Sydney Fish Market Pty Ltd v Valuer-General of New South Wales

Land and Environment Court (NSW)|2021-11-29|Before: Pepper J

Is Land "Crown Lease Restricted" Under the Valuation of Land Act 1916?

This judgment concerns the determination of the following separate question in advance of the hearing and resolution of other issues in the proceedings, namely ("the separate question"): Is the land the subject of these proceedings, being legally identified as Lot 1 DP 74155, Lot 1 and 2 DP 125720, Lot 1 DP 734622, Lot 1 DP 836351 and Lot 2 DP 827434, also known as 56-60 Pyrmont Bridge Road, Pyrmont, "Crown lease restricted" within the meaning of section 14I(2) of the Valuation of Land Act 1916 (NSW) as at the valuing dates of 1 July 2019 and 1 July 2020?
The applicant, Sydney Fish Market Pty Ltd ("Fish Market"), submitted that the separate question ought to be answered in the affirmative because the subject land is "Crown lease restricted" by reason of s 14I(2)(a) of the Valuation of Land Act 1916 ("VLA") as at the relevant valuing dates.

The Transfer and Vesting of the Land in the Crown

The following facts were agreed by the parties.
The proceedings relate to land legally identified as Lot 1 DP 74155, Lot 1 and 2 DP 125720, Lot 1 DP 734622, Lot 1 DP 836351 and Lot 2 DP 827434, also known as 56-60 Pyrmont Bridge Road, Pyrmont ("the land").
In 1994 the State government introduced the Fish Marketing Act 1994 ("FMA") which relevantly authorised the sale of the business undertaking of the Fish Marketing Authority ("FM Authority") and deregulated fish marketing in New South Wales ("NSW").
On 27 October 1994 Minister Ian Causley, the Minister for Agriculture and Fisheries and Minister for Mines ("Minister Causley"), made a Ministerial Order determining that the land "be transferred as from the sale date to the Crown" pursuant to s 8(2) of the FMA.
Another Ministerial Order made by Minister Causley on 27 October 1994 pursuant to s 5(3) of the FMA, transferred the assets, rights and liabilities referred to therein under the sale agreement, to "Sydney Fish Market Pty Limited" as from the sale date. The assets, rights and liabilities did not, however, include the Sydney Fish Market site.
On 28 October 1994, by publication in the Government Gazette, the Governor, on the advice of the Executive Council, appointed 31 October 1994 as the date of sale for the purposes of Pt 2 of the FMA.
On 31 October 1994 the FM Authority requested that the Registrar General change the description of the requested proprietor in Schedule 1 of the title from "Fish Marketing Authority" to "Her Most Gracious MajestyQueen [sic] Elizabeth II in the right of the State of New South Wales and the Government of New South Wales". Although s 11(2) of the FMA was referred to in the request, nothing turned on that error (it should have been s 8(2)).
By no later than 31 October 1994, the Fish Market and Minister Causley "for and on behalf of Her Most Gracious Majesty Queen Elizabeth II in the right of the State of New South Wales and the Government of New South Wales", signed a lease over the land. The commencement date of the lease was stated to be 29 October 1994 and the terminating date 28 October 2044 ("the lease").
Annexed to the lease was a guarantee and indemnity, a party to which was Minister Causley "on behalf of the Fish Marketing Authority and representing the Crown in right of the State of New South Wales and the Government of New South Wales".
As at the date the lease was signed, and as at the commencement date of that instrument: 1. Minister Causley was the Minister for Agriculture and Fisheries and Minister for Mines. He held this position from 26 May 1993 to 4 April 1995; 2. Minister Causley was the Minister administering the FMA but not the Minister administering the now repealed Crown Lands Act 1989 ("CLA"); and 3. Minister George Souris, the Minister for Lands and Water Conservation, administered the CLA. The Honourable Minister Souris held this Ministerial position from 26 May 1993 to 4 April 1995.
A copy of the allocation of Ministerial responsibilities under the Allocation of Administration of Acts was published in the Government Gazette on 14 September 1994.
On 31 October 1994 ("the sale date") the solicitor for the FM Authority signed (and subsequently lodged) a request at the then Land Titles Office Authority to change the name of the registered proprietor from "Fish Marketing Authority" to "Her Most Gracious Majesty Queen Elizabeth II in the right of the State of New South Wales and the Government of New South Wales". The request stated: Pursuant to section 11(2) of the Fish Marketing Act 1994 (the "Act"), the land described in the above Certificates of Title was vested by operation of law on 31 October 1994 with Her Most Gracious Majesty Queen Elizabeth II in the right of the State of New South Wales and the Government of New South Wales.
Annexed to the request was a copy of ss 6 and 11 of the FMA, along with a copy of the NSW Government Gazette in which the proclamation of 31 October 1994 as the "sale date" under s 6 of the FMA was published. Section 11 relevantly provided: (1) FMA is dissolved immediately after the sale date. (2) On the dissolution of FMA, the assets, rights and liabilities (if any) of FMA become the assets, rights and liabilities of the Crown…
On 31 January 1995 the request and the lease were registered on the title of the land.
On 29 June 2007 the land the subject of the lease was vested in the body now known as "Property NSW" (at the time it was known as the "State Property Authority" ("SP Authority")) by State Property Authority Order (No 2) 2007 (see NSW Government Gazette No 83, dated 29 June 2007). This order was made under s 19 of what is now the Property NSW Act 2006 ("PNSWA"). It came into effect on 1 July 2007.
On 31 January 2008 an Application to Record New Registered Proprietor was lodged by the SP Authority for registration in relation to the land (and other land).
On 11 April 2008 the SP Authority became the registered proprietor of the land.
On 23 January 2013 the name of the registered proprietor changed from "State Property Authority" to "Government Property NSW".
On 12 February 2013 Government Property NSW was recorded as the registered proprietor of the land. A copy of a Change of Name dealing was lodged with respect to the land (and other land) on 23 January 2013
The name of Government Property NSW was changed to Property NSW on 6 January 2017.
That name change has not been registered on the title of the land and the land still shows the registered proprietor as Government Property NSW.
It was agreed that between 1 July 2019 and 1 July 2020: 1. the land was not "Crown land" within the meaning of the CLMA; 2. the land was subject to the PNSWA; 3. the owner of the land was Property NSW; and 4. Property NSW was the lessor of the lease.

Issues in Dispute

The separate question gave rise to the following four principal issues for determination: 1. whether the lease signed in 1994 was a lease granted under the predecessor to the CLMA, namely, the CLA; 2. whether, notwithstanding the transfer of the land to the SP Authority, the land remained at all relevant times subject to the lease; 3. whether, from the date of the transfer of the land to the SP Authority (later, Property NSW) up to the date of the repeal of the CLA in 2016, the lease remained a lease under the CLA; and 4. whether the lease continued as a lease under the CLMA by reason of the savings and transitional provisions of that Act.

Statutory Framework

The statutory scaffolding for the resolution of these issues is as follows.
Section 14I of the VLA states that: 14I Valuing Crown lease restricted land (1) Land that is Crown lease restricted is to have its land value determined taking into account the restrictions on the disposition or manner of use that apply to the land by reason of its being the subject of the lease concerned. (2) Land is Crown lease restricted if it is subject to any of the following - (a) a holding or enclosure permit within the meaning of the Crown Land Management Act 2016, (b) a continued permissive occupancy within the meaning of Schedule 1 to the Crown Land Management Act 2016, (c) a lease under the Forestry Act 2012, (d) in the case of lands of the Crown, a lease of a class or description prescribed by the regulations.
For the purpose of the CLMA, the "Crown Land Acts" means the following as set out in s 1.5(1)(a) of that Act: 1.5 General definitions (1) In this Act - … Crown Land Acts means the following - (a) each of the Acts, or provisions of Acts, that were defined to be the Crown Lands Acts in section 3 (1) of the Crown Lands Act 1989 immediately before the repeal of the Crown Lands Act 1989,
The term "crown land" is defined in Div 1.3 (s 1.5(1) of the CLMA) as (ss 1.7 and 1.8 of the CLMA): 1.7 Definition of "Crown land" Subject to this Division, each of the following is Crown land for the purposes of this Act - (a) land that was Crown land as defined in the Crown Lands Act 1989 immediately before the Act's repeal, (b) land that becomes Crown land because of the operation of a provision of this Act or a declaration made under section 4.4, (c) land vested, on and from the repeal of the Crown Lands Act 1989, in the Crown (including when it is vested in the name of the State). 1.8 When land is vested in Crown (1) Land is not Crown land if it is vested in a Minister, or a statutory body representing the Crown, with express power under an Act (except the Interpretation Act 1987) to hold land in the exercise of the Minister's or body's functions. (2) Land may be Crown land even though it is dedicated for a public purpose under this Act or another Act or law.
A "holding" is defined as meaning "(a) any lease or licence under this Act (including one that is a continued holding)" (s 1.5(1) of the CLMA).
Schedule 7 of the CLMA deals with savings, transitional and other provisions. Part 2 of Sch 7 is concerned with provisions consequent upon the enactment of the CLMA and cl 2 of Pt 2 Div 1 defines "repealed Act or repealed statutory rule" to mean "an Act or statutory rule repealed by this Act or the amending Act."
Clause 5 of Div 1, Pt 2 of Sch 7 of the CLMA states: 5 Continued persons, matters or things may be dealt with under this Act accordingly (1) This clause applies to any matter or thing (a continued matter or thing) that is - (a) approved, granted, issued, dedicated, reserved or made under a repealed Act or repealed statutory rule, and (b) continued in force or effect, or taken to be a matter or thing, by a provision of this Part for the purposes of this Act (or a specified provision of this Act). (2) A continued matter or thing that was subject to any conditions imposed by or under a repealed Act or repealed statutory rule is subject to the same conditions under this Act. (3) A continued matter or thing that would have been in force or had effect under a repealed Act or repealed statutory rule for a specified period ceases to be in force or have effect under this Act at the same time as it would have ceased to be in force or have effect under the repealed Act or repealed statutory rule. (4) Despite subclauses (2) and (3), a continued matter or thing may be varied, forfeited, revoked, terminated, cancelled or dealt with in any other way under this Act as if it had been approved, granted, issued, dedicated, reserved or made under this Act. (5) This clause has effect unless the context or subject-matter indicates or requires differently.
The continuation of certain existing holdings and permits is also provided for in Sch 7, notably in cl 26, which is in the following relevant terms: 26 Continuation of certain leases, licences and enclosure permits (1) Any lease over land in force under a repealed Act continues in force on and from the repeal day as a lease under this Act over the same land. ... (4) A lease, licence or enclosure permit for a defined term does not (except as provided by this Act) continue beyond the end of that term. (5) The lease, licence or enclosure permit continues to be subject to the terms and conditions specified in lease, licence or permit unless the terms or conditions are inconsistent with another provision of this Act.
The now repealed CLA stated in ss 6 and 7 that: 6 Crown land to be dealt with subject to this Act etc Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence, reservation or dedication or other dealing is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989. 7 Relationship with other Acts This Act shall not be construed so as to affect the operation of a provision of any other Act which: (a) makes special provision for any particular kind of Crown land, or (b) authorises Crown land to be disposed of or dealt with in any manner inconsistent with this Act.
Section 34 of that Act relevantly conferred upon the relevant Minister the power to lease Crown land and relevantly stated that: 34 Powers of Minister (1) The Minister may, in such manner and subject to such terms and conditions as the Minister determines: (a) sell, lease, exchange or otherwise dispose of or deal with Crown land, or (b) grant easements or rights-of-way over, or licences or permits in respect of, Crown land, on behalf of the Crown. ... (3) The Minister may not, under subsection (1): (a) sell or exchange Crown land, (b) lease Crown land for a term exceeding 5 years, or (c) lease Crown land for a term that, by the exercise of an option, could exceed 5 years, unless the relevant date for the sale, exchange or lease is at least 14 days after notice of intention to sell, exchange or lease the land has been published in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State.
Section 35 stipulated that: 35 Assessment of land (1) The powers of the Minister under this Part may not be exercised in respect of Crown land unless the Minister is satisfied that the land has been assessed under Part 3. (2) Subsection (1) does not apply if: (a) the Minister is satisfied that it is in the public interest to exercise the powers without assessing the land under Part 3 and the Minister, in exercising the powers, has had due regard to the principles of Crown land management; or (b) the powers are to be exercised in respect of the grant of: (i) an enclosure permit, or (ii) a licence which does not authorise the erection of a structure other than fencing or the removal of material.
The term "Crown land" was defined in s 3(1) of the CLA to mean: 3 Definitions (1) In this Act: "Crown land" means land that is vested in the Crown or was acquired under the Closer Settlement Acts as in force before their repeal, not in either case being: (a) land dedicated for a public purpose, or (b) land that has been sold or lawfully contracted to be sold and in respect of which the purchase price or other consideration for the sale has been received by the Crown.
The FMA was an Act to, among other things, authorise the sale of the business undertaking of the FM Authority: 4 Approved purchaser For the purposes of this Act, the approved purchaser is Sydney Fish Markets Pty. Ltd. (A.C.N. 064 254 306). 5 Negotiations and agreements for sale of business undertaking of FMA (1) Negotiations may be conducted for the sale of the business undertaking of FMA in accordance with this Part. (2) The Minister is authorised to enter into agreements or the sale of the business undertaking of FMA to the approved purchaser. For that purpose, the Minister may act for and on behalf of FMA. (3) The Minister may, by order in writing, direct that any part of the business undertaking of FMA be transferred to the approved purchaser for the purpose of the sale of that undertaking in accordance with this Part. (4) Any negotiations or agreements may be conducted or entered into before, on or after the sale date. Any such negotiations or agreements conducted or entered into before the date of assent to this Act are validated to the extent of any invalidity. (5) However, any sale of the business undertaking of FMA to the approved purchaser may not take effect before the sale date. (6) For the purposes of this section, the business undertaking of FMA does not include assets, rights or liabilities excluded from sale under section 8. 6 Appointment of sale date The sale date is a date to be appointed by proclamation as the sale date for the purposes of this Part. 7 Proceeds of sale (1) Any amounts received for the sale of the business undertaking of FMA must be paid into the Consolidated Fund. (2) There may be deducted from those amounts before payment into the Consolidated Fund such amount as the Minister approves to meet the expenses reasonably incurred in connection with that sale. 8 Parts of business undertaking of FMA excluded from sale (1) The following assets, rights and liabilities that are part of the business undertaking of FMA are excluded from sale under this Part: (a) the Sydney fish market site, (b) any other assets, rights or liabilities that the Minister decides to exclude from sale. (2) The Minister may, by order in writing, direct that any assets, rights or liabilities excluded from sale under this Part be transferred to the Crown, the Fisheries Administration Ministerial Corporation or any other public authority... 9 Lease of Sydney fish market site to approved purchaser (1) A lease of all or any part of the Sydney fish market site may be granted to the approved purchaser on or after the sale date. (2) Any such lease may be granted as a concurrent lease in respect of the land the subject of any or all of the existing leases. … 11 Dissolution of FMA (1) FMA is dissolved immediately after the sale date. (2) On the dissolution of FMA, the assets, rights and liabilities (if any) of FMA become the assets, rights and liabilities of the Crown.
The SP Authority is constituted by s 4 of the State Property Authority Act 2006 ("SPAA"). It is a statutory body representing the Crown "with the status, privileges and immunities of the Crown" (s 5 of that Act).
The principal functions of the SP Authority include "to hold, manage, maintain, acquire or dispose of property for the government and government agencies" (s 11(1)(a) of the SPAA).
Power is conferred upon the SP Authority to deal in land. Section 13(1) provides as follows: 13 Land dealings (1) The Authority may, with the consent of the Minister, sell, lease, exchange or otherwise dispose of or deal with any land vested in the Authority and grant easements or rights-of-way over such land or any part of it.
Section 18 relevantly deals with the transfer of property described in Sch 1 to the SPAA: 18 Transfer of property described in Schedule 1 to Authority (1) On the transfer date relating to property described in Schedule 1, the property vests in the Authority for an estate in fee simple (or such other interest as is specified in the Schedule): (a) without the need for any further conveyance, transfer, assignment or assurance, and (b) subject to any trusts, estates, interests, dedications, conditions, restrictions and covenants to which the land was subject immediately before the transfer date. (2) On the transfer date relating to property described in Schedule 1, the following provisions have effect: (a) the rights or liabilities of the transferor in relation to the property become by virtue of this section the rights or liabilities of the Authority, (b) all proceedings relating to the property commenced before the transfer date by or against the transferor or a predecessor of the transferor and pending immediately before the transfer date are taken to be proceedings pending by or against the Authority, (c) any act, matter or thing done or omitted to be done in relation to the land before the transfer date by, to or in respect of the transferor is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the Authority, (d) a reference in any Act, in any instrument made under any Act or in any document of any kind to the transferor or a predecessor of the transferor is (to the extent that it relates to that property or those rights or liabilities but subject to the regulations), to be read as, or as including, a reference to the transferee.
Section 20 of that Act states the consequences of the transfer of ownership of assets under the SPAA. For example, according to s 20(4) of the SPAA, "no attornment to the transferee by a lessee from a transferor is required".
The statutory framework enacted by the SPAA remained in force at all material times under the PNSWA.
Sections 36 to 37A of the Constitution Act 1902 relevantly provide that: 36 Authority for Minister of the Crown to act for and on behalf of another Minister of the Crown (1) The Governor may, from time to time, authorise a Minister of the Crown to act for and on behalf of another Minister of the Crown for any period specified or described by the Governor. (2) Where a Minister of the Crown is authorised under this section to act for and on behalf of another Minister of the Crown, any function appertaining or annexed to the office of that other Minister may, while the authority remains in force, be exercised or performed from time to time by the Minister so authorised instead of by that other Minister. (3) An authority under this section may be revoked by the Governor. (4) A Minister of the Crown may be authorised under this section by reference to his name or by reference to the title of the office which he holds as Minister of the Crown. (5) Notice of an authority under this section, or the revocation of such an authority, may be published in the Gazette at any time, and, where such a notice is so published, judicial notice shall be taken of the notice and of the authority or revocation, as the case may be. (6) Every authority under this section shall be recorded by the officer in charge of the records of the Executive Council. 37 Unavailability of Minister of the Crown A Minister of the Crown may exercise or perform for and on behalf of another Minister of the Crown a function appertaining or annexed to the office of that other Minister if the first mentioned Minister is satisfied that the other Minister is unavailable and that any Minister of the Crown authorised under section 36 to exercise or perform that function is unavailable. 37A Provisions ancillary to sections 36 and 37 (1) Sections 36 and 37 apply to the functions appertaining or annexed to the office of a Minister of the Crown, whether those functions are conferred or imposed by the terms (express or implied) of an Act or instrument under an Act, or by or under any other law, or by official or other custom, but do not apply to the functions appertaining or annexed to that office by virtue of an authority under section 36. (2) Any act, matter or thing done or omitted by a Minister of the Crown while acting for or on behalf of another Minister of the Crown - (a) under an authority under section 36, or (b) under the authority of section 37, shall be as valid and effectual and shall have the same consequences as if the act, matter or thing had been done or omitted by that other Minister. (3) In all proceedings and before all persons acting judicially, it shall be presumed, in the absence of evidence to the contrary, that a Minister of the Crown who purports to act for or on behalf of another Minister of the Crown was authorised by or under section 36 or 37 so to act.
Finally, pursuant to s 13(b) of the Interpretation Act 1987 a reference to "the Crown is a reference to the Crown in right of New South Wales". And by reason of s 15 of that Act a reference to a "a Minister" is a reference to: 15 Minister (1) In any Act or instrument - (a) a reference to a Minister is a reference to a Minister of the Crown, and (b) a reference to a particular Minister includes a reference to any other Minister who is acting for or on behalf of the Minister. (2) In any Act, a reference to "the Minister" is a reference to - (a) the Minister administering the Act, (b) if different Ministers are administering the Act in different respects - the Minister administering the Act in the relevant respect, (c) if different Ministers are administering different portions of the Act - the Minister administering the relevant portion of the Act, or (d) if paragraphs (b) and (c) do not apply and 2 or more Ministers are administering that Act or a portion of that Act - any one of the Ministers administering the Act or portion of the Act. (3) In any instrument, a reference to "the Minister" is a reference to - (a) the Minister administering the Act under which the instrument is made, (b) if different Ministers are administering that Act in different respects - the Minister administering that Act in the respect in relation to which the instrument is made, (c) if different Ministers are administering different portions of that Act - the Minister administering the portion of that Act under which the instrument is made, or (d) if paragraphs (b) and (c) do not apply and 2 or more Ministers are administering that Act or a portion of that Act - any one of the Ministers administering the Act or the portion of the Act under which the instrument is made.

The Separate Question Must be Answered in the Affirmative

Was the Lease a Lease Granted Under the CLA?

The Fish Market's submissions can be summarised by the following propositions. First, that the FMA was used as a mechanism to authorise the sale of the business of the FM Authority, a statutory authority representing the Crown created pursuant to s 41A of the Fisheries and Oyster Farms Act 1935. By s 41A(1D) of that Act, the FM Authority was deemed to be a statutory authority representing the Crown for the purposes of any Act.
Section 5(2) of the FMA permitted the Minister to enter into agreements for the sale of the business undertaking of the FM Authority to the Fish Market. Any sale of the business undertaking of the FM Authority to the Fish Market could not take place before the sale date and did not include the assets, rights or liabilities excluded by s 8 of the FMA, namely, the Sydney Fish Market site.
Accordingly, the Minister could, by order in writing, direct that the Sydney fish market site be transferred to the Crown, the Fisheries Administration Ministerial Corporation, or any other public authority (s 8(2) of the FMA).
Second, that upon dissolution of the FM Authority immediately after the sale date (s 11(1) of the FMA), the assets, rights and liabilities of the FM Authority became the assets, rights and liabilities of the Crown (s 11(2)), although the Minister could direct otherwise by order in writing (s 11(3) of the FMA).
Therefore, as outlined above, on 31 October 1994 (the sale date, as proclaimed on 26 October 1994) the land was transferred to the Crown and was land owned by the Crown on and after that date (s 8(2) of the FMA). In addition, the FM Authority was dissolved and any residual assets, rights and liabilities of the FM Authority became those of the Crown (see s 11 of the FMA).
Third, that the lease signed on 31 October 1994 provides that the lessor is the Crown and that a Minister enters into the lease "for and on behalf off" the Crown. Accordingly, the lease was entered into on behalf of the Crown. The commencement date of the lease is immaterial to the events that occurred on 31 October 1994.
Section 9(1) of the FMA provided that a lease over the land could be granted on or after the sale date. Thus even though the lease was not made until 31 October 1994, it was nevertheless validly granted.
Fourth, that under the CLA, as at 31 October 1994, when the lease was signed, the land was vested in the Crown as defined under that Act in s 3(1). The reference to the "Crown" in s 3(1) of the CLA is a reference to "the Crown in right of New South Wales" (s 13(b) of the Interpretation Act).
Therefore, by operation of s 8 of the FMA and the Ministerial Order dated 27 October 1994, the land was Crown land as at 31 October 1994. By that time, however, dealings in Crown land were constrained by s 6 of the CLA. It follows that the lease could only have been granted under the CLA, the predecessor of the CLMA.
Fifth, that having been granted under the CLA, it fell within the definition of a "holding" in s 1.5 of the CLMA and is therefore "Crown lease restricted" for the purpose of s 14I(2)(a) of the VLA.
While the VG accepted that the CLA was the predecessor of the CLMA, the VG denied that the lease was granted "under" the CLA for the purpose of s 1.5 of that Act, notwithstanding that, as a consequence of the Ministerial Order of 27 October 1994, from 31 October 1994 until the land was vested in the SP Authority (subsequently Property NSW) on 29 June 2007, the land was Crown land.
According to the VG, having regard to the ordinary meaning of the word "under" in s 1.5 of the CLMA which means "by virtue of the power of", "pursuant to the authority of" or "granted under", there were eight reasons why the Fish Market's contentions ought to be rejected.
First, s 34 of the CLA gave the Minister the power to lease Crown land. Applying s 15 of the Interpretation Act, the reference to "the Minister" in that provision was to the Minister administering the CLA. Because the lease was signed by Minister Causley, who was not the Minister administering the CLA (the latter of which was Minister Souris), he had no power to enter into a lease under the CLA. Any suggestion by the Fish Market that Minister Causley was exercising his power in his executive capacity as Minister to bind the Crown must be rejected on the authorities (citing Commonwealth v The State of New South Wales (1923) 33 CLR 1; [1923] HCA 34 at 38 to 39, Attorney-General v Cochrane (1970) 91 WN (NSW) 861 at 865 and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 at [55], among others) which state that the prerogative of the Crown in right of NSW to dispose of, or deal with, land that is vested in the Crown merged with the Crown Lands legislation.
Second, there was no published notice of intention to lease the land as required by s 34(3)(b) of the CLA. This was, however, in conformity with a power being exercised under s 9(1) of the FMA. That is, publication was not necessary because an approved purchaser had already been identified (s 4 of the FMA) and the lease could not be granted to anyone other than an approved purchaser (s 9(1) of the FMA).
Third, there is no evidence that an assessment under Pt 3 of the CLA had occurred, or that the Minister had formed the requisite state of satisfaction, pursuant to s 35 of the CLA. This further reinforces the conclusion that the lease was granted under another source of power, such as s 9(1) of the FMA.
While the reasons above could equally result in a finding that the lease was not validly granted, the VG submitted that the better view, having regard to the presumption of regularity, was that the lease was granted only pursuant to the specific power conferred upon Minister Causley by s 9(1) of the FMA.
Fourth, the circumstances in which the lease was entered into clearly indicated that the power being exercised was that conferred by s 9(1) of the FMA. The FMA provided for a specific course to be followed to effect the sale of the business undertaking of the FM Authority. These steps occurred, namely, a date was appointed for the sale of the business (s 6 of the FMA), the assets, rights and liabilities of the Sydney Fish Market site were to be excluded from the sale but could be transferred (s 8), and a lease with the approved purchaser for the Sydney Fish Market site could be granted after the sale date (s 9(1)). In respect of the latter step, if the lease was granted between 27 and 31 October 1994 and signed on the later date, this suggested that the lease was granted pursuant to s 9(1) of the FMA. Any earlier, and the land was not owned by the FM Authority and could not have been validly leased by Minister Causley.
Fifth, although s 9(1) of the FMA did not specify who had the power to grant a lease pursuant to that provision, the fact that Minister Causley, the Minister with responsibility for fisheries, agriculture and mines, signed the lease is consistent with the conclusion that it was the power contained in s 9(1) that was exercised to grant the lease.
Sixth, the lease was concurrent and only the FMA (see s 9(2)) provided an express power to enter into a concurrent lease. No such power was provided for in the CLA.
Seventh, s 6 of the CLA does not compel a conclusion that the lease must have been granted under that Act insofar as s 7(b) of that Act expressly provides that another statute may deal with Crown land in a manner inconsistent with the CLA, thereby permitting the lease to be granted under s 9(1) of the FMA. In any event, to the extent of any inconsistency between the two provisions, the latter section was enacted later in time and deals more specifically with the subject matter in question. Again, this is consistent with s 9 of the FMA being the statutory power used to grant the lease.
Eighth, even if the land was vested in the Crown at the time that the lease was signed by reason of the operation of the Ministerial Order dated 27 October 1994, this did not render the lease granted "under" the CLA. It is necessary to characterise the lease in issue. This task is not assisted by considering the subsequent legal effect that the Order had on the land the subject of the lease.

The Lease Was Granted Under the CLA

In my opinion, the VG's submissions must be rejected largely for the reasons proffered by the Fish Market. The following additional reasons are provided.
First, the VG relied upon a number of objective circumstances to buttress its submission that the lease was made under s 9 of the FMA, however, the Fish Market can succeed if the lease is a lease under either the FMA or the CLA, or both, provided that it may be characterised as a lease under the latter enactment. That is, it is conceivable that the power exercised under s 9(1) of the FMA was confirmatory of a power to grant a lease and that this is what occurred on 31 October 1994. There is nothing in the language of s 9 of the FMA that excludes this possibility. Importantly, the proposition that the lease was granted exclusively under s 9 of the FMA is directly contrary to the statutory prohibition on dealing with Crown land otherwise than under the CLA contained in s 6 of that Act.
Second, s 9(1) of the FMA did not contain a power to lease the site on behalf of the Crown as the Minister purported to do in this case (see the terms of the lease as executed). The Sydney Fish Market site was an asset that was transferred to the Crown on 31 October 1994. Later that day, a Minister of the Crown granted a lease on behalf of the Crown to the Fish Market. Significantly, it was common ground between the parties that on and from 31 October 1994, the land was Crown land within the meaning of the CLA. The land under that Act could only be leased, or otherwise dealt with, in conformity with that statute (s 6 of the CLA). That is, only the CLA explicitly conferred a power to lease land on behalf of the Crown. This may be contrasted with the FMA which contained no such express power.
Third, to the extent that the VG relied upon s 7 of the CLA to argue that s 9 of the FMA displaced the constraint imposed by s 6 of the CLA (that is, the FMA made provision for dealing with land that fell within s 7 of the CLA), upon its proper construction, s 7 does not have that effect. Section 9 of the FMA neither made special provision for any particular kind of Crown land (s 7(a) of the CLA) nor did it authorise Crown land to be disposed of, or dealt with, in a manner inconsistent with the CLA (s 7(b) of the CLA).
In short, s 9 of the FMA was not a provision, the operation of which displaced the primacy of the CLA enshrined in s 6 of that Act. That the FMA was enacted after the CLA does not, contrary to the submission of the VG, elevate it above the CLA. Were this Parliament's intention, it would be expected to be reflected in the language of s 9 of the FMA (consistent with that contained in s 7 of the CLA) in order to displace the edict contained in s 6 of the CLA.
Fourth, there is no warrant, having regard to the statutory text, context and purpose of the definition of a "holding" in s 1.5(1)(a) of the CLMA, to construe the phrase "under this Act" in the context of ss 1.7 and 1.8 of the CLMA, as limited only to leases that are entered into for the first time under that legislation. Both the text and context of the words "under this Act" make it plain that the phrase includes leases made under the CLA (see further below at [103]-[109]).
True it is that from the commencement of the CLMA the Sydney Fish Market site was no longer Crown land (see the explanation later in this judgment at [104]), but this does not assist in determining whether or not the lease is a "holding" under the CLMA. This is because the lease is a lease "under the" CLMA as it continues in operation pursuant to the provisions of the CLMA provided for in the transitional and savings provisions. The lease was approved, granted or made under the CLA and continues with the same force and effect under the CLMA. In this context is should be noted that the words "under this Act" in the definition of "holding" are identical to the text of cl 26 of Sch 7 of the CLMA.
The above conclusion rejects, as it must, the VG's construction of the words "under this Act" in ss 1.7 and 1.8 of the CLMA to mean granted under or governed by. To construe the phrase in this manner would, in my opinion, be to read into the definition of "holding" words that are not there and are not, contrary to the submission of the VG, warranted by the statutory context.
Fifth, it is clear from the statutory context that under the CLA the relevant Minister had the power to lease Crown land (s 34) and that "Crown land" was land vested in the Crown. To the extent that the VG submitted that the CLA did not expressly provide for concurrent leases to be granted in respect of Crown land whereas s 9(2) of the FMA does, s 34(1) of the CLA is cast in sufficiently broad terms that do not preclude the granting of a concurrent lease. Put another way, there in nothing in the language of s 34 of that Act that prohibits the granting of a concurrent lease.
Sixth, the VG relied upon the fact that certain steps were not taken under the CLA as required, thereby reinforcing the contention that the lease was granted under s 9 of the FMA. In particular, a notice of intention to lease the land published in a relevant newspaper (s 34(3) of the CLA) or an assessment carried out under Pt 3 of the CLA (as necessitated by s 35 of that Act), was furnished to the Court.
However, because the land was Crown land as at 31 October 1994, and therefore, Crown land could not be dealt with otherwise than under the CLA (s 6), then to the extent that it was a statutory precondition to the exercise of power by the Minister under s 34 that there be an assessment undertaken (s 35) or that a notice be published (s 34), it may be presumed by reason of the fact that the lease exists that this was done notwithstanding that there was no evidence before the Court of these steps having been carried out.
So much so is no more than an application of the presumption of regularity. The presumption was explained in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 (at 164C): Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.
The presumption is rebuttable (Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48 at [114]-[116]): 114 The presumption of regularity has been described as both a "rebuttable presumption of law" (JD Heydon, Cross on Evidence (LexisNexis, 2002), at [1175]) and "a presumption of fact, associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs" (Hill v Woollahra Municipal Council (2003) 127 LGERA 7 at [52] per Hodgson JA (Ipp JA and Davies AJA agreeing)), whose "natural home…is public law": Natural Resources, Minister for v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164; 62 LGRA 409 at 418 per McHugh JA. 115 The presumption of regularity has also been described as one which "arises from the ordinary course of business", being "a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act": McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 at 850 per Griffith CJ (Barton and O'Connor JJ agreeing), citing Knox County v. Ninth Nat Bank of City of New York 147 US 91 (1893). In Natural Resources, Minister for v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164; 62 LGRA 409 at 418 McHugh JA explained its operation in the public law context as follows: Where a public official or authority purports to exercise a power or to do an act in the course of his duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. 116 In deciding whether the presumption of regularity is rebutted, the inference from the ordinary course of human affairs carries some weight which may vary according to the proved circumstances: Hill v Woollahra Municipal Council (2003) 127 LGERA 7 at [52]. In this respect, in my view, Windeyer J's remarks in Brickworks Ltd v Warringah Corporation remain cogent: The giving or refusing of a consent, as required by the Ordinance, was an important discretion entrusted to the Council as the "responsible authority". It is not to be assumed that the Council and its officers neglected their duties or discharged them in a perfunctory manner.
Other than an inference based on the absence of anything to indicate that these measures have been carried out (the logic of which is circular), there is nothing relied upon by the VG to rebut the presumption.
But even assuming that these preconditions have not in fact been satisfied it does not inexorably follow that the lease was not made under the CLA. As noted above by the VG, another consequence is that the lease is invalid. That the giving of notice under the CLA is treated as "of great importance" according to the VG (citing NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (The Kinchela Claim) (2009) 166 LGERA 137; [2009] NSWLEC 46 at [72]-[73]) may reinforce this conclusion but does not, in my opinion, assist in the interpretative task presently before the Court.
In respect of the argument by the VG that Minister Causley had no power to enter into a lease under the CLA because he was not allocated the administration of that Act, s 37A(3) of the Constitution Act creates a presumption that, in the absence of evidence to the contrary, a Minister who purports to act for on behalf of another Minister of the Crown is authorised to do so under ss 36 or 37 of that Act. There is no evidence to the contrary relied upon by the VG to displace the presumption that Minister Causley was acting on behalf of Minister Souris.
Although the VG contended that there was nothing available to enliven the presumption contained in s 37A(3) of the Constitution Act (that is, there was nothing demonstrating that Minister Causley was purporting to act for or on behalf of another Minister of the Crown), the execution page of the lease was signed by "the Honourable Ian Raymond Causley, Minister for Agriculture and Fisheries and Minister for Mines for and on behalf of Her Most Gracious Majesty Queen Elizabeth II in the Right of the State of New South Wales and the Government of New South Wales" (emphasis added). This inscription is enough to demonstrate that Minister Causley was purporting to act for another Minister of the Crown, in this instance, all relevant Ministers, which must include the Minister administering the Crown Lands Act. Were it otherwise, the words upon which emphasis is placed are otiose.
It follows that the lease is a lease that was granted under the CLA.

Did the Land Remain Subject to the Lease Despite the Transfer of the Land to the SP Authority? If So, Did the Lease Remain a Lease "Under" the CLA Upon the Repeal of that Act?

To avoid repetition, it is convenient to deal with the second and third issues identified earlier together.
The Fish Market argued that between the date of the grant of the lease and the date upon which the CLA was repealed by the CLMA on 14 November 2016, although the ownership of the land changed by operation of the statutory vesting process, the lease continues to apply throughout until its termination or expiry on 28 October 2044. That is, the land remained the subject of the lease notwithstanding its transfer to the SP Authority (later Property NSW).
It asserted that the process of transferring ownership of the land from the Crown to the SP Authority under the SPAA (and its successors) was "merely a machinery of government change" relating to a division of responsibility for administering Crown land and that the text and context of the SPAA unequivocally preserved the lease. To arrive at any other conclusion would be to impermissibly construe s 18 of the SPAA beyond its textual limits, especially when regard was had to the comprehensive regime of vesting all rights and interests affecting property transferred to the SP Authority. The plain and manifest objective intention of the SPAA was that the lease was to continue because the land was vested in the SP Authority without any change to any associated rights, obligations, liabilities, restrictions or benefits of any kind attaching to the land.
In response, the VG argued that, in transferring the land to the Property NSW (formerly the SP Authority), Parliament intended to effect more than mere adjustment to the machinery of government (referencing extrinsic material introducing the relevant Bill to the legislature) and that the change was substantive in nature.
The VG repeated its contentions that the lease was not granted or made under the CLA as summarised above. In short, it submitted that upon transfer of the land to Property NSW, the land ceased to be Crown land and the characterisation of the lease as a holding also ceased under the CLMA because the lease was not a lease granted under the CLA.
I do not agree. The ownership of the land was transferred from the Crown to a statutory body, the SP Authority, on 1 July 2007 by the process set out in the SPAA. The statutory vesting crystalised by Ministerial Order dated 27 June 2007 (gazetted on 29 June 2007), which listed the land in Sch 1 of the SPAA. Schedule 1 did not include any reference to the lease. It should be noted that although it was an agreed fact that the land vested in the SP Authority on 29 June 2007, and not 1 July 2007, nothing appears to turn on this.
As the statutory regime set out above demonstrates, as at the transfer date the land vested in the SP Authority as an estate in fee simply under s 18 of the SPAA without the need for anything further to be done (see s 20(4) of the SPAA). The transfer and vesting was, however, expressly constrained by any pre-existing interests and restrictions to which the land was subject immediately prior to the transfer (see s 18(1) of the SPAA). The only material change was that any reference to the "transferor" in the lease, namely, the Crown, was now a reference to "the Authority". However, nothing turns on this for present purposes.
The fact that the owner of the land was identified as the SP Authority under the SPAA did not change the character of the lease as land vested in the Crown. The SP Authority was a statutory body with the status, privileges and immunities of the Crown (s 4 of the SPAA), including with the power to deal with land (s 13(1) of the SPAA). The land therefore remained vested in the Crown (s 3(1) of the CLA). The land was transferred to the SP Authority subject to the existing lease.
Nor did the change in ownership of the land have the consequential effect of changing the fundamental character of the lease as one granted under the CLA. The lease cannot be characterised as a lease under any other enactment, such as the SPAA or later the PNSWA; it was not granted or regranted under that legislation and the lease is not listed as one of the proprietary interests in Sch 1 of either enactment. There is no textual or contextual interpretation of the SPAA or the PNSWA that justifies a contrary conclusion. In summary, there are no provisions of the SPAA or PNSWA that render the lease inoperative as a result of the change in ownership or mean that the lease is no longer granted under the CLA.
Notwithstanding that the VG argued to contrary, I do not accept that s 7 of the CLA applied with exclusionary force. This is because the statutory regime created by the SPAA and the PNSWA did not make any special provision or authorise Crown land to be disposed of or dealt with in any manner inconsistent with the CLA.
As indicated by the chronology above, between 1 July 2007 and 13 November 2016 other non-consequential changes occurred, the most significant of which was the recording of various changes to the name of the SP Authority on the Torrens register. But again, no changes were made to the form or content of the lease.
The land therefore remained subject to the lease granted under the CLA up to the date of the repeal of that Act.

Did the Lease Continue as a Lease Under the CLA Upon Its Repeal?

The Fish Market submitted that the lease continued as a lease under the CLMA by virtue of the savings and transitional provisions contained in Sch 7 of that Act.
In response, the VG asserted that the applicable savings and transition provisions in the CLMA provided for the lease to continue "as a lease under this Act" (cl 26(1) of Sch 7, emphasis added). The VG relied upon the word "this" to argue that therefore the lease was governed by s 1.8 of the CLMA, as confirmed by the words "unless the terms or conditions are inconsistent with another provision of this Act" in cl 26(5). Consequently, any private right conferred upon the Fish Market by the manner of the granting the lease had to yield to s 1.8, the effect of which was that the land ceased to be Crown land upon its vesting in the SP Authority and that the lease is accordingly no longer a relevant holding for the purpose of the CLMA.
The VG submitted that s 1.8 of the CLMA did no more than give effect to the common law rule that land vested in a Minister or a public authority with separate legal personality is not Crown land (citing Sydney Harbor Trust Commissioners v Wales (1908) 5 CLR 879; [1908] HCA 19 at 883 to 884 and Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459 at 471 to 474). The fact that a statutory corporation conducts its operations "on behalf of Her Majesty" is not sufficient to cause its property to be "property of Her Majesty" (citing The Mayor, Alderman and Citizens of the City of Launceston v The Hydro-Electric Commission (1959) 100 CLR 654; [1959] HCA 12 at 658 and State Electricity Commission of Victoria v The Mayor, Councillors and Citizens of the City of South Melbourne (1968) 118 CLR 504; [1968] HCA 49 at 510 to 511). Therefore, even before s 1.8 of the CLMA came into effect, the act of transferring the land to the SP Authority meant that it was no longer vested in the Crown.
It was not in dispute that as at the date on which the CLMA came into force pursuant to s 1.2(1) of that Act, the CLA was repealed. The CLA was therefore a "repealed Act" within the meaning of cl 2(1) of Sch 7 of the CLMA.
It was also not in contention that upon the commencement of the CLMA the land was no longer Crown land for the purpose of that Act because s 1.8 of that Act specifically excludes from the statutory definition of "Crown land" any Crown land held or vested in a statutory authority representing the Crown, for example, the SP Authority (later Property NSW), whose functions include the holding of land.
But the proper construction of the savings and transitional provisions contained in Sch 7 of the CLMA means that the lease continued in force on and from the repeal date and was and remains a lease under that Act until its termination or expiry (see cl 26 of Sch 7). There are no terms in the lease that are inconsistent with the CLMA (cl 26(5)), which includes s 1.8.
Equally there are no provisions in the CLMA which seek to revoke or terminate the lease. On the contrary, cl 26 of Sch 7 expressly provides for the continuation of the lease. In particular, cl 26(1) explicitly states that the lease (as a lease under the repealed CLA) "continues...as a lease under this Act".
Clause 5(1) of Sch 7 additionally provides that the lease is a "continued matter or thing" under the CLMA. There are no terms and provisions of the lease which change consequent upon the transition from a lease under the CLA to CLMA within the meaning of cl 5. The fact that the land is no longer Crown land, no longer vested in the Crown, or that the lessor is not the Crown, are not "context or subject-matter" (cl 5(5) of Sch 7) that would obviate the operation of cl 5 to preserve the lease as a lease granted under the CLA, and therefore, a lease under the CLMA.
Read as a whole and in context, an intention, express or implied, to alter the character of the lease in a manner that would affect the rights of the Fish Market under the lease as contended for by the VG, in my view, is absent from the transitional and savings provisions of the CLMA.
It therefore follows that upon the repeal of the CLA, the lease became a holding under the CLMA.

Conclusion, Costs and Orders

In the result, because the lease is a holding within the meaning of the CLMA for the reasons given above, the land is Crown lease restricted within the meaning of s 14I(2)(a) of the VLA.
It follows that the separate question must be answered affirmatively in favour of the Fish Market.
The Fish Market submitted that costs ought to be reserved on the basis that if the separate question was determined against it, it wanted to be heard on the issue of whether it should be liable for costs given the manner in which the VG had conducted the proceedings to date (T36:10).
Because it has been successful, there appears to be no impediment in awarding the Fish Market its costs of the separate question, reserving the right of either party to apply for a different costs order within 14 days of the publication of this judgment.
The formal orders of the Court are therefore: 1. the separate question is determined in the affirmative. That is, the land the subject of these proceedings, being legally identified as Lot 1 DP 74155, Lot 1 and 2 DP 125720, Lot 1 DP 734622, Lot 1 DP 836351 and Lot 2 DP 827434, also known as 56-60 Pyrmont Bridge Road, Pyrmont, is "Crown lease restricted" within the meaning of s 14I(2) of the Valuation of Land Act 1916 as at the valuing dates of 1 July 2019 and 1 July 2020; 2. the Valuer-General of New South Wales is to pay the Sydney Fish Market Pty Ltd's costs of the separate question, unless, within 14 days of the publication of these reasons, either party applies to the Court for a different costs order; and 3. the exhibits are to be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 June 2022

(2009) 166 LGERA 137

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