Hawkins v Minister for Lands [1949] HCA 21

High Court of Australia Latham C.J. Dixon, McTiernan, Williams and Webb JJ. Hawkins v Minister for Lands [1949] HCA 21

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

July 1 Latham C.J.

The question which arises upon this appeal is whether the powers of the Minister for Lands to reserve Crown lands temporarily from sale under s. 29 of the Crown Lands Consolidation Act 1913, as amended, extend to land held under Crown lease granted under the Act so as to prevent the lessee from converting the lease into a conditional purchase which, if the conditions of the Act are satisfied, would entitle the lessee at a future date to a Crown grant in fee simple—s. 56. The price to be paid by the purchaser for a freehold title to the land is determined in accordance with s. 186, which contains provisions for determining the capital value of the land.

A Crown lease granted under the Act is a lease in perpetuity—s. 134. The form of a Crown lease is prescribed by regulations—see regulations in Government Gazette No. 154 of 2nd October 1936. The lease contains conditions with respect to residence, no assignment without consent of the Minister, destruction of vermin and vegetable pests, clearing prickly pear, fencing, no cutting of timber for sale except subject to the provisions of the Forestry Act 1916 and regulations thereunder, right of entry by authorized persons and a condition of forfeiture upon failure to pay the rent reserved or upon breach of conditions. Section 184 gives a right, subject to certain conditions (which are dependent upon the opinion of the Local Land Board), to convert a Crown lease into a conditional purchase, and s. 56 gives a right to a conditional purchaser, subject to conditions, to obtain a Crown grant in fee simple. It is only after these rights have been successfully exercised that the lessor becomes the owner of an estate in fee simple. It is therefore quite clear that the grant of a Crown lease is not a grant in fee simple.