evidence of a strategic asset management plan for the area, nor any draft management plan relating to the C2 land. Nor, at the date of the claim, had the suitability of the lad for exfiltration even been considered.

(i) The consideration of the possible development of sewerage works on the C2 land was so uncertain, undeveloped and subject to various competing and alternative options that it could not be said that there was a real and not remote chance that the land was likely to be needed for the essential public purpose. The only documentary evidence to substantiate the claim is a diagram of the proposed exfiltration beds prepared by Mr Guiney for his affidavit. The Court should not construe s 36(1)(c) of the Act to allow MidCoast Water to bank large areas of valuable land which are not necessary for its operations.

Conclusion 37 In my opinion, the submissions of the Land Council, with one qualification, should be rejected. I have come to this view for the following reasons. 38 I accept the uncontested evidence of Mr Guiney that it takes, on average, ten years to develop infrastructure for sewerage purposes on previously undeveloped land; and that the timeframe required includes the need to identify the land, study it in detail, obtain the land by treaty or by compulsory acquisition and then design, fund, construct and commission the infrastructure (which generally costs some millions of dollars). I observe that although it is only the first step, the land had been identified at the time when the Land Council's claim was made, the future need for additional exfiltration infrastructure had been established and the land on which to place the infrastructure had been identified. 39 The need was identified in the 2001 PPK report and in the 2002 Acacia review of environmental factors, in both of which the subject land was identified. The 2003 Ellis Karm report noted the need for further upgrading in 2023 to cater for a population of 38,000 equivalent persons, although I note that the 2002 Acacia report states that the need will not arise until 2031. 40 Although the Ellis Karm study did not identify the C2 land for exfiltration, the land was so identified in the plan of management prepared by Parsons Brinckerhoff in 2003. 41 Mr Guiney's evidence is that alternatives to exfiltration on the C2 land have been rejected for technical reasons and his evidence on this point is undisputed. 42 The word "likely" implies a degree of reasonableness. Dr Pritchard submits that the timeframe for any likely need must thus be reasonable and a timeframe which does not demonstrate a need until the third decade is not reasonable. I am unable to agree. Land needs to be reserved now to cater for the needs of the expanding population and the associated infrastructure, otherwise it may become unavailable. In Wanaruah Local Aboriginal Council v Minister Administering the Crown Lands Act (2001) 113 LGERA 163, I accepted (at [17]) evidence which established that a timeframe of twenty-five to thirty years was considered to be a commonly used standard for long-term urban planning. In the present case I accept the undisputed evidence of Mr Guiney of the need for MidCoast Water to have long-term infrastructure plans in place, that it takes ten years on average to develop the infrastructure on undeveloped land, and that further facilities for the discharge of treated effluent will be needed to manage a population of more than 39,000. The fact that this may take the actual construction of the infrastructure into the third decade does not mean that the time-frame is not reasonable. Contrary to Dr Pritchard's submission, it would be unreasonable and even irresponsible if MidCoast Water did not identify its future needs now. Moreover, having regard to the time-frame involved here, it is understandable that the steps described in par [36(a)] above are yet to be taken. 43 I am thus satisfied that MidCoast Water has identified a real and not remote chance that the land is likely to be needed for the essential public purpose of sewerage infrastructure, namely, for exfiltration basins. 44 The qualification to which I have referred in par [37] above is that the evidence does not satisfy me, that the whole of the C2 land is likely to be needed for exfiltration basins. As noted in par [30] above, the evidence establishes that only part of the land is likely to be needed, as identified in annexure "L" to Mr Guiney's affidavit. 45 The consequence is that I find that the C2 land, other than an area of 113 hectares generally in the area identified in annexure "L" to the affidavit of Mr Guiney, and other than the easements agreed to by the parties, is neither needed nor likely to be needed for an essential public purpose and is thus claimable Crown land. The Land Council is entitled to an order that the claimable part of the land be transferred to it, subject to a condition under s 36(5A) reserving the easements out of the grant. 46 In the hearing of this matter I acknowledge the assistance of Acting Commissioner Davis. 47 I direct the Land Council to bring in short minutes of order to give effect to this judgment, by arrangement with my associate. The exhibits may be returned. I hereby certify that the preceding 47 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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