Crown land likely to be needed as residential land at date of claim
239The exclusion of claimable Crown land in s 36 (1)(b1) relates to land that, in the opinion of a Crown Lands Minister, is needed or likely to be needed as residential land assessed at the date of the claim. The submissions of the parties firstly necessitate consideration of whether the Minister is required to personally form the opinion or expressly delegate formation of the opinion. Alternatively, can the opinion be formed by a departmental officer exercising delegated powers under the CL Act and/or acting in the course of their departmental duties so that the Carltona principle applies. If so, was such an opinion formed by an officer(s) in the Department at the date of claim, here 20 August 2009.
240Ministerial functions under the CL Act may be delegated under s 180. The ALR Act provides similarly in s 243. The Applicants submitted that the function of holding the necessary opinion under s 36(1)(b1) had to be exercised personally by the Crown Lands Minister or someone specifically delegated the function in s 36(1)(b1) by the Crown Lands Minister. No such delegation existed in this case. Nor has one been produced by the relevant Minister in any of the cases considering subsection (1)(b1) referred to. As identified by Basten JA in Berowra CA at [65] no provision for delegation of the Crown Lands Minister's function under the ALR Act exists in the CL Act. In the absence of that delegation the Applicants submitted that the opinion had to be that of the Minister, contrary to my finding on the same issue in Hillston decided after Nambucca (No 2) at first instance. The Applicants submitted that I should review my conclusion in Hillston in light of the Court of Appeal in Nambucca and the later decision in Berowra CA which refers to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 in considering the Carltona principle.
241In Hillston at [95] - [104], the parties made similar submissions to those in this case (except that the Applicants here also relied on more recent cases such as Nambucca CA and Berowra CA). I held that the existence of a Crown Lands Minister's opinion could be inferred from the actions of his or her Department pursuant to general delegations of statutory duty under the CL Act. I recognised the practical necessity of the Carltona principle applying, noting also that different Ministers may administer the ALR Act and the CL Act as occurred in that case.
242The Applicants' primary case here was not raised in Nambucca (No 2) at first instance or in the Court of Appeal or in Berowra CA. The issue was discussed as obiter in both cases in the Court of Appeal. Basten JA observed in Nambucca CA at [33] - [35]:
33 The description in par (b1) is identified by reference to the opinion of a Crown Lands Minister. The use of a subjective criterion or precondition is well-understood in the context of judicial review proceedings: it limits the circumstances in which an application for judicial review can succeed. The opinion, rather than the underlying circumstances, becomes the criterion conditioning the exercise of power: see Bankstown Municipal Council v Fripp [1919] HCA 41; 26 CLR 385 at 403 (Isaacs and Rich JJ), referred to by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [130]. In the present case, however, the purpose of the requirement is different. When the Minister determines a claim under s 36(5), he or she must be satisfied that, at the time of the claim, the Minister (who may have been a predecessor) held an opinion as to the need or likely need for the lands as residential lands. It will not be for the Minister exercising the power under s 36(5), or the Court, exercising its power on appeal under s 36(7), to decide whether or not there was a need or likely need for the lands as residential lands, but only whether the Minister in office at the time of the claim held such an opinion.
34 In practice, it is rarely the case that the Minister forms such an opinion prior to the making of a land claim. Further, because, prior to the making of a land claim, there is no purpose in the Minister forming such an opinion, there is unlikely to be any indication of a Minister delegating the power to form such an opinion.
35 If it were necessary to find such a contemporaneous opinion held by the Minister, the Minister must have failed in the present case because there was no suggestion that his predecessor had formed the relevant opinion. The case, however, was not run on that basis. It was accepted on behalf of the land Council that it would have been sufficient if the officer responsible for dealing with Crown lands in the Grafton area had held the relevant opinion. Precisely who that was does not appear to have been identified; rather, the parties appear to have proceeded on the basis that Mr Edwards' opinion, at least when accepted by those in charge of the Regional Home Sites Program in the Department of Lands, would have been the relevant opinion. Mr Edwards did not, either in this affidavit, or in his oral evidence, express an opinion that he held when the claim was made, in terms of s 36(1)(b1). (The closest he came was the statement in the last paragraph of the letter at [25] above.) That appears not to have been treated as fatal to the Minister's case either. Rather, the case appears to have proceeded on the basis that the Minister could succeed if he demonstrated to the satisfaction of the Court that someone in his Department at the date of claim would have held the relevant opinion, if asked.
243In Berowra CA the Minister sought to rely on the managing director of Landcom as an authorised agent forming by inference the necessary opinion under s 36(1)(b1). That person was not within the Minister's department. The conclusion of the trial judge that the Carltona principle did not apply to that person was upheld in the Court of Appeal. The exercise of ministerial delegation and operation of the Carltona principle was considered by Basten JA at [56] - [70] recognising that the principle applied in many different ways. At [60] his Honour referred to Peko-Wallsend at 37-38 where Mason J stated at 38:
The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him.
244Basten JA identified in Berowra CA at [63] that it had been accepted in Nambucca (No 2) that the Minister need not hold the opinion personally but it was sufficient if a relevant officer within the Minister's department, having an appropriate degree of seniority, held the relevant opinion. Basten JA identified that as the power of delegation does not arise under the ALR Act as the Crown Lands Minister does not administer that Act, the delegation power is under s 180 of the CL Act, at [64]. At [65] Basten JA identified that a matter which could arise but was not debated before the Court was the construction of s 180 of the CL Act as that section did not confer power on the Crown Lands Minister to delegate the holding of an opinion under the ALR Act. No power of delegation is conferred on the Crown Lands Minister in relation to the holding of an opinion under the ALR Act.
245Macfarlan JA in Berowra CA at [128] stated that whether the legislative intent was that the relevant opinion referred to in s 36(1)(b1) must be formed by the Minister personally was the starting point of statutory construction, identifying also the application of the Carltona principle where departmental officers' actions are relied on. An obiter view was expressed at [133]:
...There is not in my view any reason why the authority [from the Minister] need take any particular form (such as, that it be in writing) to be effective. The point of significance to this case is that if the relevant Government officer is outside the minister's department, some basis for inferring or finding a conferral of authority, other than the departmental structure, must be found. None existed in the present case. ...
246I see no reason to depart from my reasoning in Hillston that the Minister need not have personally formed the opinion under subsection (1)(b1). To the extent this issue was considered in obiter in Berowra CA the findings of Basten and McFarlan JJA that a Crown Lands Minister can rely on the actions of departmental officers to discharge his or her onus of proof set out above support my finding. Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, 5th ed (2013) Thomson Reuters, states at [6.150] that "Carltona is essentially an interpretive principle, which can therefore be overcome by express words or by implication." There are no express words or words giving rise to an implication in the ALR Act or the CL Act that overcome the application of the Carltona principle. Further, the practical necessity for such an approach is highlighted in Nambucca CA by Basten JA at [34] where he observed that a Crown Lands Minister has no knowledge of if or when a land claim might be made to inform him of the necessity of delegating the function of forming his or her opinion under s 36(1)(b1) of the ALR Act. As already identified in par 244, in Berowra CA Basten JA at [65] further observed (in obiter) that there was no statutory mechanism allowing for delegation of the subsection (1)(b1) function under the ALR Act by the Crown Lands Minister under s 180 of the CL Act. If the Applicants' case is accepted, the Minister could rarely if ever rely on subsection (b1). Even adopting a beneficial approach to the construction of the ALR Act, that outcome cannot be what Parliament intended in including subsection (1)(b1) in s 36.
247The Carltona principle applies to the carrying out of Ministerial functions by departmental officers based on recognition of the necessity for those powers and functions to be carried out by departmental officers. This principle is well entrenched in Australian law as recognised in Peko-Wallsend. The challenges which the Minister may face in discharging that onus are highlighted by the last sentence of Basten JA's findings in Nambucca CA at [35] above.
248A Crown Lands Minister can also rely on explicit delegations held under the CL Act by officers of the Department, as identified in the Minister's submissions, as part of a factual matrix the Minister may rely on in order to establish that the relevant opinion that the land was needed or likely to be needed as referred to in s 36(1)(b1) was held by a departmental officer or officers with relevant powers and functions delegated under the CL Act. Here, the Minister relies on exercise of the power of sale of Crown land under s 34 of the CL Act.
249It is open to the Minister to demonstrate that the necessary opinion that the claimed land was likely to be needed as residential land was held by an officer or officers in the Department at the claim date. It remains to be determined whether the Minister has discharged the onus of proof of doing so. There is no express opinion of an officer of the Department referring to s 36(1)(b1) stating expressly that the land is needed or likely to be needed for residential land. In light of the observations above that there is no provision for delegation of powers of the Crown Lands Minister under the ALR Act to be delegated that is not surprising. The question whether the requisite opinion existed by inference is a question of fact to be determined by the circumstances relevant to when the claim was made (Nambucca (No 2) per Jagot J at [72]; Nambucca CA Basten JA at [33] and Hillston at [94]).
250It is useful to return to Nambucca (2009) where Basten JA stated at [36], [37] and [40]:
36 There was no proposal at the relevant time that the lands should be used for any other purpose than as residential lands. Accordingly, the only remaining question was whether they were, in the Minister's opinion at the relevant time, "needed or likely to be needed for that purpose". Similar language is used in s 36(1)(c) of the Land Rights Act, in relation to "an essential public purpose". There is no reason to suppose that the test in respect of these elements differs between the two provisions. As the trial judge noted, in Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 ("Deerubbin (No 1)") at 254, Handley and Powell JJA noted that the word "needed" in s 36(1)(c) means "required". This view was confirmed in Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; 50 NSWLR 665 ("Deerubbin (No 2)") at [50]. Spigelman CJ noted that "need" meant no more than "required or wanted" and continued:
"The distinction between what was 'needed' and what was 'likely to be needed' turned, in the Appellant's submission, on whether or not a decision concerning the use of the land had in fact been made. This is an acceptable distinction."
37 His Honour then proceeded to consider the meaning of "likely" which, as has frequently been observed, can mean more probable than not or can have the less demanding connotation of "a real chance", being something more than a remote chance or possibility: at [51]. His Honour noted that the beneficial purpose of the legislative scheme favoured a limited construction of the exceptions to claimable Crown lands, while reference to an "essential" public purpose gave the paragraph a different emphasis. His Honour concluded that because the scope of the public purposes was restrictively identified, the meaning of "likely", should be accepted as satisfied by a real or not remote chance: at [57].
...
40 Some care must be taken in transferring language used in one factual context to another. ... In relation to par (b1), however, so long as a relevant opinion has been properly formed, according to correct legal criteria, and the Court is satisfied of the existence of the opinion at the relevant time, that would be a sufficient basis for rejecting the claim. Accordingly, whatever the precise scope of the comments in Deerubbin (No 1) in relation to the exclusion in par (c), it is clearly apposite in relation to (b1) and was therefore applicable in the present case. As already noted, the critical question was whether the relevant opinion was held by a relevant person at the relevant time.
251The Minister relied on Tongarra Gap (No 1) where the Court of Appeal (Hodgson, McColl and Basten JJA) considered the question of whether land was needed or likely to be needed for an essential public purpose under s 36(1)(c), there nature conservation. That subsection does not refer to the existence of a subjective opinion of a Minister and is not as directly applicable as Nambucca CA where the Court of Appeal was required to directly consider subparagraph (b1).
252In Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 20; (2001) 113 LGERA 163 (Wanaruah) the Minister refused part of the land claim because it was needed or likely to be needed for residential lands under s 36(1)(b1). The land was zoned residential, however this was held not to be conclusive of need or likely need on its own (at [14]). Lloyd J held that:
... the evidence regarding LandCom's view relating to the subject land does not demonstrate a clear opinion that the subject land was likely to be needed as residential land at any particular time in the future. The executive government in 1983 had specifically deferred any further activity leading to development of the land; and nearly 10 years later, at the date of the claim, there was no indication that the residential development plan was ever going to be implemented. LandCom did not undertake any further planning in relation to the land and refused to contribute to construction of fire roads, which indicates a deliberate "hands off" policy. I conclude that the relevant authority of the executive government, LandCom, did not hold an opinion that the land was likely to be needed at any reasonably foreseeable time in the future.
253In Awabakal Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 124 (Awabakal) s 36(1)(b1) was relied on by the Minister in resisting a land claim. I held that the evidence as a whole did give rise to the inference that an opinion was formed on behalf of the Minister at the relevant time that land was needed for residential development. Prior to the date of claim, an officer acting directly on behalf of the Minister agreed to "commit the area to Landcom use", at [24] and [60]. The claimed land had been "identified and listed in the Department of Planning's Lower Hunter Urban Development program" and was largely zoned residential at [23].
254In Nambucca (No 2) a development application for residential development had been lodged "on behalf of the Minister" and been approved subject to conditions. The development application had not lapsed prior to the claim being lodged. Jagot J held (at [108]) that the development application was not a presumptive answer as to whether there was an opinion that land was needed or likely to be needed as residential land. The factors that contributed to the conclusion that the relevant opinion was not held included that the Department was aware the land had significant constraints, there were other parcels of land available for development, and the land had been taken off the homesites program (Nambucca (No 2) per Jagot J at [109] - [120]).
255In Hillston I held that there was no evidence which gave rise to the inference that an opinion was formed by anyone within the Department acting under delegation that the claimed land was needed or likely to be needed for residential use (at [126] - [128]). The claimed land was largely zoned non-urban (at [16]). The evidence suggested only that the council believed that it required more land to satisfy future demand for residential development in Hillston and considered that the claimed land was suitable for that purpose. Over 17 years it took steps to acquire the claimed land and other lands in Hillston (at [115]). The Department on behalf of the Minister did not initiate any action to dispose of the claimed land. Rather it acquiesced in what the Council sought. There was no evidence that the council's desire to acquire the land resulted from a need for it to meet future demand for residential development in Hillston (at [116]). Further there was no evidence that the Minister or his Department had the same intention or desire as the council in relation to future use of the claimed land or that anyone formed the particular opinion that the land was needed or likely to be needed for that purpose (at [117]).
256In Berowra CA (at first instance New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 241 (Berowra LEC)) the land was zoned for urban residential purposes, at [55]). Landcom had an interest in the claimed land and an ecological sustainable development study was conducted. Subsequently some of the land was zoned open space, Landcom withdrew its interest in some of the land and some of the land was returned to the Department of Land and Water Conservation for dedication as public reserve (at [72]). The Minister for Lands was not involved in decisions about the land until after the land claims were made (at [141]). The Court of Appeal (Hodgson, Basten and Macfarlan JJA) dismissed the appeal against the finding at first instance that no opinion existed at the date of claim that the land was needed or likely to be needed for residential land (at [99]).
257The Applicants' submission that likely need for residential land should be objectively determined as a means of testing whether the relevant opinion was held is contrary to the wording of subsection (1)(b1) and Nambucca in the Court of Appeal at [63] where Basten JA held that what is required is a finding of whether the existence of an opinion could be inferred from a consideration of the facts. I observe that it can appear a fine line in the cases outlined above between considering the objective facts informing the existence of a subjective opinion rather than (impermissibly) considering as a matter of fact whether there is objectively a need for residential land. It is trite but necessary to observe that each case must be considered on its own facts.
258As Jagot J observed in Nambucca (No 2) at [106], there is no statutory process at state government level required for the development of Crown land as residential land in contrast, for example, to the creation of a national park. For local government the Environmental Planning and Assessment Act 1979 provides a process for zoning of land for certain purposes such as residential and its identification in environmental planning instruments. There is therefore no precise statutory process by which to assess the actions suggesting formation of the relevant opinion by a particular person or persons having relevant authority within the Department. That is a question of fact that must be determined on the evidence. For the Minister to succeed the Court must be satisfied that under the Carltona principle an officer or officers carrying out relevant departmental functions to sell the claimed land held the opinion that the land was likely to be needed for residential land in August 2009. Likely means a real or not remote chance of the land being required (needed or wanted) for residential land.
259The Minister relied on the actions of various officers, Messrs Tapper, Wood, Veitch and Phillips, in pursuing a sale of the claimed land up to and during August 2009 with the expectation that the land would be developed for residential purposes. The various steps taken by officers in the Department in relation to the claimed land and their seniority is outlined in their affidavits and summarised above at par 168, 170, 171, 188, 190 -192. Powers under s 34 (sale of Crown land inter alia) and s 36(1) (imposition of conditions in a contract of sale) of the CL Act have been delegated as outlined in the Minister's submissions above at par 232 including Part 2D.1.1, Part 3D.1.1 and 1D.1.2. All officers held delegations of functions under s 34 of the CL Act. The limit on the formal delegation of the decision to sell Crown land placed that function at the level of Regional Manager CL NSW, Mr Phillips at the date of claim (and later Mr Harding, after the date of claim).
260The Minister can rely on the actions of Messrs Tapper, Wood, Veitch and Phillips in light of their respective increasingly senior roles before and very shortly after the date of claim in August 2009. The Applicants submitted that the officers' actions pursuant to delegations could not be enlarged to form an opinion about the reasons why the land is being sold but given my conclusion above in relation to delegation and that the Carltona principle operates I consider that they can. The departmental officers were carrying out functions under the CL Act. Provided they are sufficiently senior, their actions can give rise to an inference of the holding of an opinion on the Minister's behalf. The obiter comments of Macfarlan JA in Berowra CA at [133] suggest that provided officers are acting in accordance with their duties in the Department, whether they are acting under a specific delegation is not necessarily material to whether they are acting with requisite authority. In this case the disposal of the land by way of sale leading up to the date of claim results in the focus on the delegations related to that function under s 34 of the CL Act.
261The approach from Mr Future to the Department in 2007 about a sale of the land to his company, the earliest approach being in 2005, related to development of the land for residential use. That is clear from Mr Future's affidavit which identifies his intentions to develop the land for residential purposes. Mr Wood in a file note prepared in 2007 of a conversation with Mr Future about the disposal of lot 3542 noted that Landcom was interested in a joint venture and the Council considered rezoning was appropriate. The history of Landcom's interest in the land is identified in the evidence. Having had some interest during the period 1998 - 2002, Landcom did not have any further interest in developing the land after 2002.
262Mr Veitch stated in a departmental email in September 2008 that the urban expansion of Nelson Bay was being monitored and he considered the claimed land had been earmarked by both the council and a private developer as being required for urban development as part of the urban expansion of Nelson Bay. I infer that Mr Veitch meant residential development. The purchase of the claimed land for an ambulance site was rejected by the Department in May 2009 because the land was under investigation for disposition as a residential development site according to Mr Veitch and Mr Wood. The same view about the potential use of the land, expressed as urban expansion, was identified to DEC in March 2009 and on several other earlier occasions when these departments were negotiating about the appropriate use of the land.
263The Sale of Crown Land Submission recommending sale of the claimed land by private treaty prepared in about August 2009 by Mr Tapper accepted the ERM report identifying that:
Preferred Land Use - in consideration of the aforementioned factors, it is evident that urban development is a justifiable and appropriate land use. Residential development of Lot 3542, being one of the last remaining recognised regional residential sites at Nelson Bay, will assist in meeting settlement outcomes contained within government's Lower Hunter Regional Strategy document.
264This was signed by Mr Wood on 24 August 2009 a few days after the land claim was lodged on 20 August 2009. Broadly speaking events after the land claim date are not to be considered relevant, although there are recognised exceptions to that (see Housing Commission (NSW) v Falconer [1981] 1 NSWLR 547 at 558B per Hope JA). Where actions are very close to the claim date and taken without knowledge of the land claim, as in this case, they can be considered as relevant. Mr Veitch signed the memorandum on 28 August 2009. The process for disposal of the land by sale was largely contemporaneous with the land claim. Mr Phillips who held the relevant delegation to approve the sale of the land under s 34 did not formally approve the sale in August 2009 by signing the memorandum because he was aware of outstanding earlier land claims. That the final decision to sell the land was made by Mr Harding, General Manager, after the date of claim on 8 February 2010 does not alter the evidence of whether or not at the date of claim the inference arises that the relevant opinion was held by Messrs Tapper, Wood, Veitch and Phillips.
265Mr Veitch, Programme Manager Commercial Central Coast/Hunter Region, and Mr Wood, Team Leader Commercial Crown Lands Division Central Coast/Hunter Region, expressed views about the likelihood that the land would be used for a residential development site and for urban development or expansion near Nelson Bay before the claim date. As the Minister submitted, there is no basis for ignoring these statements because the words urban expansion rather than residential development were used. I discuss further why this is so in later paragraphs in relation to Christmas Bush Pty Ltd.
266Given the clear statements of opinion on several occasions in the Department's files about the potential for use of the land for urban development and its likely need for the expansion of Nelson Bay meaning, I infer, residential development, there is less need to consider than in other cases I have reviewed above the objective circumstances relevant to assessing whether an opinion had been formed. That observation is pertinent to the Applicants' extensive submissions on the evidence summarised above at par 204 - 228. These were directed essentially to the Council's position in relation to the claimed land and the actions of Christmas Bush Pty Ltd. The Applicants submitted that there could be no inference that an opinion was formed as the land was not zoned for residential use, not identified in any relevant Council or State level planning strategies for residential use at the claim date and the disposal was to raise revenue with no guarantee the land would be used for residential land as the planned sale to Christmas Bush Pty Ltd was unconditional.
267As the Applicants submitted, the circumstances of this matter differ from those in Awabakal as the claimed land here was not identified in any residential lands strategy or planning instrument such as the LEP at local (council) level or the Lower Hunter Regional strategy or other regional (Department of Planning/Minister for Planning) level document. The relevant documents are identified above at par 226 - 227. Development of the land for residential use required a rezoning application to the Council and none was made by the claim date by anybody. Mr Broyd states that he supported the development of the claimed land for residential purposes because of the highly limited land supply within the Port Stephens area (Broyd affidavit 20). At the time of first meeting with Mr Future in 2007 Mr Broyd held the view, and still holds the view, that the claimed land should be considered under the relevant planning laws and policy framework for potential residential development purposes (Broyd affidavit [25]). The Minister submitted that this was affirmed in cross-examination and re-examination. While that is correct, I consider his position after cross-examination was neutral in that he did not provide an opinion on the likelihood of the land being rezoned for residential use. It was possible the land would be considered for that use at some stage in the future.
268The fact that a local government body, a council, (see Hillston) or Landcom (Berowra LEC per Sheahan J at [139]-[141]) held an opinion that land was needed or likely to be needed for residential land is insufficient to discharge the Minister's onus under subsection (1)(b1). In this case the Applicants relied on the absence of interest by the Council in the claimed land for residential use at the claim date to support its position. That the claimed land is not identified in the Lower Hunter Regional Strategy or the Council's Community Settlement and Infrastructure Strategy dated April 2007 can be noted but I do not think takes the matter any further for the Applicants. I consider this approach potentially strays into second guessing the opinion of the departmental officers. As already identified, the Court's role in relation to subsection (1)(b1) is not to determine objectively whether the land was needed or likely to be needed for residential land. The evidence suggests the consideration of the claimed land by the Department was at a local rather than the wider council area or regional level.
269The proposed sale to Christmas Bush Pty Ltd was unconditional. As the Minister submitted, whether more protection could have been provided in the contract of sale to ensure use of the land for urban development (debateable given that it was not then zoned for that purpose) or the permissibility of such development under relevant planning instruments are not relevant to the existence of the opinion being held in the Department by relevant senior officers.
270That the sale process to Christmas Bush Pty Ltd suggested that a motivation in the Department was a sale within a particular financial year to ensure a return to the NSW Treasury in accordance with advice to that effect given by the Department does not undermine the inference of the formation of the relevant opinion. The reason a private sale to the neighbouring owner was preferred was the likelihood of a good return because the prospective purchaser was interested in residential development of the land. Mr Wood confirmed in oral evidence that the TPG report and the Propell report were prepared to value the land by identifying what would constitute the highest return to the State. On the basis that the land would not be rezoned for residential use before sale the highest return was to the neighbouring owner, who was prepared to pay a premium in recognition of its development potential. As the Minister submitted, that a disposal process is by private sale is irrelevant to the question of whether an opinion was formed by departmental officers.
271The intention of a private development company Christmas Bush Pty Ltd to develop the land for residential development alone does not assist in determining whether an officer in the Department held the necessary opinion that the land was needed for residential land. That fact informs the circumstances surrounding the decision-making in the Department. The evidence discloses that the reason why Christmas Bush Pty Ltd was interested in purchasing the land was the possibility of developing the land for residential purposes in conjunction with land the company owned next door. I infer that caused officers in the Department to consider what the options for the land were. Christmas Bush Pty Ltd's interest does inform the use of the term urban expansion in the Sale of Crown Land Submission prepared by Departmental officers as intending to refer to residential development. I do not agree that so concluding is inconsistent with the correct approach that exceptions to claimable Crown land be narrowly construed as the Applicants submitted. While urban uses can theoretically include commercial, industrial and recreation uses, in the circumstances of this case, which reflect a largely localised consideration of lot 3542 in Nelson Bay by the Department, urban development encompasses residential use in particular.
272The commercial interest in the land of the neighbouring land owner enabled the Department to obtain a good return for the land. That they concluded a private sale to the neighbouring landowner was preferable I do not consider undermines the existence of an opinion being held at the relevant date. As the Minister submitted, that the sale process pursued was intended to obtain maximum return in a short time frame does not affect whether the relevant opinion should be inferred to be held by departmental officers.
273I consider the Minister has discharged her onus of proof on the balance of probabilities that the evidence gives rise to the inference that the opinion that the claimed land was likely to be needed for residential land was held by relevant officers in the Department at the date of claim. The exception in s 36(1)(b1) applies and the land is not claimable Crown land. This appeal, which relates to two land claims, should be dismissed in light of that finding.
274It is unnecessary to consider the remainder of issues (4 and 5) based on essential public purpose identified by the Minister. The application will be dismissed and costs reserved.