Mr Stewart submitted that there was a constructional distinction to be drawn between the way s 36(1)(b1) and (c) should be applied. This distinction, he submitted, is that the necessary ministerial opinion triggering the operation of the first provision is one that relates to the use of the land and that this is to be distinguished from the position concerning the second provision which relates the concept of a purpose.
In the Minister's closing written submissions in reply, on this point, it was said on behalf of the Minister:
Actually, paragraph (b1) and paragraph (c) deal with quite different subject matters: (b1) deals with the use of land "as residential lands" and (c) deals with the purpose for which land is "needed" or "likely to be needed".
The distinction arises in the fashion that is explained by Preston CJ in Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 that the use of land in a particular fashion may, as a matter of the construction, serve a different purpose. As discussed in Chamwell, use of portion of land for access and parking (permissible in the zone where they were proposed to occur) were, in fact, intended to serve the purposes of a shop (a use not permissible within that zone). As a consequence, although the use was permissible, the purpose intended to be served was not and on that basis, the permitted use was rendered prohibited as a consequence of the purpose that it was intended to serve.
Although the above submission was made in the context of addressing the argument that s 36(1)(b1), as it dealt with residential lands, acted to oust potential incorporation of residential lands as capable of being for an essential public purpose capable of satisfying s 36(1)(c), the submission necessarily encompasses and supports the broader Chamwell basis upon which I need to address, in the s 36(1)(b1) context, the matters raised in these proceedings.
In these proceedings, questions of permissibility do not arise out of the use of the lands that are subject to the claim as the purpose intended to be served remains consistent as being residential development for the purposes of subdivision.
However, in the context of assessing whether the Minister's 2004 opinion can be regarded as having validity at the time of the 2009 claims, a different position arises.
As will be clear from the following analysis, the nature of the use to which the claimed lands were proposed to be put in 1989 (and thus the use to which the Minister's 2004 opinion must be taken to apply) envisaged that there would be residential allotments along the totality of the Moira Park Road frontage and, effectively, across the whole of the lands the subject of each of the present claims.
In a Chamwell sense, functionally, in 1989, use and purpose coincided.
However, by the time the 2009 claims were lodged, it is clear that, although the purpose remained the same (as the claimed lands remained within the overall development site identified by Landcom within its Morisset project), the envisaged use in support of the purpose had changed across virtually the entirety of the land in each of these claims.
No longer was there to be residential development across the totality of the Moira Park Road frontage, there was to be none. The vast bulk of the land in each claim was no longer intended to have either residential allotments or supporting infrastructure established on them.
The use of this land was to be transformed as a consequence of development constraints identified in Landcom's 2008 Business Plan for their Morriset project (discussed in more detail later).
Adopting Mr Stewart's submission on this point for my consideration of whether or not the Minister's 2004 opinion could validly be regarded as carried forward and be applicable as at the date of the 2009 claims, it is clear, as explained below, that this is simply not possible on a proper construction of the facts.
[2]
Background to the Minister's 2004 refusal
On 24 May 1989, a land claim was lodged requiring consideration by the Minister that included Lot 489, land that is now the subject of one of the claims being dealt with in these proceedings. This land claim was made by a different claimant and did not include land in the second claim.
As it is necessary to consider the Minister's opinion in some cartographic detail, it is appropriate to commence by showing a plan of the lands that were subject to the 1989 claim. A plan of the land in both current claims is reproduced below (Evidence Book Volume 4 Tab 123 folio 1321). Lot 489 (the 1989 claimed land in the present claims) has been re-marked by me in heavy blue.
The 1989 land claim was refused in 2004, on the basis of the adoption by the Minister (Volume 4 Tab 125 folio 1332) of a recommendation that he should form the necessary opinion founded on s 36(1)(b1). The ministerial briefing process by which this was recommended to the Minister and adopted by him was, as disclosed by these documents, a conventional and unexceptional one. This process is discussed in detail later.
However, as the Minister seeks to support refusal of the 2009 land claims on the basis that the 2004 opinion of the then Minister as to the state of affairs at the date of claim in 1989 should be regarded as continuing to be held, validly, as being an opinion held by the Ministers about the state of affairs as at the dates in February 2009 when the current claims were made, it is necessary to examine two separate and distinct elements of this proposition. Those elements are:
1. First, given that the basis for rejection of the 1989 claim in 2004 was not subject to appeal, whether that aspect of the 2004 refusal based on s 36(1)(b1) was validly established as having a proper foundation on the basis of the material put to the Minister requesting him to form that opinion; and
2. If valid, is there a proper basis to conclude that the opinion articulated in 2004 could validly be inferred as one held by the Minister in February 2009.
For the purposes of establishing failure to satisfy s 36(1)(b1) in these proceedings, it is sufficient that the failure be on only one of these necessary steps rather than on both.
If the Minister fails to persuade me that both these propositions should be supported, the Minister's rejection of the present claims pursuant to s 36(1)(b1) must fail. For the reasons that follow, I am satisfied that the first of these elements is satisfied but the second is not and that the rejection of the present claim said to be on the basis of a ministerial opinion must be rejected.
It is convenient, for the purposes of this analysis, to set out again the terms of s 36(1)(b1) before turning to consider, in detail, the refusal of the 1989 claim. A claim may be refused under s 36(1)(b1) on the basis that it:
comprises lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands,
It is also appropriate to note that the opinion of a Crown Lands' Minister is required to be one held personally by that Minister and is, for satisfaction of the provision, not capable of being held by some other person pursuant to any delegation of Ministerial functions (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the Nelson Bay Claim) [2014] NSWCA 377 per Basten JA at [23] to [36]). There is no doubt that, as the following material reveals, the ministerial opinion founding rejection of the 1989 claim was formed and adopted by the Minister at the time of the 2004 rejection. It is irrelevant that this Minister was not the Minister at the time of lodgement of the claim (he was not) but that, at the time of rejection of the claim, the requisite opinion was formed concerning the circumstances applicable at the time of lodgement of the claim.
The Minister's opinion, as is usually the case in the Westminster system of government, was formed on the basis of advice provided by officers within the Minister's administration by the submission of information sufficient to enable the Minister to reach a conclusion as to whether or not the Minister should accept the advice and, in this instance, in doing so form the requisite opinion and adopt it for the purposes of invoking this provision of the Land Rights Act.
To enable, in the context of the present proceedings, consideration of whether the adopted opinion of the Minister concerning the 1989 claim could be regarded as carrying forward for future availability concerning the 2009 claims requires a detailed consideration of:
1. the expression of the Minister's opinion in the letter of refusal;
2. the briefing note proposing that the Minister adopt the opinion;
3. the supporting material submitted to the Minister providing information to support the proposal to form that opinion;
4. additional material from various locations in the Evidence Books that establish what are the foundations for that supporting material that was provided to the Minister - known as underlying source materials; and
5. any other relevant material in the Evidence Books.
Only by considering all these elements and understanding what was the essential underpinning factual foundation for the opinion is it possible to turn to consider whether there is sufficient factual continuity to permit the conclusion that the 2004 opinion could provide a valid basis for rejection of the claims that are the subject of these proceedings.
Before turning to matters of detail, I should note that I am satisfied that the following material clearly demonstrates that there was a proper foundational basis in 2004 for the Minister forming an opinion pursuant to s 36 (1)(b1) as at the date of lodgement of the 1989 claim but that this opinion was not available as a basis to refuse the 2009 claims.
[3]
The 2004 refusal
The 1989 claim was refused by the Crown Lands Minister, the Hon Tony Kelly MLC, in July 2004. There is no explanation for the 15-year period between the lodgement of the claim and its refusal by the Minister. The elapsing of time does not, in itself, provide any relevant factor for consideration in the proceedings but that which took place concerning all or part of the land during that intervening period has relevance to matters bearing on my determinations concerning each current claim.
One element, sufficient in itself as founding the rejection of the 1989 claim, was the holding of an opinion by the Minister consistent with s 36(1)(b1) of the Land Rights Act. As a consequence, it is necessary to consider, in some detail, the precise terms of the Minister's instrument of refusal (being a letter signed by the Minister addressed to the claimant Land Council); the ministerial briefing note provided to the Minister containing the recommendation for refusal (adopted by the Minister on 7 July 2004); and the supporting information referred to in the briefing note and provided to the Minister by way of additional background to the matters set out in the briefing note itself.
The briefing note, as is customary with such documents, merely sets out in summary form the matters that are drawn to the Minister's attention to give a basic outline in support of the recommendations made. The briefing note contains, as is also customary for such documents, the internal chain of departmental consideration demonstrating the prominence chain within, and the passage through, the departmental structure, prior to being submitted to the Minister for consideration.
It is clear from the internal departmental chain that the briefing note and recommendation originated in the Aboriginal Land Claim Investigations area of the department with it being submitted, through the appropriate internal hierarchical reporting chain for adoption, eventually, by the Director General for submission to the Minister.
To explain why I have reached these conclusions, I turn, first, to the validity of the opinion expressed to be one held as at the date of the 1989 claim.
It is convenient to note some uncontested negative evidence given by two witnesses, Mr Veitch and Mr Wood, both of whom were officers of the Department at the relevant time. Both of them gave evidence that they had never personally briefed the refusing Minister about matters relating to the 1989 claim nor, as a more general aspect of the proceedings, the proposal by Landcom to utilise, for residential purposes, the whole of the development site encompassing Lot 489 (the subject of claims in 1989 and in 2009) and the other currently claimed lands.
[4]
The Minister's 2004 letter of refusal
The letter of refusal to the claimant Land Council that was dated 7 July 2004 and the file copy of the letter formed part of the documentary evidence in the Minister's case (Evidence Book Volume 4 Tab 125 folio 1332). The complete terms of the letter were:
I refer to Claim 3378 lodged by Koompahtoo Local Aboriginal Land Council in respect of land at Morisset, Parish of Morisset, County of Northumberland, shown by red edge on the attached diagram.
Following investigation I am satisfied that when the claim was made the land was not claimable Crown land within the meaning of the Aboriginal Land Rights Act 1983. In this regard:
(a) The part of the land comprising the strata below a depth of 20 metres from the surface was lawfully occupied under Coal Lease 195 (Act 1973);
(b) The land was needed, or likely to be needed, as residential lands;
(c) The part of the land shown by brown edge was needed, or likely to be needed, for the essential public purpose of sewerage reticulation; and
(d) The parts of the land shown by yellow and pink colours were needed, or likely to be needed, for the essential public purpose of electricity distribution.
Consequently I am required by the Aboriginal land Rights Act 1983 to refuse the claim.
As can be seen from the terms of the Minister's letter of refusal, there were several bases upon which this was founded, with only one of them, the second, remaining relevant for the purposes of these proceedings. The terms of the refusal letter, when considered in conjunction with the briefing note and its appended supporting material, demonstrates that the element of the refusal based on possible residential development of the land subject to the then claim was, in itself, sufficient basis for the refusal of the claim and not merely part of a cumulative mosaic of relevant considerations underpinning the refusal.
[5]
The briefing note
The Minister's signing of the letter gave effect to his acceptance, on 7 July 2004, of the recommendations set out in the briefing note provided to him concerning this land claim. The adopted recommendations (Evidence Book Volume 4 Tab 123 folios 1319/20) were in the following terms:
4. RECOMMENDATION
4.1 On the basis of the material contained in Attachment "A" and in the supporting papers the Minister be satisfied that when the claim was made the land in Claim 3378 shown by red edge on diagram "D" was not claimable Crown land and consequently the claim be refused. The grounds for refusal being that:
(a) The part of the land comprising the strata below a depth of 20 metres from the surface was lawfully occupied under Coal Lease 195 (Act 1973);
(b) The land was needed, or likely to be needed, as residential lands;
(c) The part of the land shown by brown edge was needed, or likely to be needed, for the essential public purpose of sewerage reticulation; and
(d) The parts of the land shown by yellow and pink colours were needed, or likely to be needed, for the essential public purpose of electricity distribution.
4.2 Draft letter herewith for the Minister's signature, if approved, to the Koompahtoo Local Aboriginal Land Council. Copies of that letter will, after the Minister's signature, be forwarded under compliments slips by the Aboriginal Land Claim Investigations Unit to the Aboriginal Land Rights Registrar, New South Wales Aboriginal Land Council and Member for Lake Macquarie. All parties that have contributed to the Department's investigation of the claimed land will be advised of the Minister's determination at District Office level.
It is, therefore, appropriate to reproduce, first, from the body of the briefing note, the summary material relating to residential development and then to reproduce, as providing a broader understanding of the summary material, the more expansive, discursive material contained in the supporting documentation. The relevant element (Evidence Book Volume 4 Tab 123 folio 1319) of the briefing note proper simply read:
2. BACKGROUND
2.1 Claim 3378 was lodged with the Aboriginal Land Rights Registrar on 24 May 1989 in respect of land of about 26 hectares at Morisset within the Parish of Morisset, County of Northumberland, City and Electorate of Lake Macquarie, shown by red edge on Diagram "D".
3. CURRENT SITUATION
3.1 The Minister is required to determine this claim on the basis of whether or not the claimed land was "claimable Crown land" as defined in the ALR Act when the claim was made.
3.2. Attachment "A" contains an analysis of the facts and evidence relevant to the claimed land against the criteria contained in the abovementioned definition. Emerging from the Department's investigation is the fact that the land is not claimable and that, as a consequence, the claim is required to be refused.
[6]
The material submitted to the Minister to support the briefing note
The material concerning residential development in Attachment A (Evidence Book Volume 4 Tab 123 folios 1325/6) to the briefing note was in the following terms:
Needs for Residential Lands
3.10 Apart from the aspect of lawful use and occupation detailed earlier in this report, Landcom has objected to the claim on the grounds that the land was needed as residential lands. Under various administrations Landcom has held a longstanding interest in the land for residential development. The land is capable of providing up to 240 residential allotments in a staged development.
3.11 Morisset was identified as a residential growth area in 1981 and the claimed land, together with adjoining land, represented the major area for residential expansion to the north east. In anticipation of future development, Landcom initiated a rezoning of the land to residential. The site was formally committed by the Department to Landcom use in 1986.
3.12 Up to the date of the claim Landcom had undertaken planning studies to facilitate development of the site, effected control, boundary and topographical surveys, initiated action for the closing of intervening roads, arranged for the preparation of vegetation, fauna and archaeological assessments and carried out a number of inspections. Subsequent to the lodgement of the claim, and for some time thereafter, Landcom continued to pursue residential development through further studies, surveys, investigations for services and works, meetings and site inspections. It confirmed its interest in the site to the Department and in 1996 sought approval for the acquisition of the land.
3.13 In regard to Landcom's assertion that the land is actually needed as residential lands, its submission dated 30 July 2001 and accompanying spreadsheet "B" specifically addresses the issue in considerable detail. Other submissions provided by Landcom generally detail its interest and involvement in the land over a long period of time.
3.14 In analysing the need for the land a number of factors have been taken into account. Principally, these have included population statistics both actual and projected, anticipated dwelling demand, dwelling constructions and approvals, land sales, land currently available, land potentially available and an assessment of land required. Allowance has been made for land unlikely to become available due to environmental, topographical and infrastructure constraints.
3.15 Data has been adopted from sources such as the Australian Bureau of Statistics, Department of Urban Affairs and Planning and Lake Macquarie City Council's "Lifestyle 2020". Allowance has been made for planning period over staggered intervals of up to 33 years (in an appeal against the refusal of a claim over the former Muswellbrook Common, the Land and Environment Court held that a time frame of 25 to 30 years is an acceptable standard for long term planning in considering whether land is needed as residential land). The reports also have regard to the situation as it applies to Lake Macquarie City Council area generally and the Morisset Planning District in particular. The claimed land is situated in this planning district.
3.16 Using demographic statistics supplied by various authorities charged with this responsibility and adopting a number of different yet valid methods of calculating lot requirements, it has been concluded that the land is needed as residential lands. The existing substantial population in Lake Macquarie City Council area is increasing rapidly and at the same time the available land bank is diminishing fast. In this regard it is estimated that, at best, the supply of vacant residential land, both developed and undeveloped, will be nearing exhaustion by the Year 2016. The rate of depletion of existing land stocks would be accelerated if the current downward trend of household occupancy sizes continues.
3.17 In view of the foregoing it is considered that the Minister can reasonably form the opinion that in terms of Section 36(1)(b1) Aboriginal Land Rights Act 1983 the land was needed, or likely to be needed, as residential lands. On this basis the land was not claimable.
3.18 While the Aboriginal Land Rights Act commenced operation on 10 June 1983, Section 36(1)(b1) was only inserted on 2 May 1986 by the Aboriginal Land Rights Act (Amendment) Act 1986. According to the second reading speech on the introduction of the then Bill to amend the principal Act, the purpose of the Section 36(1) amendment was to bring the Act into greater conformity with Government Policy by removing residential land from the category of claimable Crown land. In the explanatory notes to that Bill, it was stated that the conditions under which claims to Crown land are made will, in the future, be varied. It was the intention that land earmarked for residential development will be made not claimable. It was further stated that land is a scarce source and access to it should be through normal channels in accordance with government policy. Copies of the second reading speech and explanatory notes are herein.
3.19 It would appear that the claimed land falls within the category of land envisaged by Section 36(1)(b1) in that it had been earmarked for residential development. On this basis alone the land would effectively be removed from the category of claimable Crown land.
[7]
Other support materials?
Whatever might have been the supporting papers nominated in 4.1 of the briefing paper as being provided with Attachment A, only the diagram "D" (reproduced above after [46]) was provided in the Evidence Books and there is no material to demonstrate what additional documentation may have been provided to the Minister, although it would appear, from the existence of Attachment A and diagram D, that there may also have been Attachments or diagrams B and C. There is nothing in the briefing note, as earlier set out in its 4.1, that would provide any indication as to what might have been in those documents (assuming, in fact, they exist) or whether there were any other documents beyond diagram D that may have been provided to the Minister. I have therefore confined myself to considering only that information that is available to me from the Minister's letter of refusal, the briefing note, Attachment A and diagram D.
[8]
The Minister's 2004 opinion
Before considering what might relevantly be learnt from documentation in evidence that provides an understanding of the information submitted to the Minister, there are two observations to be made prior to doing so. The first concerns the statutory framework mandating the nature of the Minister's determination, whilst the second deals with an element of what was not provided to the Minister in support of the recommendation.
I turn, first, to the statutory framework mandated for the Minister's decision to refuse the claim. The Land Rights Act makes it expressly clear, through the provisions of s 36(1), that the requisite opinion required to be held by a Crown Lands' Minister to sustain a decision to refuse a land claim must be a decision on what was the relevant factual position concerning the land as at the date of the land claim (that is, expressly concerning this land claim, as at the relevant date in 1989).
Although this mandatory statutory requirement was not spelt out with specificity in the material provided to the Minister, it is clear from the use of the past tense in the letter signed by the Minister that not only those drafting it intended it to be descriptive of circumstances as at the earlier required date, but also that the Minister, by his adoption of the recommendation earlier set out and his signing of the letter, had the necessary appreciation that the decision he was making was not one concerning the circumstances that applied as at the date of the letter but as at the earlier relevant date.
There is some importance to be attached to this proposition given the fact that the material contained in the supporting information earlier set out (for reasons discussed in more detail below) is not confined solely to circumstances leading up to and at the date of lodgement of the claim.
The second matter to be observed is that, although as earlier emphasised in the extracted material, the land subject of the 1989 claim formed part of a larger landholding intended to be developed for a 240-allotment subdivision. No plan was appended to either the briefing note or the supporting material demonstrating any indicative subdivision layout footprint and how that footprint might have fallen on all or part of the land the subject of the claim. This is relevant as there is a deal of evidentiary material showing how, during the period 1989 and 2004, such a precise, postulated development yield may have been derived.
[9]
Relevant advice material
On 3 December 2002, the Manager, Aboriginal Land Claim Investigations, of the then Department of Land and Water Conservation, wrote with respect to the 1989 land claim to the Development Director - Northern of Urban Growth (Evidence Book Volume 4 Tab 122 folio 1316/7) seeking, inter alia, advice with respect to the following:
1. Prior or subsequent to the lodgement of the claim did the executive level of Government, or a relevant Minister of the Government, indicate or suggest that the current claimed land was needed for residential purposes, either at large or by Landcom; and
2. Could it be expected, following an internal briefing or submission by Landcom, that the executive level of Government, perhaps significantly the Minister for Urban Affairs and Planning, might soon indicate, suggest or confirm a need for the claimed land to the Minister for Land and Water Conservation [Evidence Book Volume 4 Tab 122 folios 1316-7].
The undated reply to this letter from Landcom is reproduced in Evidence Book Volume 4 Tab 121 folios 1310-1315. Although setting out, in considerable detail in response to each of the two matters with respect to which advice had been sought, it is clear from a careful reading that there was no personal involvement by any Minister, although there was a variety of activity undertaken by delegation on behalf of various Ministers. There is certainly nothing in this material provided by Urban Growth capable of supporting any conclusion that a Crown Lands Minister had, to the knowledge of Urban Growth, formed the necessary opinion required for the purposes of s 36(1)(b1).
The material set out above from the briefing note to the Minister refers, in 3.13, to Landcom's submission dated 30 July 2001 and its accompanying spreadsheet. This document (but not its spreadsheet) was reproduced in Evidence Book Volume 4 Tab 119 folios 1302-1306. From the terms of this letter from Urban Growth (folios 1303-1305), it is clear that this spreadsheet contained the data, of the nature described in 3.14, of the material submitted to the Minister. Whether additional material was available is not established by the evidence but is, in the context of this consideration, unnecessary to be known. This material is more relevant in the context of the later s 36(1)(c) basis of refusal of the 2009 claims as discussed in a later section of this decision.
There are two aspects of the supporting material set out above that, in their structure, seem to provide separate bases in support of the recommendation to the Minister. First, the material from 3.10 through to 3.16 are in support of the recommendation contained in 3.17 as supporting the Minister concluding on the basis of that material that he held the requisite opinion required by s 36(1)(b1) of the Land Rights Act. Second, there appears to be a separate basis for the Minister forming such an opinion advanced in paragraph 3.18 of the briefing note. This paragraph proposes that the Minister, separately, could form the opinion based on the purposes for which the amendment to the Land Rights Act to insert s 36(1)(b1) was added in 1986. This paragraph includes the following assertion:
It was the intention that land earmarked for residential development be made not claimable.
The conclusion drawn in this supporting material from the paragraph that includes that comment was set out in 3.19 in the following terms:
3.19 It would appear that the claimed land falls within the category of land envisaged by Section 36(1)(b1) in that it had been earmarked for residential development. On this basis alone the land would effectively be removed from the category of claimable Crown land.
This reflects the wording used in the Minister's second reading speech in the Legislative Assembly on the introduction of the Aboriginal Land Rights (Amendment) Bill 1986 where, in the explanatory notes, the following appears:
The conditions under which claims to Crown land (proposed ss 36(1)(b1)) are made will, in future, be varied. It is intended that land earmarked for residential development will be made non-claimable. This is a scarce resource and access to it should be through normal channels in accordance with government policy.
In this context, the use of the word "earmark" is consistent with the relevant element of its definition in the Macquarie Dictionary, this being to set aside for a specific purpose or use.
The Minister's second reading speech proper contained only the following:
Further amendments will bring the Act into greater conformity with government policy … by removing residential land from the category of claimable Crown land …
Further, in my assessment, the concept of "earmarked for residential development" as used in the explanatory notes to the Bill cannot simply mean land within the Crown estate that has been zoned residential, as the mere fact of the zoning could not rationally be taken as sufficient to satisfy the test in s 36(1)(b1) that the land was needed, or likely to be needed, as residential lands. The concept of "need", in this context, clearly goes beyond mere zoning.
[10]
Specific subdivision consideration before 1989
To obtain a proper understanding of how the Minister's 2004 refusal should relevantly be understood, it is necessary to set out a deal of earlier history concerning development concepts for Landcom's Morisset project.
In 1981, a report prepared by Colin Donges & Associates was prepared for the relevant Land Board Office (the report is dated 10 August 1981). The report is in Evidence Book Volume 3 Tab 32 folios 843-950. The report deals with an aggregation of land which includes the Urban Growth development site, together with the elements to the south that were being considered in the earlier development options for possible residential development. This report envisaged the development potential as being for a residential estate of over 300 lots with an average size of about 600 m². The conclusion of the report is in the following terms:
The consultants consider that the proposed use of the subject land for residential and ancillary purposes is justified and, indeed, desirable on town planning and resource management grounds, and in the context of existing and predicted future property market supply-demand conditions.
No conceptual subdivision layout was provided, although an indicative internal road layout was (folio 923). This internal road layout plan simply disclosed a potential primary residential street system (folio 922). The report followed on, immediately, to say:
Residential lots will front onto these primary roads, and onto a series of culs-de-sac which will lead therefrom.
These primary streets (and the proposed residential areas to be served by them and the subsidiary streets) are shown on Figure 13 (folio 923). Figure 13 makes it clear, by the dappled areas within the site, that significant residential development was intended along the Moira Park Road frontage to the east of the south-north running riparian zone. Figure 13 is reproduced below.
The first potential subdivision layout plan in evidence is dated 26 November 1984 and encompasses the whole of the current Urban Growth development site proposal plus the additional lands to the south. This plan adopts the primary street layout shown in Figure 13 above but adds to it several further connecting thoroughfares so that the residential development is not only confined to access from a cul-de-sac but that there is also greater interconnectivity within the site. This can be seen, clearly, on the reproduction below of the 1984 conceptual subdivision layout plan.
This plan has a conceptual yield of 288 lots (with ~ 210 of them being on the present Urban Growth site). The plan is in Evidence Book Volume 3 Tab 62. This plan shows the totality of the land within Lots 489 and 7043/4 as to be developed for either residential allotments or roads. A copy of this plan is reproduced below.
This subdivision layout plan is the only such plan in evidence prior to the date of the 1989 land claim.
On 12 September 1996, a senior development manager of Landcom sent a fax enclosing a copy of what appears to be the same subdivision layout as that shown in the 1984 plan. The message that is on the facsimile cover sheet is in the following terms:
Herewith reduced A4-size copy of subdivision layout for this project [Project 12807 Morisset - the Landcom project encompassing the site]. As discussed, planning in this area commenced in the early 1980s and development was stalled pending upgrading of sewerage infrastructure by HWC/Hunter Sewerage Project which is now in place. Resolution of an aboriginal land claim* is now the main constraint on development.
The asterisk to the words "aboriginal [sic] land claim" takes the reader to an annotation making it clear that the land claim involved is Aboriginal Land Claim 3379, the claim made in 1989 and refused in 2004. The facsimile and the attached plan are in Evidence Book Volume 3 Tab 86 folios 1148/9.
The next subdivision layout plan in evidence is attached to a Landcom briefing note dated 26 September 1997. This briefing note makes no comment concerning any particular land demand necessity for the proposed subdivision but does include, however, the following comment under the heading "Current Position":
Under the agreement with Treasury, Landcom has a duty to identify Crown land sites and vigorously pursue development, it is not just the percentage commission involved, but the overall government needs. Landcom could be considered derelict in its duty to the government, not to oppose the granting of ALCs where there is a reasonable case for objection. To buy back into the site after granting of an ALC would involve a considerable loss of revenue to Treasury and government. In any case there is no guarantee that the LALC would want to enter into a joint venture (Morisset Hospital site).
The subdivision layout plan attached to this briefing note appears to be identical (and, as subsequent documents reveal, was identical) with the plan produced in 1984. The briefing note and plan are in Evidence Book Volume 3 Tab 97 folios 1175/6/6A. The briefing note adverts to the Donges' report in 1981. Although, within this tab in the Evidence Books, there is an extract from this report with the handwritten notation of it being "Attachment 5", there is no specific mention of such an attachment in the briefing note proper.
By letter dated 26 February 1998, Landcom provided further material to Crown Lands concerning, inter alia, the 1989 land claim (Evidence Book Volume 4 Tab 105 folios 1260/6). The second page of the letter confirms that the residential allotment design that was appended to the letter as diagram D was the 1984 design earlier referred to (second paragraph on folio 1261). A copy of the 1984 design was reproduced at A4 as Attachment D.
On 10 June 2004, Crown Lands wrote to Landcom confirming that the 1989 land claim had not been determined by the Minister as at that date and enclosing a location diagram. Evidence Book Volume 4 Tab 124 folios 1329-1331 comprise the letter, a "Land information map used for status report" diagram (not presently relevant) and a location diagram and a photograph with the heading "Morisset Project 12807 Estimated Yield 300". This location diagram appears below.
This makes it obvious that, as at the date of that letter, Crown Lands understood that Landcom's proposed project remained the same with the allotment layout design being that first drafted in 1984.
This letter was written by Crown Lands to Landcom less than one month prior to the Minister forming the opinion set out in the letter to the claimant Land Council rejecting the 1989 claim on, amongst the grounds, the Minister's satisfaction that the land was needed, or likely to be needed, as residential lands.
There can be no doubt that the developmental basis (use) for the 2004 rejection of the 1989 land claim is the 1984 subdivision allotment design carried through to this date through the chain set out above. Importantly, this envisages intensive residential development east of the south-north running drainage line.
[11]
Development consideration post 2004 refusal of 1989 claim
[12]
The 2006 Business Plan
In November 2006, Landcom produced a business plan for the Morisset Project (Evidence Book Volume 8 Tab 191B). This business plan identifies the development site as being the core site and notes the potential availability of a larger development as:
The core site is adjacent several large parcels of Crown and privately owned land which provide an opportunity to expand the project if required. (folio 3049)
By 2006, the land being contemplated by Landcom for development no longer included the land element to the south (of roughly a quarter-circle in shape) that was immediately adjacent to Lots 7043/4. However, as can be seen from the indicative street layout plan reproduced below, the area to the east of the south-north running riparian corridor is clearly identified as to be used for residential development.
No detailed subdivision layout was produced forming part of this business plan but a diagram entitled "Possible development scenario" formed Attachment A to this business plan. A copy of that is reproduced below:
Although there is no detailed allotment layout proposed, three relevant observations can be made about this diagram. These are:
1. the proposed road layout is incompatible with the 1984 subdivision design concept plan earlier reproduced - a concept layout continuously adopted from 1984 until at least immediately prior to the 2004 refusal;
2. the nature of the riparian corridor protection shown in this concept plan differs from, and is more extensive than, that which can be inferred from the 1984 concept plan; and
3. however, despite these changes, it is clear that residential development is clearly envisaged to take place within the portions of the overall development site comprising Lots 489 and 7043/4 to the east of the south-north running drainage line - thus continuing to envisage use of these lands for residential development.
The 2006 Business Plan is very brief (according to its table of contents, it is 10 pages in length - folio 3048). The descriptive elements on pages 4 and 5 of the business plan (folios 3048/50) make no comment concerning ecological constraints on the site but do note that an ecological due diligence study was undertaken by Environmental Resources Management Australia Proprietary Limited (ERM) in 2006. However, the possible development scenario shown in the diagram reproduced above contains no indication, apart from the two riparian corridors, of any ecological constraints on general development for the site. This position is to be contrasted with that which is disclosed in the revised business plan discussed below.
A subsequent letter from Landcom to Crown Lands dated 18 October 2012 (Evidence Book Volume 8 Tab 189 folios 2996-3009) describes, at folio 3002, the ERM assessments in 2006 (ERM also conducted a land capability assessment in addition to the ecological due diligence study). This Landcom letter described the ERM assessments in the following terms:
An assessment of these lands, by Environmental Resources Management Australia Proprietary Limited (ERM), commissioned to provide Landcom a summary of environmental opportunities and constraints for these Morisset lands. The study provided and assessed: a detailed site investigation for potential contamination; preliminary bushfire hazards assessment report; description of previous ecology; an outline of existing infrastructure, based upon information received from service providers; summation of hydrology and stormwater issues; the urban capability of these lands; and, a conclusion on the suitability of the site for residential development. The report identified these Morisset lands to be suitable for residential development, however preliminary assessment identified a small number of constraints requiring further investigation prior to development, including: the potential contamination of a small area affected by illegal dumping; a threatened species discovered near the western boundary of the site; and, identified a number of drainage lines traversing the site, which may require vegetation buffers.
[13]
The 2008 Business Plan
The next stage in Landcom's consideration of development options is a refinement of this business plan, with this revision being noted as Issue 2 and dated November 2008. Unlike the 2006 document (it being of 16 pages), the 2008 Business Plan is more than 48 pages long (the precise length is unknown. The document in evidence - Evidence Book Volume 8 Tab 191C folios 3063-3112 - omits several of the appendices, with these being of unknown length). It is clear from the executive summary that this business plan remained confined to the land that was considered in the 2006 Business Plan (folio 3049).
It is clear from a reading of the 2008 Business Plan, as discussed below, that there has been further extensive work done of a site analysis nature, either by Landcom itself or by consultants engaged by it - with this work leading to a much more advanced understanding of the site constraints, particularly the ecological site constraints, on considering residential development across this site.
Between the 2006 Business Plan and the 2008 Business Plan, it is obvious that two significant changes have occurred. The first is that the anticipated nature of the residential development within the project has changed by contracting significantly to the west to be beyond the south-north running drainage line and, second, the expected allotment yield has been lowered significantly.
Section 7 of the 2008 Business Plan is entitled "Environmental Constraints". Its introductory paragraph is in the following terms (folio 3085):
Environmental constraints represent the largest threat to the creation of a viable development project at Morisset. The following section briefly summarises the environmental constraints and the impact on the development of the Morisset Master Plan.
The section then lists (folios 3085-7) and discusses, in sufficient detail to understand the nature of the concerns, the "Impact of environmental constraints on development footprint". It does so under the following subheadings:
1. Riparian zones;
2. Endangered ecological community;
3. Squirrel Glider;
4. Habitat corridors;
5. Asset protection zones;
6. Tetratheca juncea; and
7. Biodiversity, environment and conservation.
That which is set out under the final heading is in the following terms (folio 3087):
The MSP [Morisset Structure Plan] requires that at least 75% of extant vegetation within major and minor fragments and designated movement corridors outside existing conservation zones should be conserved through development trade-offs that secure perpetual protection of retained habitat in turn for approvals to develop the remaining 25% of habitat. The Landcom site is located within major habitat fragment area 5. The MSP advises that area five is 60.9ha in area, 25% of which (15.2ha) is available for development. Council has advised that development applications submitted to date requires the removal of 3.2ha of vegetation. This leaves a maximum of 12ha available for the development of Landcom's site.
Section 8 of the business plan is entitled "Preliminary Master Plan" (folio 3088). The introductory comments to this are in the following terms:
A preliminary master plan has been developed in response to the environmental constraints (refer Section 7) and proposed product mix (refer Section 6).
In response to Council's Tetratheca juncea Conservation Management Plan, two separate development applications are proposed to be lodged with Council: -
DA1 - maximise development area whilst retaining 75% of Tetratheca juncea;
DA2 - address Tetratheca juncea issue through offset, biobanking or Council policy amendment.
In order to expedite the Morisset project, it is proposed to seek Council approval for DA1 and, in the meantime, continue investigations into the feasibility of using environmental offsets or biobanking to release the DA2 area.
The business plan then discusses the two development application options. The first of them, shown on figure 5 to the business plan, was designed to permit retention of 75% of the Tetratheca juncea clumps on-site whilst permitting Landcom the opportunity to explore offsets and biobanking to permit further development of the site. The first development application would yield 80 allotments with 91 dwellings on them. It is clear that, in general terms, this development application layout coincides with the development footprint of the south-eastern element of the development application subsequently lodged with the Council. A copy of figure 5 is reproduced below.
The proposed second development application ("Assuming the Tetratheca juncea constraints can be resolved, current council policies mean that a maximum area of 12ha is available for the development of Landcom's site" - see folio 3089) adds an additional 48 allotments by developing within the centre of the DA1 perimeter and creating a further small subdivision along the western boundary of the site immediately adjacent to the Morisset Public School. The combined DA1 and DA2 subdivision layout was reproduced in figure 6 to this business plan, shown below.
The plan of site constraints (figure 4 attached to this business plan) shows clearly the various constraints but, particularly, the GPS-recorded location of occurrences of Tetratheca juncea in the context of the combined DA1 and DA2 proposals envisaged at this time. The figure 4 plan - showing the Tetratheca juncea clumps as purple dots - is reproduced below (omitting the cross-sections on the plan).
Critically for the purposes of my consideration of whether the 2004 Ministerial opinion, for the purposes of s 36(1)(b1), can validly be regarded as carrying forward to be applicable to the 2009 land claims, the subject of these proceedings, it is appropriate to note that this business plan proposes, conceptually, no development whatsoever to the east of the south-north running drainage line.
[14]
The Minister's s 36(1)(b1) position on the 2009 claims
The Minister's case in these proceedings is that the s 36(1)(b1) element of the rejection of the 1989 claim refusal remains validly available to the Minister as a basis for rejecting both of the present claims. Although the 1989 claim included Lot 489 and not Lots 7043/4, Mr Stewart submits, for the Minister in these proceedings, that:
Although expressly for Lot 489, as the basis of refusal was founded on contemplation of the use of a broader potential development site that also encompassed Lots 7043/4, those allotments were encompassed within that basis for the refusal of the 1989 claim;
It is to be seen that, at the time of execution of the instrument of that refusal in 2004, that basis for refusal remained valid; and
There is a sufficient evidentiary chain to enable drawing the conclusion that, as at February 2009 (there being no basis for considering the present claims separately although they were lodged a week or so apart), the 2004 ministerial opinion should be regarded as continuing to be held specifically for Lot 489 and, by continuing necessary inference, for Lots 7043/4.
As explained below, I am unable to agree.
[15]
Conclusion on s 36(1)(b1)
It is clear from the terms of the letter of refusal signed by the Minister in 2004 that that refusal was based, as one entirely sufficient ground, on an assertion that the Minister held the necessary opinion pursuant to s 36(1)(b1) of the Land Rights Act that the lands were needed or likely to be needed for residential development.
Having established that there was an effective continuity of proposed use as residential lands between 1984 and 2004, it is then necessary to consider to what extent that use, in a Chamwell sense, is carried forward for determining whether or not the 2004 refusal (as at 1989) can be established to have continuing validity as a basis for refusal in 2014 of a 2009 land claim.
I am unable to accept that the 2004 refusal based on s 36(1)(b1) of the Land Rights Act, on a proper consideration of the facts over the relevant period of time, provides any basis for refusal of the 2009 claims. My reasoning for reaching this conclusion is set out below.
Proper consideration of the supporting material provided to the Minister makes it clear that the essential starting point is the existence of a concept plan for a possible development layout in 1989 that:
1. included the land subject to that claim; and
2. had an anticipated development yield of 240 residential allotments (~ 210 over the current Urban Growth development site).
The detail of the 1984 concept plan and its tracking demonstrate that, throughout the period until the time the Minister was invited to form the requisite residential lands' need opinion, it remained unchanged and showed that intensive development along the Moira Park Road frontage was an essential element of generating a ~ 210-allotment yield from the project. In light of this, it is reasonable to accept that there was a proper basis upon which the s 36(1)(b1) element of the 2004 refusal could be founded.
This basis of refusal defined with precision that which was, in 1989, proposed to be how the claimed lands were to be used for the purpose of residential land. Both elements of that which was discussed by Preston CJ in Chamwell of the use and the purpose to be served by the use are identical in this instance. There is no possibility that, on the basis of the 1984 plan, there could be any suggestion that any of the presently claimed land of any significance was intended to be used for ecological protection serving the purpose of supporting an overall residential development of a larger site that encompassed other land.
On the other hand, although Landcom's 2006 Business Plan continued this position (albeit with a quite markedly different internal road layout postulated as appropriate for the land upon the Moira Park Road frontage), the use/purpose as residential lands remained effectively consistent with the 2004-formed ministerial opinion (although with a modest removal from development for riparian zone protection purposes).
Had that position continued, it may well have been that the 2004-formed ministerial opinion was capable of having continuing life. The radical change between Landcom's 2006 Business Plan and its 2008 Business Plan fundamentally changed the position.
As a consequence of the additional site investigation that must, necessarily, have taken place during the period between the two business plans, the significance of the major ecological constraints on development of the overall site were obviously revealed to those in Landcom assessing and refining a possible project for these lands.
The necessity to address the significant issue of the Tetratheca juncea on the site, and to address other significant ecological constraints earlier noted, caused the effective withdrawal of conceptual design of residential development from the portion of the development site comprising the lands the subject of these claims. Whilst there is no site plan in the 2008 document material in evidence that overlays the allotment boundaries on either the first or second development application concepts in the document (such a plan may be present in the elements of the document not tendered; as earlier noted, I do not have the totality of this document in evidence), there can be no doubt that there is very little physical residential use proposed on either Lot 489 or Lots 7043/4.
The consequence of this shift is that the previous use/purpose matrix was not merely altered in emphasis (as was the position in the shift between the 1984 concept and the 2006 indicative concept showing an altered road layout and thus needing an altered allotment layout) but was virtually completely fractured with residential use almost entirely removed from the 2009 claimed lands.
Although, at a high point for the Minister, it might be considered that the first of the two necessary commencing premises for the 2004-formed Ministerial opinion remain, it is clear that the second element, involving residential use by allotments along the entirety of the Moira Park Road frontage had disappeared at the time the 2009 claims were made.
As a consequence, assuming (but without needing to consider and determine in the circumstances of these proceedings) that a ministerial opinion validly formed for the purposes of s 36(1)(b1) for one land claim could subsist to have effective validity for a subsequent land claim, made some twenty years after the initial claim and five years after the initial claim was refused, the fundamental factual discontinuity described above means that a refusal of the 2009 claims on the basis of the 2004 ministerial opinion was not available to the Minister at the time of refusal of the 2009 claims.
It therefore follows that the Applicant must succeed on this aspect in each current appeal.
[16]
Residential land/subdivision and "essential public purpose"
The Applicant invites me to adopt, as a broad statement of principle, the proposition that residential development by subdivision of land to create residential allotments is incapable of constituting an "essential public purpose". Thus, Ms Pritchard submits, the identification of the possibility of development of a parcel of land in the fashion contemplated by the Urban Growth development application to the Council for the overall development site can never fall within s 36(1)(c). As I understood this proposition, even if one or both of the "needed or likely to be needed" tests were capable of satisfaction (a position that is not conceded by the Applicant in either of these proceedings), the Minister's refusal under this provision must fail.
The starting point for the analysis said to lead to this broad conclusion is a statement in the decision of Bannon J in La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act [1991] NSWLEC 118; 74 LGRA 176 (at 183 of the reported decision) where his Honour said:
While it may be desirable for the Department of Housing and the Land Commission to appropriate and develop Crown land, the evidence does not convince me that residential development is an essential public purpose in the City of Sydney.
In the following paragraph, his Honour also said:
Further, it was not proved to my satisfaction that the subject land was needed for public purposes as distinct from being considered desirable or suitable. No evidence was before me as to population pressures requiring residential lots in La Perouse.
The decision in La Perouse was given on 29 November 1991. It concerned a claim that had been lodged on 1 November 1984 (before s 36(1)(b1) had been enacted). As a consequence, any basis for refusal of the claim had to arise from the provisions of the Act in effect at the date of the claim, thereby excluding any consideration of the provision inserted in the 1986 amendments.
The Minister's refusal of the claim was made in two steps, with the residential lands' component being dealt with in the second step - when that element of the claim was refused by the Minister by letter dated 17 September 1990 (La Perouse reported decision at 177). The letter said, relevantly after introductory, descriptive material:
With respect to those remaining parts of the claim shown by yellow, green and orange tints on the diagram, those areas are needed respectively for the essential public purposes of residential development, conservation of native flora, and road.
After setting out the terms of s 36 as it was at the date the claim was lodged in 1984, his Honour noted the subsequent amendments (including the new sub- subs (b1)) but did not discuss them further.
There are two elements of his Honour's judgment that are relevant leading up to the conclusion that his Honour drew concerning the non-applicability of s 36(1)(c) to land proposed for residential development. First, at [183], his Honour set out earlier observations by Stein J concerning the proper understanding of "essential public purpose". Bannon J noted:
In NSW Aboriginal Land Council v Minister (Tredega) (1986) 59 LGRA 318, Stein J at 331, 332 said: "In my opinion 'essential' in its juxtaposition to 'public purpose' connotes something which is indispensable or at least material and important."
In Worimi Local Aboriginal Land Council v The Minister 1991 72 LGRA 149 at 163 Stein J said: "In my opinion 'essential' means 'necessary or indispensable'."
Later, on the same page, his Honour said:
It would be unrealistic to hold that the development of Crown land for housing by the Department of Housing and the Land Commission was not a public purpose.
It is clear, therefore, that his Honour had concluded "the development of Crown land for housing" failed the "essential" element of that part of the test in s 36(1)(c).
Bannon J's decision in La Perouse has had quite limited subsequent consideration. It was considered by Pain J in Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act and Anor [2006] NSWLEC 180; 149 LGERA 162 where her Honour said, at [140]:
If the observations of Bannon J in La Perouse are considered these reinforce, in my view, that urban development generally is not an activity that equates to public purpose. That case concerned a government body undertaking residential development so that the facts of this case are obviously different but his Honour's observations distinguish clearly between "public" and "private" activity.
However, this does not assist in this context as her Honour's comment was not addressing the concept of "essential" but merely that of "public purpose".
The evidence given by Dr Stapledon on behalf of the Minister in these proceedings concerning broad economic and social responsibilities for government to establish policy settings, in a variety of fashions including through land supply, to ensure that there is an adequate supply of housing for the populace is, in my view, an uncontroversial proposition. It operates at a very high level of policy but also operates in the very broad rather than in the specific.
In the context of a land-use planning system such as that which operates under the Environmental Planning and Assessment Act 1979, this policy framework is addressed by detailed planning, such as the classification of land into various zones for residential purposes, and then specifying the density uses capable of being achieved within them or at the strategic planning level (such as the Lower Hunter Regional Strategy or the Morisset Structure Plan earlier discussed). This is entirely consistent with the broad "public purpose" conclusion set out by Bannon J. However, it does not assist in the context of proper statutory construction as to whether such policy outcomes could be regarded as "essential" in the statutory context here demanded.
In Nelson Bay, Basten JA explained (Beazley P and Preston CJ of LEC concurring), in a series of six propositions, why an opinion for the purposes of s 36(1)(b1) was required to be the personal opinion of a Crown Lands Minister.
Two of those propositions dealt (either by implication or expressly) with the decision in La Perouse. The first of them was in the following terms:
Thirdly, the subject matter of the opinion favours a personal decision by the Minister. It involves giving effect to a public purpose, albeit one held not to fall within the category of an "essential public purpose".
In using the word "held", it is clear, from the passage reproduced above, that his Honour was alluding to the decision in La Perouse. It is to be noted that his Honour did not express disapproval of this decision or suggest that so holding was erroneous.
He said, further, at [33]:
Fifthly, the comparison with other provisions within s 36(1) is instructive. Paragraph (b1) was introduced in 1986, presumably on the assumption that residential use did not constitute an "essential public purpose" within par (c): NSW Legislative Assembly, Parliamentary Debates (Hansard), 16 April 1986, at 2042; La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 at 183 (Bannon J). The legislature thus made a clear choice not to add a precondition which might be the subject of objective assessment by the court, but rather a precondition formulated by reference to ministerial opinion. Such an opinion will not be unreviewable by the courts, although the grounds of review will be more limited than the range of considerations which would be considered if the court were formulating its own opinion on the matter: [further citations omitted].
Although his Honour's remarks made a presumption as to the reason for the introduction of section 36(1)(b1), this presumption, for the reasons discussed below, is a presumption reasonable and appropriate to be drawn on a proper analysis of the interrelationship between the two subsections when considered in light of the language (albeit brief) used by the Minister in his second reading speech and by the explanatory notes to the Bill at that time.
As the limited judicial consideration of La Perouse has proceeded on the basis of there being a general proposition that residential development is not an "essential public purpose", there is no necessity to consider whether Bannon J's use of the words "in the City of Sydney" was a geographically confining expression enabling that decision to be distinguished from the present claims involving lands that could not conceivably fall within that descriptor (or whether the capitalisation of "City" was an unfortunate slip or a misunderstanding of local government boundaries being irrelevant).
The submissions made by Ms Pritchard and Mr Stewart concerning the constructional interrelationship between sub-subs 36(1)(b1) and (c) focused on the question of whether or not the first provision changed the operative effect of the second. Set out below are extracts from the various sets of written submissions dealing with this aspect. Footnotes have been omitted. The extract (with the source of each) were in the following terms:
Respondent's Closing Submissions in Reply
2 The applicant has cited a number of authorities to support various principles of statutory construction, including that provisions of general application give way to specific provisions relating to a particular subject matter and that an amending Act may alter the meaning of unamended provisions of the principal Act. Although the various principles may be stated with clarity, their application in the present case does not yield the result contended for by the applicant.
3 The applicant has not demonstrated that the words in s 36(1)(c) necessarily derogate from s 36(1)(b1), such that s 36(1)(b1) must be construed as the sole provision applying to lands needed for residential or subdivision purposes. Actually, paragraph (b1) and paragraph (c) deal with quite different subject matters: (b1) deals with the use of land "as residential lands" and (c) deals with the purpose for which land is needed or likely to be needed. There might be something in the applicant's submission if both paragraphs dealt with "purpose", but since they do not the submission must fail.
4 In any event, the applicant has not properly addressed the basic principle (described by the High Court as "a very strong presumption") that an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. At [33] the applicant seeks to distinguish the application of that principle on the basis that it does not contend that para (b1) repeals, alters or derogates from para (c). Yet it submits at [23] that para (b1) "casts light upon the true scope of s 36(1)(c)". Those submissions are in conflict with one another: either on its introduction (b1) had a bearing on the meaning of (c), or it did not. Until such time as the applicant overcomes the "very strong presumption" that the later provision does not alter the meaning of the earlier provision, (b1) simply has no bearing on the meaning of (c).
Applicant's Closing Submissions
10 Dr Stapledon candidly accepted that he answered the questions asked of him in a "theoretical sense". He confirmed that he was not a town planning expert. In answering the questions asked of him, including the question in relation to whether residential use and development was an essential public purpose Dr Stapledon confirmed that he did not "have regard to" s 36 or any other provision of the ALRA. He was not even aware the phrase "essential public purpose" appeared in the ALRA.
11 In answering the question of whether it was a function of government to "make land available", Dr Stapledon agreed that he was talking about the economics of housing supply and "planning". Dr Stapledon accepted that the function of zoning was the "primary way" or "primary mechanism" that a government can ensure the availability of land for residential use. Land release and relaxation of density restrictions were other tools for controlling supply. He accepted that the availability of land for residential use could be achieved irrespective of who owned the land, and that if the constraints on use of land were relaxed, then the market could accommodate population growth.
19 In closing, the Minister submitted that s 36(1)(c) should be given the meaning that it had upon its enactment in 1983, a meaning which he submitted must be unaffected by the amendment in 1986 which inserted s 36(1)(b1). The submission is contrary to two distinct, but related, principles of statutory construction each of which is basic and well-established.
Applicant's Outline of Submissions
53 Section 36(1)(c) must be construed harmoniously with s 36(1)(b1). Section 36(1)(b1) deals specifically with "residential lands". It provides an exception to claimable Crown lands for "lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands".
54 Section 36(1)(b1) was inserted into the ALRA in 1986, whereas s 36(1)(c) formed part of the ALRA from its enactment. The 1986 amendment legitimately informs the intended meaning of the earlier provision. In particular, the earlier provision should not be construed in a way which would render the subsequent amendment unnecessary. If "essential public purpose" were construed to extend to residential use or development, the specific amendment in 1986 would have been unnecessary. Therefore, s 36(1)(c) should be construed not to extend to residential use or development.
55 This is reinforced by the legislative history of para (b1). The Explanatory Note to the Bill for the relevant amending Act explained that para (b1) would "exclude claims in relation to land required for residential development". It did not suggest, contrary to the Minister's submission at [30], that there was some subtlety about creating a "lower standard of proof" by making the Minister's opinion the jurisdictional criterion. Rather, para (b1) was inserted as the mechanism by which the statute would exclude claims in relation to "land required for residential development". Paragraph (c) is not an alternative mechanism.
56 Similarly, as Basten JA (with whom Beazley P and Preston CJ of LEC agreed) observed in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the Nelson Bay Claim) (2014) 205 LGERA 219 (Nelson Bay) at [33]:
Paragraph (b1) was introduced in 1986, presumably on the assumption that residential use did not constitute an "essential public purpose" within para (c): NSW Legislative Assembly, Parliamentary Debates (Hansard) 16 April 1986 at 2042; La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 at 183 (Bannon J). The legislature thus made a clear choice not to add a precondition which might be the subject of objective assessment by the Court, but rather a precondition formulated by reference to ministerial opinion.
57 The requirement under s 36(1)(b1) for the formation of an opinion at the Ministerial level is an important limitation upon the scope of the exception. Activities at lower levels of government will not suffice. It would therefore be surprising if para (c) were construed, in effect, to circumvent the limitations expressly placed upon para (b1). Paragraph 9b1) manifests the legislature's considered choice to "exclude claims in relation to land required for residential land" (as the Explanatory Note confirms), and effects that exclusion only where a decision is taken at the Ministerial level.
58 General statutory powers are not ordinarily construed so as to encroach upon limitations which attend a more specific power in respect of the same subject-matter. There may, in truth, be "only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power". Similarly, one generally expressed exception to a right would not be construed to avoid or render otiose another carefully delimited exception to the same right. As a Full Court of the Federal Court said, quoting Megarry J:
The proper principle to apply if an enactment contains two similar prohibitions, one wide and the other applying only to a limited class of case wholly within the wide prohibition, is to treat the wide prohibition as not applying to cases within the limited prohibition, especially if the limited prohibition is made subject to some exception and the wide prohibition is not.
59 This principle has been applied where, as here, a specific provision has been inserted into a statute at a later date in circumstances where a general power already exists.
60 The foregoing principles are reinforced by the remedial and beneficial character of the ALRA, which requires the exceptions in s 36(1) to be "narrowly construed" in any event.
Respondent's Written Submissions in Reply
1 The applicant contends at [11] and [50] that the effect of construing s 36(1)(c) harmoniously with s 36(1)(b1) is that the refusal of claims in relation to land said to be required for residential purposes is dealt with by para (b1) only, and not by para (c). The applicant contends that the words "essential public purpose" in s 36(1)(c) are, as a matter of law, confined by the words which appear in s 36(1)(b1), with the effect that putting land to use as residential lands cannot be an essential public purpose within the meaning of (c).
2 There is nothing in the ALRA to indicate that s 36(1)(c) was upon its enactment intended to exclude land needed or likely to be needed for residential or associated purposes. Or that s 36(1)(b1) was intended upon its enactment to provide an exhaustive procedure for excluding land required for residential or associated purposes from the definition of claimable Crown lands in s 36(1).
Outline of Submissions on Behalf of the respondent
30 Unlike the other provision in s 36(1) of the ALRA, s 36(1)(b1) requires the formation of an opinion by the Crown Lands Minister. The test of "need or likely need" may be established by application of a lower standard of proof, being contingent on the existence of an opinion only. In contrast, in the case of (c), the definition requires the identification and proof of the underlying circumstances demonstrating a need or likely need for the land by the executive government generally (not solely by the Crown Lands Minister). The different tests in ss 36(1)(b1) and 36(1)(c) for excluding land from the definition of "claimable Crown lands" support the conclusion that both subsections apply to residential lands in that the provisions serve different purposes. Consistently with the different purposes between the provisions, it has been held that the purpose and effect of the certificates under s 36(8)(a) and (b) (which correspond to the grounds of refusal in s 3691)(b1) and (c) respectively) differ. Accordingly, the provisions in (b1) and (c) can be reconciled as a matter of ordinary interpretation.
31 The Minister submits that residential use or development constitutes an essential public purpose under s 36(1)(c) or, alternatively that, in any event, it may do so depending on the facts of the particular case (as per La Perouse). The decision in Tredega provides further support for the latter proposition. In that case 9decided on the basis of the law applying before the enactment of (b1), the need relied upon by the Minister was the need to "ensure the maintenance of viable farming units in terms of the requirements for economically effective agricultural holdings in the western division of the State and the need for form 'build-up' to meet these requirements". Justice Stein held that the evidence fell "short of proving that the subject land was needed or required 'for the purposes of the administration of the government' of the community or the state" but commented that it was "possible with a good deal of comprehensive evidence concerning the need in the locality (or a much wider region) for extra land to constitute 'home maintenance areas' as defined in s 3 of the Western Lands Act that Mr Mooring's private purpose could be translated into a public purpose. However … the state of the evidence is not such as one could conceivably draw such an inference". This provides support to the interpretation accorded to the expression "essential public purpose" in La Perouse, namely, that it may be a question of fact in the particular case.
32 In any event, there is no authority precluding a conclusion that residential use or development constitutes an essential public purpose for the purpose of s 36(1)(c).
Residential use or development is an essential public purpose
33 The evidence establishes that residential use or development is a purpose of the administration of government and an "essential public purpose". The expert opinions of Mr Haskew and Dr Stapledon establish, in effect unanimously (although their opinions were provided independently of each other, on behalf of the Minister), that:
(a) it is the function of government to ensure the availability of residential lands;
(b) there are important public purposes served by having land available for residential development, including the making available of land for residential expansion I regions where it is necessary for urban growth, and
(c) the making available of land for development into residential lots in a manner which meets the current and future housing needs of the community or indispensable, indeed critical as a government function.
34 In summary, Mr Haskew states that, aside from the Environmental Planning and Assessment Act 1979 (NSW) making it plain that it is the role of government to ensure the availability of land for residential use, there are numerous other reasons why it is important that government exercise that function, including to prevent the escalation of housing costs which would have "high potential for adverse social, economic and environmental impacts". He opines that it is the core function of those employed within the strategic arm of government and the town planning profession to ensure that housing supply is carefully managed to accurately reflect projected population growth. The consequences of the government not doing so he describes as "dire and extreme".
35 Dr Stapledon observes that it is essential that the Government makes land available for residential use or development. The consequences of not doing so can be a significant rise in rents and higher unemployment with significant detriment to households in terms of overall welfare and housing affordability. It would also mean more costly infrastructure and public services. He opines that the Government does not have the option not to make land available for residential use or development.
36 Mr Sanders, town planner, provided a report on behalf of the applicant in which he commented on Mr Haskew and Dr Stapledon's reports. Mr Sanders stated that both Mr Haskew and Dr Stapledon "demonstrate why it is important for Government to undertake such town planning functions, being a proposition with which I generally agree". However, in Mr Sanders's opinion, the issue is whether the individual parcels of land were needed or required for residential use or development. It is submitted that Mr Sanders's report provides support for the proposition that residential use or development is a purpose of the administration of government and hence an essential public purpose for the purpose of s 36(1)(c) of the ALRA.
37 The Minister submits that residential use or development is clearly a public purpose. Justice Bannon accepted this proposition in La Perouse, as did Basten JA at [30] in the Nelson Bay claim. Indeed, as noted above, his Honour described it as involving "high government policy".
38 The Minister submits that it is also an essential public purpose. It is a core role of government to achieve balanced residential development whereby land and utilities are made available to the community and appropriately matched with the future housing needs of the community and the State. Expanding the size and number of residential sites in New South Wales is essential for the public good. Just as the provision of electricity and sewerage are considered essential public purposes, the provision of land for housing is an essential public purpose. Whether or not private developers are involved, or the residential lots are intended for private ownership (as opposed to public housing), does not lessen the public nature of the government's purpose or interest and involvement in bringing that result about. There is a consensus of expert opinion in this respect.
Ms Pritchard's and Mr Stewart's oral submissions were entirely consistent with, and in expansion of, these written submissions but, in my assessment, did not add anything requiring further detailed analysis on any specific point.
However, I consider that this debate misses the substantive proposition to be drawn from the operative timing of the insertion of s 36(1)(b1) as viewed in the context of the decision of Bannon J and the limited subsequent consideration of it - particularly the comments of Basten JA in Nelson Bay.
The decision in La Perouse, although given in 1991, dealt with what was the state of the applicable statutory provisions in 1984 when the land at La Perouse was claimed. This point in time was, self-evidently, prior to the enactment by the Parliament of the amending provision. It is clear from the terms of Bannon J's discussion (leading up to him setting out his conclusion that, put broadly, residential development was not an "essential public purpose" falling within s 36(1)(c)) that his Honour had not had any regard to the amending provision (although, as earlier noted, he had observed that it had been inserted at the time of his decision).
The effect of this decision was confirmation that the insertion of the amending provision could not be regarded as derogating from the operative effect of s 36(1)(c) because the decision in La Perouse confirmed that a proper pre-1986 understanding of the original provisions of s 36(1) was that it did not include residential development within the scope of matters covered by that provision. As earlier discussed, I am satisfied that this conclusion is reinforced by the 1986 parliamentary material and by the quoted non-disapproving comments of Basten JA in Nelson Bay.
Viewed in this proper context, it is clear that the 1986 amendment should be regarded as expansive of the categories of lands capable of being removed from claim but, as the ability to exclude on the new basis was to be a discretionary one at a lower threshold test, that discretion was required to be exercised at the highest government policy level, namely by a Crown Lands Minister.
Understood properly, s 36(1)(b1) does not derogate from the range of land excluded by operation of s 36(1)(c). In fact, the new provision adds to the range of land rendered unable to be claimed. However, because the land to be excluded by the new provision does not fall within the scope of an "essential public purpose", the additional stringent requirement of the formation of a personal opinion by a Crown Lands Minister is added as a threshold before residential lands can be rendered unclaimable.
Viewed in this fashion, the use of the word "earmarked" in the explanatory material that accompanied the Bill that introduced the new provision is given some work to do. It seems to me that the concept of "earmarking" (in the sense as designated for the use) goes beyond questions of mere zoning as, historically (including at the time, relevantly, of the passage of the amending legislation), land that was residentially zoned also had a range of other uses permitted within such zones where those uses were deemed to be compatible with the broad residential nature of land use expected within such a zone. In the context of s 36(1)(b1), the concept of "earmarking" as residential land would indicate something more than mere zoning but would imply the specified land being set aside for residential development - not merely land capable of such use.
In this context, if viewed in a hierarchical sense and accepting that residential lands were not able to be claimed under the rubric "essential public purpose", it makes sense to impose the more restrictive test for inclusion of the requirement of a personal opinion being held by a Crown Lands Minister.
Absent such an analysis, any Crown land that was zoned residential and had the capacity to be used for that purpose would, at least potentially on Mr Stewart's submission, be capable of being rendered unclaimable as a consequence of a broad strategic planning framework, a framework which, as is the case here with the transition from the Council's Lifestyle 2020 vision to the Morisset Structure Plan (a document, itself, likely to be revised over time), rather than any specifically directed Ministerial determination that a particular parcel or parcels otherwise claimable should be rendered unclaimable.
It might be possible to envisage circumstances of such particularity that the provision of residential land could be regarded as ancillary to, supportive of and forming part of an "essential public purpose" (Mr Stewart's example of the necessity to provide housing at a remote Defence facility being an apt one). Such circumstances might well be ones that could engage a s 36(1)(c) barrier to claimability. In such a context, a proper Chamwell analysis would disclose that such a use of land would be for residential development but the purpose the use was serving was the Defence facility to which it was ancillary.
In this instance, what is advanced is the proposition that use of land for residential development for the purposes of subdivision with the resulting subsequent use and purpose of providing residential development and not in support of and/or subsumed by some other purpose is an essential public purpose. Such a coincidence of use and purpose is that which falls for consideration in these proceedings.
Properly understood in this context, adoption of Mr Stewart's submissions concerning these lands would mean that any land within the Crown estate that was zoned residential would likely have, by that potential residential capability, an "essential public purpose" tag attached to it.
In my view, a proper understanding of the decision of Bannon J in La Perouse was that he rejected such a broadly based proposition. The limited judicial consideration of it in Nelson Bay did not disapprove his Honour's approach.
In summary, in a Chamwell analysis fashion, the position to be derived is that, when use and purpose are both simply for residential development (whether subdivision or some later development stage being irrelevant, in my view), such use and purpose combination is incapable of invoking the claimability exclusion of s 36(1)(c) of the Land Rights Act. That is not to say that, in some circumstances, such a use in support of some different purpose may not be able to invoke the protection of the provision. However, in this instance, that is simply not the case.
Viewed in this fashion, the insertion of s 36(1)(b1) can be seen to be able to do the work envisaged when it was inserted into the Act. It is to be remembered, as earlier set out, that the element of the Minister's second reading speech that touched, briefly, on this new provision was in the following terms:
Further amendments will bring the Act into greater conformity with government policy … by removing residential land from the category of claimable Crown land …
Whilst the element of the explanatory notes attached to the Bill said:
The conditions under which claims to Crown land (proposed ss 36(1)(b1)) are made will, in future, be varied. It is intended that land earmarked for residential development will be made non-claimable. This is a scarce resource and access to it should be through normal channels in accordance with government policy.
Nothing said by the Minister in introducing the Bill in 1986 in the Legislative Assembly or anything he said in reply at the conclusion of the second reading debate provides any further assistance. There was no committee stage in the Legislative Assembly. Nothing in the second reading debate or the committee stage in the Legislative Council throws any further light on the intentions of the government with respect to the insertion of s 36(1)(b1).
Consideration of the provision, therefore, can be taken only from its terms and the very limited extent to which the brief comment in the Minister's second reading speech and the material in the explanatory note attached to the Bill assist in such an understanding.
The insertion of this provision was not some narrowing of an existing broad category (that contained in s 36(1)(c)) but the creation of an entirely new exclusionary capacity, a capacity based not on an objective examination of the various components in s 36(1)(c) but on the basis of a subjective opinion held by a Crown Lands Minister and subject to much more limited potential bases of review of it.
In a policy sense, it can be seen that the elevation within the hierarchy of government administration to requiring it to be held by a Minister (obviously on the basis of advice but, nonetheless, by the Minister personally) was a proper precautionary approach necessary as a consequence of s 36(1)(b1) being more permissive and permitting the exclusion from claimability of lands that would not otherwise be rendered unclaimable pursuant to s 36(1)(c) merely because they had been "earmarked" as residential lands. Inserting such a high prerequisite (the holding of an opinion personally by a Minister) is entirely consistent with a broad legislative approach that socially beneficial legislation, as is the case with the Land Rights Act, should only be set aside in exceptional circumstances.
Viewed in this context, it is unsurprising that the necessary conclusion concerning the lands that are the subject of these claims is that a proper understanding of s 36(1)(c) does not render them unable to be claimed.
It therefore follows that, on this proper statutory construction of s 36(1)(c), the Minister does not have this provision available as a basis to reject these claims.
Having reached that conclusion as a matter of proper statutory construction, it is unnecessary to consider either of the other two potential bases pursuant to s 36(1)(c) for rejecting the Minister's view that the land in either appeal was unable to be claimed. Those potential bases were:
Whether the land was, in fact, not capable (to sufficient probability on the facts) of being used for the purpose of residential development for it to be able to support the conclusion that it was "needed or likely to be needed" for that purpose; or
That the planning evidence (written and oral) and the planning documents did not demonstrate that the land was "needed or likely to be needed" (as opposed to be desired by Urban Growth) for that purpose.
Consideration of each of these potential bases for rejecting the Minister's position would have required an extensive exploration of the factual material, an exploration of which is not necessary in light of the conclusion I have reached concerning the proper statutory construction of the interrelationship between ss 36(1)(b1) and (c).
[17]
Conclusion on s 36(1)(c)
I have concluded that the Minister's reliance on s 36(1)(c) as a basis for resisting the claimability of the land in these two proceedings lacks any proper foundation and therefore fails.
[18]
Conclusion
With respect to the refusal in 2004 of the 1989 claim, I am satisfied that the history set out in this judgment justifies the Minister forming the opinion, based on departmental advice, that the land in Lot 489 was needed or was likely to be needed as residential lands as at the date of the claim in 1989.
The history also demonstrates that, within a comparatively short period of time after the formation of that opinion in 2004, the view of the development potential of the overall lands under consideration contracted significantly. By the time of the claims that are the subject of these proceedings, the development contemplated had radically changed from that providing a proper basis for the formation of the opinion in 2004 concerning what was envisaged at the date the 1989 claim was made.
The departure is so significant, by contraction of possible residential use toward the west and the virtually complete (but not entirely so) abandonment of residential infrastructure on the land subject of the present claims, means that the 2004 opinion, with foundations necessarily rooted in the bedrock of the 1984 development layout concept plan, had no ongoing validity after the seismic shift in development emphasis between Landcom's 2006 Business Plan and its 2008 Business Plan.
There is no factual basis on the evidence that the provisions of s 36(1)(b1) of the Land Rights Act upon which the Minister sought to sustain his determination to refuse either current claim is available as at the date of these 2009 claims.
I have also concluded that residential development for the purpose of subdivision is not an "essential" public purpose on proper consideration of that term as used in s 36(1)(c) of the Land Rights Act.
The outcome, therefore, is that each of the appeals must be upheld as there is no factual basis on the evidence that the provisions of s 36(1)(b1) of the Land Rights Act upon which the Minister sought to sustain his determination to refuse either claim is available nor, on a proper consideration of the terms of s 36(1)(c), can the basis of refusal under this provision be sustained.
However, that portion of Lot 489 that is used for the pumping station forming part of the sewerage treatment network is to be excluded from transfer (as conceded on behalf of the Applicant).
[19]
Orders
It follows, therefore, that the orders of the Court are:
In Matter 30617 of 2014:
1. The appeal is upheld;
2. The Respondent is to transfer Lots 7043 and 7044 DP 93598 in fee simple to the Biraban Local Aboriginal Land Council;
3. The Respondent is to do all things necessary to enable the transfer of the land in accordance with Order 2 within six (6) months of the date of these orders;
4. The exhibits are returned; and
5. Costs are reserved
It follows, therefore, that the orders of the Court are:
In Matter 30619 of 2014:
1. The appeal is upheld;
2. The Respondent is to transfer Lot 489 DP 755242 (other than that portion used for the pumping station forming part of the sewerage treatment network) in fee simple to the Biraban Local Aboriginal Land Council;
3. The Respondent is to do all things necessary to enable the transfer of the land in accordance with Order 2 within six (6) months of the date of these orders;
4. The exhibits are returned; and
5. Costs are reserved.
[20]
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: 20 November 2015
In these proceedings, the Minister is not confined to the grounds set out in the letter of refusal in resisting the applications in these proceedings as these proceedings are "not an appeal in the strict sense of the term, but rather the first consideration by a court exercising judicial power of an administrative determination", with it being noted that, "Consistently with the approach taken below, it was not contended in this Court that the Minister was limited to supporting his decision on the basis of the reason given in the letter to the respondent" - Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 379 per Basten JA at [211] and [212] (see also Jagot J in Jerrinja Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 577; 156 LGERA 65 at [92]).
Although the letter of rejection, to the extent that it relied on s 36(1)(c), was limited to the area depicted in blue on the above image attached to the ministerial briefing note, in these proceedings the Minister's Amended Statement of Facts and Contentions put, as the first matter for determination in the proceedings:
Whether, when the claims were made, the land (or part thereof) was needed or likely to be needed for the essential public purpose of residential use or development, including residential subdivision purposes ("residential use or development"), and is therefore (in whole or part, as the case may be) not "claimable Crown lands" by reason of s 36(1)(c) of the ALRA [the Land Rights Act].
The material provided to the Ministers supporting the aspect of the refusal based on s 36(1)(c) was confined to material relating to the limited portion of land shown on the above map. The Minister's Amended Statement of Facts and Contentions, under "Issues for Determination", expressly abandoned the need to determine this limited aspect of the claim over Lot 489 (contained in the third and fourth dot points in (4) and the whole of (6), these being the elements relating to the blue marked area and the element of the letter of refusal concerning that that part of the land was "needed" or "likely to be needed" for the essential public purpose of sewerage infrastructure). This arose because "It's not contested by the applicant that it's needed for sewerage works" (transcript 12 October page 22 lines 39-40).
As a consequence, for the purposes of resisting these claims, Mr Stewart developed the Minister's case on two separate grounds, those being founded on s 36(1)(b1) and (c) of the Land Rights Act with the reliance on the latter provision being on a broad rather than a confined basis.