[2014] HCA 18
Ashfield Municipal Council v Roads and Traffic Authority of New South Wales (2001) 117 LGERA 203
[2001] NSWCA 370
Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117
[1999] NSWLEC 12
Breskvar v Wall (1971) 126 CLR 376
[1971] HCA 70
Calabro v Bayside City Council [1999] 3 VR 688
Carr v Finance Corporation of Australia Limited [No 2] (1982) 150 CLR 139
Source
Original judgment source is linked above.
Catchwords
[2014] HCA 18
Ashfield Municipal Council v Roads and Traffic Authority of New South Wales (2001) 117 LGERA 203[2001] NSWCA 370
Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117[1999] NSWLEC 12
Breskvar v Wall (1971) 126 CLR 376[1971] HCA 70
Calabro v Bayside City Council [1999] 3 VR 688
Carr v Finance Corporation of Australia Limited [No 2] (1982) 150 CLR 139[1982] HCA 43
Chang v Laidley Shire Council (2007) 234 CLR 1[2007] HCA 37
City of Canada Bay Council v F & D Bonaccorso Pty Ltd (2007) 71 NSWLR 424[2007] NSWCA 351
Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1[2013] HCA 2
Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493[1957] HCA 15
Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2066) 149 LGERA 162[2012] NSWLEC 68
Deguisa v Lynn (2020) 268 CLR 638[2020] HCA 39
Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130[2016] NSWLEC 137
Maxwell v Murphy (1957) 96 CLR 261[2001] NSWCA 28
Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council (2009) 168 LGERA 71[2009] NSWCA 289
Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council (2012) 193 LGERA 276
[2008] HCA 48
Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379
[2009] NSWCA 138
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566
[2002] NSWCA 12
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Boggabri) (2014) 202 LGERA 273
[2014] NSWLEC 58
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2015) 215 LGERA 103
[2020] QCA 198
Pratten v Warringah Shire Council (1969) 17 LGRA 371
Re Maritime Union of Australia
Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397
[2003] HCA 43
Shergold v Tanner (2002) 209 CLR 126
[2002] HCA 19
The South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia (1939) 62 CLR 603
[1932] HCA 40
Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30
Judgment (33 paragraphs)
[1]
130; [2006] HCA 5
Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act [1996] NSWLEC 223
Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 586; [2006] SASC 32
La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176
La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) (2016) 220 LGERA 1; [2016] NSWLEC 137
Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7
Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249
Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665; [2001] NSWCA 28
Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council (2009) 168 LGERA 71; [2009] NSWCA 289
Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council (2012) 193 LGERA 276; [2012] NSWCA 359
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 (2008) 237 CLR 285; [2008] HCA 48
Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Mogo Local Aboriginal Land Council v Eurobodalla Shire Council (2002) 54 NSWLR 15; [2002] NSWCA 12
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Boggabri) (2014) 202 LGERA 273; [2014] NSWLEC 58
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2015) 215 LGERA 103; [2015] NSWCA 349
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Newcastle Post Office Claim) (2014) 204 LGERA 1; [2014] NSWLEC 72
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 78 LGERA 1
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685
New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act (2014) 204 LGERA 205; [2014] NSWLEC 144
NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 35
Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd (2020) 5 QR 521; [2020] QCA 198
Pratten v Warringah Shire Council (1969) 17 LGRA 371
Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397; [2003] HCA 43
Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19
The South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia (1939) 62 CLR 603; [1932] HCA 40
Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; [2004] HCA 63
Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 72 LGRA 149
Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 6 May 2009
Category: Principal judgment
Parties: Worimi Local Aboriginal Land Council (Applicant)
Minister Administering the Crown Land Management Act (Respondent)
Representation: Counsel:
S Pritchard SC (Applicant)
C Lenehan SC with E Jones (Respondent)
JUDGMENT
TABLE OF CONTENTS
TOPIC PARAGRAPH NO
Worimi Local Aboriginal Land Council Claims Crown Land [1]
The Claimed Lands [7]
Tomaree Lodge [16]
The Fisheries Area [29]
The Pool Area [46]
Issues For Determination [52]
Statutory Framework [54]
Evidence Of The Parties [69]
Some Fundamental Legal Principles in Determining Claims Under the ALRA [72]
Whether the "Lands Vested in Her Majesty" [78]
Was the Land Vested in the Minister for FCDS by Force of the Just Terms Act? [94]
Was the Notation Sufficient to Record the Minister's Interest Under the RPA? [140]
Was the Acquisition of the Fisheries Area Lawful? [152]
The Land Was Not Vested in Her Majesty [166]
Was the Land Able to be Lawfully Sold or Leased? [167]
Was the Claimed Land Lawfully Used or Occupied? [181]
Fisheries Area [185]
Pool Area [202]
The Northern Bushland [212]
The Land was Lawfully Occupied and Used as at the Claim Dates [223]
Were the Disputed Areas Needed or Likely to be Needed for an Essential Public Purpose? [224]
Meaning of "Public" [224]
Meaning of "Essential" [224]
Meaning of "Needed" [224]
Meaning of "Likely Needed" [224]
Was There a Need for the Essential Public Purpose of the Accommodation and Care of Persons With Intellectual Disabilities? [226]
Was There a Need for the Essential Public Purpose of Open Space? [233]
Was the Fisheries Area Needed or Likely to be Need for the Essential Public Purpose of Research? [240]
Conclusion And Orders [255]
[4]
Worimi Local Aboriginal Land Council Claims Crown Land
These proceedings concern a Class 3 appeal pursuant to s 36(6) of the Aboriginal Land Rights Act 1983 ("ALRA") in respect of the refusal by the Minister administering the Crown Land Management Act 2016 ("the Minister") of the following Aboriginal land claims, namely:
1. claim 39573 lodged on 12 November 2015 by Worimi Local Aboriginal Land Council ("Worimi") over Lot 453 DP705463 ("the land"); and
2. claim 48502 lodged on 14 May 2019 by Worimi over the land.
On 11 February 2020 the Minister wrote to Worimi advising that the claims were refused on the ground that:
…when the Claims were made the land was not claimable Crown land. The land was unable to be lawfully sold or leased, or reserved or dedicated under the Crown Lands Act 1989 or the Western Lands Act 1901. The land was acquired by the Minister for Family and Community Services on 2 June 2006.
The proceedings were commenced by Worimi on 9 June 2020.
On 27 November 2020 the Minister filed a Statement of Facts and Contentions ("the Minister's SOFAC") contending that the land was not claimable Crown land pursuant to s 36(1) of the ALRA because:
1. the land was vested in the Minister for Families, Communities and Disability Services ("Minister for FCDS") and not "vested in Her Majesty";
2. the land was not "able to be lawfully sold or leased";
3. the land was "lawfully used or occupied"; and
4. the land was "needed, or likely to be needed, for an essential public purpose".
For the reasons that follow, these submissions must be accepted and both claims must be dismissed.
I acknowledge the assistance provided to me by Davis AC. All findings are, however, my own.
[5]
The Claimed Lands
The following characteristics of the claimed land are relevant for the determination of the claims. For the most part they are not disputed.
The land is located at Tomaree Head, in the Parish of Tomaree, County of Gloucester, in the Port Stephens local government area. It is 8.876 ha in size. The shoreline of Shoal Bay is to the west of the land and Tomaree National Park is to the east.
On 9 June 1950, by notification in the New South Wales Government Gazette ("the Gazette"), the land was dedicated for public purposes under s 24 of the Crown Lands Consolidation Act 1913 ("CLCA"), with the "Purpose of Intended Dedication" listed as "Hospital".
On 16 May 1985 the "State of New South Wales" was recorded in the folio of the Register of land titles ("the Register") as the registered proprietor of the land.
The "State of New South Wales" remains the registered proprietor now and as at the date of the claims.
On 2 April 1999 the land was listed on the State Heritage Register.
A Ministerial Briefing Note was signed on 26 December 2005 seeking the approval for the compulsory acquisition of land at Tomaree Head. The Note stated that:
BACKGROUND:
� Lot 453 in DP 705463 is Crown land located at Tomaree Head in the local government area of Port Stephens. The land to be acquired is shown coloured yellow on the survey attached [see Tab A].
� The Crown land is dedicated for a hospital site under the control of the Minister of Health.
� The site is currently used by the Department of Ageing, Disability and Home (DADHC) to provide supported accommodation for 44 clients and forms a key site for DADHC's Hunter Residences.
� In 1999 the Department of Health ("Health") sought and obtained New South Wales Treasury ("Treasury") approval to realise the value of certain properties, including Tomaree Lodge at Tomaree Head, which were under the control of Health, but occupied and used by the Department of Community Services ("DoCS") and later by DADHC to provide disability services [see Tab B and Tab C].
� Health received compensation for the sites from Treasury, and in 1999 was directed by Treasury to proceed immediately to transfer ownership of the properties to DoCS. See [Tab C]. A reference to DoCS is to be construed as a reference to DADHC pursuant to the Public Sector Management (Community Services) Order 1997.
� The Department of Health, the Treasurer of New South Wales and the Department of Lands have agreed to the acquisition by DADHC at nil compensation [see Tab B, Tab C and Tab D].
� The Department of Lands directed that the transfer of the sites be undertaken by way of compulsory acquisition under the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 [see Tab D].
� The Crown Solicitor also advised that the most appropriate way to transfer title is by compulsory acquisition from the Crown by the Minister for Disability Services administering the Community Welfare Act 1987, pursuant to section 13A of that Act, and in accordance with section 29(4) of the Land Acquisition (Just Terms Compensation Act 1991.
� The Crown Solicitor further advised that the development of the site for hospital purposes constitutes a "public work" as defined in the Native Title Act NSW 1994 and accordingly native title is extinguished.
� Notification of the proposed compulsory acquisition in the Gazette is provided for in section 19 of the Land Acquisition (Just Terms Compensation) Act 1991. The draft notice for gazettal is attached to the Executive Council Minute.
� The compulsory acquisition of the land effects the revocation of the current dedication on the land. On the date of publication of the acquisition notice in the Gazette, the dedication connected with the land will be revoked pursuant to section 20 of the Land Acquisition (Just Terms Compensation) Act 1991.
[6]
Tomaree Lodge
Located on the land is Tomaree Lodge, a large residential care centre for people with intellectual disabilities.
The land, including Tomaree Lodge, comprises of a number of buildings and areas. Among the buildings and areas are:
1. fisheries facilities and an area of bushland immediately adjoining the fisheries facilities (together, "the Fisheries Area");
2. a pool and pool facilities (together, "the Pool Area"); and
3. an area on the headland in the northern part of the land ("the Northern Bushland").
The land, including the Fisheries Area, the Pool Area and the Northern Bushland, are identified on the following aerial photograph:
As at the date of the claims there were residents receiving care at Tomaree Lodge. Specifically:
1. there were 39 residents of Tomaree Lodge as at 12 November 2015 (the date of the first claim); and
2. there were 34 residents of Tomaree Lodge as at 14 May 2019 (the date of the second claim).
The residents of Tomaree Lodge had varying degrees of intellectual disability and ranged in age from approximately 40 to 75 years.
The residents of Tomaree Lodge were provided with fulltime care and supervision by nursing and support staff. Specifically:
1. as at 12 November 2015, there were 70 staff in total employed to provide services at Tomaree Lodge; and
2. as at 14 May 2019, there were 61 staff in total employed to provide services at Tomaree Lodge.
In December 2010 the NSW Government published a policy document entitled Stronger Together: A new direction for disability services in NSW 2006-2016. The next phase 2011-2016. In that document, the Government announced that Tomaree Lodge would be closed by 30 June 2018. This, however, did not occur.
In 2015, shortly after the commencement of the National Disability Insurance Scheme, the State government confirmed that it would be closing all large residential centres for people with disabilities.
On 13 December 2017 the Acting Director Assets and Major Infrastructure in the Department of Family and Community Services ("DFCS") prepared a brief to the Chief Financial Officer of DFCS in relation to correspondence received by the Minister for Disability Services regarding the future use of the Tomaree Lodge site. The brief advised that:
The residents of Tomaree Lodge will be relocated to new purpose-built homes in the surrounding area as part of the Hunter Residences Program which is currently forecast to complete in mid to late 2018.
It is anticipated that FACs will engage Property NSW (PNSW) in mid-2018 to commence investigations for the future use of the site once declared surplus to use.
[7]
The Fisheries Area
At some time in 1997 the Fisheries Administration Ministerial Corporation erected facilities in the Fisheries Area.
Until at least 2000, the Fisheries Area comprised a fenced area of approximately 300m2 and contained two shipping containers and sections that housed tanks for farming and researching abalone. The Fisheries Area operated as a research station, occupied by the NSW Department of Primary Industries ("DPI"). In particular, it was an abalone research facility until around 2005.
On 22 February 2007 a Memorandum of Understanding ("MOU") was signed between DPI and the Department of Ageing, Disability and Home Care ("DADHC") regarding the Fisheries Area. The recitals to the MOU stated as follows:
A. NSW DPI currently occupies the Premises and the Research Station, which are located on the Land, pursuant to a Memorandum of Understanding between the FAC and the HAC dated 23 November 1998.
B. The term of that Memorandum of Understanding has now expired, and NSW DPI wishes to continue to occupy the Premises and the Research Station.
C. The Land is owned by the Minister for Disability Services pursuant to section 13 of the Community Welfare Act 1987, having acquired the land from the Crown in accordance with section 29(4) of the Land Acquisition (Just Terms Compensation) Act 1991.
D. NSW DPI wishes to continue to occupy the Premises and the Research Station for the purposes of conducting its operations and activities.
E. DADHC has agreed to allow NSW DPI to continue to occupy the Premises and the Research Station on the Terms and conditions set out below.
The MOU contained the following relevant definitions in cl 1.1:
"Land" means the portion of Crown land known as Tomaree Lodge, being Lot 453 in Deposited Plan 705463;
"Premises" means the area of land adjacent to the old swimming enclosure within the grounds of Tomaree Lodge at Shoal Bay, having an area of approximately 300 metres squared…
"Research Station" means the Research Station constructed by the FAC on the Premises as a scientific station for the purposes of section 225 of the FMA, and in accordance with the Memorandum of Understanding between FAC and HAC;
The use of the Fisheries Area by DPI was subject to the following conditions, namely:
1. the research station had to be enclosed by a security fence at least two metres high with access by a gate to be kept locked to prevent unauthorised entry (cl 3.1(b));
2. warning signs were to be erected in prominent positions on the premises to alert the public that the research station was occupied by DPI and to discourage unauthorised entry to the research station (cl 3.1(c));
3. DPI was to ensure that there was separate metering for electricity supplied to the research station and was responsible for payment of that electricity (cl 3.1(f));
4. DPI was to make a fair and reasonable contribution to water rates and road maintenance and to any other costs directly associated with the upkeep of the premises and the research station (cl 3.1(g)); and
5. DPI was to meet all of the costs and expenses associated with the premises and the research station (cl 3.1(j)).
[8]
The Pool Area
The Pool Area comprises a large concrete swimming pool measuring 15m x 10m with depths ranging from 1m to 1.7m. It has a full perimeter concrete path and a 4ft high weld mesh fence. There is an additional perimeter fence around the outside, consisting of an approximately 6ft high chain mesh and timber palings.
The pool was closed over the 2018/2019 summer due to a defect. The defect was repaired before 17 April 2019.
On 17 April 2019 a risk assessment in relation to the pool was published by Recovery Partners at the request of DFCS. That assessment concluded that "in lieu of the pending facility closures, the most effective control is to eliminate the risk and close the pool".
Since at least 17 April 2019 the pool has not been used by the residents of Tomaree Lodge.
A decision was made around June 2020 to decommission the pool. In September 2020 these works were undertaken, which involved the installation of tie down anchors and a roof frame over the pool.
On 16 November 2020 an engineering certificate in relation to the works decommissioning the pool was provided by Peter Sullivan & Associates Pty Ltd.
[9]
Issues For Determination
At a high level of generality the matter for determination may be put simply as whether the land comprising the Fisheries Area, the Pool Area and the Northern Bushland ("the disputed areas") are "claimable Crown lands" under the ALRA, and therefore, whether they ought to be surveyed and transferred in fee simple to Worimi. Worimi does not contend that other than the disputed areas, the land was not lawfully used and occupied within the meaning of s 36(1)(b) of the ALRA.
This belies, however, the complexity of the underlying issues giving rise to the central question for determination. Determination of whether the disputed areas are "claimable Crown lands" pursuant to the ALRA includes resolution of the following:
1. whether the land was "vested in Her Majesty" as at the date of the claims for the purpose of s 36(1) of the ALRA;
2. whether the land was "able to be lawfully sold or leased" within the meaning of s 36(1)(b) of the ALRA;
3. whether each of the disputed areas was lawfully used and occupied within the meaning of s 36(1)(b) of the ALRA as either:
1. a residential centre for people with intellectual disabilities; or
2. for the purpose of fisheries research; and
1. whether each of the disputed areas was needed, or likely to be needed, for an essential public purpose within the meaning of s 36(1)(c) of the ALRA, namely, for:
1. the accommodation and care of persons with intellectual disabilities; or
2. open space for the community; or
3. in respect of the Fisheries Area, for fisheries research.
[10]
Statutory Framework
Section 36(1) of the ALRA sets out what relevantly constitutes "claimable Crown lands":
36 Claims to Crown lands
(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,
…
(c) are not needed, nor likely to be needed, for an essential public purpose…
Crown Lands Minister means the Minister for the time being administering any provisions of the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 under which lands are able to be sold or leased.
Section 20(1) and (1A) of the Just Terms Act deals with the effect of publication of an acquisition notice in the Gazette:
20 Effect of acquisition notice
(1) On the date of publication in the Gazette of an acquisition notice, the land described in the notice is, by force of this Act:
(a) vested in the authority of the State acquiring the land, and
(b) freed and discharged from all estates, interests, trusts, restrictions, dedications, reservations, easements, rights, charges, rates and contracts in, over or in connection with the land.
(1A) Subsection (1) is subject to any express provision of an Act that authorises the acquisition of land by compulsory process but preserves the operation of any trusts, restrictions, dedications, reservations, declarations, setting apart of or other matters relating to the land concerned.
Section 40(1A)(b) of the Real Property Act 1900 ("RPA") creates a presumption in respect of persons recorded in the certificate as the registered proprietor of an estate or interest:
40 Manual folio to be considered evidence of title, and that the land has been duly brought under the Act
…
(1A) Where a computer folio certificate is issued in respect of a folio of the Register:
…
(b) it shall be conclusively presumed that:
(i) the certificate contains all the information that was recorded in that folio at the time specified in the certificate,
(ii) the land to which the certificate relates was, at that time, under the provisions of this Act, and
(iii) a person recorded in the certificate as the registered proprietor of an estate or interest in the land to which the certificate relates was, at that time, the registered proprietor of that estate or interest.
[11]
Evidence Of The Parties
In addition to a bundle of documents, the Minister relied upon the following affidavits:
1. Wayne O'Connor, affirmed 30 April 2021, together with exhibits. O'Connor is the Research Leader Aquaculture, Fisheries Research at DPI. O'Connor deposed to the history and use by SCS of the fisheries facility at Tomaree Lodge used for fisheries activities. In particular, he described the use of the facilities for the growth of oyster spat and oyster research. It was his view that the ongoing operation of the fisheries facilities was critical to the NSW oyster industry;
2. Toni Skinner, dated 29 April 2021. Skinner is the former Nursing Manager at the Tomaree Lodge aged care facility. She was the Acting Nurse Manager in 2015 and from 1995 to 1998 was a registered nurse at the Lodge. In her capacity as Nurse Manager her role was to maintain and manage the delivery of nursing services for supported accommodation for people with a disability. Skinner deposed to the use of Tomaree Lodge and its grounds. She stated that the grounds would occasionally be used by the Singleton Army Base to hold training exercises. A joint risk assessment would be completed to ensure that the risk to the residents was minimised. The Nelson Bay Water Police and the RAF Base helicopter also used the grounds to complete training exercises on the water, especially at the northern end of the facility. As to its ongoing use, there was a shed on the grounds of Tomaree Lodge that was already being operated by SCS when Skinner commenced her role as Acting Nurse Manager in 2015. The use of the Tomaree Lodge site by SCS was an ongoing use and was still occurring when she left in October 2020. Finally, she deposed that the residents supported at Tomaree Lodge utilised all of the grounds. This gave rise to supervision concerns that were met by staff working at Tomaree site. The residents also had access to the pool, although its usage dwindled and during the last year of operation was minimal;
3. Richard Wilkins, affirmed 30 November 2020. Wilkins is the Manager of Finance and Administration in the Disability Services Unit at DCJ. Wilkins attended Tomaree Lodge approximately six times during the last decade to meet with managerial staff to discuss financial matters. He observed residents walking around the land. He deposed that as at 12 November 2015 there were 39 residents at Tomaree Lodge and as at 14 May 2019 there were 34. There was no challenge to his evidence; and
4. Pamela Brunner, affirmed 1 December 2020 and 7 May 2021, together with exhibits. Brunner is the Executive Director of Community Services, Statewide Services at DCJ. In her affidavits she deposed to:
1. her role in relation to Tomaree Lodge;
2. the use of the land as a health facility and public hospital;
3. the use of Tomaree Lodge as a large residential care facility;
4. the residents and staff of Tomaree Lodge;
5. the use of the buildings, facilities and grounds;
6. the management and maintenance services provided to Tomaree Lodge;
7. the use of third party providers; and
8. the use of part of the land by DPI as a research station relating to oyster research (that is, the Fisheries Area).
[12]
Some Fundamental Legal Principles in Determining Claims Under the ALRA
Although well traversed, it is worth repeating some of the fundamental legal principles underpinning claims under the ALRA. First, the ALRA was enacted in an attempt to alleviate the past dispossession of land from First Nations peoples in the State. This is expressly reflected in the preamble and objects of the Act (which are not repeated here). Thus the Act has been described as beneficial and remedial legislation (see Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157B).
Nevertheless, care must be taken not to place undue emphasis on the beneficial purpose underpinning the ALRA. As was stated in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 ("Berrima HCA") (at [33] per French CJ, Kiefel, Bell and Keane JJ. See also a similar sentiment expressed by Gageler J at [94], footnotes omitted):
33. That is not the situation which arises with respect to s 36(1) of the ALR Act, where it is the meaning of particular words which is in question. In Victims Compensation Fund Corporation v Brown it was pointed out that to commence the process of construction by posing the type of construction to be afforded - liberal, broad or narrow - may obscure the essential question regarding the meaning of the words used. It is one thing to say that no restricted construction should be given to legislation which confers benefits; but if the focus is on the meaning of specific words, the circumstance for a liberal application may not arise.
Second, as a result of this characterisation exceptions to the right to claim land should be narrowly construed (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665; [2001] NSWCA 28 at [53] ("Maroota") and Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 at [186] ("Bathurst")).
Third, consistent with its statutory purpose, pursuant to s 36(7) of the ALRA the legal and evidential onus is on the Minister to satisfy the Court that the land (or part thereof) is not "claimable Crown lands":
(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.
[13]
Whether the "Lands Vested in Her Majesty"
The Minister contended that, notwithstanding that from 1985 and as at the claim dates, the "State of New South Wales" appeared as the registered proprietor of the land on the folio, the land was not vested in Her Majesty, but was vested in the Minister for FCDS. The registered interest of the State of New South Wales was discharged on 2 June 2006, by reason of the acquisition of the land by the Minister for FCDS under the Just Terms Act.
This was because s 20(1) of the Just Terms Act had the effect of vesting the land in the relevant Minister upon publication of the acquisition notice in the Gazette. No further action was required under any statute, including the RPA, for this to occur.
The Minister submitted that, first, the Just Terms Act impliedly repealed the RPA in its operation in relation to land to which the Just Terms Act applied, including the indefeasibility provisions of the RPA (relying upon The South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia (1939) 62 CLR 603; [1932] HCA 40 and the case cited therein, together with subsequent authorities from Queensland, Victoria and New South Wales) from the date of the commencement of the Just Terms Act. That the Minister for FCDS could, but had yet to do so, register his acquired interest was no barrier to his title prevailing.
Second, and in the alternative, no implied repeal has occurred because the two statutes coexist harmoniously having regard to the proper construction of s 31A of the RPA. A "resumption application" as defined in s 31A(1) is an application that causes the person entitled to the land, by virtue of the resumption or further vesting of the land by the operation of any Act, to be registered as the proprietor of the land. There is a statutory duty imposed upon the Registrar-General ("RG") by s 31A(3)(b) of the RPA to give effect to the resumption by recording it in the Register. This duty recognises that the entitlement to land the subject of a resumption application is an entitlement that already exists by force of statute.
In other words, the RPA proceeds upon the basis that an interest may be acquired and vested in the acquiring authority under other enactments authorising the compulsory acquisition of land, such as the Just Terms Act. It is by the operation of the Just Terms Act that the transfer of the interest occurs, which may later be formally certified in the Register by the RG.
[14]
Was the Land Vested in the Minister for FCDS by Force of the Just Terms Act?
For the reasons that follow, I largely agree with and accept the Minister's submissions.
It is clear that, as at the date of the claims, the registered proprietor of the land on the folio for the purpose of the RPA was the "State of New South Wales" and that on its face it was therefore vested in Her Majesty (Gandangara at 13).
Leaving aside for present purposes the lawfulness of the acquisition of the Fisheries Area, there is no question that the Minister for FCDS had the power to acquire the land pursuant to s 13A of the CWA, or that the Minister purported to do so (see also s 19(1) of the Just Terms Act).
On any construction, s 20(1)(a) and (b) of the Just Terms Act expressly states that upon the date of publication of the acquisition notice in the Gazette, the acquired land vests in the authority of the State resuming the land and is freed and discharged from all prior interests and rights over, or in connection with, the land. As the provision makes plain, no further action is required by the acquiring authority. The vesting occurred by dint of the operation of the Act upon publication of the acquisition notice; no further condition precedent to the effect of the vesting exists in the statutory scheme.
The acquisition notice was published on 2 June 2006, that is, prior to the date of the claims. Thus, as at the date of the claims the land was not vested in Her Majesty, but was vested in the Minister for FCDS.
This is consistent with s 33 of the Just Terms Act (which states that once land has been acquired the validity of the acquisition is not affected by a subsequent failure to comply with a requirement of the Act) and s 37 (which provides that a dispossessed owner's right to compensation arises upon the publication of the acquisition notice), both of which are contextual indicators that upon the act of acquisition, the interests and rights to the land pass to the acquiring authority.
What effect then, if any, did the provisions of the RPA have upon the operation of s 20(1) of the Just Terms Act? In my view, none for the reasons given below.
I note at the outset that it is not, in my opinion, necessary to have recourse to the doctrine of implied repeal. That doctrine applies where there are provisions within different enactments that are inconsistent and cannot be reconciled, namely, s 20(1) of the Just Terms Act and s 40(1A)(b)(iii) of the RPA (Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [48], Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; [2006] HCA 5 at [18], Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [48] and Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19 at [35]).
[15]
Was the Notation Sufficient to Record the Minister's Interest Under the RPA?
Finally, and for the sake of completeness, I do not accept the Minister's submission that the notation "acquired and dedicated 2070334 revoked vide gaz 2.6.2006 fol. 3911" was a recording in the Register for the purpose of s 41 of the RPA.
The published acquisition notice was an "instrument" for the purpose of the RPA as that term is defined in s 3(1) of that Act:
Instrument - Any grant, conveyance, assurance, deed, map, plan, will, probate, or exemplification of will, or any other document in writing or in electronic form relating to the disposition, devolution or acquisition of land or evidencing title to land.
The term "dealing" is defined in the same section to mean:
Dealing - Any instrument other than a grant, caveat or priority notice, including an electronic form of that instrument, being an instrument -
(a) that is registrable or capable of being made registrable under the provisions of this Act, or
(b) in respect of which any recording in the Register is by this or any other Act or any Act of the Commonwealth required or permitted to be made
Dealings are not effectual until recorded in the Register. Section 41 of the RPA states as follows:
41 Dealings not effectual until recorded in Register
(1) No dealing, until registered in the manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of this Act, or to render such land liable as security for the payment of money, but upon the registration of any dealing in the manner provided by this Act, the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such dealing, or by this Act declared to be implied in instruments of a like nature.
Section 40(1B) of that Act further provides that:
40 Manual folio to be considered evidence of title, and that the land has been duly brought under the Act
(1B) Where, in a manual folio or computer folio certificate, the estate or interest of a registered proprietor is expressed to be subject to:
(a) an estate or interest evidenced by an instrument,
(b) a provision of an instrument, or
(c) an enumerated provision of an Act or of an Act of the Parliament of the Commonwealth,
the whole of the contents of the instrument, provision or enumerated provision, as the case may be, shall be deemed to be set forth at length in the folio or certificate.
[16]
Was the Acquisition of the Fisheries Area Lawful?
In a collateral challenge, Worimi argued that the compulsory acquisition of the Fisheries Area was not lawful because its acquisition was not, pursuant to s 13A of the CWA, for the purposes of "community welfare legislation" (as defined in s 3 of the CWA). The power to acquire land under s 13A(1) of the CWA was restricted to this purpose (see also s 20(1A) of the Just Terms Act). When the land was resumed, the Fisheries Area was being used for fisheries purposes and it was intended that this use would continue post acquisition. Use for fisheries purposes was not use for the purposes of community welfare.
Although the Minister submitted that the collateral challenge by Worimi ought not be permitted (see the criteria in Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 586; [2006] SASC 32 at [93]), none of the reasons provided by it warrant exclusion by the Court of the challenge. There is no doubt that the Court has the power to determine a collateral challenge as to the validity of instruments affecting whether land is claimable under the ALRA (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Boggabri) (2014) 202 LGERA 273; [2014] NSWLEC 58 at [153]-[181]).
First, to the extent that a challenge involving an allegation of improper purpose requires adducing evidence, there is no suggestion that the Minister was prejudiced in this respect by the collateral attack. Second, to the extent that it was asserted that this challenge would permit Worimi to circumvent the three month time limit contained in r 59.10 of the Uniform Civil Procedure Rules 2005 ("UCPR"), because these are not judicial review proceedings within Class 4 of the Court's jurisdiction Pt 59 does not apply (in addition to these being Class 3 proceedings, the setting aside of a decision was not required: r 59.10(5) of the UCPR. And, to reiterate, no prejudice was suffered by the Minister in permitting the challenge to proceed). Third, although the Minister for FDCS is not a party to the proceedings, this does not matter having regard to the relief claimed in the Class 3 proceedings, which comprises only the granting of the appeal and the transfer of the land and does not seek any declaratory relief or the setting aside of the acquisition.
There was some confusion as to whether or not Worimi was asserting that the land was acquired for an improper purpose. Worimi denied that this was the basis of the collateral challenge in closing submissions and contended that the compulsory acquisition was ultra vires because the empowering legislation, the CWA, did not authorise the acquisition of the Fisheries Area unless it could serve a community welfare purpose. However, given that the Gazette specifically stated that the land was acquired "for the purposes of the Community Welfare Act 1987", unless Worimi can demonstrate that it was acquired for some other impermissible purpose this aspect of its claim must fail.
[17]
The Land Was Not Vested in Her Majesty
It follows from the analysis above that, by reason of the vesting of the land in the Minister for FDCS occasioned by the compulsory acquisition of the land, as at the date of the claims the land was not vested in Her Majesty, and therefore, was not claimable Crown lands for the purpose of s 36(1) of the ALRA.
[18]
Was the Land Able to be Lawfully Sold or Leased?
The resolution of this issue follows inextricably from the determination of that above.
Whether the land was able to be lawfully sold or leased in order to satisfy s 36(1)(a) of the ALRA depends upon whether s 34(1) of the CLA and s 5.3(1) of the CLMA applied to the land as at the date of the claims. These provisions permit the selling and, in effect, leasing of Crown land.
At all relevant times, however, the application of both the CLA and the CLMA proceeded on the basis that land vested in a Minister was not Crown land because, for the reasons given above, the land was vested in the Minister for FDCS.
As at the first claim, the land had not been declared to be Crown land under s 138(1) of the CLA, which states:
138 Certain land may be declared to be Crown land
(1) If any land was or is, before or after the commencement of this section:
(a) acquired by compulsory process for any public purpose and vested in a Minister of the Crown on behalf of the Crown by or under the authority of an Act,
(b) acquired by or on behalf of the Crown by gift or otherwise, or
(c) acquired by compulsory process and vested in a public authority, or otherwise acquired by or vested in a public authority, by or under the authority of an Act,
the Minister may, by notification in the Gazette, declare the land to be Crown land.
Similarly, as at the second claim the land had not been declared to be Crown land pursuant to s 4.4 of the CLMA:
4.4 Certain land may be declared to be Crown land
(1) This section applies to any of the following land even if it was acquired before this section's commencement:
(a) land acquired by compulsory process for any public purpose and vested in a Minister on behalf of the Crown by or under the authority of an Act,
(b) land acquired by or on behalf of the Crown by gift or in any other way,
(c) land acquired by compulsory process and vested in a public authority (or acquired by or vested in a public authority in any other way) by or under the authority of an Act,
(d) land acquired by a Crown land manager in the capacity of the Crown land manager of dedicated or reserved Crown land (including if it is acquired by or transferred to the manager under section 14 of the Cemeteries and Crematoria Act 2013).
(2) The Minister may, by notice published in the Gazette, declare the land to be Crown land.
(3) A declaration may -
(a) be limited to the surface of the land or to the surface and a stated depth below the surface, and
(b) contain provisions relating to the discontinuation or continuation of any interests affecting the land.
(4) A declaration cannot be made in relation to land vested in or acquired by or on behalf of a public authority without the consent of the public authority.
(5) Land declared to be Crown land under this section becomes Crown land.
[19]
Was the Claimed Land Lawfully Used or Occupied?
At issue is whether the land, and in particular the disputed areas, was lawfully used or occupied as at the claim dates, and therefore, not claimable Crown land under s 36(1)(b) of the ALRA.
The principles to be applied were not in dispute and may be summarised as follows:
1. first, it is necessary to consider the particular acts, facts, matters and circumstances which are alleged to deprive the land of the characteristic of being lawfully used and occupied and to measure those acts, facts, matters and circumstances against "an understanding of what would constitute use or occupation of the land" (Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285; [2008] HCA 48 at [69] ("Wagga HCA"));
2. second, the land must be actually used in fact and not just in a nominal sense or to merely a notional degree (Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 164D-E, Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council (2012) 193 LGERA 276; [2012] NSWCA 359 at [45]-[46] ("La Perouse NSWCA") and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2015) 215 LGERA 103; [2015] NSWCA 349 at [17] ("Berrima NSWCA"));
3. third, a constructive use or occupation of the land is insufficient (Daruk at 164B-D, La Perouse NSWCA at [44]-[46] and Berrima NSWCA at [16]). The mere existence of a lease or licence is not conclusive of lawful use or occupation (Daruk at 160E and 162D-164E and La Perouse NSWCA at [43]);
4. fourth, the purpose for which the land is reserved, dedicated or leased is material to the determination of whether the land is used or occupied (Berrima HCA at [38]);
5. fifth, recurring physical acts on the land serving some purpose will usually constitute a use of the land. A combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity is usually sufficient (Wagga HCA at [69] and Berrima HCA at [27]-[28]). Physical acts can be sufficient irrespective of the purpose for which they are taken (Berrima HCA at [88]);
6. sixth, total abandonment is not required to find that land is not lawfully used or occupied (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 at 198); and
7. seventh, it follows from earlier stated principles that the lawfulness of any use or occupation must be established by the Minister.
[20]
Fisheries Area
Worimi did not dispute that the Fisheries Area was used and occupied as at both dates of claim. Rather, the controversy centred on whether that use and occupation of the land was lawful.
The parties agreed that the aquaculture permit did not confer any right of occupation to the Fisheries Area. Nor could it. It was a condition of the permit that a right to occupation of the land or to immediate possession of it be maintained by the permit-holder.
The evidence demonstrates that the Collaboration Deed between SCS and DPI had expired three years prior to the first claim date (in 2012).
Accordingly, Worimi argued that SCS had no right to occupy the land.
In NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 35 ("Shoalhaven") Jagot J observed that the existence of a licence, gratuitous or otherwise, is a question of fact (at [67]) and that merely because an activity does not constitute and offence does not mean that the activity is a lawful use for the purpose of s 36(1)(b) of the ALRA (at [57]).
In my opinion, the evidence establishes that it was agreed or understood by DCJ and SCS that SCS could continue its use and occupation of the Fisheries Area after the expiry of the Collaboration Deed. In other words, it may be inferred that a gratuitous licence was granted to SCS for it to occupy and use that Area. This inference is premised upon:
1. the internal DPI emails dated 19 September 2019 regarding the lease to SCS;
2. the emails between SCS to the Facilities Services Manager at DCJ on 1 October 2019, in respect of the renewal of the lease with DCJ "to continue operation of the Oyster Hatchery business within the Tomaree Lodge grounds footprint";
3. the internal DCJ email on 11 June 2020, regarding leasing arrangements, stating that SCS "should be advised that arrangement will continue on a month by month basis up to the point when the last residents leave Tomaree…a firm date is not known" but it was thought that this "could be November 2020". The email was in response to a query from SCS on 4 June 2020. Although Worimi urged the Court to place little to no weight on the email on the basis that it postdated the claims and the commencement of the proceedings, and moreover, because the agreement that it referenced was not before the Court, its explicit mention of "arrangements" that "will continue on a month by month basis" is, in my view, relevant insofar as it evidences a prior (and existing) permissive state of affairs between DCJ and SCS allowing SCS to use and occupy the Fisheries Area; and
4. the warranty contained in cl 1.13 of DPI's Aquaculture Permit to SCS dated 16 February 2009, whereby SCS warranted that it "shall maintain during the term of the permit, the right to occupation of the land or to immediate possession of the land on which the fish farm is situated for the purpose of aquaculture".
[21]
Pool Area
There was evidence that as at the date of the first claim, the Pool Area was still in use by the residents of Tomaree Lodge. I do not understand this to be a matter in dispute (and nor could it be in light of the evidence of Brunner - both written and oral, and that deposed to by Skinner).
The evidence as to whether or not the use of the pool had ceased as at the date of the second claim is more equivocal but nonetheless sufficient. According to Worimi use of the pool ceased, at the earliest, during the 2018/2019 summer or, at the latest, following the risk assessment on 17 April 2019, that recommended that "in lieu of the pending facility closure, the most effective control is to eliminate the risk and close the pool" (Risk Assessment FACS Hunter Residences Swimming Pools prepared by Recovery Partners for NSW Family and Community Services ("the Risk Assessment")).
The Risk Assessment was undertaken following a chlorine leak in the tank which occurred in the summer of 2018/2019. This rendered the use of the pool in its last year of operation "pretty well null and void" according to Skinner and it was not used after that (T70:08-14).
According to the Risk Assessment, however, the chlorine leak was repaired and there does not appear to have been any impediment to the pool being utilised, irrespective of the recommendation that the pool be decommissioned.
Brunner's evidence was consistent with that of Skinner. That is, the pool was closed over the 2018/2019 summer (T62:37). However, Brunner stated that works were not undertaken immediately after the Risk Assessment recommended the decommissioning of the pool. The Risk Assessment was not considered until May or June 2019 by the director of the facilities at Hunter Residences and the pool was not formally decommissioned until sometime in 2020 (T62:48-63:03).
As a consequence, to the extent that Worimi submitted that the pool closure during the 2018/2019 summer meant that the Pool Area was not lawfully used or occupied after this time, this is not consistent with the evidence.
Not only was the pool not decommissioned until 2020, there is additional evidence that the Pool Area was maintained and cared for on an ongoing basis sufficient to warrant a finding that it was being lawfully used and occupied.
As was explained in Berrima HCA, and having regard to the principles referred to above, continuous active use is not required to establish lawful use or occupation (at [80]-[81]):
80 Daruk was one of two early decisions of the Court of Appeal on s 36(1)(b) to which the plurality in the Wagga Wagga Motor Registry claim case referred without disapproval. The other was Minister Administering the Crown Lands Act v NSW Aboriginal Land Council ("the First Nowra Brickworks claim case").
81 The reasoning in Daruk drew heavily on the explanation of the concepts of occupation and use of land given by Bowen JA in Commissioner of Land Tax v Christie, which echoed the distinction drawn by Kitto J and which was made with express reference to Royal Newcastle Hospital. "Occupied" was explained to mean "'actually occupied' in the sense of being occupied in fact and to more than a notional degree", in respect of which "[p]hysical acts of occupation, the exercise of control, maintaining of lands are all factors which are relevant". "Used" was separately explained to mean "'actually used' in the sense of being used in fact and to more than a merely notional degree".
[22]
The Northern Bushland
Worimi did not cavil with the proposition that bushland can be used as part of the amenity of a site despite there being no physical use (see Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15 at 507-509). The question is one of fact.
Worimi relied on the fact that Tomaree Lodge was in the process of being closed down. It further argued that the bushland was not relevantly used as part of the amenity of the site, especially in circumstances where a substantive part of the bushland could not be seen by the residents on the land and the majority of the bushland in the vicinity of Tomaree Lodge was in the adjoining Tomaree National Park. For these reasons, Worimi contended that the Northern Bushland section of the land was used and occupied to only a notional degree.
The evidence suggests otherwise. The Northern Bushland was cared for and maintained. Brunner gave evidence in her first affidavit that the bushland was observed daily and maintained to ensure compliance with bushfire risk management policies. It was also the site of sewerage and waste services necessitating regular maintenance. Thus, in conformity with the Bushfire Emergency Management Plan Review; Tomaree Lodge and The Kanangra Centre dated November 2019, the grounds and vegetation on the land were continuously cared for. True it is that this document postdates the date of the claims, but it is sufficiently temporarily proximate to the second claim date that it may be used to infer that the maintenance occurring as at November 2019 was relevantly similar to that being carried out as at the date of the second claim.
As Brunner stated in her evidence:
1. the bushland served a therapeutic purpose for the residents. She was aware that the residents occasionally walked in the bushland to engage in recreational activities;
2. while not all of the boundaries of Tomaree Lodge were fenced, there was no public access. Access was restricted by a combination of security patrols, signage and a boom gate;
3. the areas of Tomaree Lodge that were not fenced were where public access was considered to be part of the land (T63:10-20);
4. during the period covering the two claims, DCJ employed two maintenance staff at Tomaree Lodge who were responsible for maintaining the grounds and the buildings on the land. These duties extended to the whole of the land, including the bushland (T61:30-43);
5. the maintenance staff were permanent full-time employees whose duties included ensuring bushfire and risk management policies were complied with. Tomaree Lodge was located in designated bushfire prone land. The bushfire management needed for the Lodge was "fairly consistent". During her tenure there were at least two bushfires on the headland area and bushfire management was a "constant activity…because the risks...are fairly clear and high" (T61:05-43); and
6. as at each of the claim dates, security services were provided to Tomaree Lodge by third parties. They undertook patrols of the grounds and facilities.
[23]
The Land was Lawfully Occupied and Used as at the Claim Dates
It follows that the whole of the land was being lawfully used and occupied as at both claim dates, including the disputed areas of the Fisheries Area, the Pool Area and the Northern Bushland.
[24]
Were the Disputed Areas Needed or Likely to be Needed for an Essential Public Purpose?
It is convenient to restate the relevant legal principles to be applied in assessing whether or not land is needed, or likely to be needed, for an essential public purpose (s 36(1)(c) of the ALRA):
1. first, the question is one of fact (Winbar No 3 at 691-692 and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Newcastle Post Office Claim) (2014) 204 LGERA 1; [2014] NSWLEC 72 at [187]);
[25]
Meaning of "Public"
1. second, to be a "public" purpose, the purpose must have connotations of the "community, state or nation as a whole" (La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 at 133 ("La Perouse"));
[26]
Meaning of "Essential"
1. third, the reference to an "essential public purpose" provides a constraint on its use. To be "essential" the public purpose must be "necessary or indispensable" (La Perouse at 183 and Newcastle Post Office at [190]). Mere desirability, or even high desirability is insufficient (Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council (2009) 168 LGERA 71; [2009] NSWCA 289 at [32(2)]);
2. fourth, merely because an activity is undertaken by the Crown is not, of itself, enough to establish that it is an essential public purpose (La Perouse at 183);
3. fifth, the fact that a government activity is undertaken in the public interest, or that it gives rise to a public benefit, does not mean that the public purpose is "essential" in the relevant sense (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 78 LGERA 1 at 14);
4. sixth, what constitutes an essential public purpose may vary depending on the context (Illawarra at [65] and Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800 at [107]-[108]);
5. seventh, steps are generally taken to achieve an essential purpose before the date of claim for it to be "essential" (Batemans Bay at [110]);
[27]
Meaning of "Needed"
1. eighth, for the purpose of s 36(1)(c) of the ALRA, the term "needed" means "required or wanted" (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 254D and Newcastle Post Office at [188]). The mere fact that the land is "suitable" or has a "capacity" is not enough; the land must be reasonably needed (Newcastle Post Office at [189], Daruk at 204 and Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2066) 149 LGERA 162; [2006] NSWLEC 180 at [149]);
[28]
Meaning of "Likely Needed"
1. nineth, the word "likely" means "a real and not remote chance" (Maroota at [57]) or a "substantial chance" (Illawarra at [32(1)]);
2. tenth, while the concept of "likely" can encompass a consideration of the likelihood of a formal decision being made, and not just merely an actual decision, the likely decision must be that of the executive government rather than the desire or aspiration of a department or agency without relevant decision-making power. It is not satisfied by a mere possibility. There must be a consideration of a reasonably concrete proposal (Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2012) 211 LGERA 100; [2012] NSWLEC 68 at [118], [128] and [146] ("O'Haras Creek"));
3. eleventh, in determining the likely need, it is necessary to have regard to the statutory scheme conferring power to make the relevant decision (Illawarra at [35]); and
4. twelfth, the "need" must be a need or likely need of the land by the government as at the date of the claim (O'Haras Creek at [151]), and not some proposal developed by an agency or non-government organisation with no relevant decision-making power in relation to the land. Steps must be taken towards the making of a decision on the land being used for that purpose (Maroota at [63]-[68] and O'Haras Creek at [60]-[61]).
I have had regard to these principles in making the findings below.
[29]
Was There a Need for the Essential Public Purpose of the Accommodation and Care of Persons With Intellectual Disabilities?
The Minister stated that the land was needed or likely to be needed for the essential public purpose of the provision of accommodation and care of persons with intellectual disabilities.
Worimi disputed this asserted need on the basis that the State Government had announced its intention to close down Tomaree Lodge at least five years prior to the date of the first claim. Moreover, the Government had announced that all large residential care centres in New South Wales were to close (see the oral evidence of Brunner: T57:45-58:02).
According to Worimi, the more appropriate characterisation of the essential public purpose was for the provision of accommodation and care of persons with intellectual disabilities other than in large residential centres. And given that the government was in the process of closing Tomaree Lodge and that it had been specifically identified as no longer required for the purpose for which it was built (or any other public purpose), the use of the claimed land for the stated public purpose of the accommodation and care of persons with intellectual disabilities could not be regarded as essential, in the sense of necessary or indispensable.
There are, however, several difficulties with Worimi's submissions. First, the argument that Tomaree Lodge had been flagged for closure does not alter the fact that as at the claim dates, the Lodge was still being used for the essential public purpose claimed. In other words, it was needed for that essential public purpose.
Whether or not the transition of the residents to alternative accommodation would occur sooner, giving rise to the possibility that Tomaree Lodge would not be likely to be needed at some point in the future did not matter. The concepts of needed and likely to be needed are distinct and cannot, as Worimi seeks to do, be conflated. Provided that it was needed for the stated essential public purpose as at the claim dates, which it was, this is sufficient. As the Minister correctly submitted, the criterion of essentiality is directed to the public purpose and not to the need.
As Brunner indicated, the process of transitioning the residents of Tomaree Lodge to different facilities was a necessarily slow and demanding practice (T54:21-37). It was not completed until May 2021.
[30]
Was There a Need for the Essential Public Purpose of Open Space?
The Minister further relied upon the land being needed, or likely to be needed, for open space for community use and recreation. Although Worimi complained about the late reframing of this ground of refusal, it is noted that the essential public purpose of "open space" was expressly referred to by the Minister in the Minister's SOFAC. The refinement of the essential public purpose of open space to open space for recreation or open space for community use and recreation did no more than narrow the scope of the public purpose. In any event, Worimi appeared not to be, despite its protestations, prejudiced by the further characterisation.
Despite a submission by Worimi to the contrary, if established on the facts, the use of the land for such a purpose is enough to defeat a claim under the ALRA on this basis (Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 72 LGRA 149 at 163). Maroota does not stand in opposition to this proposition. Rather, that case stands for the principle that, as stated above, the public purpose to be served must be more than desirable or even highly desirable. Having said this, as Pain J emphasised in O'Haras Creek, the term "open space" is a broad concept that can encompass many land uses, not all of which will satisfy the criterion of an essential public purpose (at [155]. See also criticism of the similarly amorphous term "community purposes" which has been held not to constitute an essential public purpose: Newcastle Post Office at [225]-[226]).
In the present case, the high level of generality inherent in the stated public purpose of open space is, as observed above, appropriately narrowed by the tethering of that concept to the use of the land by the community for recreational purposes.
The task is to determine whether the land the subject of the claims, and not some other land proximate to it, was needed, or likely to be needed, for the asserted essential public purpose. That the Tomaree National Park adjoined the land, while relevant, is not determinative.
There is ample evidence that members of the public walked along the shoreline boundary of the land and then across the headland to the national park on its eastern side (see the written and oral (T63:10-20) evidence of Brunner and the affidavit evidence of Skinner).
[31]
Was the Fisheries Area Needed or Likely to be Need for the Essential Public Purpose of Research?
Worimi contended that neither of the essential public purposes identified by the Minister that the land was needed, or likely to be needed, for could be demonstrated in respect of the Fisheries Area.
It must be noted that this essential purpose was not raised in the Minister's SOFAC. It was, however, expressly referred to in the Minister's written submission filed in advance of the hearing and was squarely addressed in the evidence filed and served by the Minister (see, for example, the O'Connor affidavit). No formal application was made by Worimi prior to the trial commencing for a vacation of the hearing due to any prejudice occasioned by the additional late ground of refusal in respect of the Fisheries Area. Worimi was offered an adjournment to deal with "this newly raised essential public purpose" but it was not taken up (T39:38-49).
This was because the Fisheries Area was treated as an entirely distinct parcel of land in respect of which, under the MOU, DPI was responsible for upgrading and maintaining the Area, for the payment of electricity and other costs such as water rates and road maintenance, and for ensuring that the Area was secured by fencing with access through a locked door or gate. Furthermore, under the Collaboration Deed, SCS was responsible for maintaining all necessary insurance policies.
The Minister argued that if, contemporary to its submissions above, the Fisheries Area was to be considered as a standalone parcel of land, then the land was needed for the essential public purpose of fisheries research.
Worimi rejected this as an essential public purpose. I disagree having regard to the evidence before the Court.
The research conducted by SCS in the Fisheries Area was undertaken collaboratively with DPI. This is evident from the terms of the Request for Proposal Collaborative Research Project at Tomaree Lodge, Shoal Bay and the response by SCS (Collaborative Research Project at Tomaree Lodge, Shoal Bay dated 16 August 2007, submitted to DPI). The former document sought proposals for collaborative research that would assist DPI achieve the scientific and research priorities set out in its Science and Research Strategy 2005-2008. The latter document indicated that:
In order to stabilise SRO [Sydney Rock Oyster] production, build confidence in the industry and overtime re-establish NSW as one of the premium oyster growing states in Australia, further investment into SRO research and development is needed. The proposal will have direct economic benefit to the industry through securing the supply of seed and product development. The proposal is a natural extension of the current research aims by the department and is aligned to the corporate strategies detailed in the Science and Research Strategy.
[32]
Conclusion And Orders
As explained in this judgment, as at both the first and second claim dates, the land, including the disputed areas, was not claimable Crown lands for the purpose of s 36(1) of the ALRA because:
1. the land was vested in the Minister for FDCS and not Her Majesty as required by s 36(1) of that Act;
2. the land was not able to be sold or leased as required by s 36(1)(a);
3. the land was lawfully used or occupied contrary to s 36(1)(b); and
4. the land was needed, or likely to be needed, for an essential public purpose contrary to s 36(1)(c).
Both claims, and Worimi's appeal, must therefore be dismissed. The exhibits are to be returned.
The parties are granted liberty to restore within 21 working days of the publication of this judgment to relist the matter for the purpose of seeking alternative orders with respect to costs.
[33]
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Decision last updated: 19 October 2022
Parties
Applicant/Plaintiff:
Worimi Local Aboriginal Land Council
Respondent/Defendant:
Minister Administering the Crown Land Management Act 2016
On 2 June 2006 "Dedication 2070334 for hospital site" was revoked when a notice under the Community Welfare Act 1987 ("CWA") and the Land Acquisition (Just Terms Compensation) Act 1991 ("the Just Terms Act") was published in the Gazette. It declared that the land was "acquired by compulsory process in accordance with" the Just Terms Act "for community welfare purposes".
On 18 July 2006 the following notation was included on the certificate of title for the land, "acquired and dedication 2070334 revoked vide gaz 2.6.2006 fol 3911".
The draft letter prepared as part of the brief stated that, "it is anticipated that Family and Corrective Services will take steps to commence investigations into the site's future use mid-2018".
On 25 February 2019 the Parliamentary Secretary indicated that Tomaree Lodge would be "kept for community use and open space" with "public access".
In September 2020 the nursing and care of residents of Tomaree Lodge were transferred from the Department of Communities and Justice ("DCJ") to the external care provider New Horizons.
In May 2021 the final resident of Tomaree Lodge left.
On 1 January 2008 a Collaboration Deed between DPI and Southern Cross Shellfish Pty Ltd ("SCS") commenced for a term of four years. Pursuant to that Collaboration Deed, SCS was to carry out "various research projects" at "the portion of the Crown land known as Tomaree Lodge, Shoal Bay, being Lot 453 in Deposited Plan 705463."
Clause 2.1 of the Collaboration Deed contained the following warranty:
NSW DPI warrants that it under a Memorandum of Understanding between NSW DPI and the Department of Ageing, Disability and Home Care ("DADHC") dated 22 February 2007 ("the Memorandum"), DADHC has agreed to allow NSW DPI and its invitees to occupy the Property for a period of 5 years…
The Deed could be renewed by SCS for a further five years provided that:
1. DPI gave notice to SCS that it had signed an extension of the MOU or had entered into an extension of the MOU for five years (cl 9.4(a));
2. SCS served a notice on DPI to exercise the option not before 1 November but no later than 1 December 2011 (cl 9.4(b)); and
3. at the time that the notice referred to above was provided, all other obligations of SCS under the Collaboration Deed had been complied with (cl 9.4(c)).
The Project Plan contained in Schedule A to the Collaboration Deed recorded the "Primary Research Objectives" as follows:
In accordance with NSW DPI's priority goals for profitable and sustainable production systems and for the development and commercialisation of biotechnology that benefit this state, this collaborative research is undertaken with the following research objectives:
a) To assess and develop a high density flow through culture system for edible oysters, and
b) To advance the development of polyploid induction techniques for edible oysters
The planned outcome of this research being the development of efficient sustainable hatchery facilities within NSW and for the benefit of the NSW oyster industry.
In around 2009 the facilities at the Fisheries Area were refurbished. The refurbishment involved removing the ageing greenhouse structure and shipping containers on the site and replacing them with a secure colour bond shed. A Ministerial Briefing was prepared regarding the refurbishment.
The Collaboration Deed expired on 1 January 2012.
On 19 September 2019 Ian Lyall, Program Leader of Aquaculture at DPI emailed Wayne O'Connor, Senior Research Scientist at DPI to ask:
1) when did our lease run out at Tomareee?
2) are you aware if SXS were ever given a lease?
On 1 October 2019 Garth Richards, Operations Manager at SCS, sent an email to Paul Roberts, Manager Facilities Services, Disability Hunter Residences, DCJ, which relevantly stated:
We understand that that Tomaree Lodge is due to be shut down by the middle of next year and that the future of the land owned by DADAC is uncertain. For this reason we would like to renew our lease on our hatchery site as soon as possible…
That same day, Roberts forwarded Richards's email to Garry Leahy, at DADHC, noting:
Garth made contact late last week and is seeking to renew the lease to continue operation of the Oyster Hatchery business within the Tomaree Lodge grounds footprint. Building 19 on the attached map.
I am not sure where to take this.
Can you please advise.
On 11 June 2020 Leahy emailed Roberts stating that:
You'll recall the initial correspondence from Southern Cross Shellfish was referred to DCJ legal counsel, Claire Armour, late last year. Clair subsequently issued advice which went to Brett and Pam. Since then carriage of the agreement with Southern Cross Shellfish and DCJ has moved to Assets and Infrastructures, David Lawrence.
I spoke with David this afternoon who indicated Southern Cross Shellfish should be advised that arrangements will continue on a month by month basis up to the point when the last residents leave Tomaree. From David's thinking that could be November 2020, however a firm date is not currently known. Garth may well want to speak directly with David. David indicated to me he is happy to accommodation such a request.
The email was in response to a query from SCS on 4 June 2020 regarding the leasing arrangements.
As at the date of the claims, the Fisheries Area comprised a secure colour bond shed that housed tanks, pumps, a laboratory and an algal production facility. It was bordered by exclusion fencing.
Section 42(1) and (2) of the RPA relevantly provides that:
42 Estate of registered proprietor paramount
(1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except:
(a) the estate or interest recorded in a prior folio of the Register by reason of which another proprietor claims the same land,
…
(2) In subsection (1), a reference to an estate or interest in land recorded in a folio of the Register includes a reference to an estate or interest recorded in a registered mortgage, charge or lease that may be directly or indirectly identified from a distinctive reference in that folio.
Section 42(3) was inserted into the RPA on 13 May 2009 by the Real Property and Conveyancing Legislation Amendment Act 2009 and states:
(3) This section prevails over any inconsistent provision of any other Act or law unless the inconsistent provision expressly provides that it is to have effect despite anything contained in this section.
Section 31A(1), (3) and (4) of that Act states:
31A Creation of folio for resumed land
(1) In this Part:
resumption means compulsory acquisition of land (including compulsory acquisition or appropriation of Crown land) under the provisions of any Act or Act of the Commonwealth authorising compulsory acquisition or appropriation of land, and resumed has a corresponding meaning.
resumption application means application in the approved form to the Registrar-General to cause to be registered as proprietor of land the person entitled to the land by virtue of a resumption or by virtue of any further vesting of resumed land by the operation of any Act or Act of the Parliament of the Commonwealth, either directly or by reason of anything done in pursuance thereof.
…
(3) Where resumed land is under the provisions of this Act:
(a) the Registrar-General may, where the Registrar-General has notice of the resumption, record the resumption in the Register of the Registrar-General's own motion, and
(b) subject to paragraph (a), the Registrar-General, upon lodgment of a resumption application relating to the land resumed, accompanied by a copy of the instrument by which the resumption was effected and any other evidence required by the Registrar-General, shall make such recording in the Register as may be necessary to give effect to the resumption application…
(4) An action does not lie against the Registrar-General for the recovery of damages sustained through deprivation of land, or of any estate or interest in land, by reason that:
(a) the Registrar-General acted under this section in relation to what purported to be, but was not, an effective resumption, or
(b) the Registrar-General failed to exercise the power conferred on the Registrar-General by subsection (3) (a).
Section 196A(3)(b) of the Conveyancing Act 1919 provides that:
196A Registration of Resumptions
(3) Where land is resumed, the Crown or other authority by which the land is resumed shall forthwith:
(b) where the resumed land is under the provisions of the Real Property Act 1900 , and the Registrar-General has not recorded the resumption in the Register kept under that Act--lodge with the Registrar-General a resumption application within the meaning of that Act.
Section 13A(1) and (5) of the CWA is also relevant:
13A Acquisition and disposal of land
(1) The Minister may, for the purposes of the community welfare legislation, acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.
…
(5) The Minister may:
(a) for the purposes of the community welfare legislation, grant a lease or licence of any land acquired under this section, and
(b) in the case of land that is no longer required for the purpose for which it was acquired, grant a lease or licence of the land or sell or otherwise dispose of the land.
The term "community welfare legislation" is defined in s 3 of the CWA as:
community welfare legislation means:
(a) this Act and any other Act administered by the Minister within the Department, and
(b) any instrument under this Act or any other such Act,
As at 12 November 2015 "Crown land" was defined in s 3 of the Crown Lands Act 1989 ("CLA") to mean that:
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.
As at that date, s 6 of that Act prescribed 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.
Section 6 should be read together with s 7 of the CLA, which addresses the relationship between the powers contained in the CLA and other enactments, as follows:
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.
And s 34(1) of the CLA conferred upon the Minister the power to:
34 Powers of Minister in relation to Crown land
(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.
As at 14 May 2019 the effect of ss 6 and 7 of the CLA was effectively replicated in s 1.15 of the Crown Land Management Act 2016 ("CLMA"):
1.15 Dealings with Crown land generally subject to Act
(1) Crown land must not be occupied, used, sold, leased, licensed, dedicated, reserved or dealt with in any other way unless it is authorised by this Act.
(2) However, this Act does not affect the operation of another Act to the extent that it:
(a) makes special provision for particular Crown land or any particular kind of Crown land, or
(b) authorises Crown land to be dealt with in any manner inconsistent with this Act.
The power contained in s 34(1) of the CLA was conferred by s 5.3(1) and (3) of the CLMA:
5.3 Powers of Minister generally
(1) Subject to this Act (particularly, Part 2), the Minister can do anything with Crown land that a registered proprietor of land can do.
…
(3) Without limiting subsection (1), the powers of the Minister include:
(a) selling, exchanging, transferring or in any other way disposing of or dealing with Crown land, and
(b) mortgaging Crown land or allowing it to be mortgaged, and
(c) granting easements, rights of way, leases, licences or permits over Crown land, and
(d) imposing, requiring or agreeing to covenants, conditions or other restrictions on use (or removing or releasing, or agreeing to remove or release, covenants, conditions or other restrictions on use) in connection with dealings involving Crown land.
Worimi relied upon the bundle of documents referred to above and the oral evidence of the Minister's witnesses in support of its claims.
Where relevant, the evidence of the parties is elaborated upon below.
If the Minister fails to discharge this statutory onus, then the Court is bound to order the transfer of the land to Worimi (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 at 692D-693D ("Winbar No 3")).
Fourth, the date for determining whether land is "claimable Crown lands" is the date that the claims were lodged and not the date that the claims were determined (Winbar No 3 at 691F).
Third, if the RPA and the Just Terms Act operate in this way, then other provisions of the RPA must be read down to accommodate this result, especially s 42 of that Act, so as to not require registration before an interest in land arises and vests. In other words, s 42(1) of the RPA must be construed in a manner that acknowledges that an acquiring authority already holds an interest in land prior to any issue of registration.
Fourth, s 42(3) of the RPA does not operate to impliedly repeal the Just Terms Act because it has no application to cases to which the Just Terms Act applies for the reasons submitted above. There is therefore no relevant inconsistency between the two enactments.
Alternatively, in 2006 when the Just Terms Act caused the land to be vested in the Minister for FCDS discharging the land from the State's interest, s 42(3) of the RPA did not exist, and therefore, had no application to the present claims.
Fifth, prior decisions of the Court in La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) (2016) 220 LGERA 1; [2016] NSWLEC 137, New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act (2014) 204 LGERA 205; [2014] NSWLEC 144 ("Moonbi") and Birrigan Gargle Aboriginal Land Council v Minister Administering Crown Lands Act (1999) 102 LGERA 33; [1999] NSWLEC 12 are distinguishable, to the extent that they suggest a contrary result.
Sixth, if, contrary to the propositions above, the land did not vest upon resumption in the Minister for FCDS, the acquisition was, in any event, recorded on the Register by the notation on the certificate of title ("acquired and dedication 2070334 revoked vide gaz 2.6.2006 fol 3911"). The notation made it clear that the land had been acquired and that, for the purpose of s 42(1) of the RPA, the interest of the State was subject to this recorded entry in the folio (citing in support Deguisa v Lynn (2020) 268 CLR 638; [2020] HCA 39).
Seventh, and finally, the acquisition of the Fisheries Area was lawful. There was evidence before the Court that the relevant Minister had approved the acquisition of the land pursuant to the power conferred by s 13A of the CWA for the purposes of community welfare, namely, to provide supported accommodation. There was no evidence demonstrating that the Fisheries Area was acquired for some ulterior purpose by the Minister for FCDS. After the acquisition, what the Minister for FCDS did with the land comprising the Fisheries Area had no bearing on any subjective purpose that was held by that Minister at the time the power to acquire that land was exercised. Worimi's collateral challenge to the acquisition must, to the extent that it ought to be permitted at all, fail.
By contrast, Worimi submitted that, first, as at the date of the claims the land was vested in Her Majesty because the "State of New South Wales" was recorded as the registered proprietor under the RPA and this was determinative (citing Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act [1996] NSWLEC 223).
Particular emphasis was placed upon s 40(1A)(b)(iii) of the RPA, which conclusively provides that a person recorded in the certificate as the registered proprietor of an interest in the land is the registered proprietor of that interest.
Second, the overriding effect of s 42(3) of the RPA was that by operation of s 42(1) of that Act, the recording of the "State of New South Wales" as the registered proprietor of the land was paramount. Section 42(1) of the RPA expressly overrode any inconsistent provision of any other enactment, including the CWA and the Just Terms Act. Authorities such as South-Eastern Drainage Board did not assist the Minister because they did not consider legislative equivalents to s 42(3) of the RPA. It was, moreover, notable that in the nine years between the compulsory acquisition and the date of the first claim, the Minister for FCDS took no steps to have the registered proprietor of the land changed as required by s 196A of the Conveyancing Act.
Third, the notation relied upon by the Minister did not alter the fact that as at the date of the claims, the "State of New South Wales" remained the registered proprietor by virtue of s 40(1A)(b)(iii) of the RPA. The notation was no more than a reference to a notice in the Gazette.
Fourth, the acquisition of the Fisheries Area was unlawful because it was acquired for an improper purpose, that is, it was not acquired "for the purposes community welfare legislation" as required under s 13A of the CWA. There was, therefore, no power to acquire the land for fisheries purposes and the acquisition was invalid.
Cases of implied repeal are relatively rare because there is a strong presumption that the legislature intended both Acts to operate (Eaton at [48] and [98] and Tanner at [134]). As a consequence, a construction that permits the provisions to be read harmoniously or with separate spheres of concurrent operation is to be preferred (Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397; [2003] HCA 43 at [28]).
Worimi contended that the operation of s 40(1A)(b)(ii) of the RPA means that a person recorded in the certificate as the registered proprietor of an estate or interest in land to which the certificate relates is the registered proprietor of that estate or interest.
The concept of indefeasibility of title is the central premise upon which the Torrens system was founded. As was stated by Barwick CJ in the oft cited passage in Breskvar v Wall (1971) 126 CLR 376; [1971] HCA 70 (at 385-386):
The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. …The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor. Consequently, a registration which results form a void instrument is effective according to the terms of registration. It matters not what the cause or reason for which the instrument is void.
However, recognised exceptions to the presumption of conclusiveness created by s 40(1A)(b)(ii) of the RPA exist. It has been held that interests created by statute have been afforded paramountcy over the indefeasibility provisions of enactments equivalent to the RPA. This was recognised in City of Canada Bay Council v F & D Bonaccorso Pty Ltd (2007) 71 NSWLR 424; [2007] NSWCA 351 (at [46] and [52]):
46 However, apart from fraud and the exceptions set out in s 42(1)(a)-(d) of the RP Act, it is clear that rights in land under the Torrens system might arise outside the RP Act and that in some circumstances those rights effectively supplant the rights under that Act. Thus, before the enactment of legislation such as the Roads Act 1993 (NSW), which vested the fee simple of public roads in a local council as the relevant roads authority (see ss 7(4) and 145(3)), the common law right of the public to use a dedicated highway could not be defeated by the registered proprietor of the land on which the highway was located. Thus in Vickery v Strathfield Municipal Council (1911) 11 SR (NSW) 354 at 362, Rich AJ said:
"It is clear, therefore, that a registered proprietor holds his land absolutely free from all encumbrances, liens, estates, or interests whatsoever other than those notified on the grant or certificate of title, save in the cases expressly mentioned. Is this language sufficiently wide to cover public rights of highway? I am of opinion that it is not. The language of s 42 itself suggests that the interests referred to are such as are capable of existing in an individual; this is inconsistent with its applicability to public rights of user. But, apart from this, public highways appear to lie wholly outside the scope of the Act. …"
…
52 However, it must be noted that the cases in this category are few and the reported ones at least deal with situations where there was an ongoing effect of the statute found to trump indefeasibility. Thus in Vickery there was the ongoing use of a public road; in South-Eastern Drainage Board an ongoing statutory charge; in Pratten and Quach the continuous use of drainage reserves. These were not cases where there was a once and for all breach of a statute prohibiting a dealing with RP Act land.
In South-Eastern Drainage Board, the High Court held that statutory charges that were unregistrable but expressed to be first charges superseded a registered mortgage held by the bank despite the provision of the Real Property Act 1886 (SA), including s 6, which was relevantly similar to s 42(3) of the RPA (at 622 per Starke J and 627-628 per Dixon J). Other decisions are to similar effect (for example, Pratten v Warringah Shire Council (1969) 17 LGRA 371 at 373-379, Mogo Local Aboriginal Land Council v Eurobodalla Shire Council (2002) 54 NSWLR 15; [2002] NSWCA 12 at [26]-[30], Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd (2020) 5 QR 521; [2020] QCA 198 at [10] and Calabro v Bayside City Council [1999] 3 VR 688 at [59]).
In Bonaccorso, however, it was held that, although later in time, s 45 of the Local Government Act 1993 ("a council has no power to sell, exchange or otherwise dispose of community land") did not impliedly repeal the indefeasibility provisions of the RPA. The two statutes operated sequentially and stood together. In that case, the council had sold two parcels of land and the purchaser had registered the transfer of each lot under the RPA. The council submitted that if the lots were community land, which it denied, then the indefeasibility provisions of the RPA applied upon registration notwithstanding the breach of s 45. It was held that s 45 did not invalidate any transfer of land contrary to that provision and that upon registration, the transferee gained the benefit of indefeasibility of title.
Bonaccorso is distinguishable on the basis that the prohibition contained in s 45 of the Local Government Act was engaged at the point of dealing. Once the dealing had occurred the transaction was voidable up to the point of registration under the RPA, whereas in the present case, the effect of s 20 of the Just Terms Act is ongoing. The interest vests upon acquisition and remains with the resuming authority.
The fact that it was possible for the Minister for FCDS to register the acquired interest on the Register does not matter (Pratten at 379-380). The failure to register the interest could not, of itself, displace the acquisition and the vesting of the interest in the Minister for FCDS that occurred by force of the Just Terms Act. Just as the registered proprietor could not call back the fee simple in Pratten, no activity by the RG could displace the vesting of the acquired interest. Contrary to the submissions of Worimi, the vesting of the land in the Minister for FCDS, and the simultaneous discharging of the State of New South Wales's interest, operate to defeat the indefeasibility provisions in the RPA going forward.
In the present case, there is a permissible construction that avoids any inconsistency between the RPA and the Just Terms Act, and with it the more radical path of implied repeal, enabling the two statutes to operate harmoniously.
Part 5A of the RPA provides for the "certification of title to resumed land". The certification process occurs by dint of the acts specified in s 31A. This process causes the resumption to be recorded in the Register by the RG (s 31A(3)). This process does not, however, establish any title or cause it to be vested in any person or entity. It merely records that which has already occurred by force of some other statutory process, in this case the resumption of land under the Just Terms Act.
A "resumption application" as defined in s 31A(1) is an application to be registered as a proprietor of land by a person "entitled to the land by virtue of a resumption or by virtue of any further vesting of resumed land by the operation of any Act". In this case, that Act is the Just Terms Act. That is, the land has vested in the Minister for FCDS and the statutory duty imposed by the RG by s 31A(3)(b) of the RPA is to make such recording in the Register as may be necessary to give effect to the "resumption application", which, as defined, is an application to be registered as proprietor of the land to which the person or entity is already entitled by force of the vesting of the land under the Just Terms Act in that person or entity.
If no resumption application is received, the RG may, pursuant to s 31A(3)(a) of the RPA, exercise power upon his, hers or their own motion by recording the "resumption" (in this case the compulsory acquisition of the land under the Just Terms Act) in the Register.
Construed having regard to its text and context, the RPA therefore recognises and accommodates the fact that interests in land may be acquired by reason of the operation of other enactments, such as the Just Terms Act, that authorises the compulsory acquisition of land. The process of formally recording or certifying the title on the Register is hence separate to the transfer of that title, which may have already occurred by force of an independently operating statutory provision.
As the Minister submitted, such a construction is consistent with the immunity afforded to the RG in s 31A(4)(b) for any failure to exercise the power in s 31A(3)(a) of the RPA. The immunity would have very little work to do if in fact no interest existed absent registration.
It follows that s 42(1) of the RPA must also be interpreted in a way that avoids conflict with the Just Terms Act, especially s 20(1). If not, s 20(1) will be rendered all but otiose. In other words, s 42(1) of the RPA must be read, consistent with the proper construction of s 31A, as recognising that an acquiring authority already holds an interest in land anterior to any question concerning the effect of registration.
The Just Terms Act does not, contrary to the assertion by Worimi, merely vest in the acquiring authority a right to make a resumption application under the RPA. This interpretation ignores the express and unambiguous language of the terms of s 20(1) of the Just Terms Act and the text and context of s 31A of the RPA which, as construed above, contemplates and seeks to accommodate the conferral of an entitlement to land created by another statute.
If, however, the above analysis is incorrect and the two enactments cannot be read in conformity with each other, then I find that the Just Terms Act has, relying upon the authorities cited above (at [101]-[108]), impliedly repealed the RPA to the extent of any inconsistency and that s 20 of that Act provides an exception to the indefeasibility provisions of the RPA.
Does s 42(3) of the RPA obviate the findings above?
In short, no. The reasons are three-fold: first, s 42(3) of the RPA is not engaged because there is no inconsistency with the Just Terms Act for the reasons given above. To reiterate, this is because s 42 of the RPA did not require registration of the interest in the land acquired pursuant to the Just Terms Act for that interest to vest with the Minister for FCDS. While Worimi is correct insofar as it submits that the operation of the Just Terms Act is subject to s 42(3) of the RPA, this is only to the extent of any inconsistency and none presently exists.
Second, if this conclusion is wrong then, as explained above, by operation of the doctrine of implied repeal s 42(3) of the RPA does not apply.
Third, when the land was vested in the Minister for FCDS in 2006 by reason of its acquisition under the Just Terms Act, s 42(3) of the RPA did not exist and had no operation. Its promulgation could not, absent clear words of intendment which are lacking, operate retrospectively to divest that which had vested in the relevant Minister three years earlier, or to revive an interest of the State that had been discharged.
To apply s 42(3) of the RPA in the manner contended for by Worimi is antithetical to the presumption against retrospectivity (Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7 at 267 and 281, Carr v Finance Corporation of Australia Limited [No 2] (1982) 150 CLR 139; [1982] HCA 43 at 147, Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117; [2012] HCA 19 at [26]-[31] and ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 at [26]-[27] and [48]-[52]). The word "retrospective" in this instance is used in its extended sense, that is, not directed to legislation which deems the law at a time in the past to be different from that which it was at that time (the true meaning of the term: Australian Education Union at [26] and [94]), rather it is used to describe a law which alters or interferes with rights and duties defined by reference to events prior to its enactment. Although this latter usage has been described as misleading (Australian Education Union at [26]) it is nevertheless established. For the purposes of determining whether legislation affects any rights which are vested or accrued, a broad view is taken of what constitutes a right (Carr at 151).
The presumption may be rebutted either by express words or by reasonably certain necessary intendment (Maxwell v Murphy at 267). The ordinary rules of statutory interpretation apply to identify a contrary intention, having regard to the text, context and purpose of the provision in question (ADCO at [28] and [52]).
The common law principles described above are relevantly reflected in s 30(1) of the Interpretation Act 1987:
30 Effect of amendment or repeal of Acts and statutory rules
(1) The amendment or repeal of an Act or statutory rule does not:
(a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or
(b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule…
The words "right, privilege…acquired, accrued or incurred" in this provision are to be given a wide construction (Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; [2004] HCA 63 at [96] and Chang v Laidley Shire Council (2007) 234 CLR 1; [2007] HCA 37 at [117]).
There was nothing sufficiently certain in any of the extrinsic material (see the Second Reading Speech for the Real Property and Conveyancing Legislation Amendment Bill 2009, Hansard, Legislative Council, 6 May 2009 at 14718 or the debate in respect of the Bill at Hansard, Legislative Council, 6 May 2009 at 14723-14725 and 14730-14731) that indicated an intention by the Parliament to revive an interest in land under the RPA that had already been vested by an earlier enactment such as the Just Terms Act. On the contrary, the passages relied upon by both parties were typically equivocal, indicating that:
1. on the one hand, Parliament recognised that the RPA was subject to partial or total repeal by later legislation which could impose statutory exceptions to a registered proprietor's otherwise indefeasible title. The Register could therefore be misleading; but
2. on the other hand, in an attempt to limit and clarify the extent of any statutory exceptions, the amendment to s 42 of the RPA was to prevail over any inconsistent provision of any other Act or law, unless the inconsistent provision otherwise provided, in order to protect the Torrens system.
Prior to the introduction of s 42(3) of the RPA, there were statutory exceptions to indefeasibility which took priority over the interests of the registered proprietor recorded in the Register. The Just Terms Act was not one of the Acts identified in Sch 3 of the Bill requiring amendment to confirm that it would override s 42 of the RPA. Nor has it been amended since the promulgation of s 42(3).
While this is the case, there is nothing in the extrinsic material that, in my view, evinces a sufficiently clear and unambiguous intention to retrospectively (in the extended sense) interfere with rights and interests that had already vested in the Minister for FCDS prior to the enactment of that provision. I do not accept that it operates in the manner contended by Worimi in this instance.
Do prior decisions such La Perouse (No 2), Moonbi and Birrigan Gargle compel the conclusion that the land had not vested in the Minister for FCDS? In my opinion, the question ought to be answered in the negative.
In Birrigan Gargle the land in question had been resumed by the State Planning Authority. Title to the land was held pursuant to the provisions of the RPA. Following the publication of the resumption notice, the Authority was recorded as the registered proprietor. A declaration was made in respect of the land under the CLCA that was notified in the Gazette. Subsequently, however, the "State of New South Wales" was recorded as the registered proprietor in the Register. The Minister contended that this was an administrative error that did not reflect the true legal vesting of the land. Bignold J rejected this submission and held that the conclusiveness of the provisions of the RPA concerning the Register was determinative of the issue and that the lands were "vested in Her Majesty" as at the date of the claim (at [23]).
In Moonbi lands were resumed for the purpose of providing water supply works for Tamworth. The notification stated that the lands would be vested in the Minister for Public Works. In 2007 title to the land was brought under the provisions of the RPA and the registered proprietor for the lands was recorded as the "State of New South Wales". In 2010 a claim was made for the lands under the ALRA. Craig J held that the claimed lands were vested in Her Majesty. Any reliance upon the fact that the land was originally vested in the Minister for Public Works was misplaced because since 2007 the creation of the folios for the land in the Register was akin to a new title certified as if the land had been a new Crown grant (see Bonaccorso at [45]). As at the date of the claims, the asserted interest of the relevant Minister was not recorded in the Register (Moonbi at [97]-[99]). The decision in Birrigan Gargle was followed by his Honour, who noted the insertion of s 42(3) into the RPA reinforcing the concept of indefeasibility intended by s 42(1) of that Act (at [82]).
Relevantly, in La Perouse (No 2) the Register showed that as at the date of the claim, the lands were owned by the "State of New South Wales". The Minister refused the claims on the grounds that the lands comprised freehold land which was not vested in Her Majesty. The lands had been vested in the Land Commission in 1980, however, the proprietor of the claimed lands noted on the Register became the "State of New South Wales" in 1986 pursuant to an application to do so. Later, in 2011, the Register was amended to replace the "State of New South Wales" with the "Land Commission of NSW" as owner. The Court rejected an argument that the earlier recording of the "State of New South Wales" was an error and held that, in any event (applying Birrigan Gargle and Moonbi), this could not vitiate the conclusive nature of the title as recorded in the Register (at [135]). The later amendment to the Register did not have the effect of abrogating any rights accrued to the claimants under the ALRA, such rights having been effected after the date that the claims were made under that Act.
This trilogy is distinguishable from the present case insofar as they turn on the effect of the RPA on dealings with land that post-date the statutory conferral of an interest in the land. There is authority for the proposition that unregistered resumptions take precedence over later registered interests that arguably is in conflict with these decisions (Pratten at 379). That issue does not, however, presently arise. On the contrary, in this case there is no subsequently registered interest that engages the RPA to deny the Minister's interest. The operation of the Just Terms Act vesting the land in the Minister for FCDS is, for the reasons given earlier in the judgment, therefore unaffected by the indefeasibility provisions of the RPA.
In this regard, it is accepted that nothing has happened on the Register since the date of the acquisition, the vesting of the land in the Minister for FCDS and the divesting of the interest of the State by dint of the operation of the Just Terms Act. Accordingly, unlike the trio of cases referred to above, there has been no subsequent registered interest that, by reason of the indefeasibility provisions of the RPA, affected the Minister for FCDS's interest in the land. There has been no creation of a new interest in land (as was the case in Moonbi) or a deliberate decision to amend the Register (as occurred in La Perouse (No 2)). Put another way, the interests of the Minister for FCDS have persisted.
To the extent that the decisions referred to above are relied upon by Worimi as standing for the proposition that where the registered proprietor of land is recorded in the Register as "the State of New South Wales" the land is vested in Her Majesty, the arguments presently advanced in relation to the effect of the Just Terms Act and its intersection with the RPA were neither raised nor decided in those authorities. They are distinguishable on this basis alone and it is therefore not necessary to determine, as the Minister submitted, that those cases are plainly wrong.
As the Minister emphasised, the question is whether the lands are "vested in Her Majesty" as at the date of the claim; not whether the "State of New South Wales" is recorded as the registered proprietor of the land on the Register. To concentrate on the latter in ignorance of the former is to ask some other question not strictly posed by s 36(1) of the ALRA. Although in most cases the result will be the same, this may not always be the case, especially where, as with the Just Terms Act, other legislation provides to the contrary.
Worimi submitted that the requirement in s 196A(3)(b) of the Conveyancing Act for the Crown or other authority by which land is resumed to "forthwith" make a resumption application under the RPA was consistent with the paramount effect of s 42(3) of the RPA and the primacy of the operation of that Act.
Section 196A(3)(b) of the Conveyancing Act obliges an authority of the State to lodge a resumption application with the RG if the RG has not recorded the resumption in the Register. The legislative purpose of the provision is to ensure that the Register in fact reflects the correct legal position in relation to the ownership of land. But there is nothing in that provision that can affect an interest in land that has already been acquired by or vested in a resuming authority. On the contrary, the text of s 196A(3)(b) is premised upon land having already been vested in the acquiring authority. It is directed to what follows after this occurs. Satisfaction with s 196A(3)(b) of the Conveyancing Act is neither a condition precedent to the valid vesting of land under the Just Terms Act in the acquiring authority nor can any failure to comply with the provision result in its divestiture.
Pursuant to s 36(6A) of the RPA dealings may be recorded in the following way:
36 Lodgment and registration of documents
(6A) A dealing is registered when the Registrar-General has made such recording in the Register with respect to the dealing as the Registrar-General thinks fit.
The Minister relied upon the sufficiency of the notation on the certificate of title, or at the very least, the sufficiency of the published acquisition notice to the extent that it was noted on the certificate.
In Deguisa v Lynn the High Court accepted that a purchaser may be notified of interests in land by their entry on the certificate of title or by the terms of any instrument that is deemed to be incorporated into the certificate (at [73] and [74]).
The Minister accepted that the notation itself was not an "instrument" as defined under the RPA because (as Worimi correctly observed) all documents falling within that definition owe their existence to a drafter who is not the RG. Accordingly, the Minister contended that the resumption notice published in the Gazette was the relevant "instrument" and, relying upon Deguisa v Lynn and s 40(1B) of the RPA, argued that the notation was sufficient for the purpose of s 42(1) of the RPA.
Section 40(1B) of the RPA does not assist the Minister. As is apparent from an examination of the title search for the land, the interest recorded on the Register is not expressed to be subject to "an estate or interest evidenced by an instrument" or "a provision of an instrument".
Even assuming that a recording on the certificate of title can be a "dealing" for the purpose of s 36(6A) (a proposition disputed by Worimi which it is not necessary to determine), not only was there no dealing number or registration number associated with any recording of the notation for the purpose of s 41 of the RPA, and therefore, no "distinctive reference" as necessitated by s 32(1) of the RPA, the "State of New South Wales" nonetheless remained the registered proprietor in the Register. In other words, there was nothing in the notation that provided third parties with the information necessary to comprehend the extent or state of the registered title in question (Deguisa v Lynn at [8]-[9] and [65]-[66]). There was nothing, for example, in the notation that identified the authority resuming the land or what interest had vested. Put another way, the notation in relation to the title of the land refers to a Gazette, the content of which "cannot be ascertained from a search of the certificate of title or from a registered instrument referred to in a memorial entered in the Register Book by the Register General" (Deguisa v Lynn at [9]).
I therefore cannot accept that the notation amounted to a relevant recording on the Register of the Minister's interest in the land.
When regard is had to the subject state of mind of the Minister for FDCS in exercising the power to acquire the land conferred by s 13A(1) of the CWA, it cannot be reasonably inferred that the land was resumed for any other purpose than that stated. As noted earlier in this judgment, the Ministerial Briefing Note relating to the acquisition states that the land was "used by the Department of Ageing, Disability and Home…to provide supported accommodation for 44 clients and form a key site for DADHC's Hunter Residences". Section 13A of the CWA was annexed to the Note. So too were the terms of the Executive Council minute, which expressly declared that the whole of the land (all of the 8.876 ha and not just the Fisheries Area) was acquired under the Just Terms Act for the purposes of the CWA.
There is no evidence demonstrating to the requisite degree that the Minister for FDCS in exercising the power to acquire the whole of the land was motivated by an improper purpose with respect to the Fisheries Area. The Ministerial Briefing Note was silent in respect of the Fisheries Area and the only ongoing use of the land referred to was for the provision of supported accommodation.
According to Worimi, as at 2 June 2006 (the date of the acquisition), not only was it known that the Fisheries Area was being used for fisheries purposes, there was no intention to use the Area for any other purpose post acquisition.
Against this, however, is the fact that as at the date of the acquisition there was no Collaboration Deed (it expired in 2012) and MOU (it expired in 1999). Negotiations to renew the MOU were delayed until after the resumption. This is so notwithstanding a briefing note to the Director-General of DPI dated 23 March 2005, concerning the "Future of the abalone research facilities, Tomaree Head, Port Stephens", recommended that a new MOU be negotiated for ongoing access to the site for DPI and that there be a call for expressions of interest from companies or groups willing to enter into a joint R&D project at Tomaree or to relocate some or all of the equipment at the site to another location. Contemplated options for future use of the site included mothballing it, commercialising aquaculture technology under an agreement with a commercial abalone farm, or dismantling and relocating/recommissioning its equipment. In other words, as at the relevant date no concluded decision had been made concerning the future use of the Fisheries Area by DPI.
More importantly, however, the evidence in respect of the state of mind of the Minister for FDCS is sufficiently equivocal that it cannot be concluded that DPI's intention for the use of the Fisheries Area was either communicated to the Minister for FDCS or, if it was, was taken into account in the decision to acquire the land. Again, there is nothing in the Ministerial Briefing Note that displaces this view.
What the Minister for FDCS did after the acquisition of the land is of insufficient moment to alter this conclusion. That the Department of Lands provided instructions as to the mechanics of the transfer and that the Crown Solicitor advised that the transfer could occur pursuant to s 13A of the CWA, does not usurp the determination recorded in the Ministerial Briefing Note that the whole of the land should be acquired for community welfare purposes.
Ultimately, Worimi's argument may be summarised as follows: that either the Minister for FDCS acquired the land for some other purpose that was not directed to community welfare because, although the Minister was aware of the constraints on the exercise of power in this regard, the Minister was determined to acquire the land in any event; or that the Minister was not sufficiently cognisant or informed of the need to acquire the land for the stipulated statutory purpose as at the time of acquisition. The inherent evidential tension in the two positions becomes immediately apparent.
There was no evidence before the Court that had the Minister for FDCS been better informed a different decision would (or could) have been made. On the contrary, if the first limb of Worimi's argument is accepted, then on any view the Minister would have made the same decision.
Either way, the Ministerial Briefing Note, which is the best evidence as to the state of mind of the Minister at the time the decision to acquire the land was made, establishes that the Minister acquired the land for a community welfare purpose, namely, to provide supported accommodation for people with disabilities.
The acquisition of the Fisheries Area was therefore valid.
If, however, the conclusion reached earlier in the judgment is incorrect, was the land able to be lawfully sold or leased? In my opinion, it was.
Assuming for present purposes that the land was not vested in the Minister for FDCS and, by virtue of the recording of the "State of New South Wales" in the Register, was vested in the Crown, then as at the date of the first claim the land was Crown land, and as at the date of the second claim s 1.7(a) of the CLMA provided that land that was Crown land (as defined in the CLA) immediately before its repeal and remained Crown land for the purpose of the CLMA.
As Crown land, the Minister was able to deal with it under the CLA (see s 34(1) of that Act), and subsequently, the CLMA (see s 5.3(1) and (3)(a) of that Act).
In respect of the first claim, ss 6 and 7 of the CLA provided that Crown land shall not be dealt with unless authorised by the CLA.
With respect to the second claim, s 1.15 of the CLMA is essentially in the same terms as ss 6 and 7 of the CLA.
By reason of the operation of ss 6 and 7 of the CLA, and later s 1.15 of the CLMA, the acquisition of the land by the Minister for FDCS did not prevent the land from being dealt with under either s 34(1) of the CLA or s 5.3(1) of the CLMA.
Section 13A(5) of the CWA confers upon the Minister administering that Act a power to grant a lease of land acquired under that section provided that it is for the purpose of "community welfare legislation".
There is, as Worimi correctly submitted, nothing inconsistent between the power conferred in the CLA and the CLMA, on the one hand, and the more confined power contained in the CWA, on the other, to lease or sell the land. That is, s 13A(5) of the CWA does not act to prohibit the sale or lease of land under the CLA or CLMA provided that the land serves the purposes of community welfare legislation.
It follows that, as at the date of the first and second claims, had the land not been vested in the Minister for FDCS, the land would have been able to be lawfully sold or leased.
It was not a matter of serious controversy that the context and surrounding circumstances as at each of the dates of claim was that the closure of the Tomaree Lodge site had been announced and that since 2015, the residents were in the process of being transitioned into new accommodation.
But this is not the end of the matter and a factual enquiry as to what was actually occurring on the land generally, and in relation to each of the disputed areas, is required.
This arrangement was known to and accepted by the parties to it. It was not the case that SCS was trespassing on the land or that its use and occupation of the Fisheries Area was not known to either DPI or DCJ. SCS was acutely aware of the need for lawful permission and had sought clarification that it existed. The clarification was forthcoming. On any view, there was a continuity of the arrangement previously formalised in the Collaboration Deed that had been in place for a considerable period of time.
In addition to the assertion that the Fisheries Area had been unlawfully acquired (see earlier in the judgment), Worimi argued that that the use and occupation by SCS of that Area was unlawful because:
1. SCS did not avail itself of the option to renew its interest in the Fisheries Area contained in the Collaboration Deed (cl 9.4);
2. even if the option to renew had been exercised, any further lease period would have ended in 2016 (that is, prior to the second claim date);
3. SCS only took steps to renew its lease after it became aware that Tomaree Lodge was to be shut down (see the emails between DCJ and SCS dated 1 October 2019);
4. as at the date of the claims, no one was aware of the basis upon which SCS was using the site;
5. there was no evidence of any research being published as required by the Collaboration Deed (see, for example, cl 8.1); and
6. the Fisheries Area was Crown land, and therefore, the use of that land had to be authorised in accordance with the Crown lands legislation, which it had not been.
In respect of the latter point, Worimi further contended that if the land was Crown land, there was no public right to use it. The use had to be authorised by either the CLA (s 6) or the CLMA (s 1.15) or by some other statute (Shoalhaven at [41], [46] and [55]-[56]). In the present case, there was no dedication or reservation for use by the public under the CLA or the CLMA (see ss 80 and 87 of the CLA and ss 2.3 and 2.8 of the CLMA) enabling the Crown land to be used, and therefore, its use and occupation by the SCS was unlawful. While individual use can be authorised by lease or licence (s 34 of the CLA and s 5.3 of the CLMA), but mere acquiescence is insufficient. As a consequence, in relation to the use and occupation of the Fisheries Area by SCS, at its highest, the evidence supports no more than an inference of a "mere tolerance of the unimportant" by the Crown (Shoalhaven at [66]).
I do not accept Worimi's contentions for several reasons. First, as reasoned above, the land was not Crown land, and therefore, no authorisation was required under the relevant enactments to lease or license the land. Even if the land was Crown land contrary to the findings made above, the Minister for FDCS was permitted to deal with the land pursuant to s 13A(5) of the CWA (see s 7 of the CLA and s 1.15 of the CLMA, as discussed above). It was not necessary for any dealing with the land to be additionally authorised under the Crown lands statutory scheme. The land was able to be dealt with by the Minister under the Crown lands legislation and by the Minister administering the CWA. The powers coexist and operate concurrently. Therefore, it was not necessary for any dealing with the land to be authorised under the Crown lands legislative regime.
Alternatively, the Minister relied upon the authority in Ashfield Municipal Council v Roads and Traffic Authority of New South Wales (2001) 117 LGERA 203; [2001] NSWCA 370 to submit that a bare licence ought to be inferred (or presumed) given that the fisheries facility in the Fisheries Area had been operating on the land for a considerable period of time.
Ashfield concerned a decision by the RTA to resume land to improve and realign a road, part of which was on Crown land but within the boundaries of reserves managed by the council. The council appealed the amount of compensation offered. One of the issues for determination was whether part of the road was a "public road" or not for the purposes of determining compensation. It was held that the road was a "public road" because it was declared to be part of a main road and that could only have been done by the Minister for Roads if the Minister for Lands had granted a licence for the use of it by the public. Alternatively, it was a "public road" at common law by reason of a dedication that had not been proven but should be presumed. In arriving at this conclusion, it was observed that the Crown, in permitting the use of the area as a road, was contravening s 6 of the CLA unless authority permitting its use could be found in the CLA or some other enactment. There was no doubt that the Minister for Roads had approved the use of the area as a road. The issue was that he was not the relevant Minister for the purpose of the CLA. Applying the presumption of regularity, Heydon JA (as his Honour then was) presumed that permission to use the road had been given by the Minister for Lands by way of a grant of consent and a licence to the public (at [51]).
The Minister argued by analogy that it could similarly be inferred that a licence had been granted under the CLA (the power to do so exists: see s 34 of the CLA).
There is considerable force in this submission. I find that it is highly unlikely that the Minister would have tolerated any ongoing occupation of the land unless all relevant permissions had been obtained for the fisheries facilities to operate. It may be presumed, especially given the history of the dealings between the various entities (as evidenced by the MOU, the Collaboration Deed, the aquaculture permit, briefing notes and various communications both predating and postdating the dates of claim) that permission was given by the Minister for SCS to use and occupy the Fisheries Area in the manner that it did by way of, at the very least, a licence.
Second, as the evidence above demonstrates, irrespective of whether or not the Collaboration Deed was or was not complied with in relation to specific objectives, deliverables, targets, or reporting on the progress of research, the fact remains that DCJ and DPI were aware that SCS was occupying and using the Fisheries Area for the purpose of aquaculture and there is no evidence to suggest that its activities and presence were not known or, more importantly, were not sanctioned by DCJ.
Third, while DCJ may not have known whether SCS was using and occupying the site pursuant to a lease or licence arrangement, this does not matter. The use and occupation was lawful, whether it was a gratuitous licence, permissive occupancy, or an informal lease arrangement that simply carried over after the Collaboration Deed expired.
I am therefore of the opinion that the Fisheries Area was lawfully used and occupied.
Brunner gave evidence that maintenance of the Pool Area was undertaken by DCJ up until July 2020, after which time it was carried out by contractors on behalf of DCJ. The Risk Assessment noted that the pool was tested daily by outdoors staff. This was consistent with an asset description report for the Tomaree Centre dated 24 September 2020, which reported that the general condition of the pool was "safe" and that "cleaning [sic] completed to an acceptable standard". The photographs of the Pool Area attached to the asset description report depicted a well maintained area in all aspects.
I therefore find that as at both claim dates, and contrary to the submissions of Worimi, the Pool Area was used and occupied to more than a notional degree.
Worimi submitted that Brunner's evidence was not sufficiently geographically specific and ought not be accepted as evidence concerning the use and occupation of the Northern Bushland. In particular, it argued that her evidence regarding the bushland on the eastern side of the land could not be taken as evidence concerning the Northern Bushland, and moreover, that she demonstrated a clear lack of familiarity with the Northern Bushland. This was because, according to Worimi, she had not walked the full length of the path on the western shoreline and was generally unfamiliar with the path beyond the location of the buildings (T64:09-11).
I do not agree. First, that Brunner was confused or that the evidence that she deposed to was wrong in respect of the Northern Bushland was not, as the Minister observed, put to her in cross-examination. It ought to have been. For example, it was not put to her that the septic system infrastructure was located in an area outside the Northern Bushland.
Second, her evidence was replete with references to the bushland on the eastern boundary or the perimeter of the land. These areas formed part of the Northern Bushland. Moreover, in respect of bushfire management, she specifically referred to concerns about the headland, which is located in the Northern Bushland.
Skinner's evidence was consistent with Brunner's, namely, to the effect that:
1. residents would enjoy the scenery from the northern point of the land;
2. supervision of residents became "a whole of site concern";
3. the northern end of the land was used by the RAAF Base helicopter for the purpose of training exercises between 2015 and 2019; and
4. SCS was reminded by her following a complaint, to stick to the speed limit on the grounds of the Tomaree Lodge (T70:31-49).
When Skinner was asked in cross-examination to identify by reference to an aerial image of the land where residents enjoyed the scenery, her answers referred to the road going to the headland point and to the area where the helicopters landed (T68:46-69:20), both of which were located in the Northern Bushland.
In circumstances where there was a measure of control over the whole of the land, where the Northern Bushland was specifically cared for and maintained and where there was both passive and actual use of the Northern Bushland for the purpose of amenity and recreation for the residents of Tomaree Lodge, it cannot be said that the Bushland Area was not used or occupied to the requisite degree.
Finally, it should be recalled that although Tomaree Lodge was scheduled to be closed, as at the first claim date there were 39 residents at the Lodge and as at the second claim date there were 34. Accordingly, it was not the case that as at the date of either claim there was no actual use of the land in the sense of physical activity with a degree of permanence and continuity. Tomaree Lodge continued to provide residential accommodation and to operate as a care facility for up to two years after the date of the second claim. It was actively being used as at both claim dates.
Because the Northern Bushland and Pool Area were, for the reasons explained earlier in this judgment, part of Tomaree Lodge and the land, they served the same essential public purpose, namely, as a site for the accommodation and care of persons with intellectual disabilities.
The following evidence reinforces the conclusions above:
1. a briefing note on the future use of the Tomaree Lodge site to the Chief Financial Officer of DFCS dated 18 December 2017, which stated that:
This scenic LRC site has enjoyed long and harmonious relations with the local community and visitors who regularly walk through it along the waterfront and out to the headland. FACS acknowledges the local interest this site attracts…
1. a letter written on behalf of the Premier by the Hon Scott Farlow MLC to a constituent on 25 February 2019, concerning the future of Tomaree Lodge that pledged a "guarantee that Tomaree Lodge will remain in public hands". The letter went on to state that "Tomaree Lodge is strongly supported by the community and will be kept for community use and open space" and that public access to the site "is maintained". Although the letter does not, as Worimi noted, record a decision by the executive government in respect of the future utilisation of the land by it, it nevertheless confirms the use of the land for the purpose of recreation as at the date that the letter was written.
In my opinion, the material before the Court (excluding various newspaper reports upon which the Court places no weight) evinces a clear intention that the land is required, in the sense of needed, for the essential public purpose of open space for recreation. In taking issue with this material Worimi again elides the concepts of present need and likely future need thereby misconceiving the Minister's position. This need extended to the Pool Area and the Northern Bushland area. The Fisheries Area is dealt with separately below.
The Project Plan located in Schedule A to the Collaboration Deed stated that the collaborative research was to be undertaken against two research objectives: "to assess and develop a high density flow through culture systems for edible oysters" and "to advance the development of polyploid induction techniques for edible oysters". Accordingly, "the planned outcome of this research being the development of efficient sustainable hatchery facilities within NSW and for the benefit of the NSW oyster industry".
This is consistent with the written and oral evidence of O'Connor (T76:09-44). The research carried out at the Fisheries Area investigated disease resistance and faster growing lines in the cultivation of oysters to address a decline in oyster stock. There was, moreover, ongoing research conducted jointly between DPI and SCS (T95:13). O'Connor unequivocally stated that this research continued beyond the expiration of the Collaboration Deed (T95:31-44):
WITNESS: So, complete the assessment of triploid SRO, provide recommendations for ongoing research. At the point when we had started this particular proposal, we had not developed fully the techniques to produce what are called triploid Sydney rock oysters and it was something that that we were very keen to do for industry. There were some developments made during the - during the period of the - of the collaboration deed, but they weren't completely conclusive in terms of the goals that we had for the production of triploid Sydney rock oysters. So, that research was then continued on.
It's been a subject of ongoing research, most recently right through to about two years ago when we were involved in what's called a cooperative research centre for oysters. And that particular cooperative research centre involved, both representatives of Southern Cross Shellfish and the Department of Primary Industries, in terms of further developing that technology.
O'Connor also deposed to the fact that in relation to the Tomaree Lodge site, "in particular", "the fisheries building was ideally placed for oyster hatchery work because of its proximity to ocean seawater. The site occurs on an estuary that, under current biosecurity regulations for the translocation of oysters is one of a number of limited number that has free access to supply spat to most other NSW estuaries." There is nothing to suggest that this advantage did not exist as at the claim dates or that the use of the fisheries facility by SCS "to produce selected lines of Sydney Rock Oysters which are disease resistant and faster growing" (an essential component of industry risk management) was not ongoing as at those dates.
Contrary to the submissions of Worimi, it is tolerably clear that research was being carried out at the fisheries facility in the Fisheries Area as at the date of both claims.
If nothing else, I accept that there exists community interest in the sustainability of the oyster industry having regard to the profitability of the industry and its associated generation of employment (as attested to by O'Connor).
Finally, I do not accept that the research undertaken at the Fisheries Area was, as contended by Worimi, exclusively for the purposes of the private commercial interests of SCS.
Worimi argued that even if research was undertaken at the Fisheries Area, given that: the Collaboration Deed expired in 2012; O'Connor's evidence that the production of commercial batches would be achieved by 2008 and that "they have produced commercial batches past that time" (T78:48-49); the SCS website indicated that it provided "75% of industry requirements for hatchery produced Sydney rock oyster spat in NSW and Queensland"; and the existence of an SCS oyster price list for 2018/2019, the research was for private purposes.
That SCS commercialised its research (which it did, as the evidence plainly demonstrates) does not, of itself, negate the essential public purpose characterisation of fisheries research. As O'Connor observed, a levy was charged on the oyster stock developed at the Fisheries Area to support the breeding program central to the research and, as he emphasised, the collaborative research into oysters was ongoing (see again the evidence of O'Connor at T95:40-44). The fisheries facility was not, as Worimi sought to characterise it, a purely profit driven venture with no regard to, or endeavour in, research.
For all these reasons, I find that the Fisheries Area was needed for the essential public purpose of research (and in particular, oyster research) as at both claim dates.