Commonwealth v New South Wales [1929] UKPCHCA 1

2 OLR] OF AUSTRALIA. 69

(PRIVY COUNCIL.)

THE COMMONWEALTH . : : § APPELLANT ; DrrenDant,

AND

THE STATE OF NEW SOUTH WALES ) 5 ResPonpeENtTs.

AND ANOTHER PLAINtirrs,

ON APPEAL FROM THE HIGH COURT.

Crown Lands (N.S.W.)—Dedication—Revocation of dedication—Garden Island~ 'paryy Dedication to purposes of naval depot—Whether dedication perpetual—User and Councrn.* occupation by Imperial Navy—Agreement between Imperial Government and 1929. Government of State—Imperial Order in Council—Bffect of recitals—Common- wealth holding in right of Imperial Government—Right of New South Wales to possession—Orier in Council—Subsequent legislation —Inconsistency—New South Wales Constitution Act 1855 (18 & 19 Vict. c. 54), sec. 2—Crown Lands Alienation Act 1861 (N.S.W.) (25 Vict. No. 1), secs. 3, 5—Colonial Fortifications Act 1877 (40 & 41 Vict. c. 23), sec. 1—Crown Lands Consolidation Act 1913 (N.S.W.) (No. 7 of 1913), sec. 25—Imperial Order in Council of 26th October 1899.

Jan, 29,

Garden Island, in Port Jackson, was, at the time the New South Wales Constitution Act 1855 was enacted, part of the waste lands of the Crown, the entire management and control of which was by sec. 2 of that Act vested in the Legislature of New South Wales. Pursuant to sec. 5 of the Crown Lands Alienation Act 1861 (N.S.W.) the Island was, as to one part in 1865 and as to the other part in 1866, dedicated for the purposes of a naval depot. The Island had for some years before 1865 been continuously and exclusively used by the Imperial Government as a naval depot for the Royal Navy, and thereafter continued to be so used until 1913, since when the Island was used by the Commonwealth for the purposes of the Australian Navy. By an

* Present—Lord Buckmaster, Viscount Sumner, Lord Blanesburgh, Lord Warrington of Clyfie and Lord Atkin,