NSW Aboriginal Land Council v Minister Administering the Crown Lands Act

Land and Environment Court (NSW)|2008-07-01|Before: Jagot J, Mr J

CITATION : NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 35

APPLICANT New South Wales Aboriginal Land Council PARTIES : RESPONDENT Minister Administering the Crown Lands Act

KEY ISSUES: Aboriginal :- land claim - whether land lawfully used and/or lawfully occupied - vacant and unenclosed Crown land not dedicated or reserved for any public purpose - activities on vacant and unenclosed Crown land by members of public - whether land needed for essential public purpose - appeal upheld - order for transfer subject to condition with respect to easements for sewerage and access

Aboriginal Land Rights Act 1983 Conveyancing Act 1919 LEGISLATION CITED: Crown Lands Act 1989 Crown Lands Consolidation Act 1913 Impounding Act 1993 Rural Fires Act 1997

Alfred F Beckett Ltd v Lyons [1967] 1 Ch 449 Ashfield Municipal Council v Roads and Traffic Authority of New South Wales (2001) 117 LGERA 203 Attorney-General v Antrobus (1905) 2 Ch 188 Australian Capital Territory v Munday (2000) 173 ALR 1 Blundell v Catterall (1821) 5 B & Ald 268; 24 RR 353 Brinckman v Matley [1904] 2 Ch 313 Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2006) 149 LGERA 162 Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 Ex parte Collins (1914) 14 SR (NSW) 31 Fensom & Anor v Cootamundra Racecourse Reserve Trust & Ors [2000] NSWSC 1072 Georgeski v Owners Corporation SP49883 (2004) 62 NSWLR 534 Gumana v Northern Territory of Australia (2007) 158 FCR 349 Harper v Minister for Sea Fisheries (1989) 168 CLR 314 Llandudno Urban District Council v Woods [1899] 2 Ch 705 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] (2001) 50 NSWLR 665 CASES CITED: Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1997) 42 NSWLR 641 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Munday v Australian Capital Territory (1998) 99 LGERA 312 Newcastle City Council v McShane (No 3) (2005) 65 NSWLR 155 New South Wales v Scharer (2003) 131 LGERA 208 Northern Territory of Australia & Anor v Arnhem Land Aboriginal Trust & Ors [2007] HCA Trans 721 and 722 NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281 Press v Tuckwell (1968) 69 SR (NSW) 17 Punch v Council of the NSW Bar Association [2007] NSWCA 93 Stow v Mineral Holdings (Australia) Pty Ltd (1984) 180 CLR 295 The Commonwealth of Australia v Yarmirr (2001) 208 CLR 1 The Wik Peoples v The State of Queensland (1996) 187 CLR 1 Williams v The Attorney-General for New South Wales (1913) 16 CLR 404 Williams-Ellis v Cobb [1935] 1 KB 310 Yanner v Eaton (1999) 201 CLR 351

DATES OF HEARING: 10 December 2007, 18 December 2007 (further written submissions)

APPLICANT Ms S E Pritchard SOLICITORS Chalk & Fitzgerald LEGAL REPRESENTATIVES:

RESPONDENT Mr J B Maston SOLICITORS Crown Solicitor's Office

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

NEW SOUTH WALES ABORIGINAL LAND COUNCIL Applicant

MINISTER ADMINISTERING THE CROWN LANDS ACT Respondent

JUDGMENT Jagot J: A. Introduction 1 On 13 May 2002 the New South Wales Aboriginal Land Council (the Land Council) made a claim for land at Shoalhaven Heads in accordance with the Aboriginal Land Rights Act 1983 (the ALR Act). On 17 February 2006 the Minister Administering the Crown Lands Act (the Minister) refused the claim under s 36(5)(b) of the ALR Act. This is an appeal against the Minister's refusal of the claim (s 36(7) of the ALR Act).

2 Appeals under s 36(7) require the Court to determine a question of fact, namely, whether the Minister has satisfied the Court that the land or part is not claimable Crown lands as defined in s 36(1) of the ALR Act. In this case the appeal is limited to part of the land originally claimed. This land is identified in a plan annexed to the Minister's refusal and is referred to as the purple edged land, the pink land, the yellow land, and the brown land. All of this land is Crown land that has neither been reserved nor dedicated for any public purpose under the provisions of the Crown Lands Act 1989 (the Crown Lands Act) (see the provisions in Divs 2 and 3 of Pt 5 of that Act).

3 The Minister claimed that these areas of land were not claimable Crown lands on various grounds as follows: (1) The purple edged land was lawfully used as provided for in s 36(1)(b) of the ALR Act. The Minister described the use as use by members of the public for access and recreation, not pursuant to the grant of any estate or interest in the land, but because the land was unenclosed, unfenced, open, and accessible public land, not subject to any outstanding estate or interest granted to any person, and in respect of which no prohibition on entry existed.

(2) The pink land was lawfully used as provided for in s 36(1)(b) of the ALR Act. The Minister described the use as use by the public and/or Shoalhaven Heads Golf Club Ltd for the purpose of access to permissive occupancy 1984/12, Nowra. Permissive occupancy 1984/12 commenced in 1984 and relates to the area of the golf course.

(3) The yellow land was lawfully occupied and/or lawfully used by Shoalhaven City Council (the Council) as provided for in s 36(1)(b) of the ALR Act. The occupation and/or use resulted from the presence of a pipeline through the yellow land delivering wastewater from the Council's sewerage treatment works to an area containing treatment ponds (also known as exfiltration or irrigation ponds), and the associated management and maintenance of the pipeline by the Council. Permissive occupancy 1983/22, Nowra commenced in 1983 and relates to the area containing the ponds.

(4) The brown land was lawfully used as provided for in s 36(1)(b) of the ALR Act. The Minister described the use as use by the Council for access to permissive occupancy 1983/22, Nowra (relating to the ponds area).

(5) In the alternative to (3) and (4) above, the yellow land and the brown land were needed or likely to be needed for an essential public purpose as provided for in s 36(1)(c) of the ALR Act. The purpose relied on is sewerage services and ancillary maintenance and access.

4 Acting Commissioner Davis assisted in this appeal.

B. The statutory scheme 5 The ALR Act establishes a scheme for Aboriginal land councils to make claims for the transfer of claimable Crown lands. It does so against the background of express acknowledgements by Parliament in the long title to the Act and s 3 that past government decisions have caused land traditionally owned and occupied by Aboriginal people to be taken without compensation, and that it is fitting to recognise the importance land has for Aboriginal people, and their need for land. Within this scheme claimable Crown lands are to be transferred to the claimant Aboriginal land council. Claimable Crown lands are defined in s 36(1) of the ALR Act as follows: (1) In this section, except in so far as the context or subject-matter otherwise indicates or requires: claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division: (a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901, (b) are not lawfully used or occupied, (b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands, (c) are not needed, nor likely to be needed, for an essential public purpose, and (d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and (e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands).

6 Under s 36(2), the Land Council may claim land on its own behalf. Claims are to be made in accordance with s 36(4). The Minister's obligations with respect to claims are contained in s 36(5): (5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall: (a) if the Crown Lands Minister is satisfied that: (i) the whole of the lands claimed is claimable Crown lands, or (ii) part only of the lands claimed is claimable Crown lands, grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be, or (b) if the Crown Lands Minister is satisfied that: (i) the whole of the lands claimed is not claimable Crown lands, or (ii) part of the lands claimed is not claimable Crown lands, refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require. 7 Section 36(5A) qualifies the Minister's obligation under s 36(5) to refuse a claim if land is not claimable Crown lands because it is needed or likely to be needed for an essential public purpose. The section provides as follows:

(5A) Where, under subsection (5), a Crown Lands Minister is not satisfied that the whole or part of the lands claimed is claimable Crown lands because the lands are needed, or likely to be needed, for an essential public purpose, but that the need for the lands for the public purpose would be met if the claim were to be granted in whole or in part subject to the imposition of a condition (whether by way of covenant or easement or in any other form) relating to the use of the lands, the Crown Lands Minister may, notwithstanding that subsection, where the condition is agreed to by the Aboriginal Land Council making the claim, grant the claim under that subsection subject to the imposition of the condition. 8 The right of appeal is vested in land councils by s 36(6). Under s 36(7): (7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council. C. Facts

10 The facts recorded below relate to the time when the claim was made (unless the contrary is stated).

11 The purple edged land is an L-shaped parcel with an area of approximately 18,500 sqm. The land adjoins the rear of residential properties along Lovegrove Street to the south and Crown reserve 1003018 to the east (being land reserved for public recreation and environmental protection on 19 October 2001). Part of the northern boundary of the land adjoins the Seven Mile Beach National Park and part adjoins the Council's ponds area (occupied under permissive occupancy 1983/22). This area is dealt with below in the context of the yellow and brown land (consisting of two strips crossing the purple edged land to the ponds area).

12 The Shoalhaven Heads Golf Club occupies land surrounding the Crown reserve on its northern and eastern sides under permissive occupancy 1984/12. The golf club adjoins Seven Mile Beach. At least one track runs across the purple edged land to the Crown reserve and various tracks run across the golf club to the beach. The permissive occupancy for the golf club provides that the club shall not interfere with the rights of the public to use any roads, streets, lanes or tracks within the area subject to the permissive occupancy.

13 A number of local residents provided affidavits describing activities they carried out on the purple edged land when the claim was made. Mr Findlay lives on Lovegrove Street. He regularly walked across the purple edged land with his family to gain access to the reserve, the golf club, and the beach. He also observed people riding horses and walking their dogs across the purple edged land. His house does not have a fence at the rear to separate it from the purple edged land. Nor do a number of other houses along Lovegrove Street and the streets backing onto the Crown reserve. Some houses with fences have gates in them. Mr Findlay and other residents kept the purple edged land free from rubbish and mowed the grass to make it suitable for children to play on. Games played on the land include cricket, soccer, rugby, other ball games, and bike riding. Children walked across the purple edged land as a shortcut to the rear of their homes from the bus stop. Ms Ashby made similar observations about her activities and those of others on the purple edged land, as did Mr Worrell, and Ms Mitchell. Ms Mitchell observed that the purple edged land was used for recreation activities as much as the cleared parts of the Crown reserve.

14 Mr Wilkinson is employed by the Department of Lands (the Department). He is the administrator of the Shoalhaven Heads Bushland Reserve Trust for Crown reserve 1003018. Mr Wilkinson's observations of activities on the purple edged land included people walking to and from Gerroa Street across the land to access the reserve. People also walked to and from the golf club to the Crown reserve from various vantage points including the purple edged land and the pink land (described further below). Mr Wilkinson also observed a fire break maintained along the boundary of the purple edged land. He described tracks through and around the purple edged land suitable for four wheel drive access.

15 Mr Hall is the president of the Shoalhaven Heads Surf Lifesaving Club. The club provides voluntary patrols along Seven Mile Beach. The usual range of recreation activities takes place along the beach. The beach area was part of the claim as originally made (but this part of the claim was not pressed in the appeal).

16 The NSW Rural Fire Service employs Mr McKinnon as a development control officer. The Service's records show that on 12 July 2001 the Shoalhaven Bush Fire Management Committee requested funds for hazard reduction works including slashing vegetation around the perimeter of the Crown reserve. This work included slashing the boundary between the residential properties along Lovegrove Street and the purple edged land between the reserve and Gerroa Road (to the west). These works were completed in December 2001 by the Council on behalf of the NSW Rural Fire Service and resulted in a 20m wide fire break or asset protection zone at the rear of the residential properties adjoining the purple edged land.

17 The Department adopted a Coastal Crown Lands Policy in 1991. Objects of this policy include the provision of public access to coastal reserves, beaches and foreshores as a prime consideration in the planning and management of coastal lands (with access to be determined by the appointed trustees of dedicated beaches). The policy encouraged multiple uses of land where compatible with the capability of the land. Unauthorised occupation of coastal Crown land, however, is not permitted under the policy. Finally, the policy provides for information (such as signs and brochures) to be given to convey to the public the appropriate use, identification and enjoyment of coastal land. The provisions of the 1991 policy relating to access are consistent with the NSW Government Coastal Policy 1997. One of the objectives of that policy is to increase public access to foreshores when feasible and environmentally sustainable access options are available.

18 A land assessment for this part of the Shoalhaven area was prepared in accordance with Pt 3 of the Crown Lands Act and adopted in October 2001. The assessment shows the purple edged land mapped as part of area 1 with preferred use categories of environmental protection and recreation. The assessment also noted the presence of informal tracks through this mapping area with problems of rubbish and car dumping. The same assessment identified the attributes of the area that became the Crown reserve shortly after adoption of the assessment (on 19 October 2001).

19 The pink land has an area of about 2,200 sqm. It adjoins residential land to the west, the Crown reserve to the north, and the golf course to the east. To the south is the intersection of Staples Street and Scott Street. The pink land is graded and paved with a bitumen surface. It appears as an extension of Staples Street.

20 Mr Lamb, the secretary of the golf club, said that people used the pink land on a daily basis for parking and vehicular and pedestrian access to the golf club, including the clubhouse and areas beyond it. The club maintained the pink land free from rubbish and debris. He also observed that people going fishing and swimming parked on the pink land and walked across the golf course to the beach. Mr Lamb observed that walkers, trail bike riders, and horse riders routinely used all of the tracks across the golf club.

21 On 18 June 1999 Mr Lamb wrote to the Department asking whether the golf club could lease an area including the pink land for parking. The Department responded on 18 July 2000. The Department said the area had not had native title extinguished and thus could not be leased. Further, the Department was not in favour of "authorising the use of the constructed roadway as a parking area under a licence to the Golf Club as this will limit the use of the area by the general public".

22 Mr Wilkinson referred to people using the pathway at the eastern end of Scott Street to access the beach. This pathway skirts the edge of the pink land and crosses the golf course towards the beach.

23 The pink land is mapped as part of area 3 (golf course, with preferred uses of environmental protection and recreation) in the land assessment of October 2001, but is not within the area of permissive occupancy 1984/12.

24 The yellow land and brown land consists of two strips crossing the purple edged land. The yellow land contains a pipeline connecting the ponds in the ponds area (the subject of permissive occupancy 1983/22) to the Shoalhaven Heads sewerage treatment plant. The brown land contains a gravel access track that connects Gerroa Road and the ponds area.

25 Mr Crtichley is an engineer employed by the Council. Mr Critchley explained that the Council operates a single reticulated sewerage system servicing the whole of the Shoalhaven Heads township. The pipeline is part of that system. It transfers wastewater treated to a secondary standard from the treatment plant to the ponds. The wastewater in the ponds is absorbed into the sandy subsoil. There are three ponds within the ponds area (a rectangular parcel of about 1.5 hectares adjoining the purple edged land). The Council constructed two of the ponds and the pipeline in 1983. On 1 May 1983 the Minister granted to the Council a permissive occupancy (1983/22) over the ponds area. The permissive occupancy is for the purpose of "Irrigation Ponds in conjunction with Shoalhaven Heads Sewerage Scheme". Documents leading up to the grant of the permissive occupancy depict a pipeline connecting the treatment plant with the ponds in various locations across or in the vicinity of the purple edged land. The third pond was built in late 1989 or early 1990. The sewerage ponds area is fenced with access via a locked gate to Council employees.

26 The pipeline is a rising main of 250mm in diameter located approximately 2.5m below the surface of the yellow land. Employees of the Council inspect the pipeline once a week by walking the pipeline route to check for leaks. The pipeline is not subject to any preventative maintenance routine as it is a pressure pipe not a gravity pipe. The pipeline has never required any maintenance action thus far. There is no easement or permissive occupancy over the pipeline. The Council wishes to obtain an easement 8m wide for drainage of sewage over the pipeline.

27 The gravel access track within the brown land is 2.5 to 3m wide. At the top of the track, near Gerroa Road, there is a locked gate accessible by employees of the Council. The track was constructed in connection with the ponds in early 1983. Sewerage maintenance personnel use the track on a weekly basis to obtain access to the ponds area and the pipeline (which is located about 6m away from the access track) for routine inspections. They also use the track on a six monthly basis to access the ponds area for programmed maintenance (including using a backhoe and bulldozer to scrape sludge from the ponds, a tipper to cart sludge away, a slasher to maintain the land, a mechanical services truck to repair and replace valves, and a sewer maintenance truck for various maintenance purposes). On a number of occasions the employees of the Council also removed debris from the purple edged land using the access track (noting that permissive occupancy 1983/22 requires the Council not to allow debris to accumulate in the area).

28 There is no easement or permissive occupancy over the access track. The Council wishes to obtain an easement 6m wide over the access track.

29 The Minister submitted that the purple edged land and pink land was lawfully used when the claim was made and thus was not claimable Crown lands (s 36(1)(b) of the ALR Act). The Minister described this lawful use as use by the public of unenclosed Crown land not subject to any estate or interest, and where no prohibition on use existed. The Minister said this use was the same as the use made of Seven Mile Beach (a part of the claim not pressed by the Land Council in the appeal), and that if the Land Council were correct use of beaches would not be lawful (as many beaches are not reserved or dedicated under the Crown Lands Act).

30 The use of the purple edged land and pink land was lawful, according to the Minister, because there were no signs or other measures restricting use. The use was not contrary to any general law and thus, unless and until the Crown took some step to "alter the invitation to access or the invitation to use", the use remained lawful. On the evidence the Crown had not taken any such step.

31 The Minister stressed that "lawful" means lawful within s 36(1)(b) of the ALR Act. A lawful use is one that is not contrary to law or is recognised, sanctioned, or permitted (Macquarie Dictionary, 2nd Rev. ed.). A "lawful" use concerns the entitlement of the person using the land. Use by trespassers and squatters would be excluded (Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 at 142), but not use by invitees.

32 The Minister rejected the Land Council's approach to the Crown Lands Act (particularly the significance of s 6 of that Act). The Minister said the scheme of the Crown Lands Act (as in force in May 2002) assumes that trespass and unlawful use may only occur as prescribed by the Act. If the activity on Crown land is not prohibited, it is lawful (at least under that Act). The Minister relied on the following analysis to support this argument: (1) Crown land is to be managed for the benefit of the people of New South Wales having regard to the principles of Crown land management contained in the Act (s 10). The principles of Crown land management include encouraging public access to and multiple use of Crown land (ss 11(c) and (d) of the Crown Lands Act).

(2) Section 6 of the Crown Lands Act provides as follows: Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence, reservation or dedication or other dealing is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989. (3) Section 6 is to be construed in the context of the whole Act. In context, the words "occupied" and "used" involve the actions of persons on Crown land rather than any particular dealing with land. Ad hoc use of unenclosed Crown land does not engage s 6 at all.

(4) Pt 3 provides for the assessment of Crown land. The provisions of Pt 3 include a programme for land assessment (s 30), maintenance of an inventory (s 31), requirements to assess land capabilities (s 32), and identification of suitable and preferred land uses (s 33). The assessment of the land in this case (adopted in October 2001) identified the preferred land uses of the purple edged land as environmental protection and recreation. The use made of the land by the public conforms to this assessment.

(5) The Minister's powers under Pt 4 to sell, lease, exchange or otherwise dispose of or deal with Crown land are subject to the Minister being satisfied that the land has been assessed under Pt 3, with limited exceptions (s 35). However, there is no equivalent restriction on the Minister opening Crown land for public access and recreation.

(6) Sections 56 to 59 concern easements for public access. Such an easement is unnecessary for unenclosed Crown land.

(7) Pt 5 deals with the reservation and dedication of Crown land.

(8) Div 5 of Pt 7 concerns the protection of public land. Public land is defined in a manner that includes Crown land (defined in s 3(1) to exclude land dedicated for a public purpose) and land granted, dedicated or reserved for a public purpose (s 153). Section 153 also includes a definition of vacant public land (being land not held under lease or licence from the Crown or from the trustees of the land). Section 154(1) recognises that other laws continue to apply to public land. Section 154(2) provides for regulations or by-laws applying to public land having the effect of authorising any act or omission that would otherwise constitute an offence under Div 5 of Pt 7.

(9) Section 155 lists offences on public land and commences with the words "a person shall not, without lawful authority…". Section 155 would be unnecessary if people could not be on public land at all.

(10) Section 156 allows the Minister to cause a notice to be served on a person or to be erected prohibiting the person, or any person, without lawful authority, from making any use of a structure or from carrying on any prescribed activity on public land.

(11) Section 159(1) provides that if an authorised person lays before a justice an information alleging that a person is in unlawful occupation of or is unlawfully using public land, the justice may issue a summons for the appearance of the person before a Local Court. Under ss 159(3) and (4) the Local Court is to hear and inquire into the information and, on being satisfied as to its truth, shall (amongst other things) authorise the person to dispossess and remove the person in unlawful occupation of, or unlawfully using, the public land.

(12) Section 160 concerns the bringing of vehicles onto vacant public land. The Minister may give directions about that activity but such directions only have effect while a notice of the direction is erected on or near the land.

(13) Section 162 allows an authorised person to serve penalty notices for certain offences.

(14) Section 166 deems the Minister to be the occupier of vacant public land for the purpose of the Impounding Act 1993. Section 166 is the only provision expressly dealing with trespass to vacant public land.

33 The Minister said provisions regulating the use of public land would have no work to do if the Crown Lands Act proceeded on the basis that no member of the public was entitled to access vacant public land for recreation purposes. Regulating public access to and use of Crown land pre-supposes the existence of such a right (citing Yanner v Eaton (1999) 201 CLR 351 at [37]). Accordingly, the Minister submitted that such access and recreation is lawful where the land is vacant public land, unenclosed, and not subject to any other estate or interest. The purple edged land and pink land are within this class. None of the people who used or saw people using the land said their use was under a lease, licence or other grant. Their use did not require any such dealing. Their use was lawful in the sense that the Crown Lands Act contemplates use of vacant public land by the public provided it is not prohibited or restricted by the provisions of the Act.

34 In other words, according to the Minister, the "express prohibitions on the use of such land carry the necessary corollary that the unexpressed remainder of activities are recognised as permissible such that non-proscribed activities are lawful when carried on by the public on open public land". Any action by the Crown for trespass against the people using the purple edged land (or pink land) would have failed because those people were invitees using the land for the purposes for which the Crown held it as vacant public land.

35 The Minister submitted that the observations to the contrary of Barrett J in Georgeski v Owners Corporation SP49883 (2004) 62 NSWLR 534 relied on by the Land Council are obiter and, if relevant, should not be followed. Those observations have been treated with some caution by commentators (for example, Peter Butt, Land Law, 5th ed. Sydney (2006) at [2316]). In the Minister's view, the Land Council gained no assistance from Fensom & Anor v Cootamundra Racecourse Reserve Trust & Ors [2000] NSWSC 1072 at [5] or State of New South Wales v Scharer (2003) 131 LGERA 208. The Land Council's reliance on the second reading speech for the Crown Lands Act (Hansard, 15 November 1988, pp 3306 and 3318) was also misplaced. The context of that speech is the provisions of the Act protecting public land. The offence provisions identified above achieve this object. Further, it is the words of the statute, not the Minister, that are critical (Newcastle City Council v McShane (No 3) [2005] NSWCA 437).

36 The Minister identified other decisions in support of these submissions (Ex parte Collins (1914) 14 SR (NSW) 31, Munday v Australian Capital Territory (1998) 99 LGERA 312, The Wik Peoples v The State of Queensland (1996) 187 CLR 1, Harper v Minister for Sea Fisheries (1989) 168 CLR 314, Stow v Mineral Holdings (Australia) Pty Ltd (1984) 180 CLR 295, Ashfield Municipal Council v Roads and Traffic Authority of New South Wales (2001) 117 LGERA 203 at [50], and Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2006) 149 LGERA 162 at [29] and [88]).

37 The Minister submitted that the evidence shows repeated use of the purple edged land and pink land by members of the public, being use to more than merely a "notional degree" (NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281 at [32] (The Wagga Wagga Claim) referring to Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1997) 42 NSWLR 641 (Nowra Brickworks (No 2)), Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 (Nowra Brickworks (No 1)), and Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 (Daruk)).

38 The yellow land contains the supply pipeline for the Council's sewerage system. The Minister submitted that the Department expressly authorised the construction of the ponds with an associated pipeline. This constitutes both the lawful occupation and use of the yellow land by the Council. Use of the brown land is ancillary to the lawful use and occupation of the ponds area (and the pipeline). Accordingly, the yellow land and brown land is not claimable Crown lands under s 36(1)(b) of the ALR Act. Alternatively, the yellow land and brown land is needed for an essential public purpose of sewerage services. If the Court does not accept the lawful occupation and/or use of the yellow land and brown land respectively then the Minister agreed with the Land Council that s 36(5A) of the ALR Act is available. Further, that the order for transfer could be subject to a condition requiring an easement for the supply pipeline and access track as sought by the Council.

39 The Land Council submitted that the ALR Act is beneficial and remedial legislation and is to be construed accordingly (Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157 and Nowra Brickworks (No 1) at 117). Hence, exceptions to claimable Crown lands are to be read narrowly (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] (2001) 50 NSWLR 665 (Deerubbin (No 2)) at [53] - [54]). Further, the Minister bears the onus on appeal under s 36(7) (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 (The Winbar Claim) at 691 - 692).

40 The Land Council noted that the purple edged land and pink land was not the subject of any lease, licence, permissive occupancy or other grant when the claim was made. It was not reserved or dedicated for any purpose under Pt 5 of the Crown Lands Act. The effect of the Minister's construction of s 36(1)(b) of the ALR Act would be to enliven the exception from claimable Crown lands whenever members of the public enter vacant Crown land without the Crown having attempted to stop them. Such ad hoc use cannot be sufficient to enliven the exception. First, the Minister's submissions assume that there is some right vested in the public to enter upon and use Crown land not dedicated or reserved for a public purpose. However, the Minister has not identified any such right. For example, the Minister cannot and does not say that the land was a common or subject to an easement in gross (ss 51 and 52 of the Crown Lands Act) or to an easement for public access (s 56 of the Crown Lands Act). Secondly, the decisions relied on by the Minister do not support the existence of any such right and indeed speak to the contrary. The Land Council also referred to Williams v The Attorney-General for New South Wales (1913) 16 CLR 404, Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 at 76, and Attorney-General v Antrobus (1905) 2 Ch 188 in support of its submissions. Thirdly, the Minister's submissions overlook the effect of s 78 of the Conveyancing Act 1919 (to the effect that no dedication or grant of a way shall be presumed or allowed to be asserted against the Crown by reason only of user). Fourthly, it is not correct to equate the Land Council's position with respect to Seven Mile Beach (where the claim was not pressed) and the purple edged land and pink land. The Minister refused the claim over the beach on the grounds that land was needed or likely to be needed for an essential public purpose (s 36(1)(c) of the ALR Act). Fifthly, the purple edged land and pink land are not part of the coastal foreshore or a highway. No issue of possible common or public rights arises (and, in any event, such rights are not as extensive as the Minister appears to assume. See Blundell v Catterall (1821) 5 B. & Ald. 268; 24 RR 353, Llandudno Urban District Council v Woods [1899] 2 Ch 705, Brinckman v Matley [1904] 2 Ch 313, Alfred F Beckett Ltd v Lyons [1967] 1 Ch 449, and Gumana v Northern Territory of Australia (2007) 158 FCR 349, noting the appeal to the High Court in Northern Territory of Australia & Anor v Arnhem Land Aboriginal Trust & Ors [2007] HCA Trans 721 and 722 (4 and 5 December 2007)).

41 Contrary to the Minister's submissions, the Land Council said that to be lawful use or occupation, the use or occupation of Crown land must be authorised by the Crown Lands Act (as s 6 discloses) or some other statute. If, for example, Crown land has been dedicated or reserved for use by the public then use consistent with the reservation or dedication will be lawful. The Minister's analysis of the Crown Lands Act is flawed. The legislature's express purpose was to ensure that members of the public could not continue to "treat Crown land as something to exploit or use without proper care or authority" (Hansard, 15 November 1988, pp 3306 and 3318). Section 6 (or its predecessor) has been said to embody "a constitutional principle for New South Wales" (Fensom at [5]), operating to prohibit any dealing with Crown land other than in accordance with the Crown Lands Act (Scharer at [59] - [60]). The section extends beyond dealings with Crown land (previously regulated by s 6 of the Crown Lands Consolidation Act 1913) to the use and occupation of such land (Georgeski at [88] - [90]).

42 The Minister's submissions about the Crown Lands Act ignore the distinction between the committing of offences on public land and the capacity for persons unlawfully occupying or using Crown land to be removed irrespective of any offence (s 159). The word "unlawful" in s 159 of the Crown Lands Act cannot be limited to a person committing an offence. It means, according to the Land Council, a person not authorised to occupy or use Crown land. The Minister's submission that any use not proscribed must therefore be lawful overlooks the fact that an action under s 159 is available. As Clarke JA observed in Tweed Byron at 142 the word "lawful" is present in s 36(1)(b) of the ALR Act to distinguish between those who have a lawful right to do something and those who do not. The evidence relied on by the Minister establishes no such right (see also Ashfield at [51]).

43 The Land Council did not dispute the existence of the pipeline under the yellow land and the access track over part of the brown land. However, the Land Council stressed that occupation and/or use requires occupation and/or use in fact and to more than merely a notional degree. The presence of the pipeline does not constitute occupation or use of the yellow land. The presence of the access track does not constitute use of the brown land. Neither constitutes use of the purple edged land (which is larger by far than the yellow land and brown land). It would be incongruous for the pipeline to constitute the occupation and use of land (and the access track the use of land) when s 36(5A) specifically provides for transfers subject to conditions where land is needed only for an essential public purpose. While the Land Council accepted that part of the yellow land and the brown land was needed for an essential public purpose, the evidence was insufficient to establish that the need extended to a width of 8m and 6m respectively. The pipeline is 250mm in diameter and subsurface. The access track is only 2.5 to 3m wide. If satisfied as to essential public purpose the Minister should be required to provide more specific evidence about the terms of any easement reasonably necessary to accommodate the pipeline and access track.

44 Although not identified as such, the Minister's submissions about the Crown Lands Act involved a form of reasoning analogous to the expressio unius approach to construction. The submissions assumed that because the Crown Lands Act proscribes nominated activities it necessarily follows that all other activities not proscribed are lawful for the purpose of that Act (and, in consequence, s 36(1)(b) of the ALR Act).

45 Many decisions emphasise the need to approach the expressio unius rule with caution (for example, Punch v Council of the NSW Bar Association [2007] NSWCA 93 at [47] and the cases cited therein). It is also apparent that the provisions of the Crown Lands Act prohibit certain activities on Crown land in certain circumstances. They do not regulate the exercise of a right (as referred to in Yanner v Eaton at [37]). Further, it is difficult to apply this form of reasoning to the Crown Lands Act in the face of s 6 and the powers available to an authorised person in s 159. As Barrett J observed in Georgeski at [86] the words "used" and "using" in s 6 and s 159 are significant. They speak against the Minister's submission that use of public land other than pursuant to a specific dealing does not engage s 6. There are many activities not proscribed by the statute that would engage s 6 and s 159 if not otherwise authorised (the holding of weddings and parties, for example, is not obviously within the scope of ss 155 or 156, or the associated provisions in cll 46 and 47 of the Crown Lands Regulation 2000, now repealed). Finally, the Crown Lands Act contains several methods by which rights to access and use land can be vested in the public (including the creation of easements for public access under ss 56 and 57 and dedication or reservation for a purpose under Pt 5). In this context there is no basis for construing the Crown Lands Act as creating a positive corollary (a common or public right to use unenclosed Crown land unless expressly prohibited) from a series of negative stipulations (the offence and notice provisions). The Crown Lands Act is not the source of any such right.

46 The Land Council correctly identified that the Minister's evidence and submissions assumed the existence of some common or public right to enter upon and use unenclosed vacant Crown land, not dedicated or reserved, and not the subject of any other right or interest (at least up to the moment the Crown made any request or requirement to the contrary).

47 The common law recognises certain common or public rights, as the authorities noted by the Land Council disclose. Such rights have been said to include passing and re-passing along a highway, fishing in the sea and tidal waters, navigating the sea and tidal waters, and, perhaps, the right to cross the foreshore when dry for fishing and when in peril (Brinckman v Matley and the cases cited therein). These rights are sourced from different principles, and are amenable to alteration or abrogation by statute (The Commonwealth of Australia v Yarmirr (2001) 208 CLR 1 at [60] and [282] and Harper at 329). Their extent has long been recognised to involve a "difficult question" (Williams-Ellis v Cobb [1935] 1 KB 310 at 320 cited in Georgeski at [84] and in Gumana v Northern Territory of Australia at [89]).

48 The decisions relied on by the Minister (other than Munday) do not support the existence of any public or common right to enter upon and use Crown land merely because the land is unenclosed, unfenced, open, and accessible public land, not subject to any outstanding estate or interest granted to any person, and in respect of which no prohibition on entry exists. Munday is a first instance decision the result of which turned on other circumstances, as explained below.

49 Ex parte Collins concerned a charge of unlawful occupation of Crown land by depasturing stock. The Court found that the offence required more than a "mere casual trespass" (at 35). As the defendant knew one of his cattle was on the land and had been previously warned, more than a casual trespass was established. The land in question, however, was not within the scope of the offence provision. Given that trespass to land is not ordinarily a criminal offence (Press v Tuckwell (1968) 69 SR (NSW) 17 at 21), Ex parte Collins is not authority for a proposition that mere casual use of Crown land is necessarily lawful.

50 Munday, as recognised in the appeal (Australian Capital Territory v Munday (2000) 173 ALR 1), involved claims of an obscure nature. The first instance decision contains general references to the common law favouring "freedom…of resort to public places" (at 320 and 321) and cites Ex parte Collins as authority for a proposition that, without statutory authority, the Crown cannot prevent or limit access to Crown lands by citizens provided they do not occupy the land or infringe the rights of the Crown or others in so doing (at 322). The Crown Lands Act, however, is a source of the statutory authority qualifying this proposition. When read in context, it is reasonably clear that the references in Munday relied on by the Minister are primarily concerned with the same issue that caused Bryson J in Fensom to identify a "constitutional principle", namely, that the Crown's dealings in Crown land are regulated by statute.

51 Harper concerned a well-established public or common right to fish in tidal waters (at 329 - 330). Such rights, moreover, were said to be "freely amenable to abrogation or regulation by a competent legislature" (at 330).

52 Stow v Mineral Holdings contains observations (at 311 - 312) about the right of the public to pass and re-pass along a highway and that the public "may be entitled pursuant to particular statutes to use specified areas of Crown land for the purpose of recreation". As the Land Council submitted, public right over highways are well established. None of the claimed land constitutes a highway. Moreover, there is an important qualification with respect to the possible rights of the public to use public land (namely, that the possible rights are derived from statute).

53 The observations of Heydon JA in Ashfield Municipal Council about s 6 tend to undermine rather than support the Minister's submissions. Heydon JA distinguished between an entitlement to use land and a mere series of trespasses (at [45]). While prepared to accept the possibility of a bare gratuitous licence Heydon JA did not consider any of the relevant expressions in s 6 of the Crown Lands Act (including "used") to be narrow, and observed that the acts of the Crown in permitting use as a road contravened s 6 unless authority for the use could be found in the statutes (at [51]).

54 In Darkinjung Pain J accepted the Minister's submission that lawful occupation or use of Crown land may exist for the purpose of s 36(1)(b) of the ALR Act without any dealing necessarily taking place. Further, that a lawful use can include a use that occurs without objection by the body authorised to do so (at [29]). Pain J, however, did not determine whether entry by the public onto vacant Crown land could constitute lawful use (at [88]).

55 It follows that, when analysed, none of the decisions relied on by the Minister establish the existence of the asserted generalised and amorphous right of the public to enter upon and use Crown land not dedicated or reserved for any public purpose if it happens not to be enclosed or sign-posted, unless and until the Crown says to the contrary. Nor, for the reasons given above, does the Crown Lands Act create any such right merely be specifying certain activities that are offences.

56 Accordingly, the appeal (in whole or part) is not necessarily resolved in the Minister's favour merely because the activities people carried out on the land did not constitute offences under the Crown Lands Act. The issue remains whether the Minister has satisfied the Court, on the whole of the evidence, that the land (or part) was not claimable Crown lands on one or more of the grounds relied upon. For the purple edged land and pink land, the Minister relied on lawful use alone (s 36(1)(b) of the ALR Act). For the yellow land and brown land the Minister relied on lawful occupation and/or lawful use (s 36(1)(b)) and need for an essential public purpose (s 36(1)(c)).

57 In Tweed Byron the Court of Appeal dealt with lawful use in the context of land reserved for public purposes and in respect of which the local council had been appointed trustee. At 140 Clarke JA (with whom Samuels and Meagher JJA agreed) referred to the relevance of a person having control over, and undertaking maintenance responsibilities on, reserved land. The factors supporting a finding of occupation of the whole of the reserve were many and varied (see the list at 141). At 142, when dealing with lawful use, Clarke JA observed that the definition of claimable Crown lands was concerned with the question "whether the user of the particular Crown land is legally authorised". The further (and tentative) observations about the parking of cars on part of the land (at 143) amounting to a lawful use arose in this context. This parking was apparently ancillary to the public purpose of the reservation (public recreation) and was not subject to objection by the local council as trustee. The facts are not analogous to the present case where the Crown reserve is a separate parcel and none of the land claimed in the appeal is subject to any reservation or dedication.

58 Daruk also involved land reserved for public recreation and in respect of which the local council had been appointed trustee. The Crown's notional occupation of Crown land led the majority in Daruk (Priestley and Cripps JJA) to confine the occupation exception from claimable Crown lands to land "'actually occupied' in the sense of being occupied in fact and to more than a notional degree" (at 162) or circumstances involving "actual as opposed to constructive occupation" (at 164) (and the equivalent for lawful use, also at 164).

59 Nowra Brickworks (No 1) emphasised that the purpose of the asserted use will affect the degree of physical enjoyment or occupation called for (at 120 - 121).

60 In Nowra Brickworks (No 2) the issue was confined to lawful use. The Minister submitted that the composite phrase in s 36(1)(b) of the ALR Act (not lawfully used or occupied) meant lawfully as against any interest of the Crown rather than lawfully generally (at 647). At 653 Sheller JA said that "lawfully": ... may mean used for lawful purposes or occupied for lawful purposes. It may, in addition or alternatively, mean used by a person who has the right to use the land or occupied by a person who has the right to occupy the land…

61 In The Wagga Wagga Claim Mason P reviewed the relevant authorities on s 36(1)(b) (at [31] - [45]), having accepted at [21] that this exception from claimable Crown lands should also be construed narrowly.

62 The evidence and Minister's submissions need to be considered in the light of these authorities.

63 Excluding the yellow and brown land (which traverses a small section only of the purple edged land) the evidence discloses five classes of activity on the purple edged land. First, neighbouring owners have mowed and kept part of the land free from rubbish. Secondly, local residents have crossed the land to access other land (such as the Crown reserve, the golf club and, from there, the beach). Thirdly, local residents have recreated on the land (by walking on it, horse riding, playing ball games and the like). Fourthly, the Council slashed the boundary adjoining residential properties acting as agent for the NSW Rural Fire Service. Finally, the Council tidied up part of the purple edged land on occasions as part of the surrounds of its permissive occupancy of the ponds area. The Minister primarily relied on the first three classes of activity as relevant to the issue of lawful use of the purple edged land.

64 As the Minister submitted, none of the people describing their own activities and those of others on the purple edged land referred to any interest, estate or other dealing authorising the activities. In Alfred F Beckett Ltd (a case concerning scavenging for sea coal along a privately owned foreshore) Harman LJ rejected the existence of any general common or public right to cross the foreshore when dry concluding that the witnesses were "merely doing something which [they] felt confident that the owner would not stop, but would tolerate because it did no harm" (at 469D - E). Russell LJ described the evidence as disclosing nothing more than "mere tolerance of the unimportant" (at 476A). These observations are apt for the present appeal. The evidence discloses activities by members of the public on the purple edged land that, at its highest, the Crown did not bother to prevent. However, the purple edged land was not reserved or dedicated for any public purpose. Entry on the purple edged land by members of the public was not necessary for access to any other place (as alternative access options were available). None of the witnesses asserted any belief on their part that they had a right to mow, walk across or on, ride on, or play sports on the purple edged land. No person apparently believed they could assert such a right against any third party or the Crown. Nor, on the Minister's case, was any such capacity necessary. The lawful use asserted by the Minister depended on the land being unenclosed, not sign-posted to the contrary, and the Crown not having required or requested the activities to cease (and the activities being generally consistent with the land assessment adopted under Pt 3 of the Crown Lands Act).

65 As the Land Council submitted, this involves an expansive approach to the exception from claimable Crown lands in s 36(1)(b) of the ALR Act, difficult to reconcile with the remedial purpose of the legislation. The fact that land is unenclosed is not determinative. Sections 6 and 159 of the Crown Lands Act do not depend on enclosure of land for their operation. Further, and as the Land Council submitted, enclosure is not an element of trespass. Similarly, lack of signage to the contrary only assumes significance if one pre-supposes the existence of some right to do everything not expressly prohibited. The notice provisions of the Crown Lands Act (for example, ss 156 and 160) are primarily directed to the creation of offences. The fact that an activity does not constitute an offence does not mean that the activity is thereby a lawful use for the purpose of s 36(1)(b) of the ALR Act.

66 At its highest the evidence supports an inference of "mere tolerance of the unimportant" by the Crown of various activities on the purple edged land. The evidence does not support an inference that the Crown authorised any of the activities by members of the public. Some of the activities might have been consistent with the assessment of the land's suitability under Pt 3 of the Crown Lands Act (although query the compatibility of mowing and the like with an environmental protection purpose and the problems with rubbish dumping, unauthorised clearing and associated weed infestation identified in the assessment). But no step was taken by the Department or Minister to authorise the various activities or to dedicate or reserve the purple edged land for these purposes (in marked contrast to the Crown reserve created shortly after the land assessment was adopted).

67 Accordingly, I do not accept the Minister's submissions about either lawful use in this case by reason of the mere presence on the land of members of the public not objected to by the Crown or the operation of the Crown Lands Act and its significance for s 36(1)(b) of the ALR Act. I also do not accept that the references to mere sufferance (Georgeski at [90]) or a bare gratuitous licence (as contemplated by Heydon JA in Ashfield Municipal Council at [50]) provide the Minister with any material support on the facts of this case. Neither observation suggested that these characterisations would avoid the operation of s 6 of the Crown Lands Act. In any event, the Minister bears the onus of establishing that the land was not claimable Crown lands when the claim was made. The existence of a licence (gratuitous or not) is itself a question of fact. The people who entered upon the purple edged land and pink land did not assert the existence of a gratuitous licence to do so. Further, Mr Wilkinson was the administrator of the trust responsible for the Crown reserve and had observed people walking across the purple edged land (with and without dogs), as well as along various tracks. However, Mr Wilkinson's responsibilities, if any, with respect to the purple edged land are not clear.

68 I also do not consider that the land assessment adopted in October 2001 carries the significance that the Minister sought to place on it. For example, the assessment was clearly concerned about the potential for inappropriate recreational use of the area including the purple edged land, and associated problems such as weed infestation at the interface with residential properties from gardening activities, rubbish dumping and unauthorised encroachments (see pp 30 and 31 in particular). The assessment does not suggest any actual or de facto licence from the Crown for people to access the land and carry out activities on the land at will merely because no signs to the contrary had been erected (and, indeed, the assessment refers to at least some notices in the vicinity of the purple edged land about illegal garbage dumping that people were simply ignoring). It is also apparent that the Crown reserve was created on 19 October 2001 (that is, almost contemporaneously with the adoption of the Crown lands assessment). As the Land Council submitted, reservation action could also have been taken with respect to the purple edged land and pink land at this time (but was not). The evidence falls short of establishing that members of the public were invitees or licensees in any form.

69 The activities of the Council occasionally tidying up part of the purple edged land on occasions were carried out as part of its responsibilities under the permissive occupancy of the ponds area. Similarly, the occasional slashing of the boundary between the purple edged land and residential properties presumably satisfied the obligations imposed by the Rural Fires Act 1997 (such as s 65). These limited, casual, and sporadic activities with respect to small areas within the purple edged land did not amount to a lawful use of the purple edged land in the circumstances.

70 Similar conclusions must be reached with respect to the pink edged land. The land was not part of the permissive occupancy for the golf club. The Minister refused to grant any right to the golf club to use the land for parking associated with the club. The Department was aware of the use of that area for parking by members of the club and the public, but the land was not part of any dedicated public road, had not been reserved or dedicated for any purpose, and was not the subject of any right, estate or interest authorising its use for parking. In contrast to the facts in Tweed Byron the pink land was not part of some larger area reserved for public recreation where part was used for that purpose and to which the parking activity appeared to be related.

71 These facts fall for assessment in the face of s 6 of the Crown Lands Act. Section 6 discloses in terms the legislature's consideration of the need to control the use and occupation of Crown land. The section operates on all of the provisions of the Act (including ss 10 and 11 emphasised by the Minister). There is no reason not to give effect to s 6 according to its terms. Supplemented by s 159 of the Crown Lands Act the Crown (through authorised persons) has power to ensure that any unlawful use or occupation of Crown land is brought to an end. In context, such unlawful use or occupation is any use or occupation not authorised under that Act.

72 The Minister has not established on the evidence any "legally authorised" use (Tweed Byron at 142) or use by a person who has the right to use the land (Nowra Brickworks (No 2) at 653). I accept the Land Council's submission that characterising the entries and activities carried out on the purple edged land and pink land by members of the public in this case as a lawful use for the purposes of s 36(1)(b) of the ALR Act would be contrary to the remedial purpose of the statute. Something more than the activities of the nature revealed by the evidence is required where, as here, the land has not been reserved or dedicated for any public purpose and the activities have not been authorised in any way.

73 Accordingly, the Minister has not satisfied the Court that the purple edged land or pink land is not claimable Crown lands by reason of the land being lawfully used when the claim was made.

74 The Minister's case asserting lawful occupation and use of the yellow land and lawful use of the brown land confronts different difficulties. The mere presence of a pipeline below the surface of land does not amount to occupation of the land in fact or more than constructive or notional occupation. To take an example from a different context, it is common knowledge that complicated networks of pipes, wires, and conduits are located below most urban streets and footpaths. The owners or operators of this infrastructure are not occupiers of the space in which each pipe, wire or conduit is located, nor of the land above, below, and around that space. In this case, the pipeline is only 250mm in diameter and 2.5m below the surface. It has never required any action on the Council's part other than a routine walk to inspect the surface. The Council is the owner of the pipeline but is not the occupier of the land in which the pipeline is situated in any sense by which the term "occupation" is normally understood.

75 Nor, in my view, has the Minister established any lawful use of the yellow land or brown land by reason of the presence of the pipeline and access track, and the associated activities of Council personnel on that land. Both asserted uses are based on the presence of infrastructure located under or on a small area and intermittent activities of a most limited nature and extent. The pipeline and access track also service uses of other land (the sewerage treatment plant and/or ponds). The pipeline merely traverses below the yellow land (or, more accurately, a part of the yellow land). It is simply a piece of infrastructure conveying wastewater from one location to another. As noted, employees of the Council do nothing more than inspect the surface of the yellow land once a week looking for signs of leaks. They do so without the benefit of any easement, lease, licence or other right enforceable against the Crown over any part of the yellow land. Having regard to the asserted purpose of the use (part of a sewerage system) those activities are insufficient to establish lawful use. The same conclusion applies to the access track on the brown land, and for the same reasons. Employees of the Council drive or walk down the access track once a week for routine inspections and every six months (with more extensive equipment) for maintenance of the ponds. These activities do not amount to a lawful use or a use in fact and to more than merely a notional degree of the brown land (or, more, accurately, that part of the brown land on which the access track is located).

76 The Land Council accepted that part of the yellow land and brown land was needed for the essential public purpose of the Shoalhaven Heads sewerage scheme. I agree. I am also satisfied that this need can be met by the grant of the claim subject to the imposition of a condition requiring an easement in favour of the Council over part of the yellow and brown land (see s 36(5A) of the ALR Act). The evidence, however, does not demonstrate that the whole of the yellow land and brown land was needed for that purpose. As noted, the pipeline is about 2.5m below the surface and only 250mm in diameter. It is a pressure pipeline and has never required breakdown maintenance. The track is a 2.5 to 3m wide gravel surfaced strip that traverses the brown land. The evidence also does not establish that easements of 8m and 6m wide respectively would be reasonably necessary to accommodate the pipeline and access track.

77 The Minister has not satisfied the Court that the land the subject of the appeal is not claimable Crown lands as provided for in s 36(7) of the ALR Act. The evidence indicates that part of the yellow and brown land was needed for the essential public purpose of the Shoalhaven Heads sewerage scheme when the claim was made. Section 36(5A) of the ALR Act, however, is available.

78 The parties should have the opportunity to be heard about the directions and orders for the final disposition of the appeal, on the basis that the appeal is to be upheld, subject to identifying the terms of any reasonably necessary condition under s 36(5A) of the ALR Act with respect to the pipeline and associated access track.

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.

(2001) 117 LGERA 203

(2006) 149 LGERA 162

(2003) 131 LGERA 208

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