Was the primary Judge correct?
48 It was accepted by the respondent on the hearing of the appeal that there was no evidence of any independent representation by the Department upon which he could rely. However, by Notice of Contention, it was submitted that the primary Judge erred in so far as she found that she could not infer that Mr Miller had actually negotiated with the Department apropos his proposal to construct and use the road, or that the Department knew of that proposal. It was further submitted that the file note contained a representation by Mr Miller of a fact and was therefore admissible as proof of that fact pursuant to s 69 of the Evidence Act 1995.
49 Section 69 of the Evidence Act applies to documents which constitute business records. The file note of 26 March 1962 clearly did constitute such, as it formed part of the records of the Board for the purposes of its business and contained a "previous representation" recorded in the document in the course of that business. In those circumstances, s 69(2) provides that the hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made either by a person who had, or might reasonably be supposed to have had, knowledge of the asserted fact, or is made on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had that knowledge.
50 Although the appellant somewhat faintly submitted that the representation contained in the file note did not fall within s 69, in my opinion it did. The representation recorded in the document was made by Mr Miller, who clearly had personal knowledge of the facts asserted therein. In these circumstances, the primary Judge ought to have found that Miller was, as at March 1962, negotiating with the Department for the necessary authority to traverse the Crown lands with the road.
51 Furthermore, in my opinion it was open to the primary Judge to infer, and she ought to have so inferred, that the Department was aware of Mr Miller's proposal to construct the road and that the Board had approved its construction. In this respect, there is no reason to believe other than that Mr Miller would have brought to the Department's notice, in the course of negotiations, the contents of the Board's letter to him of 20 March 1962. Whether it can be inferred that the Department became aware of the actual construction of the road and its subsequent use by the respondent is moot. The highest inference that can be drawn is that the Department contemplated that the road would be constructed and used.
52 The foregoing inferences are more easily drawn when account is taken of certain correspondence between the Board and the Department in 1990, including some Departmental reports in 1991. In particular, neither the correspondence nor the reports in evidence refer to any earlier documents which may have been in the possession of the Department or which may have come into existence in 1962. Equally, there is nothing in the correspondence or reports to suggest that the existence of the road was unknown to the Department until the Board referred the question of its maintenance thereto May 1990.
53 The material referred to makes it apparent that although the Department was taking the stand that the road was unauthorised, it was not opposing its maintenance or restoration and it accepted that such matters were the responsibility of the Board as manager of the catchment area. Although this documentation, on its own, does not permit an inference that the Department was aware of the construction of the road as far back as 1962 or even 1971 when it was completed, when taken in conjunction with the facts established by Mr Anderson's file note of 26 March 1962, the inference is easily drawn that the Department had knowledge of Mr Miller's proposal to construct and use the road. Relevantly, the inference is available that the Department in all probability considered that the issue was one for the Board, as the latter had the care and management of the catchment area through which the road was to be located.
54 Although there was no evidence that the Department represented or otherwise held out to Mr Miller that he and his successors would be entitled to use the road in perpetuity or that he was otherwise entitled to some proprietary interest in the nature of an easement or right of way with respect thereto, it should nonetheless be inferred that the Department stood by and permitted Mr Miller to construct and maintain the road at his expense and to use the road for access without objection to either him or the Board. However, whether that finding assists the respondent is another matter.
55 The respondent submitted that the scale of Mr Miller's road construction project, as revealed in the documentation in evidence, was such that his expectation, in which the Board concurred, was that his use of the road would be permanent and would enure for the benefit of himself and his successors in title. However, I cannot accede to that proposition. It was no doubt contemplated by the Board that so long as the road was allowed to remain in existence and was maintained by Mr Miller and his successors in title, it could be used for the purpose of gaining access to the property. However, the file note of 26 March 1962 referred to in [8] above makes it clear that both Mr Miller and the Board's officers were fully aware that authority to traverse the road, once it was constructed, lay exclusively with the Department. As the appellant submitted, the Board understood its role as being only to indicate whether it objected to the construction and use of the road within the catchment area and that Mr Miller understood that the Board's role was so confined.
56 Given that the respondent does not seek to rely upon any independent representation by the Department on behalf of the Crown, it must follow that no expectation giving rise to the proprietary estoppel was generated by the Department's conduct. Hence there was nothing in that conduct which generated an assumption by Miller that he would obtain a proprietary interest in the Crown land within the catchment area for which the Department was responsible.
57 It is true that the Crown was bound by any exercise by the Board of its powers under s 26(2)(a) and (b) of the CLC Act. However, that is of no assistance to the respondent unless those powers extended to authorising the grant by the Board of a proprietary interest in the nature of an easement or right of way. In my opinion, those powers did not so extend. To the extent to which the primary Judge construed ss 26(1) and (2) of the CLC Act as giving the Board "a statutory warrant" to grant equitable easements, with respect, I consider that her Honour was in error. The powers in question relate only to the care and management of Crown lands within the catchment area: neither expressly nor impliedly do they empower the Board to create proprietary interests in those Crown lands. Section 55(4)(b)(i) of the MWS&D Act makes it clear, for instance, that the Board's role in the granting of any lease, licence or permit under the CLC Act with respect to Crown lands within a catchment area is a concurrence role only. Any such grant is still required to be made in accordance with the CLC Act, in particular with s 6 thereof.
58 It follows from the foregoing that the Board "represented the Crown" or was otherwise the Crown's agent only to the extent to which it exercised its powers within the confines of s 26(2) of the CLC Act. In my opinion, not only did the Board not hold out any expectation to Mr Miller that it could grant to him a proprietary interest in the road, but also neither it nor the Crown can be estopped from denying a promise (assuming there is one) to grant an interest in Crown land which neither had the power to grant in the first place.
59 Furthermore, s 6 of the CLC Act prohibits any dealing with Crown lands "except under and subject to the provisions of" that Act. That prohibition is tempered by the requirement of s 54(4)(b)(i) of the MWS&D Act that before any lease, licence or permit is granted in respect of Crown lands within a catchment area, the concurrence of the Board must be obtained. But that requirement does not subvert the prohibition on the dealing with Crown lands other than under and subject to the provisions of the CLC Act. Any purported dealing with Crown land other than in accordance with that prohibition is unlawful. Therefore, to the extent that either the Department or the Board purported to promise Miller a proprietary interest in the nature of an easement or right of way in the road, it was doing so other than in accordance with the proscription contained in s 6. This is particularly so given that the CLC Act contains no power authorising the Governor or the Minister to grant easements or rights of way over Crown land: see [31] above. Consistent with the decision of the Privy Council in Chalmers and the overriding control of s 6 referred to by Bryson J in Fensom, it thus follows that no proprietary estoppel could arise from the conduct of the Board for which a court of equity could or would provide a remedy.
60 Authority extending for a century in this State supports the foregoing conclusions, that the Crown has no power to create interests in Crown lands except under the Crown lands legislation. In Lukey v Sydney Harbour Trust Commissioner (1902) 2 SR (NSW) 152 at 165, Owen J (with whom Darley CJ agreed) rejected the trial Judge's finding that an interest in certain Crown land was created in the plaintiff and enforceable against the Crown who was estopped from denying it. He did so on the basis that the effect of such a finding would be to repeal ss 5 and 6 of the Crown Lands Act 1884 (reproduced in s 6 of the CLC Act):
"for the Crown could then deal with Crown lands otherwise than under and subject to the provisions of that Act. Not only are the powers of the Crown limited by that Act, but the Crown is thereby expressly prohibited from leasing or dealing with Crown lands, except under and subject to the provisions of the Act."
61 Similarly, in Attorney-General v The Municipal Council of Sydney (1919) 20 SR(NSW) 46, the defendant council claimed an entitlement to remain in possession indefinitely of Crown land based upon a Ramsden v Dyson equity. Owen AJ held that no such equity arose on the facts, citing the principle expounded by Lord Cranworth in Ramsden v Dyson at 141. However, even if such an equity could be established, it could not be relied upon as against the Crown. After referring to Plimmer v The Mayor of Wellington (1884) 9 App Cas 699 and other cases, his Honour said (at 58):
"In all these cases the Court held that, where the Crown's power of discretion was not fettered by statute, an equity somewhat similar to that claimed by the defendant council might be established as against the Crown. It seems to me, however, that in cases where the Crown only has power to alienate or dispose of Crown lands in accordance with statutory provisions, no Minister or Ministers of the Crown could by any act or acts create an interest in Crown lands in any manner which is not authorised by the law…
If equities such as the defendant council relies upon could be set up with a view to creating an interest in, or right to occupy Crown lands, I think that the protection to the public which the Crown Lands Act were intended to provide, would be greatly inspired, and I can find no case where any such equity has been established in respect of Crown lands in this colony or State, since the Crown's prerogative was limited by statute."
62 Finally, in The New South Wales Trotting Club Ltd v The Council of the Municipality of Glebe (1937) 37 SR(NSW) 288, Jordan CJ (with whom Innes CJ in Eq and Davidson J (on this point) agreed), having referred to the principle expounded by Lord Kingsdown in Ramsden v Dyson to which I have referred in [40], observed (at 308-9) that that principle could not:
"be applied if the interest sought to be established against the owner of the land is an interest which he has no power lawfully to create: Attorney-General v Municipal Council of Sydney. "