appellant. Appeal allowed; orders of the Land and Environment Court set aside; declaration that the land is claimable Crown land; order that the respondent transfer the land to the Wagga Wagga Local...
Key principles
For the purpose of s 36(1)(b) of the Aboriginal Land Rights Act 1983, 'use' must be more than notional and be present use when the claim is made rather than contemplated or...
The scheme of the Aboriginal Land Rights Act 1983 expressly provides for claims to be made on Crown land that is able to be lawfully sold or leased, so a qualifying precondition...
Steps taken preparatory only to the sale of Crown land that is surplus to the needs of the Crown, whether regarded individually or cumulatively, are incapable of constituting a...
Exceptions to the right to claim land under the Aboriginal Land Rights Act 1983 should be construed narrowly given the beneficial and remedial purposes of the legislation.
Issues before the court
Whether preparatory steps taken by the Department of Lands to sell surplus vacant Crown land (such as obtaining valuations, rezoning advice,...
Plain English Summary
The New South Wales Court of Appeal decided that getting ready to sell long-vacant, surplus government land does not count as 'using' it under the Aboriginal land rights law. The land in Wagga Wagga had sat empty for years and the only activity was paperwork and agent appointments for an eventual auction. Because the law is meant to help return dispossessed land and exceptions must be read narrowly, these sale-preparation steps could not block the claim. The Court overturned the Land and Environment Court and ordered the land transferred to the Aboriginal Land Council.
AI-generated legal information, not legal advice. Zoe can make mistakes — check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,866 words · generated 24/04/2026
What happened
The factual background concerned a rectangular parcel of approximately 815 square metres of urban Crown land at the corner of Beckwith and Gurwood Streets, Wagga Wagga. A two-storey building formerly used as a motor registry stood on part of the site, together with a bitumen car park, and the whole was fenced. The land had been reserved for public buildings (motor registry) in 1958. That reservation was revoked in 1985 and replaced with a reservation for government supply office and workshop. The land was used as a motor registry until approximately 1985, then for storage by the New South Wales Government Supply Department and later the Technical Repair Service until approximately 1998. Thereafter the Department of Lands used it for storage. By 1999 the Regional Office had advised that the building was surplus to requirements and should be disposed of. Limited refurbishment occurred in 1999-2000 for a proposed Field Activities Centre, but that proposal was abandoned by early 2004.
Cited legislation
No linked legislation citations have been extracted yet.
A report dated 1 December 2004 recorded that the building had been vacant for a number of years, had fallen into disrepair, had been identified as surplus to departmental needs and that there was no known reason for the land to be retained by the State. The Director General endorsed a recommendation to sell the land “as is” on 23 December 2004. Formal steps under the Crown Lands Act 1989 were then taken, including investigation of rezoning potential, obtaining valuations, considering waiver of assessment requirements, investigating native title, deciding to sell by auction, inviting and appointing a selling agent (who was given keys), securing council certificates and preparing the s 34(3) notice. These steps were mostly off-site and were well advanced by 23 May 2005 when the New South Wales Aboriginal Land Council lodged Aboriginal Land Claim 7351 under s 36 of the Aboriginal Land Rights Act 1983 (ALRA).
The Minister rejected the claim on 8 March 2006 on the sole ground that the land was not claimable Crown land because it was “lawfully used and occupied by the Department of Lands in preparing the land for sale”. The appellant appealed to the Land and Environment Court. Biscoe J dismissed the Class 3 application on 30 March 2007, holding that the decision to sell and the steps taken in furtherance of that intention, considered collectively, amounted to an actual use of the land notwithstanding that it was otherwise passive apart from minimal storage of furniture. His Honour relied upon the earlier decision of Stein J in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 (Department of Education) and upon the proposition that the purpose of sale dictated the degree of physical use required.
The NSW Aboriginal Land Council appealed to the Court of Appeal on a question of law under s 57 of the Land and Environment Court Act 1979. Mason P (Tobias JA agreeing) held that there had been an error of law (and of mixed law and fact) in concluding that preparation for sale constituted relevant use. Giles JA, while reaching the same ultimate conclusion, expressed his reasoning slightly differently, emphasising that the primary judge had not asked the correct question. The appeal was allowed, the Land and Environment Court orders were set aside, a declaration was made that the land was claimable Crown land, and an order was made requiring the Minister to transfer the land to the Wagga Wagga Local Aboriginal Land Council. The respondent was ordered to pay the appellant’s costs both at first instance and on appeal. The High Court later granted special leave but dismissed the Minister’s appeal with costs on 2 October 2008.
Why the court decided this way
The Court of Appeal’s reasoning was grounded in the statutory text, context and purpose of the ALRA, read together with the Crown Lands Act 1989. Mason P began by noting the beneficial and remedial character of the ALRA, whose preamble recognises the dispossession of Aboriginal people. Exceptions to the right to claim Crown land must therefore be construed narrowly. The only issue was whether the land was “not lawfully used or occupied” within the exclusion in s 36(1)(b). It was common ground that the land was “able to be lawfully sold” within s 36(1)(a) once the 1985 reservation had been revoked.
Mason P held that treating preparatory steps for sale as “use” would create an internal inconsistency within s 36(1). The ALRA expressly contemplates claims over land that is able to be sold or leased. A precondition that makes land eligible under paragraph (a) cannot simultaneously disqualify it under paragraph (b). Section 7 of the Crown Lands Act 1989 expressly preserves the operation of other legislation that may authorise dealing with Crown land inconsistently with that Act. The power to sell under the Crown Lands Act 1989 was therefore irrelevant to the meaning of “use” in the ALRA.
The Court drew upon the earlier authorities, particularly Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 and Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 (Nowra Brickworks (No 1)). Those cases establish that “use” in s 36(1)(b) means actual use in fact and to more than a merely notional degree; it must be present use at the date of claim rather than contemplated or intended future use. Sheller JA’s observation in Nowra Brickworks (No 1) that the purpose for which land is said to be used will dictate the degree of immediate physical use required was accepted, but Mason P rejected the “self-levitating argument” that because the purpose was sale the preparatory steps necessarily satisfied the test. Sale preparation is, if anything, the antithesis of present use; it evinces that the Crown has no present need for the land.
The primary judge’s reliance on Department of Education was held to be misplaced. That case involved a combination of minimal physical occupation, continued maintenance of services, security, and active marketing. Even so, Stein J had doubted that any of the matters taken individually would suffice and had emphasised that each case turns on its own facts. Mason P and Tobias JA concluded that, on the facts found by Biscoe J, the land had been effectively unused for approximately five years. The minimal furniture storage was insubstantial. The preparatory steps were largely off-site and did not alter the character of the land as vacant surplus Crown land. Tobias JA added that services, utilities, security patrols and access for marketing agents, when linked only to sale of surplus land, remain incapable of constituting relevant use. He considered Department of Education to have been wrongly decided, although it was distinguishable on its facts.
Giles JA emphasised that the correct question is not whether sale is use, but whether the land is in fact being used at the relevant time, with sale activity potentially forming part of a wider use in some circumstances (for example, where land is sold as part of an active relocation of government functions). Here the land had been recognised as surplus since 1999, had stood physically unused for years, and the sale process was not integrated with any ongoing governmental function. The better characterisation was that this was unused Crown land which was being sold. The primary judge’s narrower framing had therefore involved an error of law.
The Court was satisfied that the evidence was all one way that the land was not being actually used or occupied in the necessary sense at the date of claim. Accordingly, the onus under s 36(7) was not discharged and the land was claimable Crown land.
Before and after state of the law
Prior to this decision the authorities on “lawfully used or occupied” in s 36(1)(b) included Daruk, Tweed Byron, Nowra Brickworks (No 1) and Nowra Brickworks (No 2). These cases had established that use must be actual rather than notional and must exist at the date of claim. Nowra Brickworks (No 1) had made clear that the purpose asserted by the Minister dictates the degree of physical use required. Nowra Brickworks (No 2) confirmed that land held in reserve for future extraction under a mining lease could be in present use even though no physical activity was occurring on the land at the claim date. Department of Education had suggested that a bundle of activities connected with marketing a decommissioned building for sale or lease, combined with security, maintenance and minimal ongoing occupation, could cumulatively amount to use.
This decision clarified and narrowed the circumstances in which sale-related activity can constitute use. It held that mere preparatory steps—valuations, rezoning investigations, appointment of agents, preparation of statutory notices—do not, whether taken singly or together, amount to lawful use of vacant surplus land. The earlier suggestion in Department of Education that such steps could suffice was disapproved (by Tobias JA) or confined to its own facts (by Mason P and Giles JA). The Court reinforced the narrow construction of the s 36(1)(b) exception required by the ALRA’s beneficial purpose and eliminated any reading that would allow s 36(1)(a) eligibility to be simultaneously disqualifying under s 36(1)(b).
After the decision, vacant Crown land identified as surplus, allowed to fall into disrepair, and subjected only to off-site sale preparation is prima facie claimable unless some other paragraph of s 36(1) applies or there is genuine ongoing use or occupation of a non-notional character. The High Court’s dismissal of the subsequent appeal confirmed the correctness of this approach. The law now more clearly distinguishes between land that the Crown is still actively using for governmental purposes (which may include incidental sale activity) and land that the Crown has effectively abandoned for current purposes and is simply processing for disposal.
Key passages with plain-English translation
Mason P at [32]: “For the purpose of s 36(1)(b), ‘use’ must be more than notional and be present use when the claim is made rather than contemplated or intended use.”
Plain English: The ALRA looks at what the Crown is actually doing with the land on the day the claim is lodged. Planning to sell it in the future, or taking paperwork steps towards a sale, does not count as using it now.
Mason P at [24]: “Crown land that has been vacant for years, has fallen into a state of disrepair, has been identified as surplus to departmental needs and for which there is no known reason for retention is not being used in any relevant sense.”
Plain English: When land has sat empty, is falling apart, has been formally declared surplus and nobody can think of a reason to keep it, the government cannot realistically say it is “using” the land simply because it has started the sale process.
Mason P at [23]: “A qualifying pre-condition in one subsection (s 36(1)(a)) cannot constitute a disqualifying condition in another subsection (s 36(1)(b)).”
Plain English: The same fact (that the land can lawfully be sold) cannot both open the door to a claim under paragraph (a) and slam it shut under paragraph (b). The Act cannot contradict itself.
Giles JA at [66]: “The question is not whether sale of land is use of the land for the purposes of s 36(1)(b) of the ALRA. The question is whether at the relevant time the land is being used, and action to sell the land may or may not be part of the use found in wider circumstances.”
Plain English: Do not ask in the abstract whether selling equals using. Ask whether, looking at all the facts on the claim date, the land is actually in use. Selling steps might sometimes be part of a larger ongoing use, but they are not use by themselves.
Tobias JA at [80]: “Steps taken preparatory only to the sale of Crown land that is surplus to the needs of the Crown, whether regarded individually or cumulatively, are incapable of constituting a lawful user for the purposes of s 36(1)(b) of the ALRA.”
Plain English: No matter how many sale-preparation boxes the bureaucracy ticks—maintenance, security, marketing—if the land is surplus and otherwise vacant, those steps do not turn it into “used” land that cannot be claimed.
These passages collectively reorient the inquiry from “what steps have been taken?” to “is the Crown in fact using the land for some present purpose other than merely disposing of it?”
What fact patterns trigger this precedent
This precedent is triggered when Crown land meets all of the following: (1) it has been physically unused or only minimally used for a substantial period (here, years of vacancy after earlier storage use); (2) it has been formally identified as surplus to departmental needs with no known reason for retention by the State; (3) the only activities at the claim date are preparatory steps toward sale—valuations, rezoning advice, appointment of selling agents, preparation of statutory notices, maintenance of utilities for marketing purposes, or limited security patrols; (4) any physical occupation (such as storage of furniture) is insubstantial and referable to the sale process rather than an independent governmental function; and (5) no other exclusion in s 36(1)(b1)–(e) applies.
The precedent does not apply where the land remains in active use for a governmental purpose and sale is merely one incidental aspect of a broader operational relocation, or where genuine occupation continues until completion of a contract for sale. It is not engaged by land held in reserve for future extraction or other planned operational use in the manner considered in the Nowra Brickworks cases. The critical factual discriminator is whether the Crown’s conduct demonstrates present actual use or merely an administrative decision to divest itself of surplus property. Minimal on-site activity that is solely referable to preparing the land for marketing will not suffice. Each case remains one of fact and degree, but the judgment makes clear that long-vacant, derelict, surplus land subjected only to sale-preparation steps falls on the claimable side of the line.
How later courts have treated it
The High Court granted special leave but dismissed the Minister’s appeal with costs on 2 October 2008. That disposition affirms the Court of Appeal’s construction of s 36(1)(b) and its application to surplus vacant land. The reasoning that preparation for sale of surplus land is not “use”, and that s 36(1)(a) and (b) must be read harmoniously, therefore stands as authoritative.
Within the Court of Appeal’s own reasoning, the decision carefully distinguished Nowra Brickworks (No 1) and (No 2) on the basis that those cases involved land held in reserve for future operational mining use, not land simply being processed for disposal. Department of Education was confined to its own facts by Mason P and Giles JA and was expressly disapproved by Tobias JA. Daruk’s insistence on actual rather than notional use was approved and applied. The narrow-construction principle from Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) was endorsed. Subsequent courts applying this decision are therefore directed to examine the quality and purpose of any asserted use against the statutory text and the ALRA’s remedial purpose, rather than accepting sale-preparation activity at face value. The judgment has crystallised the proposition that surplus, vacant Crown land is the very type of land the ALRA was intended to make available for claim.
Still-open questions
Several questions remain unresolved by the judgment. First, the precise boundary between sale activity that is merely preparatory and sale activity that forms an integral part of a wider ongoing governmental use (for example, where a department is actively relocating staff and the sale is one seamless step in that operational change). Giles JA left open the possibility that in such “wider circumstances” sale steps could form part of a relevant use.
Second, the significance of on-site physical works—clean-up, erection of “For Sale” signs, or actual marketing inspections—remains untested. The Court noted the absence of such works on the Wagga Wagga land but did not decide whether their presence would tip the balance.
Third, the position once a binding contract for sale has been entered into (but before completion) is expressly left open. Mason P observed that a purchaser acquires an estate in fee simple under s 169 of the Crown Lands Act 1989, but the effect on a claim lodged after exchange of contracts was not before the Court.
Fourth, the interaction with paragraphs (b1) and (c) of s 36(1) in cases where the Crown asserts the land is “needed or likely to be needed” for an essential public purpose remains to be explored in a sale-preparation context. The Court noted the contrast in tense between those paragraphs and s 36(1)(b), but did not have to apply it.
Finally, the quantum of “minimal” occupation that might still be characterised as notional (for example, the six staff occupying 3.5 per cent of a building in Department of Education) may require further calibration in future cases. The judgment emphasises that each case turns on its own facts and degree, leaving scope for factual disputes about the intensity and independence of any residual use. These open questions will require careful factual analysis against the principles now clearly stated in the Court of Appeal’s reasons.
Judgment (40 paragraphs)
[1]
Appeal Outcome: Special leave application granted by the High Court - 16 May 2008Appeal dismissed with costs by the High Court - 2 October 2008 - [2008] HCA 48
[2]
CITATION: NSW ABORIGINAL LAND COUNCIL v MINISTER ADMINISTERING THE CROWN LANDS ACT [2007] NSWCA 281
[3]
JUDGMENT OF: Mason P at 1; Giles JA at 62; Tobias JA at 79
[4]
CATCHWORDS: ABORIGINALS - Land rights under legislation - New South Wales - claim to Crown land - lawfully used or occupied - whether land in 'use' - where land being used in preparation for sale - where land otherwise vacant - Aboriginal Land Rights Act 1983, s36(1)(b) - STATUTES - Acts of parliament - interpretation - inconsistent statutes - internal inconsistency - no inconsistency - Crown Lands Act 1989, Aboriginal Land Rights Act 1983, s 36(1)(a), s36(1)(b) - STATUTES - Acts of parliament - interpretation - particular word - specific interpretation - 'use'- Aboriginal Land Rights Act 1983, s36(1)(b)
[5]
Aboriginal Land Rights Act 1983
LEGISLATION CITED: Crown Lands Act 1989
Crown Lands Consolidation Act 1913
Land and Environment Court Act 1979
[6]
Aboriginal Land Rights Act 1983
Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140
Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459
Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111
Maurici v Chief Commissioner of State Revenue(2001) 51 NSWLR 673
Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133
CASES CITED: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1997) 42 NSWLR 641
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Mir Bros Unit Constructions Pty Ltd v Roads & Traffic Authority of New South Wales [2006] NSWCA 314
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 158
[7]
PARTIES: NEW SOUTH WALES ABORIGINAL LAND COUNCIL
MINISTER ADMINISTERING THE CROWN LANDS ACT
[8]
COUNSEL: Appellant: J Gleeson SC/ M Wright
Respondent: M J Leeming SC/J Waters
LOWER COURT JURISDICTION: Land & Environment Court
[11]
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
[12]
Friday 12 October 2007
NEW SOUTH WALES ABORIGINAL LAND COUNCIL v THE MINISTER ADMINISTERING THE CROWN LANDS ACT
[13]
On 23 May 2005 the appellant lodged a claim under the Aboriginal Land Rights Act 1983 (the ALRA) relating to urban land in Wagga Wagga. A two storey building which was once a motor registry stood on the land, however as at the date of the claim the building had been vacant for a number of years.
[14]
The claim was rejected by the respondent Minister for the reason that it was not "claimable Crown lands" within the meaning of s 36(1) of the ALRA because it fell within the exception under s 36(1)(b) in that the land was being lawfully used and occupied by the Department of Lands in preparation for sale. Steps had been taken by the Department in preparing the land for sale such as obtaining valuations, obtaining expert opinion on the value of rezoning the land and appointing an agent to the property.
[15]
The appellant appealed the decision. The Land and Environment Court found that the decision to sell the land and the steps taken in furtherance of that intention amounted to a use of the land.
[16]
(1) The legal question not previously addressed is whether 'use' for the purpose of a sale falls within the statutory context. (at [30], [32])
Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140; Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106; referred to.
[17]
(2) That there is a power to sell Crown lands under the Crown Lands Act 1989 (the CLA) is irrelevant when determining the meaning of 'use' in the ALRA. In fact, s7 of the CLA specifically preserves the operation of other legislation authorising Crown land to be disposed of or dealt with in any manner inconsistent with that Act. (at [22])
[18]
(3) The scheme of the ALRA also expressly provides for claims to be made on Crown land that is able to be lawfully sold or leased. A qualifying pre-condition in one subsection (s 36(1)(a)) cannot constitute a disqualifying condition in another subsection (s 36(1)(b)). (at [23])
[19]
(4) For the purpose of s 36(1)(b), 'use' must be more than notional and be present use when the claim is made rather than contemplated or intended use. (at [32])
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106; applied.
(5) There was an error of law, being an error of mixed law and fact, in the finding that the decision to sell the land and the steps taken in furtherance of that intention, considered collectively, amounted to a use of the land. Contrary to the conclusion at first instance, there is no support in case law for that proposition. Nor is there support in case law for the proposition that 'use' includes a right to use the land which arises without any dealing necessarily taking place. (at [8], [42], [44])
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192; Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (No 2) (1997) 42 NSWLR 641; Darkinjung Aboriginal Land Council v Minister Administering Crown Lands Act (2006) 149 LGERA 162; considered, distinguished.
[20]
Per Tobias JA:
Crown land does not necessarily become claimable whenever sale is put in train however, steps taken preparatory only to the sale of Crown land that is surplus to the needs of the Crown, whether regarded individually or cumulatively, are incapable of constituting a lawful use for the purposes of s36(1)(b). Although not necessary to decide, New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 was wrongly decided. (at [2], [6])
[21]
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192; disapproved.
[22]
(6) Crown land that has been vacant for years, has fallen into a state of disrepair, has been identified as surplus to departmental needs and for which there is no known reason for retention is not being used in any relevant sense. (at [24] - [25])
[23]
Per Giles JA:
(1) The trial judge erred by not asking the correct question. The question is not whether sale of land is use of the land for the purposes of s 36(1)(b) of the ALRA. The question is whether at the relevant time the land is being used, and action to sell the land may or may not be part of the use found in wider circumstances. (at [5], [12])
[24]
(2) The land had effectively been physically unused for approximately five years. The minimal storage of the furniture was an insubstantial use. The land was recognised as surplus but was not promptly sold. The better conclusion is that the land was unused Crown land which was being sold. That is, selling the land was not a part of its use. (at [16])
[25]
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40226/2007
[26]
MASON P
GILES JA
TOBIAS JA
[27]
NEW SOUTH WALES ABORIGINAL LAND COUNCIL v THE MINISTER ADMINISTERING THE CROWN LANDS ACT
JUDGMENT
[28]
1 MASON P: On 23 May 2005 the appellant lodged a claim under the Aboriginal Land Rights Act 1983 (ALRA). The claim was on behalf of the Wagga Wagga Local Aboriginal Land Council in respect of urban land in Wagga Wagga. It is a rectangular parcel of approx 815 sq metres located on the corner of Beckwith and Gurwood Streets. A two storey building, once a motor registry, stands on part of the land. The site has a bitumen surfaced car park and it is fenced.
2 The claim was rejected by the Minister for Lands on 8 March 2006 in the following terms:
Following investigations 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 the land was lawfully used and occupied by the Department of Lands in preparing the land for sale.
[29]
The issue for determination
3 The question for determination in the Land and Environment Court was whether the Minister satisfied the Court that the land was not "claimable Crown lands" within the meaning of s36(1) of the ALRA. If the Minister failed to do so, then the Court was obliged in the circumstances to order the land to be transferred (ALRA, s36(7); New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 at 692).
4 The only matter raised was whether the land was "not lawfully used or occupied" within the exclusion in s36(1)(b). It was common ground that the land was able to be lawfully sold at the date of the claim (s36(1)(a)) and there was no allegation that the land was excluded by reference to paras (b1)-(e) of s36(1).
5 The meaning of the words "not lawfully used or occupied" in s36(1)(b) is expounded in four earlier decisions of this Court: Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 (Daruk); Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 (Tweed Byron); Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 (Nowra Brickworks (No 1)); Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1997) 42 NSWLR 641 (Nowra Brickworks (No 2)). Reference will also be made to the decision of Stein J in the Land and Environment Court in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 (Department of Education).
6 The Minister's case that the land was being "lawfully used" in the manner indicated in the letter of rejection was upheld by Biscoe J. The Application Class 3 was accordingly dismissed on 30 March 2007 (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 158 (references to paragraphs in the judgment are indicated below as J1, J2 etc)).
7 An alternative submission to the effect that the land was being lawfully occupied did not have to be addressed below (see J69) and it was not renewed in this Court.
8 Section 57 of the Land and Environment Court Act 1979 confers a right of appeal to this Court against an order or decision of the Land and Environment Court in Class 3 proceedings "on a question of law". An appeal on a question of law is not confined to an error of law and it extends to questions of mixed law and fact (Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111 at 116[8], [2003] HCA 8; Mir Bros Unit Constructions Pty Ltd v Roads & Traffic Authority of New South Wales [2006] NSWCA 314 at [27]).
[30]
Facts and key findings below
9 The land has always been held by the Crown. As such, it was subject to the Crown Lands Consolidation Act 1913 (CLCA) until that Act was replaced by the Crown Lands Act 1989 (CLA). It is sufficient to record the recent history of its formal status as follows:
DATE EVENTS
15 May 1958 Land reserved under CLCA for "Public buildings (Motor Registry)"
Reservation for "Public buildings (Motor Registry)" revoked
6 September 1985
Land reserved under CLCA for "Government Supply Office and Workshop"
29 April 2005 Reservation revoked.
[31]
10 The Gazetted revocation of the 1985 reservation meant that the land had acquired the status of being "able to be lawfully sold" within s36(1)(a) of the ALRA by the time of the subject claim on 23 May 2005 (see CLA, ss34, 90 and Schedule 8, cl 1).
11 Consistent with the formal status of the land under the CLCA and the CLA, the land was used as a motor registry until approximately 1985. Between 1985 and approximately 1998 it was used for storage by the New South Wales Government Supply Department and then by an entity called the Technical Repair Service which continued to perform functions previously undertaken by that Department. Thereafter, when the Technical Repair Service vacated the land, the Department of Lands began using the land for storage.
12 In 1999, the Department of Lands Regional Office advised that the building was surplus to its requirements and that action should be taken to dispose of the land and improvements. In 1999 and 2000 the Department of Public Works used the building for a Field Activities Centre, undertaking certain refurbishment works. Responsibility for the Centre was at some stage transferred from the Department of Lands to the Department of Infrastructure, Planning and Natural Resources (DIPNR). On 13 February 2004 DIPNR advised the Department of Lands that it had no further interest in using the land and that it would not be finalising the renovations commenced in 2000.
13 The appellant's principal contention proceeds from the undisputed findings that, by early 2004, officers of the relevant departments had formed the view that the land should be disposed of as quickly as possible, essentially because the land was surplus to departmental needs and there was no known reason for the land to be retained by the State (J19-24). On 1 December 2004, the Principal Lands Officer reported that:
The building has not been used and has been vacant for a number of years, and has fallen into a state of disrepair as a consequence … [T]he site has been identified as being surplus to departmental needs … [T]here is no known reason for [the subject land] to be retained by the State of NSW.
[32]
14 His recommendation that the land be sold "as is" was endorsed by the Director General on 23 December 2004. The respondent submits that this was the key point of time at which the decision to sell was made and that the subsequent conduct occurring on and off site should be assessed on this basis.
15 The officers concerned appreciated that there were formalities to be attended to, including the requirements of Pt 4, Divisions 1 and 2 of the CLA (ss34-40). These were addressed (J26-43). The details do not matter, because it had become common ground by the conclusion of the hearing in this Court that the land was at the relevant time able to be lawfully sold within the meaning of s36(1)(a) of the ALRA.
16 Biscoe J's core reasoning, including the findings of fact upon which it was based, is found in the following paragraphs of his judgment:
62. I do not accept the appellant's submission that preparation for sale cannot be a use of land within the meaning of s 36(1)(b). [His Honour cited the Department of Education case]
…
[33]
The Crown Lands Act 1989 weighs against the appellant's submission because s 34(1)(a) empowers the Minister to sell Crown land. Section 35(2)(a) requires the Minister to have due regard to principles of Crown land management when selling Crown land. Section 11(f) states as a principle that Crown land be sold in the best interests of the State. Under s 10(d), one of the objects of the Act is to provide for the regulation of the conditions under which Crown land is permitted to be sold. Under s 6, Crown land is not to be sold unless the sale is authorised by the Act. It would be paradoxical if the exercise of the Minister's power of sale was not relevantly a "use" of the land. It would mean that whenever Crown land was in the process of being sold, without otherwise being used, it would be claimable Crown land and would be lost to the Crown if a claim was made under the ALR Act during that period.
64 The appellant's submission also seems inconsistent with Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2006) 149 LGERA 162 at [29] where Pain J stated that s 36(1)(b) is consistent with " use " by a person who has the right to use the land which arises without any dealing (such as a sale) necessarily taking place.
65 It is clear that from 2004, the Department had the purpose of selling the land and thereafter took the steps referred to earlier in order to effect that purpose. The purpose dictates the degree of immediate physical use required to decide whether land is actually used in more than a notional sense: Nowra Brickworks No 1 at 121E - F. The issue is whether the steps taken by the Department to effectuate that purpose were sufficient to make the use of the land a use in fact and to more than a notional degree. Steps towards the sale of the subject land were well advanced by the time the claim was made. Zoning had been investigated. Expert opinion had been obtained to ascertain whether rezoning might improve the return to the State from a sale. Consideration of matters relevant to the waiver of the requirement for assessment of the land under s 35 of the Crown Lands Act had been undertaken and a decision to waive assessment had been made. Notice of revocation of the existing reservation affecting the subject land had been published. The possible presence of Native Title rights and interests had been investigated and ascertained not to be an impediment to sale. The decision to sell the land by auction had been taken. Agents had been invited to express interest in acting on the sale and expressions of interest had been considered. An agent had been appointed and provided with the keys to the premises. Steps had been taken to secure council certificates and other documentation for the purpose of the sale. The date for the proposed auction sale had been selected. Notice under s 34(3) of the Crown Lands Act (the final statutory precondition for the proposed sale) had been prepared and was ready for publication. These actions were not responsive to the claim. They were undertaken in the ordinary course of events and in the ordinary course of the discharge by the Department of its ordinary functions. There was also a minimal physical use of the building by the storage of some furniture.
66 In the Department of Education case, comparable steps sufficed to constitute "use" even though there no date had been set for auction nor had possession been given to estate agents. The present case may also be compared with Nowra Brickworks No 2 . There, a lease had been granted of land for the purpose of extraction of brick-making clay. It was held that the land was being "used" in circumstances where nothing had occurred on the land for decades and the owner intended, years in the future, to excavate pursuant to a statutory right
67 In my opinion, the decision to sell the subject land and the steps taken in furtherance of that intention were an actual use of the land, notwithstanding that they were passive in the sense the land was not physically being used apart from storage of some furniture.
Submissions in the Court of Appeal
17 Biscoe J concluded that land surplus to departmental needs, for which there was no known reason for retention by the State, was nevertheless being "lawfully used" within s36(1)(b) because steps were in place to sell it at the time of lodgement of the claim.
18 The appellant submits that dealing with land in this manner is the very antithesis of using it. Indeed, for the Crown to take active steps to sell land evinces in the strongest of terms that it has no present use for it.
19 The respondent Minister flagged at the outset that his case depended on more than the Crown having decided to sell the land. If there was no more than a decision to sell, that would not constitute a use within s36(1)(b). But here there was more, in his submission, in that steps had been taken to implement that decision. It did not matter that some or even all of that activity was occurring off-site in the offices of the Department of Lands and dealings with estate agents arranging for marketing and auction.
20 The appellant next points to the scheme of the ALRA with its preamble recognising the past dispossession of Aboriginal people from their land. The Act's beneficial and remedial purposes have frequently been acknowledged by courts (see eg Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157 per Kirby P). The primary mechanism for giving effect to these purposes is the claims process which allows for Aboriginal Land Councils to claim limited categories of Crown lands.
21 In acknowledging the beneficial and remedial nature of the legislation this Court has held that exceptions to the right to claim land should be construed narrowly (see Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665 at 674[53]-[54] per Spigelman CJ).
22 The appellant submits that, contrary to these principles, the primary judge has given a cramped and narrow meaning to the word "use" in s36(1)(b). His Honour is said to have done so by giving weight (at J63) to two irrelevant considerations, namely that there is power in the CLA to sell Crown lands; and that, if Crown lands in the process of being sold were claimable, they would be "lost" to the Crown (J63). The judge's reasoning is said to overlook the fact that "sale" is but one of a number of dealings contemplated by the CLA, none of which are given elevated status (see CLA, s11). Section 7 of the CLA specifically preserves the operation of other legislation authorising Crown land to be disposed of or dealt with in any manner inconsistent with that Act. This would obviously embrace the ALRA.
23 Responding to Biscoe J's statement that "it would be paradoxical if the exercise of the Minister's power of sale was not relevantly a 'use' of the land" (J63), the appellant submits that this is what the scheme of the ALRA expressly provides for in enacting that Crown land which is "able to be lawfully sold or leased" (s36(1)(a)) is available to be claimed, provided additional conditions are met. A qualifying pre-condition (compliance with para (a)) cannot in the same breath constitute a disqualifying condition (pursuant to para (b)). Were it so, the statutory scheme would be self-contradictory.
24 In short, Crown land that has been vacant for years, has fallen into a state of disrepair, has been identified as surplus to departmental needs and for which there is no known reason for retention is precisely the type of land which the ALRA envisages ought to be available for claim absent any suggestion that other exclusions apply. It is not being used in any relevant sense.
25 I accept these submissions.
26 The respondent supports the reasoning of the primary judge.
27 The respondent points out that ordinary activities preceding a sale (including inspection, valuation, appointment of an agent, survey, requesting council certificates) had taken place in the weeks before lodgement of the claim. There was also continuing (albeit minor) occupation of the premises for the purpose of storage of office furniture. This low level of occupation was not relied upon to demonstrate that the land was "occupied" at the relevant time, but it was said to add colour to the "use" that was occurring. The respondent cites Department of Education as directly comparable.
28 The respondent further submits that it would be an improbable outcome if, on the proper construction of the Act, an inevitably successful claim under the ALRA could be made on the morning of an auction of Crown land that was taking place in accordance with the CLA.
29 The respondent argues that the case law supports the proposition that land can be in "use" without any immediate physical use. Particular reliance is placed on Nowra Brickworks (No 2), a case where land held in reserve for future mining was nevertheless found to be being used.
[34]
Earlier caselaw
30 The only "use" identified by Biscoe J was use for the purpose of a sale that was underway. The legal question not previously addressed is whether use of that nature falls within the statutory concept.
31 The phrase "not lawfully used or occupied" in s36(1)(b) has been considered in earlier decisions.
32 It is established that the protean word "use" must be construed in its particular statutory context (Daruk at 164; Nowra Brickworks (No 1) at 120). For the purpose of s36(1)(b), use "must be more than notional and be present use when the claim is made rather than contemplated or intended use" (Nowra Brickworks (No 1) at 121). The concept of "use" in the planning cases is not directly applicable (ibid).
33 The word "used" in s36(1)(b) means "actually used" in the sense of being used in fact and to more than a merely notional degree (Daruk at 164; Nowra Brickworks (No 1) at 121).
34 In Nowra Brickworks (No 1), Sheller JA (with whom Priestley JA and Clarke JA agreed) said (at 121):
… I do not think that it is possible to determine whether the lands are being lawfully used within the meaning of s36(1)(b) without taking into account the purpose for which it is claimed they are being used. The purpose will dictate the degree of immediate physical use required to decide whether they are actually used in more than a notional sense.
35 In Nowra Brickworks (No 2), this Court held that 14 hectares of land that was subject to a mining lease for brick clay (ML2) were being used lawfully within the ALRA. The ML2 land was a component of an operating brickworks. Bignold J held that it was being used for quarrying and brick making even though it was not being physically so used, but being held in reserve for future excavation when the clay deposits in adjoining land became depleted. Those deposits were subject to a separate mining lease (ML1) although the two leases were amalgamated in the sense that labour and labour expenditure for both could be deployed on either (see Nowra Brickworks (No 1) at 116, 121). The future excavation was already planned.
36 The matter addressed in the Court of Appeal was whether the use was unlawful at the time the claim was made because there was no extant development consent. The use was found to be lawful because development consent to permit extraction of clay would only be required when the land ceased to be held in reserve and mining was to commence. Although this Court was concerned with the lawfulness question as distinct from the use question, it is clear that the Court was untroubled with the trial judge's finding that the ML2 land was being used. This was a finding of fact that, in my view, casts no light on the matter at issue in the present case. Here there is no suggestion that the land at Wagga Wagga was being held in reserve.
37 The only case remotely analogous to the present is the decision of Stein J in Department of Education. A land claim had been made in relation to the Department of Education building abutting on to Bridge Street and Farrar Place in the City of Sydney. The Ministers concerned had decided that the building should be sold or at least offered by way of a 99 year ground lease. The Education Department moved most of its staff, around 400 to 500, out of the building and relocated them to Parramatta. Most of the furniture and equipment stored within the building was disposed of. All that remained in active use was equipment associated with a dark room and studio occupying a small portion of the total building that was staffed by six Education Department employees. This occupancy utilised about 3.5% of the floor space of the building. The balance of the building was vacant.
38 Responsibility for the building was transferred to the Property Services Group (PSG) of the Department of Administrative Services to enable that entity to control the sale. During the months leading up to the land claim the PSG maintained services such as telephones, water, electricity, gas, lifts, air conditioning and fire systems. Cleaning was provided on a regular basis. A caretaker was appointed and a security firm employed to control access. From time to time access was given to the selling agents, prospective lessees and their representatives.
39 In Department of Education, the Minister argued that the building was being lawfully used or occupied.
40 Stein J found as a fact that the building was not occupied at the relevant time. The securing of the perimeter and the continuous presence of the six officers of the media unit was held to be so slight as to be insufficient to constitute occupation of the whole.
41 His Honour then turned to consider whether the Minister had established that the land was being "used". He said (at 198-9):
In considering whether land is relevantly "used" at the date of any claim, it may be seen that the nature of any particular use could range across a wide spectrum. At one end, an intensive use of land could be contemplated which would inevitably lead to a positive conclusion, i.e., that the land was lawfully used. However, at some stage in ranging across the spectrum one may have difficulty in determining whether a use is or is not occurring.
To illustrate this I refer to an argument advanced on behalf of the Minister. Mr. Mason submits that a government building could be wholly decommissioned but kept locked and this would amount to a lawful use or occupation thus defeating any land claim. It seems to follow from what he says that nothing short of a total abandonment of a building would suffice to avoid it being categorised as being in lawful use or occupation at the time of a claim. I cannot accept this submission. If it be right then virtually no land claim could succeed where improvements in the nature of a building are involved. A building would have to be virtually abandoned and left unsecured to permit a successful claim. This could not have been the intention of the Legislature given the remedial nature of the enactment discussed earlier. Something more than a mere locking of a decommissioned building must be required. It is of course difficult to say with any precision where the line should be drawn and each case must very much depend upon its own facts and circumstances. Questions of fact and degree will inevitably arise for consideration.
However, there are in this case a number of facts relied on by the Minister as constituting a lawful use of the land. In addition to the minimal physical occupation, there is the continued maintenance and cleaning of the whole of the building. Its services and utilities were also maintained. Additionally, there was the active marketing of the building by the agents which involved not infrequent access being given to prospective lessees and their consultants. All of these activities were occurring at the relevant time of the claim. Moreover, the building was controlled by security personnel and the central car-parking area was utilised, including by the Lands Department. Office furniture was still stored in part of the building although being progressively removed.
It may be doubted that any of these matters taken individually may amount to a lawful use of the land. For example, the mere endeavour to sell land may not amount to a use of the land as land. However, the various factors may obviously be considered cumulatively since they were all occurring at the relevant time of the land claim. When so considered, it is my opinion that they add up to a sufficient "use" of the whole of the land to satisfy the definition and remove it from the category of claimable Crown land. I am satisfied that the Minister has established that the land was being lawfully used at the date of the land claim.
[35]
42 It will be seen that this factual conclusion relied in part upon acts of occupation as establishing "use". Those acts were mainly referable to the "active marketing of the building". However, the building was controlled by security personnel; its central car parking area was still being utilised by the Department of Lands; and office furniture belonging to the Department of Education was being stored, although being progressively removed.
43 Department of Education was decided before Daruk and Nowra Brickworks (No 1). The case does not decide that utilisation of land solely for the purpose of effectuating a sale constitutes "use" within the ALRA. And if it did so decide it would not be binding on this Court. In my view, Biscoe J erred when (at J62) he treated Department of Education as a ground for rejecting the appellant's submission that preparation for sale cannot in itself be a use of land within the meaning of s36(1)(b).
44 Nor do I agree with his Honour's citation of Darkinjung as being "consistent with 'use' by a person who has the right to use the land which arises without any dealing (such as a sale) necessarily taking place" (J64). In Darkinjung, Pain J relevantly said (at 172):
Section 36(1)(b) of the ALR Act is consistent with "use" by a person who has the right to use the land which arises without any dealing necessarily taking place: see Minister Administering Crown Lands Act v NSW Aboriginal Land Council (No 2) [ Nowra Brickworks (No 2) ] (1997) 42 NSWLR 641 at 653.
45 This statement has no reference to sale as a dealing. Furthermore, the passage cited from Nowra Brickworks (No 2) was dealing with the lawfulness question, namely whether the ML2 land could be lawfully used within the ALRA if there was no extant development consent in relation to that land. The passage itself does not use the word "dealing". It states circumstances in which the absence of an extant development consent will not be fatal to a claim that the land was being "used" within s36(1)(b). As I perceive it, this was the type of "dealing" which Pain J said was not essential in light of the holding in Nowra Brickworks (No 2).
[36]
Analysis of remaining submissions
46 I have already indicated acceptance of the appellant's primary submissions.
47 At the highest level of generality, all Crown land is "able to be lawfully sold or leased" because the CLA contemplates that this can occur, subject to its detailed regime. But more needs to be shown by a claimant who relies upon the opening words of s36(1)(a) (referring to land "able to be lawfully sold or leased") (see eg Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459). How much more does not call to be explored in depth because, as indicated, it is common ground that sufficient steps had been taken under the CLA to show that the subject land was able to be lawfully sold as at the date of the claim. It is unnecessary for the Court to decide how far back earlier than 29 April 2005 one needs to go before this land satisfied para (a) (see CA Tr 31/07/07 p34).
48 The purchaser of land from the Crown acquires an estate in fee simple (CLA, s169). It is unnecessary to explore whether a claim made after the Crown enters into a binding contract for sale is recognisable under the ALRA.
49 The appellant's case is not answered by the respondent pointing out that sale of land has been an aspect of Crown land administration from the earliest days of the colony of New South Wales. Such conduct is part of the historical dispossession of the Aboriginal peoples that the ALRA set out belatedly to redress. Section 36(1)(b) has a context and the words it uses have been construed to require more than notional use or occupation.
50 Paragraphs (a) and (b) of s36(1) speak in the present tense, with reference to the date of the land claim. By contrast, paras (b1) and (c) have both a present and prospective outlook in that they require the land not to be needed or likely to be needed, in the opinion of a Crown Lands Minister (para b1) or not needed or likely to be needed for an essential public purpose (para (c)). In my view, this contrast reinforces the requirements for a use that is both present and actual to which the caselaw adverts.
51 There is of course no suggestion that the present case involves land excluded from being claimable because of paras (b1) or (c). The only barrier to the appellant's clam is the contention that the land was being used in the manner indicated by the primary judge.
52 Some of the respondent's arguments sought to have the legislation construed by reference to the inconvenience or cost that could flow from the capacity to lodge a claim on the eve of an auction sale. Upon analysis, these are unconvincing appeals that must be addressed to the legislature. The CLA prescribes many steps required to be taken before Crown land may be sold (see ss34-40). Departmental officers, real estate agents and prospective purchasers must chart their course against this statutory background. They are also free to negotiate arrangements that address the risks consequent upon lodgement upon an ALRA claim. Land can be withdrawn from an auction sale for a myriad of reasons.
53 At times, the respondent's submissions invited this Court to find primary facts referable to use that added colour or intensity to the matters found by Biscoe J. The Minister bears the onus of satisfying the court that the land is not claimable (ALRA, s36(7)) And our appellate jurisdiction as to facts is limited. There was no notice of contention. The dispositive finding of the primary judge was that the decision to sell was itself the actual use of the land and this was accompanied with a finding that all other use was "passive in the sense the land was not physically being used apart from storage of some furniture" (J67).
54 In any event, Biscoe J's findings did not establish that any steps were taken on site by way of preparing the land for sale. Legal preliminaries were being attended to within the Department. But there was no evidence or finding that clean-up work had been carried out, or that a "For Sale" sign had been erected, or that potential purchasers had yet inspected the land. Marketing had not started by the time the claim was made (CA Tr 31/07/07 p49).
55 Citing the statement of Sheller JA in Nowra Brickworks (No 1) quoted above (para 34), the respondent submits that the purpose for which the Minister claims the land is being used will dictate the degree of immediate physical use required to decide whether the land is actually being used in more than a notional sense. Here the Minister says the land is being used for sale. It follows, so the argument goes, that steps taken in pursuit of that aim are capable of being actual use to the requisite degree. I cannot accept this self-levitating argument. It is necessary first to decide if use by sale falls within para (b). In my opinion, it does not, for the reasons already stated.
56 The respondent contended that the appellant's argument based on the incompatibility of s36(1)(a) and the conclusions of the primary judge entailed a fallacy. The argument was said to involve comparing apples and pears in that it failed to recognise that para (a) of s36(1) talks about the capacity of land to be lawfully sold or leased whereas para (b) describes a present actuality in its reference to lands "not lawfully used or occupied".
57 I do not agree. Section 36(1) requires conditions (a), (b), (b1), (c), (d), and (e) to co-exist at the time the claim is made if land is to be claimable. The question at issue is the scope of the word "used" in para (b). If the capacity to sell is one factor that shows land to be claimable, it would be internally contradictory for the Act to be construed so that this capacity also constituted lawful use that precluded the claim. I do not overlook the respondent's reliance upon steps having been taken to implement the decision to sell. In my view, this just restates the conundrum.
58 The conclusion I have reached does not mean that Crown land becomes claimable whenever its sale is put in train. The vendor may continue to use and/or occupy land until the time for completion of a contract for sale. If such use (as in Department of Education) and/or occupation is of a nature and quality to repel s36(1)(b) of the ALRA then the Crown land will not be claimable.
Disposition
59 Section 57(2) of the Land and Environment Court Act empowers this Court to remit or to make such other order in relation to the appeal as seems fit.
60 In Daruk, this Court ordered that a parcel of land be transferred to the claimant because "the evidence is all one way that it was not being actually used or occupied in the necessary sense at the date of Daruk's claim" (at 165). In light of my conclusions the present case is in the same category.
61 I propose the following orders:
[37]
Set aside orders of the Land and Environment Court.
[38]
In lieu, order that:
(1) It be declared that the land the subject of Aboriginal Land Claim 7351 comprising Lot 10 in Deposited Plan 759031 is "claimable Crown land" for the purposes of the Aboriginal Land Rights Act 1983 .
(2) The respondent transfer the land to the Wagga Wagga Local Aboriginal Land Council.
[39]
Respondent to pay appellant's costs of the appeal and of the proceedings in the Land and Environment Court.
62 GILES JA: The facts are described in the reasons of Mason P, which I have had the benefit of reading in draft. I agree with the orders proposed by his Honour, but prefer to express my own reasons which depart in some respects from those of his Honour. I draw upon his Honour's reasons, without unnecessary repetition.
63 The trial judge stated the issue for determination (at [65]) -
"It is clear that from 2004, the Department had the purpose of selling the land and thereafter took the steps referred to earlier in order to effect that purpose. The purpose dictates the degree of immediate physical use required to decide whether land is actually used in more than a notional sense: Nowra Brickworks No 1 at 121E - F. The issue is whether the steps taken by the Department to effectuate that purpose were sufficient to make the use of the land a use in fact and to more than a notional degree."
64 For the reasons he gave, his Honour decided the issue (at [67]) -
"In my opinion, the decision to sell the subject land and the steps taken in furtherance of that intention were an actual use of the land, notwithstanding that they were passive in the sense the land was not physically being used apart from storage of some furniture."
65 It may be that sale of land can in some circumstances be a use of the land, for example if it is sale by an entrepreneur whose business is buying and selling land. The Crown is generally not such an entrepreneur, and was not in the present case. But the conduct of government involves buying and selling land, typically but by no means only in providing working accommodation for those providing governmental services. Section 36(1)(b) of the Aboriginal Land Rights Act 1983 ("the Act") refers to land "not lawfully used or occupied", the alternatives of use and occupation meaning that use is different from and does not require occupation. The use of land to accommodate public servants can include its sale if, for example, the government department has outgrown the accommodation and there is sale of the land and purchase of other land with a prompt transition. That is, a decision to sell land and steps taken to do so can be part of its use; but on the other hand, if land is held for a period unused, and then sold, the sale is antithetical to use and itself will not suffice for use of the land.
66 The question is not whether sale of land is use of the land for the purposes of s 36(1)(b) of the Act. Sale of itself, and action to sell, will usually not be a use of Crown land. The question is whether at the relevant time the land is being used, and action to sell the land may or may not be part of use found in wider circumstances.
67 In Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 ("Daruk") at 164 Priestley JA described "used" as meaning 'actually used' in the sense of being used in fact and to more than a merely notional degree". Cripps JA agreed. The use under consideration was in the nature of passage over and work done on the land.
68 The same explication of use was taken up by Sheller JA in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 ("Nowra Brickworks (No 1)") at 119, Priestley and Clarke JJA relevantly agreeing. His Honour accepted at 120 that depending on the purpose for which it was claimed the land was being used, use may or may not be synonymous with physical occupation and enjoyment. The use had to be more than notional and be a present use rather than a contemplated or intended use. But land not presently physically used for mining and held in reserve for future mining could be presently used, depending upon (at 121) -
" … examination of factors such as the physical layout of the lands and their contiguity to existing mining operations, the particularity of the plan of the future mining, and the conformity of that plan, temporally and otherwise, to conventional practice in the industry for the extension of mining operations into unmined areas."
69 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (No 2) (1997) 42 NSWLR 641 ("Nowra Brickworks (No 2)") was an appeal from the redetermination after remitter following Nowra Brickworks (No 1). It was principally concerned with "lawfully" in "not lawfully used or occupied". The trial judge's finding of lawful use of land held in reserve for future excavation of clay deposits was upheld. Sheller JA repeated from Nowra Brickworks (No 1) at 121 his summation that the use depended on "whether the lands or the relevant part of the lands, taken as a whole, had been devoted to mining purposes rather than whether they were being immediately physically used for those purposes".
70 In my opinion, these cases are consistent with the view put forward above. The action to sell the land is, in the circumstances there instanced, part of the functioning of government in providing accommodation for those providing government services. There can be use without physical use, and the "use in fact" in the meaning given in Daruk does not require physical use; so the action to sell land can be part of its use. An equivalent to the examination of factors in Nowra Brickworks (No 1) brings in why the sale is occurring and whether it is of land held for a period unoccupied. They are of course not the only factors, and the determination will depend on the full circumstances of the particular case.
71 In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 the Education Department had moved most of its staff to a new location. The building was vacant save for a few public servants in a dark room and studio and decreasing storage of some office furniture, although services were maintained and a caretaker and security presence were engaged. It had been decided that the building should be sold or let on a long lease, and selling agents and prospective purchasers and lessees had access to it. Stein J held that the land was being used. The key passages from his judgment are set out in the reasons of Mason P. Stein J said that "the mere endeavour to sell land may not amount to a use of the land as land", but that the minimal physical occupation, the continuance of services and the caretaking and security attention, and the "active marketing … which involved not infrequent access being given to prospective lessees and their consultants", were cumulatively "factors" which made out use of the land.
72 His Honour did not decide that sale of land could not be a use of the land for the purposes of s 36(1)(b) of the Act, but nor did he decide that it could. In the light of Nowra Brickworks (No 1) in particular, showing that present physical user is not a necessity, there could have been wider scope to the factors to which he paid regard. The decision is, with respect, difficult to endorse on the basis of the physical use, but could nonetheless be correct.
73 In my opinion, there is a question of law in the trial judge's decision in the present case, and one involving error. It seems led to it by the way the parties approached the matter, the question his Honour asked was not the correct question. Whether the land was being lawfully used was not to be determined by the decision to sell it and the steps taken in furtherance of that intention, with a rather ritualistic reference to use in fact and to more than a notional degree. In the manner I have endeavoured to explain, that unduly restricted the true question and how it was to be answered.
74 Section 57(2) of the Land and Environment Court Act states this Court's powers on appeal. It has been held that the Court does not have power to make its own findings of fact (Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673 at 686). The facts as found by the trial judge were not in contest on appeal, only whether they made out use for the purposes of s 36(1)(b) of the Act, and the Court can make that determination.
75 The land had been used as a motor registry until about 1985. Thereafter until about 1998 it was used for storage, first by the Supply Department and then by the Technical Repair Service. The Department of Lands began to use it for storage, but in 1999 decided that it did not need the land for that purpose and that it should be sold. A proposal to use the building as a Field Activities Centre, sometimes referred to as a laboratory, brought commencement of some refurbishment works in March 2000, but they ceased in May 2000. By January 2004 the proposal had been dropped. A formal decision to sell the land was made in late 2004 - early 2005, and the steps to sell it were then put in train.
76 A report in December 2004 stated that the building had been vacant for a number of years and had fallen into disrepair, and that the land was "surplus to departmental needs".
77 For towards five years the land had effectively been physically unused, with only short-lived commencement of refurbishment. The minimal storage of furniture into 2005 was insubstantial user. The land was recognised as surplus to requirements in 1999, but was not sold then or promptly after January 2004. The action to sell it began towards the end of 2004. I think it finely balanced, but the respondent must satisfy the court that the land was not claimable Crown lands and in my view the better conclusion is that this was unused Crown land which was being sold. It was not a case of action to sell the land being part of its use.
78 I agree with the orders proposed by Mason P.
79 TOBIAS JA: I have had the benefit of reading in draft the judgment of Mason P. I agree with the orders his Honour proposes for the reasons he has articulated.
80 However, I would wish to add the following observations. I agree with the President's remark in [58] of his judgment that Crown land does not necessarily become claimable whenever its sale is put in train. This would be so where, as his Honour observes, it continues to be actually used and/or occupied until the date of completion of a contract for its sale. But that use or occupation must be more than notional. In my view there would not be such a user where the land is to be sold because it is surplus to the needs of the Crown but services and utilities such as electricity, water, air conditioning, lifts and fire safety equipment are maintained, the land is patrolled by security personal to discourage vandalism and it is to be accessed by estate agents for the purpose of actively marketing its virtues to prospective purchasers. Steps taken preparatory only to the sale of Crown land (including steps taken to implement a decision to sell) whether regarded individually or cumulatively, are incapable of constituting a lawful user for the purposes of s 36(1)(b) of the ALRA.
81 In the Department of Education case referred to by Mason P at [39] et seq the subject building was held by Stein J to be lawfully used and, therefore, non-claimable because of the following circumstances (at 196-197):
"More specifically, examining the circumstances as the date of the land claim (22 February 1991), two relatively small portions of levels 1 and 8 were physically occupied by 6 staff employed by the Education Department in their media unit and darkroom. This occupancy utilised about 3.5 per cent of the floor space of the building. The balance of the building was vacant. Old office furniture was stored on levels 3, 4 and 6 and being progressively moved from the building. In fact, some furniture was being moved on the very day of the claim. The central internal ground level carpark was being utilised by the occupants, visitors and the Department of Lands. A security officer controlled access to the site through the Loftus Street Entrance. The lifts, toilets, fire safety equipment and air-conditioning plant continued to operate and be maintained. The site was being actively marketed by the agents and advertised nationally and internationally. Supervised access to the whole of the building was given to prospective buyers, their engineers and architects."
82 Mason P has set out in [41] of his judgment the reasoning of Stein J which led his Honour to the conclusion that the building was being lawfully used (but not occupied) at the relevant date. However, only a mere six departmental officers occupied what Stein J referred to (at 198) as a "miniscule portion of the floor space of the building" pending their relocation. Nevertheless his Honour considered that their occupation was relevant to whether the building was being "used" as distinct from "occupied". Moreover, the central internal car parking area was being utilised by the six occupying officers and by visitors being the estate agents and those to whom they were attempting to market the building including their consultants. There was also some storage of office furniture on parts of three out of the eight levels of the building which was being progressively removed.
83 Accordingly, apart from the occupation by the six officers, the storage of some old office furniture which was in the course of being removed at the date of the claim and the limited use of the parking area, the other factors relied on by Stein J to constitute the user of the building for the purpose of s 36(1)(b) of the ALRA were, it seems to me, all essentially associated with its sale including the maintenance of services, utilities and security. Furthermore, as his Honour found (at 198), apart from its occupation by the six departmental employees, the building was "completely vacant of human occupation". His Honour properly rejected the submission that nothing short of total or virtual abandonment including leaving the building unsecured, would suffice to avoid it being categorised as being lawfully used or occupied at the time of a claim.
84 Although as Stein J noted (at 199), questions of fact and degree are inevitably involved in such a case, in my respectful opinion the Department of Education decision fell on that side of the line which mandated a finding that the nature and quality of the use of the building in question was not such as to attract the exclusion in s 36(1)(b) of the ALRA. Its use, such as it was, was essentially related to maintaining the building for the purposes only of sale which, in my view, was not a use which was capable of rendering the building non-claimable. The use of a "miniscule" area of its floor space and the central parking area by six employees pending their relocation and by persons associated with the sale of the building was no more than notional. Accordingly, were it necessary to decide the question, I would regard that case as wrongly decided. However, it is sufficient to conclude that it is clearly distinguishable on its facts from the present case.
[40]
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Appeal allowed; orders of the Land and Environment Court set aside; declaration that the land is claimable Crown land; order that the respondent transfer the land to the Wagga Wagga Local Aboriginal Land Council; respondent to pay the appellant's costs of the appeal and of the proceedings below.