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

The Proceedings

1. These are Class 3 proceedings concerning an appeal to the Land and Environment Court under s 36(6) of the Aboriginal Land Rights Act 1983 ("the ALRA"), from a decision of the Minister administering the Crown Lands Act ("the Minister") refusing Aboriginal land claim 17514 ("the claim") lodged by the New South Wales Aboriginal Land Council ("the Land Council") pursuant to s 36(2) of the ALRA.
2. The claim was lodged on 14 April 2009 by the Land Council. The claim was refused by the Minister on 7 October 2015 on the ground that, "when the Claim was made the land was not claimable Crown land as it was subject to a valid contract of sale and therefore not able to be lawfully sold or leased".
3. The land the subject of the claim is Lot 497 in DP 824135 in the Parish of Guntawang, County of Phillip, located at 11-13 Wynella St, Gulgong ("the land").
4. On 29 July 2016 Sheahan J made an order that the following questions be determined separately from any other question in the proceedings and before any further hearing: As at 14 April 2009, was the land the subject of the application (being Lot 497 DP 824135): (a) able to be lawfully sold or leased under the Crown Lands Consolidation Act 1913 (NSW) or the Crown Lands Act 1989 (NSW); or (b) reserved or dedicated for any purpose under the Crown Lands Consolidation Act 1913 (NSW) or the Crown Lands Act 1989 (NSW)?
5. The answers to the separate questions raise the proper construction and operation of s 90 of the Crown Lands Act 1989 ("the CLA"). That section empowers the Minister to revoke a reservation of land under the CLA.
6. More specifically, the separate questions turn on the consequences of non-compliance with the requirement contained in s 90(2) of the CLA that the Minister "may not" publish a revocation notice unless at least 14 days have elapsed since the publication of the notice of intention to publish the notification has been placed in a local or general newspaper circulating in the State. It is not in dispute that no such notice of intention was ever published pursuant to s 90(2) of the CLA.
7. The Land Council submits that the non-compliance renders the revocation of the reservation invalid, and therefore, the claimed land remained reserved for a public purpose. As a consequence, the Minister had no power to sell the land under s 34 of the CLA, with the result that as at the date of the claim, the land remained reserved for a public purpose under the CLA and was accordingly "claimable Crown land" within the meaning of that term in s 36(1)(a) of the ALRA.
8. Section 36(1)(a) of the ALRA relevantly defines "claimable Crown land" as: 36 Claims to Crown lands In this section, except in so far as the context or subject-matter otherwise indicates or requires: 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…
9. In the alternative, the Land Council contends that the contract of sale of the claimed land was unlawfully entered into and is void by reason of s 6 of the CLA, and hence, the land remained capable of being "lawfully sold or leased" under the CLA and was, again, claimable Crown land pursuant to s 36(1)(a) of the ALRA.
10. In response, the Minister argues that the reservation was lawfully revoked upon the publication of a notice of revocation in the New South Wales Government Gazette ("the Gazette"). This constituted sufficient compliance with s 90 of the CLA. If not, an earlier published notice under s 34(3) of the CLA was sufficient to constitute compliance with s 90(2) of that Act. And in any event, even if there was non-compliance with s 90(2) of the CLA, the breach did not invalidate the revocation of the reserve and there is nothing to impugn the contract of sale.
11. For the reasons that follow, the Land Council's argument should be accepted and the separate questions answered in the affirmative.

The Crown Lands Act

1. It is convenient to examine from the outset the scheme of the CLA to the extent that it is relevant to the determination of the separate question.
2. The term "Crown land" is defined in s 3 of the Act to mean: "Crown land" means land that is vested in the Crown or was acquired under the Closer Settlement Acts as in force before their repeal, not in either case being: (a) land dedicated for a public purpose, or (b) land that has been sold or lawfully contracted to be sold and in respect of which the purchase price or other consideration for the sale has been received by the Crown.
3. Importantly, s 6 provides that: 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 .
4. The objects of the CLA are set out in s 10 as follows: 10 Objects of Act 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: (a) a proper assessment of Crown land, (b) the management of Crown land having regard to the principles of Crown land management contained in this Act, (c) the proper development and conservation of Crown land having regard to those principles, (d) the regulation of the conditions under which Crown land is permitted to be occupied, used, sold, leased, licensed or otherwise dealt with, (e) the reservation or dedication of Crown land for public purposes and the management and use of the reserved or dedicated land, and (f) the collection, recording and dissemination of information in relation to Crown land.
5. The principles of Crown land management referred to in s 10 are articulated in s 11 as: 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

Events Surrounding the Sale of, and the Claim Over, the Land

1. The factual chronology giving rise to the appeal, and to the separate questions, was agreed to by the parties and was contained in both a comprehensive statement of agreed facts and an unchallenged affidavit of Mr Terry Childs, sworn 29 April 2016.
2. Mr Childs is a Senior Manager, Property Services, with the Department of Industry. However, at the relevant time, Mr Childs was employed with the Crown Lands Division of the Department of Lands, where he held the role of Senior Property Officer from 2007 until March 2011.
3. As at 29 June 2007 the register maintained for the purposes of the Real Property Act 1900 recorded the State of New South Wales as the registered proprietor of the land.
4. On 29 June 2007 the land was made the subject of Reserve No 755434 for the public purpose of future public requirements ("the reservation") pursuant to s 87 of the CLA, by publication of the reservation in the Gazette on that date.
5. On 3 September 2008 a valid "notice of intention to sell Crown Land", viz, the land, was placed in the Government Noticeboard of the The Sydney Morning Herald and The Daily Telegraph, pursuant to s 34(3) of the CLA ("the s 34 notice").
6. The s 34 notice was in the following terms: Department of Lands Notice of Intention to Sell Crown Land Pursuant to section 34(3) of the Crown Lands Act 1989 The Minister for Lands intends to sell or lease for a term exceeding five years, on a date not less than 14 days from the publication of this notice, the Crown Land described hereunder. Peter Walker Regional Manager - Central West (Enquires: Terry Childs 6360 4330) Description Location 11-13 Wynella Street Gulgong; Parish: Guntawang: County: Phillip; LGA: Mid Western Regional; Land District: Mudgee; Area: 1.275 Ha Identifier: Lot 497 in DP 824135: File: DB92R18
7. The notice did not refer to the reservation or its proposed revocation.
8. On 7 October 2008 an advertising order form for a notice of intention to revoke a Crown reserve under s 90(2) of the CLA was submitted by Mr Childs to the NSW Department of Commerce ("the Department") for placement in the Mudgee Guardian. However, there is no evidence that this notice of intention was published, and it does not appear that Mr Childs checked if the advertisement was published or not.

1. There is no suggestion that the wording of the notice in the Gazette was in any way deficient or that it did not comply with s 90(1). It did.
2. The contract for sale of the land ("the contract for sale") was signed by the Minister's delegate, and witnessed by a Departmental staff member, in the afternoon of 3 April 2009, after the notice of revocation had been published in the Gazette. The contract was dated 3 April 2009, and was posted to Ms Martin, by way of exchange, later that day.
3. Special condition 30 of the contract for sale provided that: 30. Crown Land 30.1 The Purchaser acknowledges that the land comprising the Property is Crown land within the meaning of the Crown Lands Act 1989 (or may be dealt with as a Crown Land) and the land is sold pursuant to and subject to the provisions of that Act. 30.2 The Minister warrants that all provisions of the Crown Lands Act 1989 that require or specify any matter or thing to be done before the land comprising the Property may be sold have been complied with and the Purchaser agrees that he will not make any requisition, objection or inquiry in respect of the Minister's authority or capacity to sell the Property or compliance by the Minister with any provisions of the Crown Lands Act 1989 or Regulations and hereunder. 30.3 The Vendor and the Purchaser agree that subclause 30.2 shall not merge on the completion of the this Contract.
4. On 9 April 2009 a fresh deposit cheque was received from Ms Martin and presented by the Department. It subsequently cleared.
5. On 14 April 2009 a copy of the land claim was sent by the office of the Registrar, Aboriginal Land Rights to the Minister and to the Aboriginal Land Claim Investigations unit in the Minister's Department.
6. On 5 May 2009 the Aboriginal Land Claim Investigations unit acknowledged receipt of the claim from the Registrar, Aboriginal Land Rights.
7. On 19 May 2009 completion occurred under the contract for sale, and around that date, a duly executed transfer of land was provided to Ms Martin.
8. A work list generated by Mr Childs, with a completion date of 26 May 2009, relevantly noted that: 6. Notice of intention to sell Crown land to be advertised in SMH on 3/09/08 end date of responses 17/09/08 no responses received. … 12. Advert for Rev of Reserve in Local Paper advert 13/10/08 14 days end 28/10/08 - No responses. … 17. Tender now complete and only one tender received from Mellinda Martin successful at $135,248.00

Issues for Determination

1. In short, the Minister's position was that either the s 34 notice was wholly sufficient to satisfy s 90(2) of the CLA, or in the alternative, that the s 34 notice was substantially or practically compliant such that a separate s 90(2) notice was not required as an essential precondition to the exercise by the Minister of his power to revoke the reservation under s 90(1). These arguments were refuted by the Land Council.
2. Upon closer analysis, the parties' respective positions gave rise to four discrete, but nonetheless intertwined, issues: 1. first, whether compliance with s 90(2) of the CLA was an essential precondition to the exercise of the power to revoke a reservation; 2. second, if so, was this precondition met by the publication of the s 34 notice; 3. third, if it was not, did non-compliance with s 90(2) invalidate the revocation of the reservation; and 4. fourth, if so, was the contract of sale therefore void and unenforceable.

Was Compliance With s 90(2) of the CLA an Essential Precondition to the Exercise of the Power of Revocation?

1. The Land Council submitted that, in light of the agreed fact that, albeit due to oversight, no separate notice was published pursuant to s 90(2) of the CLA, there had been no compliance with s 90(2) which was an essential precondition to the exercise of the power in s 90(1) of the CLA to revoke the reservation.
2. Section 6 of the CLA prohibits the Minister from dealing with Crown land unless authorised to do so under the Act. However, s 34(1) confers upon the Minister a discretionary power to, relevantly in this instance, sell Crown land. The power is expressly circumscribed by s 34(3) insofar as the power contained in s 34(1) to sell "may not" be exercised unless the matters referred to in that provision have been met.
3. Section 34(6), however, makes it plain that the provision does not empower the Minister to sell Crown land that is "reserved for a public purpose". Accordingly, either a power to sell Crown land subject to a reservation must exist elsewhere in the CLA - which it does not - or any Crown land that is to be sold must not be subject to a reservation. So much so is clear from the combined effect of ss 6 and 34(6) of the CLA.
4. Section 90 is structured almost identically to s 34. Section 90(1) confers a discretionary power on the Minister to, upon notification in the Gazette, revoke a reservation of land under the CLA. However, the power is confined by the matters set out in s 90(2) which preclude, until their completion, notification in the Gazette. This is important because revocation only takes effect upon publication of the notification in the Gazette (s 90(3) of the CLA). Put simply, if there is no notification in the Gazette, there is no revocation, and for notification to occur, the steps prescribed in s 90(2) of the Act arguably require completion.
5. Resolving whether the statutory obligation contained in s 90(2) of the CLA constitutes an essential precondition to the exercise of the Minister's discretionary power in s 90(1) turns on the proper construction of the former provision. This interpretative task is to be undertaken having regard to the text of s 90(2), with recourse to its wider statutory context (which includes its legislative history and extrinsic materials), and the general purpose or policy underpinning the provision (Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [91]-[100]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39]; Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[26], [69] and [88]; Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 581 at [65]-[66] and Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22] and [23]).

Was the Publication of the s 34 Notice Sufficient to Comply With s 90(2)?

1. As a consequence of this finding, the next question to be determined is whether the s 34 notice placed in The Sydney Morning Herald and The Daily Telegraph was sufficient to comply with s 90(2) of the CLA? If it was, then notification of the revocation in the Gazette has lawfully occurred, thereby permitting the Minister to exercise his power to revoke the reservation and sell the land.
2. The Minister contended that the s 34 notice published on 3 September 2008 was sufficient for the purposes of compliance with s 90(2) of the CLA because it satisfied the required textual elements of that provision, namely: 1. the publication of a notice - this occurred; 2. the identification of location (either by piece or parcel) of the land to which the notice relates - the land was described in the notice by its street address and its folio identification; 3. the notice referred to in (a) to be published either in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State - the notice was in fact placed in both categories of newspaper; and 4. the notice to effectively indicate that the Minister intends to publish a notification of revocation of the reservation - the indication of the Minister's intention was implicit in the fact that the sale of Crown land referred to in the notice involved a revocation pursuant to s 34(6) of the CLA, and accordingly, the s 34 notice amounted to a notice of intention to publish a revocation notification.
3. The Minister also relied on the fact that the notice ultimately published in the Gazette was unimpeachable.
4. I accept the submission of the Minister that merely because the 3 September 2008 notice referred in its heading to s 34, and not s 90, does not, without more, constitute non-compliance with s 90(2) of the CLA.
5. But in this case there was more: 1. first, the notice was identified as a notice of intention to sell Crown land, and not a notice of intention to revoke a reservation; 2. second, there was no mention whatsoever of a reservation in the notice, irrespective of any intention to revoke it; 3. third, inconsistent with the heading of the notice, the body of the notice confusingly stated that the Minister intended to "sell or lease for a term exceeding five years" (emphasis added) the land. If the intention of the Minister were the latter, the implicit assumption upon which the Minister relies, namely, that any reservation burdening the land would have to be revoked, was not available. As the Minister accepts, a revocation of a reservation for public purposes is not required to lease the land on a long term basis; 4. fourth, and in any event, it cannot be assumed, as the Minister does, that the reasonable reader of the notice has a sufficiently sophisticated, or indeed any, understanding of the scheme of land dealings under the CLA that he or she would understand that the sale of Crown land would require the revocation of any reservation it was subject to; and 5. fifth, there was no way in which the reasonable reader could, from the notice, identify the reservation or determine its purpose.

Did the Failure to Comply With s 90(2) Result in Invalidity?

1. It is almost trite law that the consequence of an act done in breach of a statutory condition or prohibition is a matter of statutory construction (Project Blue Sky at [91]).
2. In the seminal decision of Project Blue Sky the test for invalidity for a breach of a statutory proscription was formulated as follows (at [91]-[93] per McHugh, Gummow, Kirby and Hayne JJ, footnotes omitted): 91. An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue. 92. Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said "a clause is directory where the provisions contain mere matter of direction and nothing more". In R v Loxdale, Lord Mansfield CJ said "[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory". As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been "substantial compliance" with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case: "substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not." 93. In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".

Was the Land Able to be Lawfully Sold if the Revocation is Invalid?

1. In conformity with the reasons expressed above, because no notice of intention was published as required by s 90(2) of the CLA on 3 April 2009, the purported revocation by publication of the notification in the Gazette was ineffective, and the land remained reserved for a public purpose. It follows that the land was "claimable Crown land" within the meaning of s 36(1)(a) of the ALRA.
2. Furthermore, by reason of s 6 of the CLA, the Minister had no power under s 34(1)(a) to sell the land, and the contract of sale was unlawfully entered into and is a nullity insofar as it is presently unable to be enforced by either party (Kinchela at [68]-[77], Yango Pastoral Company Pty Limited v First Chicago Australia Limited [1978] HCA 42; (1978) 139 CLR 410 at 413-414 per Gibbs ACJ, 423 per Mason J and 430 per Jacobs J and Miller v Miller [2011] HCA 9; (2011) 242 CLR 446 at [24] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Consistent with the discussion above, there is nothing in the CLA that provides expressly, or by necessary implication, that a contract for sale made in breach of a statutory prohibition would be enforceable. If anything, s 6 of that Act evinces a clear intention to the contrary.
3. Therefore, as at the date of the claim (14 April 2009), the land remained capable of being "lawfully sold or leased" under s 36(1)(a) of the ALRA and was "claimable Crown land" for the purposes of that Act.
4. The present case is not dissimilar to the decision of the Court in Kinchela. In Kinchela a contract for the sale of Crown land was entered into after a public auction. As at the date of the entry into the contract for sale, the land was in fact reserved for "future public requirements". Prior to completion, however, the reservation was validly revoked by publication of the requisite notice in the Gazette. A land claim over the land was lodged.
5. The Court held that the contract for sale was unlawful by reason of the contravention of s 34(6) of the CLA, notwithstanding the lawful revocation. In so finding, it relied upon a number of authorities in support (at [72]-[77]): 72 In relation to Crown lands legislation, however, both before and after Project Blue Sky, the courts have insisted on strict conformity with the relevant statute. A failure to comply with the statutory process will invalidate any purported exercise of the power to grant an interest in Crown land. In Mabo v Queensland (No. 2) (1992) 175 CLR 1, Brennan J (Mason CJ and McHugh J concurring) said at 63: "The validity of a particular grant depends upon conformity with the relevant statute"; and at 72 his Honour added, "a purported lease granted without statutory authority is ineffective to dispose of any interest in land". I am inclined to the view that if strict conformity with the statute is required for a grant, then the same principle should apply to a sale of Crown lands. 73 In New South Wales v Scharer (2003) 131 LGERA 208, the New South Wales Court of Appeal (Tobias JA, with Sheller and Ipp JJA concurring) held at [59] - [60]: Furthermore, s 6 of the [Crown Lands Act] prohibits any dealing with Crown lands "except under and subject to the provisions of" that Act. ... Any purported dealing with Crown land other than in accordance with that prohibition is unlawful ... Authority extending for a century in this State supports the foregoing conclusions, that the Crown has no power to create interests in Crown lands except under the Crown lands legislation. 74 Other authorities are to the same effect. For example in Watson's Bay and South Shore Ferry Company Ltd v Whitfield (1919) 27 CLR 268, s 25 of the Crown Lands Consolidation Act 1913 empowered the Minister for Lands to publish in the Gazette a notice of his intention to revoke the dedication of Crown lands and, subject to Parliament not having dissented, to carry his intention into effect after a specified time. Section 63 provided that Crown lands may be sold by public auction at such times and places as the Minister shall direct. In respect of certain Crown land which had been resumed by the Crown and then dedicated as a public park, the Minister gave notice under s 25 of the Act to revoke the dedication and purported to enter into an agreement with the former owner that when the dedication was revoked, the land would be offered for sale by public auction and the purchase money would be accepted by the former owner in full satisfaction of its outstanding claim for compensation. The High Court held that the agreement was illegal and invalid on a number of grounds, but principally because it was an attempt to fetter in advance the discretion and public duty of the Minister - that is, the Minister was bound by the contract to exercise his statutory power as predetermined by the contract, but if unfettered the discretion might lead the Minister to retain the land as Crown land. 75 In Australian Mortgage Land and Finance Co Ltd v Vinecombe (1890) 1 LCC 70, the company had applied to purchase Crown land as a result of improvements made pursuant to s 2 of the Crown Lands Amendment Act 1875. The approval of the application had been published by notice in the Gazette and the purchase money had been lodged with Treasury. Vinecombe subsequently applied to purchase the land. Vinecombe's application to purchase was opposed by the company, which argued that the land was already lawfully contracted to be sold. The court held, however, that because the company's improvements were made before the reservation was revoked, there could be no lawful contract for sale in relation to the land. The subsequent Gazette notification could not cure the matter. The government had no power to sell the land or to lawfully contract to do so. 76 Other cases to a similar effect where conformity with the relevant statute has been insisted include, for example, Minister for Lands v Harrington [1899] AC 408 at 413 - 414, Minister for Lands v Bolton (1896) 17 NSWR 389 at 393, Roach v Bickle (1915) 20 CLR 663 at 669-671, Cudgen Rutile (No 2) Pty Ltd v Chalk (1974) 4 ALR 438 at 443-444 and Bycon Pty Ltd v Moira Shire Council [1998] VSC 25 (unreported, 11 August 1998) at [51], [55], [56] and [58]. In Roach v Bickle, Issacs and Gavan Duffy JJ said at 671: "Where a Statute prohibits a transaction either expressly or by implication, no such transaction can be validly created". 77 These cases confirm the historical prohibition that the sale of lands reserved from sale has been regarded as a nullity, the cases including those decided both before and after Project Blue Sky. In particular, I can do no other than to follow the Court of Appeal in New South Wales v Scharer, a decision which is binding upon me. It is the publication of the notification in the Gazette under s 90(3) which has legal operation and the sale occurred prior to that happening in breach of s 34(6). The contract for sale is thus unlawful.

Conclusion and Orders

1. For the reasons given above, the Court answers the separate questions accordingly, namely, that as at 14 April 2009, the land: 1. was able to be lawfully sold or leased under the Crown Lands Consolidation Act 1913 (NSW) or the Crown Lands Act 1989 (NSW); and 2. was reserved or dedicated for a purpose under the Crown Lands Consolidation Act 1913 or the Crown Lands Act 1989.
2. The Minister is to pay the Land Council's costs of the application for, and the hearing and determination of, the separate questions.
3. The exhibits are to be returned to the parties.
4. The matter is to be relisted before the List Judge on 3 February 2017, for further directions.
5. The parties are granted liberty to restore on two days' notice.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2016