Land and Environment Court New South Wales Medium Neutral Citation: New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 ("Jannali") [2024] NSWLEC 41 Hearing dates: 12 and 13 September 2022 and 17 February 2023, 10, 31 March and 5 April 2023 (further written submissions) Date of orders: 23 April 2024 Decision date: 23 April 2024 Jurisdiction: Class 3 Before: Pepper J Decision: The appeal is dismissed with no order as to costs. Catchwords: ABORIGINAL LAND RIGHTS: whether some or all of the claimed land was "claimable Crown lands" within the meaning of the Aboriginal Land Rights Act 1983 as at the date of the claims – whether the claimed land was lawfully used or occupied for the purposes of s 36(1)(b) of the Act – effect of dedication for "public schooling purposes" – meaning of "lawfully" used or occupied – claimed land not lawfully used or occupied – whether the claimed land was needed or likely to be needed for the essential public purpose of education pursuant to s 36(1)(c) of the Act – whether the provision of education by a private provider an essential public purpose – whether a decision to sell the land to a private education provider who has continuously used the land to deliver courses precluded a finding that the claimed land was needed for an essential public purpose – land not claimable Crown land for the purpose of s 36(1) of the Act. Legislation Cited: Aboriginal Land Rights Act 1983, ss 36, 36(1)(b), 36(1)(c), 36(5A), 36(6), 36(7) Conveyancing Act 1919, ss 88k, 89 Crown Lands Act 1989, ss 6, 10, 34, Pt 5, cl 1 of Sch 8 Crown Lands Consolidation Act 1913, s 24 Education Act 1990, ss 3, 4, 5, Pt 7, cl 5(a) of Sch 3 Cases Cited: Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800 Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 ("Doyalson") [2023] NSWLEC 134 Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2022] NSWCA 275; (2022) 110 NSWLR 535 Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act [No 2] [The Londonderry Claim] (1995) 89 LGERA 194 Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 68; (2012) 211 LGERA 100 Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 95 LGERA 353 Dorrigo Plateau Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 635; (2007) 155 LGERA 307 Griffith Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 108 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] [2001] NSWCA 28; (2001) 50 NSWLR 665 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] NSWCA 28; (2001) 113 LGERA 148 Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council v [2009] NSWCA 289; (2009) 168 LGERA 71 Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359; (2012) 193 LGERA 276 Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359; (2012) 193 LGERA 276 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Corporation [2016] NSWCA 253 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council ("Wagga") [2008] HCA 48; (2008) 237 CLR 285 Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 New South Wales Aboriginal Land Council - Little Bay v Minister Administering the Crown Land Management Act [2022] NSWLEC 142 New South Wales Aboriginal Land Council – Little Bay v Minister Administering the Crown Land Management Act [2022] NSWLEC 142 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act (1988) 14 NSWLR 685 New South Wales Aboriginal Land Council v Minister Administering the Crowns Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 241 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2015] NSWCA 349; (2015) 215 LGERA 103 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Department of Education Claim) (1992) 76 LGRA 192 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Kinchela Claim) [2009] NSWLEC 46; (2009) 166 LGERA 137 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Newcastle Post Office Claim) [2014] NSWLEC 72; (2014) 204 LGERA 1 New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act – Waverton Bowling Club [2022] NSWLEC 130 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [2008] NSWLEC 13 New South Wales Aboriginal Land Council v Minister for Natural Resources (The Tredega Claim) (1986) 59 LGRA 318 Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 20; (2001) 113 LGERA 163 Category: Principal judgment Parties: New South Wales Local Aboriginal Land Council (Applicant) Minister Administering the Crown Land Management Act (Respondent) Representation: Counsel: M Wright SC (Applicant) R Graycar (Respondent) Solicitors: Chalk & Behrendt Lawyers & Consultants (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2021/271970 Publication restriction: Nil JUDGMENT Land Claims Are Made Over Land at a College 1. These proceedings concern an appeal pursuant to s 36(6) of the Aboriginal Land Rights Act 1983 ("ALRA") in respect of the part refusal by the Minister administering the Crown Land Management Act 2016 ("the Minister") of two land claims ("the claims") relating to Lot 3 in Deposited Plan 1001659 ("the claimed land") (see the area shaded in blue in the aerial photograph below). The registered proprietor of the claimed land is the State of New South Wales. 1. The claims were lodged by the applicant, the New South Wales Aboriginal Land Council ("NSWALC"), on 15 and 19 December 2016 (together, "the date of the claims"). 2. On 27 May 2021 the Minister wrote to the NSWALC advising it that part of the claims were refused on the following ground ("the decision"): ...when the Claims were made the land was not claimable Crown land as it was lawfully used and occupied for public schooling purposes. The relevant land was part of the St George and Sutherland Community College. 1. On 23 September 2021 the NSWALC filed its appeal from the decision. 2. For the reasons that follow, I find that as at date of the claims the land was not lawfully used and occupied and is therefore "claimable Crown lands" under s 36(1)(b) of the ALRA. However, I have further found that the claimed land was needed for the essential public purpose of education which serves to defeat the claim pursuant to s 36(1)(c) of that Act. The appeal must accordingly be dismissed. 3. I gratefully acknowledge the assistance of Smith AC during the hearing. All findings, both legal and factual, are, however, my own. Events Preceding and Post the Land Claims 1. Much of the factual background to the appeal was not in dispute. The claimed land is located at Sutherland Road, Jannali, in the Parish of Sutherland, County of Cumberland. The claimed land is located within the area of Gandangara Local Aboriginal Land Council. It is approximately 1,838 m2. 2. On 18 October 1935 the claimed land was the subject of a dedication of lands for public purposes under the Crown Lands Consolidation Act 1913 ("CLCA") and the Public Trusts Act 1897 by notification in the New South Wales Government Gazette ("Gazette") (Gazette No 179, Folio 4174). The intended dedication was for "public school purposes" ("the dedication"). 3. On 6 December 1935 an erratum notice was published in the Gazette to the effect that the NSW Government intended to revoke dedication of part of the land described in the dedication. The land to be revoked from the dedication did not, however, include the claimed land. 4. On 4 September 1964, by publication in the Gazette, the Minister for Lands declared "public school purposes" to be a public purpose under the CLCA. 5. In January 1959 the Jannali Girls High School was opened on the dedicated land, which included the claimed land. The school continued to operate on, inter alia, the claimed land up until it was closed in December 1991. 6. In 1979 an evening course for adults with a disability, known as "Kringen", was established. It is not clear from the evidence whether or not the course took place on the claimed land. 7. In 1980 St George & Sutherland Community College Inc ("SGSCC") was awarded an Adult and Community Education ("ACE") contract by the NSW Department of Education and Communities ("the Department of Education") with funding to deliver courses teaching English to non-English speaking people in the surrounding communities. Again, it is not clear precisely when or where these courses were delivered. 8. In 1994 various evening colleges in the areas surrounding the claimed land were amalgamated to become the Community College in Jannali and evening courses were moved to an adult education centre for people with a disability. The Community College became the SGSCC and operated from the site previously occupied by the Jannali Girls High School. It continues to operate in the same location today. 9. In 1995 SGSCC became a Registered Training Organisation for the first time. 10. On 1 May 1995 Deposited Plan 824066 was registered. A notation to the Plan included a proposed right of carriageway through Lot 1238. On 19 May 1999 Deposited Plan 1001659 was registered for the purpose of acquisition. It created Lots 1, 2 and 3 of Deposited Plan 1001659. The proposed 4.5 m right of carriageway in favour of Lot 3 from Sutherland Road traversing Lot 1238 DP 824066 and ending at the boundary of the claimed land was noted on the Plan but was never created. 11. In 2002, with funding from the Sutherland Shire Council, SGSCC established a community garden. 12. On 1 January 2011 a lease between SGSCC and the New South Wales Minister for Education and Training ("Minister for Education") in respect of Lot 51 of Deposited Plan 1034575 ("the lease") commenced. Lot 51 of Deposited Plan 1034575 is adjacent to the claimed land. 13. The lease was for an initial term of five years, terminating on 31 December 2015, with an option to renew for a further five years. The word "Term" was defined in the lease as the period specified in Item 2 of Sch 1 together with any period of "holding over". Item 2 of the lease recorded the "Term" as being five years commencing on the "Commencement Date". The "Commencement Date" was recorded in Item 3 of the lease as 1 January 2011. 14. Clause 13.1 of Annexure A to the lease provided as follows: 13. Holding over 13.1 Term If the Lessee with the consent of the Lessor continues to occupy the Premises after the termination of this lease, the Lessee shall be a monthly lessee only and either party shall be able to terminate such lease by 1 month's notice in writing to the other. 1. Clause 14 of the lease contained terms relating to the option to renew. More specifically, it provided that the SGSCC could require the Minister for Education "to enter into a further lease of the Premises for the period specified in Item 7 commencing from the last day of the Term" provided that certain conditions were met. Clause 14.2 of the lease provided that any further lease entered into by reason of SGSCC exercising its rights under the lease to renew it would contain identical provisions as are contained in the lease except, relevantly, cl 14 would be deleted and "(c) the Term will be amended to reflect the provisions of [clause 14.2]". 2. The term "permitted use" was defined in Item 6 of Sch 1 of the lease as "the conduct of adult and community education and child minding, car parking, administration and other activities incidental to the conduct of adult and community education." 3. The lease expired on 31 December 2015. Thereafter the SGSCC occupied the site pursuant to the holding over provisions under the lease. 4. On 16 August 2015 the NSW Cabinet Standing Committee on Expenditure Review identified the site of the Jannali Girls High School (including the claimed land) on the NSW Department of Education's Asset Sales Program. 5. On 8 April 2016 a representative of the Department of Education, Kit Wong, sent an email to a representative of the SGSCC, Terry Higgins, stating that: As discussed in our phone call this morning, we are in the process of getting the appropriate approvals to document the agreed transaction of the property. There are 3 parcels of land involved and one of the parcels belong to Crown Lands where we will need to get their consent to the lease and sale. I'm not sure how long this will take but we won't be able to accept your down payment until the documents are finalised. 1. Consistent with the representations made to the SGSCC, in May 2016 the Department of Education took steps to engage with representatives of Property NSW about the vesting of the claimed land to the Department of Education to enable it to transfer the claimed land to the SGSCC. 2. On 17 May 2016 Kristian Letsch from Property NSW wrote to Thomas Delgatto at the Department of Primary Industries – Lands (the owner of the claimed land) in these terms: Hi Thomas Thanks for your time today. Below was the property that Hugh and I spoke to you about today. I know we has (sic) some early discussions regarding options in late April. Can you please advise the required process that Property NSW will need to undertake to vest into our name before we transfer to the purchaser and how long would the timeframe be? As promised, please find attached example of our most recent Fee Proposal document. Should you have any questions on the Fee Proposal document, please call me to discuss. 1. On 18 May 2016 Delgatto sent an email in reply to Letsch in which he opined that: For the purpose of securing this site for the continued operation of the school, it may be best served to leave the dedication noted on title in place and leave the site as Crown land for the time being. The dedication provides for continued use for purposes which in my understanding of the circumstances, support and align with the existing schools use. 1. Shortly after that email was sent Belinda Kelly from the DPI wrote to Delgatto on 20 May 2016 stating that: A preliminary status investigation for Lot 3 DP1001659 and Lot 1248 DP824066 has determined that both parcels are Dedicated for Public School, Notified 18th October 1935 (copy of investigation attached). No Trust is in place, and no Crown Lands Tenure exists over the land. The land is not currently subject to Aboriginal Land Claim. As mentioned one option for consideration is that the Department of Education acquire the land under Section 125 of the Education Act 1990, or Section 125 of the Education Reform Act 1990, or Section 27 of the Technical & Further Education Commission Act 1990 – all in accordance with Section 29 of the Land Acquisition (Just Terms Compensation) Act 1991. Note the Dedication is revoked by act of acquisition (see Section 20 of the LAJTC Act 1991). Let me know if you require anything further. 1. On 11 October 2016, on the recommendation of the Department of Education contained in an internal briefing note to the Minister for Education DGS16/517 ("the briefing note"), the Minister for Education declared the former Jannali Girls High School site to be surplus to educational requirements and approved its disposal to the SGSCC. The claimed land was expressly referred to in the briefing note: The former Jannali Girls High School was identified on the Department's Asset Sales Program approved by Cabinet Standing Committee on Expenditure Review (ERC) on 16 August 2015 The site is identified as comprising of: Lot 3 DP 1001659 owned by DPI Crown Lands; Lot 51 DP 1034575 owned by DOE; Lot 1238 DP 824055 owned by DOE. This site is leased to SGSCC who have occupied the site since 1993 Recommendation that Minister declares the former Jannali Girls High School site surplus to educational requirements, approves of its disposal to the SGSCC and signs the attached letter to the Local Member. 1. It is to be observed in the briefing note that "the site" that it referred to "comprised" Lot 3 in Deposited Plan 1001659, Lot 51 in Deposited Plan 1034575 and Lot 1238 in Deposited Plan 824055. However, as properly conceded by the Minister during the hearing, the lease did not apply to Lot 3 (T12:34-37). This concession was made as an adjunct to the Minister's submission that there "was clearly an authority to use the site and everybody was aware of and happy, it appears, with the fact that the site was being used by the College, all three parts of it" (T12:37-39). 2. On 30 November 2016 Robert Fraser from the Department of Education wrote to Dennis Szabo from Property NSW advising that the Minister for Education had approved the sale of the former Jannali Girls High School site, including the claimed land, to SGSCC. Fraser outlined the terms of the arrangement and requested that documentation to effect the transaction be prepared: I refer to the recent discussions regarding the disposal of the former Jannali Girls High School site to St George & Sutherland Community College. The Minister has approved of the sale to the College on the following basis: [Redacted] Could you arrange for the preparation of the appropriate documentation to implement the Minister's approval. 1. On 18 November 2020 David May from the Department of Education sent an internal email to, among others, Chris Whilsher, advising of the formal request from the Department that the land claim assessments be prioritised for Lot 3 of DP 10001659. The email provided the following background information: The St George and Sutherland Community College currently occupy the sit – its (sic) utilised as a car park. The St George and Sutherland Community College have been in occupation of the subject lot 3/1001659 and adjoining lots 51/1034575 and 1238/824055 since 1993 (under lease attached above for ref). The Department have identified the Community College lots for divestment and advised the Minister the site will be divested ASAP – pending the outcome of the ALC assessment. The Community College have expressed a desire to acquire the Departments (sic) lots pending the outcome of the ALC matter across the CL/parking lot. 1. Contrary to the representations in that email, at no time did the lease extend to or demise the interests of the State of New South Wales in the claimed land. This was noted in subsequent correspondence between representatives of the relevant departments. 2. On 9 December 2020 May wrote to Renate Sherring in which he expressed the following: Fantastic news! Your [sic] correct that whilst the headline term of the lease had in fact expired the community college remained in occupation under the holdover provisions of the lease and continue to do so to this day. Simultaneously they have continued to occupy/use the adjoining CL (Lot 3/DP1001659) as the carpark and ancillary purposes required to support the operation of the college and maintained exclusive use of it on an informal basis, there is no other access to that lot – plse refer to pic below. 1. Between 18 November 2020 and 3 March 2021, Rob Hain, Sherring, May and Wilsher, all from the Department of Education, exchanged emails advising and acknowledging that assessment had progressed and recommending that "the Claims" made over the Jannali Girls High School carpark be refused. 2. On 3 March 2021 the Department of Education emailed the Department of Primary Industries – Crown Lands seeking clarification of the timing for resolution of the land claims and stating that "the long-term occupier of the site: St George & Sutherland Community College has a large on-going operation with 1,082 students (approx. 150 disabled) on site per day – they are therefore heavily reliant on this carparking for the college." On the same day, that Department sent an email to the Department of Education advising it that it had been recommended that the Minister refuse the claims. 3. On 10 June 2021 Sherring wrote to Hain advising that the brief recommending refusal of the land claims in relation to the Jannali Girls High School carpark had been signed. 4. Bernadette Mills was appointed as the Chief Executive Officer of the SGSCC on 9 July 2021. 5. Mills wrote to the Crown Solicitor's Office on 24 November 2021, responding to the land claims by noting that: Lot 3DP 1001659 is an integral part of our community activities and services delivered here at SGSCC. It Includes three main areas 1. The Mates Shed. 2. The Community Garden 3. The Car Park It was naturally assumed Lot3 was part of the original premises, known as Lot 51, The Jannali Girls High School, initially, it had a girls toilet block on this parcel of land. The Mates Shed, also known as The Welding Shed, was previously the toilet block for Jannali Girls High School until its conversion into a learning space known as The Mates Shed. The letter went on to give a description of the use and operation of the Mates Shed, the Community Garden and the Car Park. 1. On 30 November 2021 Wong from the Department of Education wrote to Higgins at the SGSCC advising him that the tenancy at the Department's premises on Lot 51 Deposited Plan 1034575 was currently on a monthly holdover and that rent would continue at the "similar rate". The letter also advised that "when the rent determination is completed, any necessary adjustments will be made with the determined rent effective from 1 January 2016". 2. The solicitors for the NSWALC requested particulars of the lawful authority relied upon by the Minister as the basis of the occupation of the claimed land on 1 March 2022. On 9 March 2022 the Crown Solicitor responded stating that the lawful authority relied upon by the Minister was "Dedication 500978 as the lawful authority to use and/or occupy the land within the meaning of s. 36(1)(b) of the Aboriginal Land Right [sic] Act 1983". 3. Subsequently, on 13 July 2022, the solicitors for the NSWALC requested the reserve file and the disposal file for Lot 3 of Deposited Plan 1001659 from the Crown Solicitor's Office pursuant to s 36(14) of the ALRA. On 1 August 2022 the legal representatives for the Minister advised the NSWALC that there was no hard copy or electronic reserve file and there was no disposal file for the proposed sale of the claimed land. 4. As at the date of the claims, the claimed land was vested in the Crown and remained subject to the dedication. Further, the claimed land was not subject to a lease or licence granted under the Crown Lands Act 1989 ("CLA") nor had the Minister appointed a trust manager for the claimed land. 5. Also as at the date of the claims, the claimed land was accessible only by the two lots that adjoin it that are part of the SGSCC, namely, Lot 51 in Deposited Plan 1034575, and Lot 1238 in Deposited Plan 824066. At all material times both Lot 51 and Lot 1238 were owned by the Department of Education. 6. Finally, it is convenient to note that the claimed land, Lot 51, and Lot 1238 are collectively described as "the Site" in much of the governmental documentary material before the Court. Issues for Determination 1. Determination of the central question of whether the claimed land is not "claimable Crown lands" under the ALRA, demands resolution of the following issues: 1. whether the Minister can satisfy the Court that as at the date of the claims, the whole or any part of the claimed land was lawfully used and/or occupied, and therefore, was not "claimable Crown lands" within the meaning of s 36(1)(b) of the ALRA; 2. whether the Minister can satisfy the Court that as at the date of the claims, the whole or any part of the claimed land was needed or likely to be needed for an essential public purpose, and therefore, was not "claimable Crown lands" within the meaning of s 36(1)(c) of the ALRA; and 3. what are the appropriate orders that the Court ought to make in light of the resolution of issues (a) and (b). Statutory Framework Governing the Appeal The Aboriginal Land Rights Act 1. Section 36 of the ALRA prescribes what relevantly constitutes "claimable Crown lands" for present purposes: 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— … (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. … (5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall— (a) if the Crown Lands Minister is satisfied that— (i) the whole of the lands claimed is claimable Crown lands, or (ii) part only of the lands claimed is claimable Crown lands, grant the claim by transferring 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) the whole or that part of the lands claimed, as the case may be, or (b) if the Crown Lands Minister is satisfied that— (i) the whole of the lands claimed is not claimable Crown lands, or (ii) part of the lands claimed is not claimable Crown lands, refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require. … (6) An Aboriginal Land Council may appeal to the Court against a refusal under subsection (5)(b) of a claim made by it. (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. The Crown Lands Act 1. Section 6 of the CLA, which was in force as at the date of the claims, states 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. 1. The objects of that Act are set out in s 10: 10 Objects of Act The objects of this Act are to ensure that Crown land is managed for the benefit of the people of New South Wales and in particular to provide for: (a) a proper assessment of Crown land, (b) the management of Crown land having regard to the principles of Crown land management contained in this Act, (c) the proper development and conservation of Crown land having regard to those principles, (d) the regulation of the conditions under which Crown land is permitted to be occupied, used, sold, leased, licensed or otherwise dealt with, (e) the reservation or dedication of Crown land for public purposes and the management and use of the reserved or dedicated land, and (f) the collection, recording and dissemination of information in relation to Crown land. 1. Part 5 of the CLA deals with the dedication and reservation of the land. Clause 1 of Sch 8 of the CLA is a transitional and savings provision which states that a dedication or reservation that was in force under a repealed Act immediately before its repeal has effect as if it had been made under the CLA. 2. The claimed land was the subject of the dedication. That dedication was made under s 24 of the CLCA, which relevantly provided that: 24. The Minister may by notification in the Gazette dedicate Crown lands in such manner as may seem best for the public interest for any railway or railway station—public road canal or other means of internal communication—public quay or landing-place— public reservoir aqueduct or watercourse—the preservation of water supply—hospital asylum or infirmary—public market or slaughter-house—college school mechanics' institute public library museum or other institution for public instruction or amusement — town-ball court-house or gaol — permanent common — public health or recreation convenience or enjoyment—cricket ground —or racecourse—interment of the dead—use and general purposes of pastoral and agricultural associations—public baths—or for any other public purpose. And upon any such notification being published in the Gazette, such lands shall become and be dedicated accordingly, and may at any time thereafter be granted for such purposes in fee-simple. An abstract of any intended dedication under this section shall be laid before both Houses of Parliament one month before such dedication is made. 1. The dedication continued in force after the repeal of the CLCA as a consequence of cl 1 of Sch 8 of the CLA. Accordingly, the dedication is able to be treated as if it were made pursuant to the CLA. General Legal Principles Applicable to the Determination of a Land Claim Appeal 1. Although, well traversed, it is convenient to repeat some of the fundamental legal principles underpinning the determination of land claim appeals under the ALRA. First, the ALRA was enacted in an attempt to mitigate 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). The Act has accordingly 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). 2. Nevertheless, care must be taken not to place undue emphasis on the beneficial purpose underpinning the ALRA. As the High Court of Australia stated in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 ("Berrima Gaol HCA") (at [33] per French CJ, Keifel, Bell and Keane JJ, footnotes omitted, and see a similar sentiment expressed by Gageler J at [94]): 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. 1. Second, 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] NSWCA 28; (2001) 50 NSWLR 665 ("Maroota") at [53] and Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 ("Bathurst") at [186]). 2. Third, it is generally settled law that, as stipulated by s 36(7) of the ALRA, the onus of proof falls on the Minister to satisfy the Court that the claimed land is not claimable Crown lands under the ALRA. If the Minister fails to discharge this statutory onus, then the Court is bound to order the transfer of the land to the NSWALC (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act (1988) 14 NSWLR 685 ("Winbar") at 692D – 693D). 3. Fourth, the date for determining whether land is "claimable Crown lands" is the date that the claim was lodged and not the date that the claim was determined (Winbar at 691F-G and Dorrigo Plateau Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 635; (2007) 155 LGERA 307 at [9] and [44]). 4. Fifthly and finally, the Court may take into account post-claim evidence in determining whether, as at the date of the claim, the land was claimable Crown lands (Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359; (2012) 193 LGERA 276 ("Malabar CA") at [19]). Specifically, the Court may consider evidence that comes into existence subsequent to the date of the land claim if it confirms attributes of the land as at the date of the claim or if it demonstrates a continuity of activity by indicating what occurred before or after the date of the claim (New South Wales Aboriginal Land Council v Minister Administering the Crowns Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171 ("Camberwell") at [62] and [125]-[127]). Evidence of the Parties 1. In addition to the SOAF, the parties relied upon a joint tender bundle of documentary material, together with some additional separately tendered documents. 2. The Minister further relied upon two affidavits affirmed by Mills on 18 February and 8 July 2022, together with the exhibits to those affidavits. Mills was cross-examined. Mills's Evidence 1. Mills's evidence is central to the resolution of the claim. As a consequence, it merits close scrutiny. Prior to her appointment as the CEO of SGSCC in 2021, she was the Manager of Vocational Education and Business of the College for approximately ten years. The SGSCC 1. In her affidavits, Mills deposed to the operation of the SGSCC. The SGSCC is a student age and adult community education provider located in Jannali. It is a not-for-profit organisation with deductible gift recipient and public benevolent institution status. 2. During December 2016, 1,104 students were enrolled in courses at the SGSCC which were facilitated across the whole of its campus, including in buildings and at locations not only on the claimed land, but also on Lots 1238 and 51. 3. One of the divisions of SGSCC is "Workskills", which provides vocational education and training funded under a contract which was awarded by the Department of Industry in 2015. Another program, "Smart and Skilled" is funded by the NSW Government and provides eligible domestic students with subsidised training to upskill or obtain qualifications in community courses including Certificate III and higher level courses (Certificate IV and above) in targeted priority areas. In 2016 Workskills had 164 student enrolments over 20 qualifications under the Smart and Skilled contract with the Department of Industry. The funding provided to the SGSCC by the Department of Industry under the Smart and Skills contract in 2016 was $654,654.00. 4. Of the 1,104 students enrolled at the SGSCC as at December 2016, approximately 128 students with a disability participated in the Student Transition Education Program ("STEP") and Kringen courses. Mills described the STEP program as a course that "teaches students with a disability life skills such as cooking and office skills, to encourage them to further maintain their education and skills after leaving school." During the same period of time, according to Ageing, Disability and Home Care records, approximately 115 individuals participated in day programs for individuals with a disability. Mills's evidence did not identify what, if any, overlap there was in the enrolments in Kringen, STEP and the day programs. 5. Since 2013 the SGSCC held CRICOS registration, enabling the College to provide fee for service education courses for overseas students. In 2016 the SGSCC offered eleven courses approved through CRICOS ranging from Certificate III to Advanced Diploma qualifications. As at 2016, there were 214 international students enrolled in courses with SGSCC. 6. The SGSCC also held ACE contracts with the NSW Department of Education and Communities to deliver English courses to non-English speaking people in the community. 7. During her oral evidence Mills identified the location of the community garden, namely, adjacent to the buildings described as "C Block" and "D Block", forming part of the SGSCC (T50:16 – 51.20) with some, but not all, of the community garden forming part of the claimed land (T50:49 – 51.30). The community gardens are entirely enclosed within a fenced in area (T56.38 – 56.46). Parking and Traffic 1. Located on the claimed land is a carpark, a structure known as the "Welding Shed" or "Mates Shed" and a five minute drop-off point. It had became customary for four parking spaces adjacent to the five minute drop-off point to be used as parking for minivans that transport students to and from SGSCC to be parked when not in use (T7:48-50). 2. In addition, it was the practice of persons using the SGSCC site to enter it using a one-way street, being part of Lot 1238, wholly traversing the claimed land before exiting onto Sutherland Road on a road that transects Lot 51 (T8:02-07). It was Mills's evidence that "the driveway has four designated drop-off and pick-up zones, which are accessed by our clients with disabilities, students and staff. This allows SGSCC to manage all pick-ups and drop-offs in a safe, secure and timely manner." 3. Mills expanded upon the use of the claimed land as a designated drop-off and pick-up zone in the following terms: 14 …The Claimed Land is also used to house SGSCC's four minibus vehicles. The vehicles are specifically designed to cater for students with disabilities, and each vehicle is designed with wheelchair access. The vehicles are used on a daily basis to assist our disabled students being transported on and off campus. 15 With students with disabilities being transported on and off-campus on a daily basis, the one-way driveway and carpark allows support workers, family members, staff and friends to safely assist students with disabilities into and out of their private vehicles or the SGSCC vehicles. 16 Students with disabilities often bring additional resources with them to SGSCC, including backpacks, assistance aids and personal items. The use of the Claimed Land allows these individuals to move at a safe pace in a controlled environment. … 18 Additionally, SGSCC facilitates skills building classes, such as cooking, sewing and art, for senior members in the community. Many of these classes are facilitated in rooms towards the back of the teaching facilities, nearest to the Claimed Land. As many of our senior community members experience varied health and well-being needs, they often use the carpark on the Claimed Land to gain safe access to the teaching facilities. The carpark's close proximity to the teaching facilities also enables our senior members to bring resources such as artwork, sewing machines, cooking ingredients, and appliances which are onerous to carry long distances. 1. During cross-examination, Mills agreed that the plan of SGSCC below accurately depicted an entrance and exit to Sutherland Road for vehicles adjacent to the "Bransgrove building" (T45:07-19). On the map she indicated where the community gardens were located (marked as "c-gardens") and where disabled drop-off and/or car parking was provided (as circled): 1. Mills accepted that on the other end of the campus was an entrance to the site from Sutherland Road which had 20 car park spaces, including two accessible carpark spaces near B and C Blocks and the Elouera building (T45:31-48). Further, the two accessible carpark spaces near B and C Blocks and the Elouera building were customarily used as designated drop-off points "specifically for clients with a disability" (T46:37 – 47.17). Mills stated that there are 31 carpark spaces within the boundaries of the claimed land, none of which are designated as accessible car park spaces, although they are used for that purpose (T45:50 – 46.06). 2. Significantly, Mills accepted that from each of the drop-off points identified by her on the plan referred to above, the buildings that provide classes for disabled persons could be accessed (T47:27-29). However, she later qualified this evidence stating that the accessible drop-off point located on the claimed land was the "only option to access lower D-Block" (T48:25-32). D and E Block are more than one storey and have elevators. 3. Mills described the Bransgrove building and Elouera building as a "complete disability service" (T48:06-09). She also noted that disability services were provided in B Block (which is single storey) and on the ground floor of C, D and E Blocks (T48:11-19). 4. Mills accepted that the SGSCC campus was located diagonally opposite Jannali oval, which had a large publicly accessible carpark (T49:17-24) and that "at times" the carpark at Jannali Oval was used by students of the SGSCC (T49.26). She further accepted that there were paved footpaths and a pedestrian crossing between the car park at Jannali Oval and the entrance to the SGSCC (T49:29-46). However, Mills was at pains to emphasise that the access to the SGSCC from the car parking at Jannali Oval was, in her opinion, only suitable for able bodied persons (T49:29-46). The Mates Shed 1. Mills gave evidence about the use of the Mates Shed (or Welding Shed), located within the claimed land. The Mates Shed is used to deliver educational courses as part of the SGSCC's leisure programs, including antique restoration, welding, creative welding, motor vehicle body repair, motorcycle maintenance and the fabrication of surfboards. During December 2016, 67 students were enrolled in courses in the Mates Shed. The students included disabled students. 2. In her first affidavit, Mills deposed that in 2017, after the date of the claims, the SGSCC "received IMB Community Foundation Funding to purchase tools and materials to set up the Woodworking Ability space within the Mates Shed. The project goal was to support people with a disability to learn woodworking techniques, make items for gifts, or sell them in our on-campus simulated retail store, The Trove, also run by clients with disabilities." In her second affidavit, she stated that "some courses, such as woodworking, are run in the Mates Shed which is located on the Claimed Land." Mills emphatically rejected the assertion that woodworking was not offered to disabled clients prior to 2017 (T48:44 – 49:02). She said, "it's always been setup. We just received that particular funding for a particular course" (T50:03-14). 3. Although this aspect of Mills's testimony is inconsistent with the application submitted by the SGSCC to IMB Bank, for funding for a woodworking course that was "a new project and the only 'Shed' catering for people with a disability in the area as far as we know". I accept her evidence in this regard. Lawful Use or Occupation "Use and Occupation" 1. Although the principles in relation to whether land is, in the statutory context of s 36(1)(b) of the ALRA, "used or occupied" are well traversed (see, for example, New South Wales Aboriginal Land Council – Little Bay v Minister Administering the Crown Land Management Act [2022] NSWLEC 142 at [25] and Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 ("Doyalson") [2023] NSWLEC 134 at [167]), they bear repetition: 1. the phrase "lawfully used or occupied" should be understood disjunctively by a separate consideration of the words "used" and "occupied". That is, either a lawful use or a lawful occupation of the land will defeat the claim (Berrima Gaol HCA at [14], Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 ("Wagga") at [69] and Bathurst at [232]); 2. the question of occupation and/or use is determined as at the date of the claim (Berrima Gaol HCA at [25]); 3. whether the land is lawfully used or occupied is a question of fact. It is therefore necessary to consider the particular acts, matters and circumstances said to deprive the land of the characteristic of being "not lawfully used or occupied". These must be measured against an understanding of what would constitute use or occupation of the land (Wagga at [69] and Bathurst at [232]). This requires a qualitative assessment of what is said to amount to use and occupation (New South Wales Aboriginal Land Council - Little Bay v Minister Administering the Crown Land Management Act [2022] NSWLEC 142 at [25(2)]); 4. generally, the matters considered in determining "occupation" will also be relevant to determining use (Berrima Goal HCA at [14]); 5. a continuous physical presence over the entirety of the land is not necessary to establish occupation. The fact that some of the land has been left undeveloped does not in and of itself mean that the whole of the land is unoccupied (Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 ("Tweed Byron") at 140-141); 6. occupation includes legal possession, that is, the ability to exclude third parties (Berrima Gaol HCA at [18]); 7. for land to be used or occupied, it must be actually used or occupied in the sense of being used in fact and not in a nominal sense or "merely to a notional degree" (Bathurst at [161]-[162] and [227]-[230], Malabar CA at [45]-[47] and Berrima Gaol HCA at [17]). Put another way, the use or occupation must be more than de minimis, that is, in light of the circumstances of the case, it must be of substance rather than "so miniscule, insignificant or token as to be disregarded" (Bathurst at [161] and Malabar CA at [46]-[47]). A use or occupation that is limited, casual and sporadic is insufficient (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 241 ("Berowra LEC") at [143]); 8. constructive use is insufficient (Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 ("Daruk") at 164B-D, New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2015] NSWCA 349; (2015) 215 LGERA 103 ("Berrima Gaol CA") at [16] and Malabar CA at [43]-[47]). Likewise, constructive occupation is equally insufficient (Daruk at 162D-E); 9. the concept of use in the ALRA requires actual use of the land for some purpose (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Department of Education Claim) (1992) 76 LGRA 192 ("Education Building") at 1999). This encompasses notions of "utilisation, exploitation and employment of the land" (Wagga at [73]); 10. assessing whether land is used or occupied requires an examination of the activities undertaken upon the land in question, and in considering whether land is "occupied", factors such as continuous physical possession must be taken into account (Berrima Gaol CA at [17]). Accordingly, "recurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land. And a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land" (Wagga at [69]); 11. use requires actual, and not contemplated or intended, employment of the land (Griffith Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 108 ("Hillston") at [55] and Education Building at 199); 12. not every part of the land needs to be used in order for the whole of the land to be lawfully used (Malabar CA at [39]). Similarly, there does not need to be a physical presence on or use of every part of the land in order for the whole of the land to be occupied (Tweed Byron at 142); and 13. total abandonment is not required to find that the land is not lawfully used or occupied (Education Building at 198). Was the Claimed Land Lawfully Used or Occupied? 1. For the purposes of s 36(1)(b) of the ALRA, it is incumbent upon the Minister to satisfy the Court that the use or occupation was lawful (Bathurst at [240]). That is, whether the use or occupation of the particular Crown land was legally authorised (Tweed Byron at 142). 2. Generally, strict compliance with Crown lands legislation for the use or occupation of public land is necessary for that use or occupation to be legally authorised (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Kinchela Claim) [2009] NSWLEC 46; (2009) 166 LGERA 137 at [72]-[77]). 3. The Minister's refusal of the claims was on the basis that as at the date of the claims, the land was lawfully used and occupied for public schooling purposes because the claimed land was part of SGSCC. 4. The specific use and occupation of the claimed land relied upon by the Minister is sixfold: 1. first, it was used by all members of the SGSCC community who access the site by motor vehicle because of the unidirectional flow of traffic throughout the College; 2. second, it was used for the provision of education in the Mates Shed; 3. third, part of the claimed land was used for a community garden, which was used in a life skills program taught by the SGSCC; 4. fourth, it was used by the SGSCC as a location to park and store minibuses operated by the SGSCC to transport students (Mills identified the location where the minibuses were parked as the area in front of D Block); 5. fifth, it was used as a designated drop-off and pick-up zone for students with a disability; and 6. sixth, the carpark was used by disabled students, elderly students, and other students and staff. 1. The Minister submitted that the evidence, especially Mills's evidence, established that: 1. as at the date of the claims, SGSCC was a school age and adult community education provider which offered a range of courses. In December 2016 there were 1,104 enrolments at the College; 2. the claimed land has been continuously used by SGSCC, often being referred to as the "back carpark". The claimed land contains a road, carparking and teaching facilities. Access to Lot 3 is via Lots 1238 or 51, both of which are owned by the Department of Education. The driveway is a one-way road that continues from Lot 1238, traverses the claimed land and exits through Lot 51. In other words, it is used as a throughfare. Entry onto the claimed land required permission from the Department of Education or it would constitute an act of trespass; 3. the claimed land was used as a carpark and as a designated safe drop-off and pick-up zone for students with a disability, people with mobility issues, as well as by other staff and students. It also houses the SGSCC's four minibus vehicles used for students with disabilities; 4. one of the six streams offered by SGSCC, the DisAbility stream is funded by the NDIS and was previously funded by the NSW Department of Ageing, Disability and Home Care. This stream provides a range of programs to people with disabilities. To the extent that these students have mobility issues, they rely upon the availability of the back carpark and the drop-off zone; 5. some of the courses offered by the SGSCC as at the date of the claims were located in the Mates Shed; 6. even outside the teaching term, the claimed land was in continuous use for scheduled maintenance; and 7. the claimed land was used by students, especially students with a disability, as a community garden, including outside term time. 1. This, the Minister contended, was sufficient to demonstrate that as at the date of the claims, the claimed land was both actually and regularly used and occupied to more than a notional degree for the purpose of s 36(1)(b) of the ALRA. 2. The Minister readily acknowledged that as at the date of the claims there was a pending proposal to sell the site comprising all three lots to the SGSCC, thereby affecting the legal basis upon which the College used and occupied the claimed land. There was no proposal, however, for any change in the use of the land. 3. The Minister contended that the use or occupation of the claimed land by the SGSCC was lawful because: 1. first, pursuant to a species of permissive occupancy. That is, the SGSCC's use of the claimed land was known and it was not regarded as a trespasser. In this regard, the Minister asserted that a permission to occupy the claimed land was transferred from the Crown to the Department of Education and Training and subsequently to SGSCC. The permissive occupancy was not inconsistent with the terms of the dedication for "public school purposes"; 2. second, the use of the land by SGSCC as an educational facility as at the date of the claims was consistent with the dedicated purpose of a public school. The use was directly related to this purpose. The fact that SGSCC was a not-for-profit organisation rather than a facility directly operated by the Department of Education was irrelevant; and 3. third, the impracticality of the use of the claimed land for any other purpose than by SGSCC because it is wholly contained within other landholdings. 1. In response, the NSWALC submitted that whatever evidence there was of use or occupation of some or all of the claimed land, while it was more than notional, it was not lawful. No relevant proprietary interest was conferred upon the SGSCC over the claimed land, and even if it was, the strict obligations under the CLA, including s 6 and its predecessor provisions contained in the CLCA, had not been complied with. 2. In the present case, the NSWALC submitted, that while the Crown may have had the right to exclusive possession of the claimed land, the Crown had discontinued its use and occupation of it in 1991 when the Jannali Girls High School ceased operating. The Minister had provided no evidence to support the contention that the SGSCC had lawful authority to use or occupy any part of the claimed land. There was no Crown lease or licence. There was no evidence that the Minister knew that the SGSCC was using or occupying the claimed land. 3. The evidence plainly discloses that as at the date of the claims, the claimed land was being used and occupied by the SGSCC to more than a notional degree. So much so was conceded by the NSWALC (T102:36-42). 4. The concession was, in my opinion, correctly made having regard to the fact that as at the date of the claims SGSCC has a sizable student and staff population that used the entirety of the site, including the claimed land, and that, according to Mills, the claimed land has been continuously used as part of the delivery of courses in the Mates Shed, the community garden (half of which was on the claimed land), the "back carpark", for storage of the minibuses and as a drop-off and pick-up zone for disabled students. Was the Claimed Land Lawfully Used? 1. The NSWALC argued that because the SGSCC was not a non-government or public school within the meaning of the Education Act 1990 and the claimed land was not being used for the purpose of a "public school" within the meaning of that Act, the use of the claimed land was contrary to the dedication of the land, and hence, unlawful. 2. According to the NSWALC, many of the activities offered by the SGSCC did not constitute education, let alone activities carried out for "public schooling purposes". 3. The dedication contains an inherent ambiguity, that is, whether an institution acting in furtherance of the dedication must be a public school (a government school) or whether it is sufficient that the land is used by some other institution to promote public school aims and objectives. The SGSCC is neither the former, nor the latter. 4. It was not in dispute that the SGSCC was not a "public", "State", "government", "non-government school" or even a "school" as defined in applicable NSW education legislation, including the Education Act. For example, a "government school" is defined in s 3 of that Act as: government school means a school established under this Act by the Minister. 1. There was no evidence that this includes the SGSCC. 2. The terms "non-government school" and "registered non-government school" are defined in that Act as: non-government school means a registered non-government school. … registered non-government school means a school, other than a government school, for the time being registered under Part 7. 1. Again, it is not known if the SGSCC was registered under Pt 7 of the Education Act. 2. The principles on which the Education Act is based are set out in s 4 of that Act: 4 Principles on which this Act is based In enacting this Act, Parliament has had regard to the following principles— (a) every child has the right to receive an education, (b) the education of a child is primarily the responsibility of the child's parents, (c) it is the duty of the State to ensure that every child receives an education of the highest quality, (d) the principal responsibility of the State in the education of children is the provision of public education. 1. And the principal objects of the Education Act are espoused in s 5 as being: 5 Principal objects of this Act The principal objects of this Act are as follows— (a) to set out aspects of the school curriculum, including the minimum curriculum for school registration and the curriculum for candidates for the Record of School Achievement and the Higher School Certificate, (b) to provide for the establishment and operation of government schools, (c) to ensure that only government schools established under this Act or non-government schools registered under this Act operate in New South Wales, (d) to allow children to be educated at home, (e) to provide for the grant of Records of School Achievement and Higher School Certificates and for the accreditation of non-government schools that are competent to present candidates for them. 1. Having regard to the definitions above and the principles and objects set out in the Education Act, it is tolerably clear that SGSCC is not a "public school" for the purposes of that enactment. 2. The Court was not furnished with any other material as at the date of the dedication of the land for "public school purposes" in 1964, or later in 1979 at the inception of the SGSCC, to enable it to determine whether some other meaning ought to be ascribed to term "public school purposes" in the dedication, or whether the SGSCC is a "public school" as that term was understood at the relevant time. Suffice it to note that, cl 5(a) of Sch 3 of the Education Act provides that: 5 Construction of superseded references In any other Act, in any instrument made under any Act or in a document of any kind— (a) a reference to a public school or State school is to be read as a reference to a government school under this Act… 1. Moreover, having regard, albeit by analogy, to the objects and principles of the Education Act, it cannot be concluded that the SGSCC is using the site for "public school purposes". The latter connotes schools established by the government or non-government schools registered and accredited under that Act, for the provision of education to school-aged children, not vocational or leisure courses provided to adults, sometimes for a fee, which comprises a significant proportion of the student cohort of the SGSCC. 2. Does this matter? It is not, and never has been, part of the Minister's case that the SGSCC provides the type of education that the previous occupant of the site, Jannali Girls High School, provided. Rather, the Minister submits that the College is a provider of education services to a range of students (overseas, vocational, people with a disability, some school aged children, and seniors, for example) and this is sufficient to bring it within the dedication and the lawful use and occupation of the claimed land. 3. In this regard, the Minister relies, correctly in my view, upon the Berrima Gaol HCA decision. In that decision, the High Court expressly rejected an argument that if the claimed land was not used for the precise purpose identified in the dedication any occupation was unlawful (at [35]-[40] per French CJ, Kiefel, Bell and Keane JJ, footnotes omitted): 35 The central plank of the NSW ALC's argument is that any consideration of whether the claimed land is lawfully occupied cannot be divorced from the purpose for which the claimed land was dedicated, and that the dedicated purpose was not the holding of land pending a decision as to its future use. 36 It is to be expected that land dedicated for gaol purposes would be occupied as a gaol. It may be accepted, as the NSW ALC submits, that the acts taking place on the claimed land as found by the Land and Environment Court do not amount to occupation of the land and buildings as a gaol or for the purposes of a correctional centre. The attendance of the offenders to work in the gardens in compliance with orders for community service could not be said to be for the purpose of continuing the property as a gaol. The Court of Appeal appears to have rejected this submission on the basis that the claimed land was "used for the purposes of punishment of offenders". However, the claimed land and buildings thereon are not used or occupied for the purpose of the incarceration of offenders. 37 It may be accepted that the Court of Appeal was in error in this regard. The NSW ALC's submissions direct attention to the terms of the dedications. It may be recalled that only one part of the claimed land was actually dedicated for "Gaol Purposes". The balance was dedicated in more passive terms, for the purposes of "Gaol Site (extension)" and "Gaol Site (addition)". 38 Clearly enough, the purpose for which lands are dedicated may be relevant to the question of whether they are occupied. The discussions in the cases referred to above show that different factors may assume importance depending upon the purpose for which land is reserved or dedicated. Thus, in the case of land reserved for public recreation, such as an extensive forestry park, fencing was not an important factor, whereas the exercise of control over the land was. 39 This is not the exercise to which the NSW ALC's argument is addressed. In reality the NSW ALC's argument is that the dedicated purpose of the land must be actively pursued by the acts which are relied on as constituting occupation of the land. The central submission is really that land dedicated for gaol purposes is to be used as a gaol and that it is not lawfully occupied unless it is actively used as a gaol. The submission again denies the distinction between the use and the occupation of land and it denies occupation its separate sphere of operation. 40 The NSW ALC's argument also creates a further requirement for the test of use or occupation. It would necessitate the addition of words to s 36(1)(b), to read it as if it said "lands … not lawfully used or occupied for the purposes for which they are dedicated or reserved". 1. The plurality of the High Court drew a distinction between the lawful use and the lawful occupation of claimed land (at [43], footnotes omitted): 43 The adjective "lawfully" which precedes "used or occupied" does not assist the NSW ALC's argument. It may be accepted that the dedication of land has a limiting effect. Its use, benefit and possession must conform to the purpose for which it was dedicated. A use which is made of land which is inconsistent with its dedicated purpose is not a lawful use of it. But the NSW ALC does not suggest that the acts relied upon as constituting occupation are inconsistent with the dedicated purposes. What it does say is that for it to be lawful occupation, those purposes must be pursued. To say that is to say that the claimed land must be actively used for those purposes if it is to be said to be lawfully occupied. There is no basis to be found in s 36(1) for that submission. 1. Justice Gageler (as his Honour then was) explained the difference for the purpose of s 36(1)(b) of the ALRA in this manner (at [88]-[90], footnotes omitted): 88 The aspect of the distinction between occupation of land and use of land that assumes critical importance in the present case concerns the significance of purpose. Occupation of land can be occupation for a purpose, and the purpose for which physical acts are undertaken can inform whether those acts amount to occupation in fact. Unlike the concept of use, however, purpose is not intrinsic to the concept of occupation. Physical acts can be sufficient to amount to occupation in fact irrespective of the purpose for which they are undertaken. To expand on the illustration given by the Privy Council, a farmer might remain in occupation of his farm by staying in his farmhouse and maintaining his fences despite having chosen to cease farming and despite not yet having chosen what else he might do with the farmland. 89 Had the question here been whether the land on which Berrima Gaol is situated was used at the date of the claim, an argument of the kind now advanced by the Land Council would have been unanswerable. The only lawful use to which the land could then have been put was use for the dedicated public purposes of a gaol. What was then happening on the land could not be described as use of the land for those purposes. 90 But the question tendered for the determination of the Land and Environment Court was not one of use. The question was one of occupation. Although Corrective Services NSW was not doing anything with the land at the date of the claim, Corrective Services NSW had a continuing presence on the land and remained active in asserting control over the land. The buildings were being kept locked and were not being allowed to fall into disrepair. There was someone on site 24 hours a day. The lawns and gardens were being maintained on a weekly basis. That state of affairs had been in place for some months and it could be expected to continue until the future use of the land was settled. The evaluative conclusion of the Land and Environment Court that the land was occupied was open. 1. Berrima Gaol HCA was discussed and applied in Doyalson (at [176]-[183]) to hold that, by parity of reasoning, the use of the land was unlawful insofar as the site was being used as a waste disposal site and not a poultry farm, which was the purpose for which it was leased pursuant to a special purpose lease (at [184]-[186]). 2. Was the use by SGSCC of the claimed land therefore lawful? In my view it was not. The use of the land in the dedication was specific – for "public school purposes" – and not for the broader more general purpose of education. The SGSCC is not a public school and does not provide education of this character or for that purpose. Rather, it is more vocational in nature and is directed principally towards post-secondary adults, not children. As Mills described the SGSCC in her written evidence, it is a "community college". A description that was entirely accurate having regard to the range of courses offered, the fees charged for some of those courses and the age of most of the enrolled students. The SGSCC was neither a public school and nor were the activities that it promoted ancillary to, or for the purpose of, a public school. To the extent that some school aged programs were offered for both extension and remediation needs, this did not render SGSCC's use and occupation of the land for "public school purposes". Was the Claimed Land Lawfully Occupied? 1. Turning separately to the question of lawfulness of the occupation, at its very highest the SGSCC appears to have occupied the claimed land (Lot 3) on the basis of some sort of sanctioned occupancy. Lot 3 was never the subject of the expired lease. At all times the claimed land remains vested in the Crown. There was no lease, licence, demise or any other dealing by the Department of Education, or any other emanation of the Crown, to the SGSCC. For example, no carriage way was created as proposed enabling access to the claimed land by the SGSCC. 2. Prior to 8 April 2016 there is no evidence that anyone at the Department of Education or the Department of Primary Industries – Crown Lands was aware of the occupancy of Lot 3 by the SGSCC. Even as at that date, and in the subsequent correspondence passing between the SGSCC, the Department of Primary Industries – Crown Lands, and the Department of Education, the legal basis for the SGSCC's occupation of the claimed land was not referred to and it remains opaque (although, as stated above, the SGSCC was not considered to be a trespasser). In short, there is no evidence that the Minister, the Department of Education, or the Department of Primary Industries – Crown Lands, turned their mind to the question of SGSCC's occupancy, including its legal basis of Lot 3 until almost immediately prior to the claim date. 3. Rather, it appears that there was an assumption that Lot 3 was subject to the same lease as the other lots comprising the SGSCC site (see the definition of "site" referred to in the 11 October 2016 briefing note, which included Lot 3, all of which was said to be leased to the SGSCC). 4. What the evidence does establish, however, is that as at the date of the claims, the Department of Education and the Department of Primary Industry – Crown Lands were aware of the SGSCC's occupation of the claimed land and that the land needed to be vested to Property NSW so that it could be transferred to SGSCC (see the correspondence between 17 May and 11 October 2016 outlined above). It is therefore not correct to contend, as the NSWALC does, that the Minister did not know that that the SGSCC was using or occupying the claimed land as at the date of the claims. 5. But this finding does not assist the Minister. The word "lawfully" in s 36(1)(b) of the ALRA in the context of "occupation" refers, at least in this instance, to lawful occupation as provided by the CLA. Section 6 of the CLA essentially prohibits dealings with Crown lands unless authorised by that Act. 6. As was opined in Doyalson (at [207]-[212]): 207 The almost sacrosanct nature of the prohibition on the dealing with Crown lands other than in accordance with the Crown lands statutory regime was described in State of New South Wales v Scharer [2003] NSWCA 328; (2003) 131 LGERA 208 (at [59]-[60]): 59 Furthermore, s 6 of the CLC Act prohibits any dealing with Crown lands "except under and subject to the provisions of" that Act. That prohibition is tempered by the requirement of s 54(4)(b)(i) of the MWS&D Act that before any lease, licence or permit is granted in respect of Crown lands within a catchment area, the concurrence of the Board must be obtained. But that requirement does not subvert the prohibition on the dealing with Crown lands other than under and subject to the provisions of the CLC Act. Any purported dealing with Crown land other than in accordance with that prohibition is unlawful. Therefore, to the extent that either the Department or the Board purported to promise Miller a proprietary interest in the nature of an easement or right of way in the road, it was doing so other than in accordance with the proscription contained in s 6. This is particularly so given that the CLC Act contains no power authorising the Governor or the Minister to grant easements or rights of way over Crown land: see [31] above. Consistent with the decision of the Privy Council in Chalmers and the overriding control of s 6 referred to by Bryson J in Fensom, it thus follows that no proprietary estoppel could arise from the conduct of the Board for which a court of equity could or would provide a remedy. 60 Authority extending for a century in this State supports the foregoing conclusions, that the Crown has no power to create interests in Crown lands except under the Crown lands legislation. In Lukey v Sydney Harbour Trust Commissioner (1902) 2 SR (NSW) 152 at 165, Owen J (with whom Darley CJ agreed) rejected the trial Judge's finding that an interest in certain Crown land was created in the plaintiff and enforceable against the Crown who was estopped from denying it. He did so on the basis that the effect of such a finding would be to repeal ss 5 and 6 of the Crown Lands Act 1884 (reproduced in s 6 of the CLC Act): "for the Crown could then deal with Crown lands otherwise than under and subject to the provisions of that Act. Not only are the powers of the Crown limited by that Act, but the Crown is thereby expressly prohibited from leasing or dealing with Crown lands, except under and subject to the provisions of the Act." 208 In the opinion of Barrett J (as his Honour then was) in Georgeski v Owners Corporation SP49833 [2004] NSWSC 1096, the addition of the concepts of "occupation" and "use" in s 6 of the CLA, served to reinforce Parliament's intention to "regulate not only the Crown's right to create interests in Crown land but also rights at large to occupy and use such land" (at [88]). 209 The Minister relied upon Darkinjung v Minister Administering Crown Lands Act [2006] NSWLEC 180; (2006) 149 LGERA 162 (at [26]-[29]) in support of the submission that the word "lawful" in s 36(1)(b) of the ALRA was not restricted only to lawful occupation as provided under the Crown lands regulatory regime, but that it allowed for other lawful occupation. However, there has since been departure from this case in subsequent authorities. 210 In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act ("Shoalhaven") [2008] NSWLEC 35 Jagot J (as her Honour then was) held that lawful use and occupation for the purposes of s 36(1)(b) of the ALRA was to be assessed in accordance with s 6 of the CLA (at [71]): 71 These facts fall for assessment in the face of s 6 of the Crown Lands Act. Section 6 discloses in terms the legislature's consideration of the need to control the use and occupation of Crown land. The section operates on all of the provisions of the Act (including ss 10 and 11 emphasised by the Minister). There is no reason not to give effect to s 6 according to its terms. Supplemented by s 159 of the Crown Lands Act the Crown (through authorised persons) has power to ensure that any unlawful use or occupation of Crown land is brought to an end. In context, such unlawful use or occupation is any use or occupation not authorised under that Act. 211 The approach in Shoalhaven was subsequently adopted by the Court of Appeal in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council ("Berowra") [2009] NSWCA 352; (2009) 171 LGERA 56 (at [40] and [170]-[171]); Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (The Goomallee Claim) [2012] NSWCA 358; (2012) 84 NSWLR 219 (at [34]-[38]) and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act ("Berrima") [2015] NSWCA 349 (at [19]-[26]). And in this Court in, for example, New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act ("Goomallee LEC") [2012] NSWLEC 1; (2012) 186 LGERA 323 (at [72]-[79]) and New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act – Helensburgh Police Station [2020] NSWLEC 133 (at [134]). 212 In short, there is a need for strict compliance with Crown lands legislation (Valuer-General v Sydney Fish Market Pty Ltd [2023] NSWCA 52 at [70]-[71]). In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Kinchela claim) [2009] NSWLEC 46; (2009) 166 LGERA 137 Lloyd J opined as follows (at [71]-[73]): 71 In Project Blue Sky, the joint judgment of McHugh, Gummow, Kirby and Hayne JJ, approved at [93] the criticism by the New South Wales Court of Appeal in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24, of the continued use of the "elusive distinction between directory or mandatory requirements". The joint judgment adopted as a test for determining the issue of whether an act done in breach of a statutory power is valid: "whether it was a purpose of the legislation that an act done in breach of the provision should be invalid". 72 In relation to Crown lands legislation, however, both before and after Project Blue Sky, the courts have insisted on strict conformity with the relevant statute. A failure to comply with the statutory process will invalidate any purported exercise of the power to grant an interest in Crown land. In Mabo v Queensland (No. 2) (1992) 175 CLR 1, Brennan J (Mason CJ and McHugh J concurring) said at 63: "The validity of a particular grant depends upon conformity with the relevant statute"; and at 72 his Honour added, "a purported lease granted without statutory authority is ineffective to dispose of any interest in land". I am inclined to the view that if strict conformity with the statute is required for a grant, then the same principle should apply to a sale of Crown lands. 73 In New South Wales v Scharer (2003) 131 LGERA 208, the New South Wales Court of Appeal (Tobias JA, with Sheller and Ipp JJA concurring) held at [59] - [60]: Furthermore, s 6 of the [Crown Lands Act] prohibits any dealing with Crown lands "except under and subject to the provisions of" that Act. ...Any purported dealing with Crown land other than in accordance with that prohibition is unlawful... Authority extending for a century in this State supports the foregoing conclusions, that the Crown has no power to create interests in Crown lands except under the Crown lands legislation. 1. Because the CLA must be strictly complied with, this means any dealing with the claimed land, including the creation of interests in that land (by lease, licence or other dealing) must be in conformity with that enactment. Assuming that some form of permissive occupancy was granted to the SGSCC by the Department of Primary Industries – Crown Lands by its knowledge that the College was occupying and using the claimed land as part of its occupation and use of the entire site, albeit on the erroneous basis that it was leased, this was a "dealing" that was not authorised under the CLA and was therefore unlawful. This, in turn, renders the SGSCC's occupation of the claimed land unlawful. 2. The Minister submitted that there was no "dealing" with or other interest created in the claimed land that engaged s 6 of the CLA. 3. This cannot be correct. At the very least, the SGSCC occupied the claimed land. Section 6 states that "Crown land shall not be occupied…unless the occupation…is authorised by this Act". There was nothing in the CLA that the Minister relied upon to establish the necessary authorisation. Alternatively, the use of the claimed land by the SGSCC was pursuant to an "other dealing" (not defined in the Act), again contrary to s 6 of the CLA. 4. In my view, having regard to the text and context, including purpose, of s 6 of the CLA (especially having regard to the powers of the Minister under s 34 of that Act), the preferred view is that the occupation of Lot 3 by the SGSCC enlivened the CLA and s 6 applied. In the present case, the SGSCC was using land subject to a dedication with the knowledge and permission of the Crown. The knowledge and permission (even if the legal basis for the permission was erroneous) was sufficient to fall within the rubric of either "occupation" or "other dealing" for the purpose of s 6 of the CLA. Were it otherwise, the operation of that Act could be thwarted by mere inadvertence of the Crown. In the result, the presence of the SGSCC on the claimed land was not lawful for the purpose of s 36(1)(b) of the ALRA. 5. In summary, because neither the use of the claimed land nor its occupation were lawful for the purpose of s 36(1)(b) of the ALRA as at the date of the claims, the claimed land is not precluded from being claimable Crown land pursuant to that provision. Needed for an Essential Public Purpose 1. The second basis upon which the Minister resists the claim is because the land is needed for the essential public purpose of education within the meaning of s 36(1)(c) of the ALRA. 2. Many of the relevant principles in this regard were articulated by the Court in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Newcastle Post Office Claim) [2014] NSWLEC 72; (2014) 204 LGERA 1 (at [187]-[196]): 187 First, the question of whether land is needed or likely to be needed for an essential public purpose as at the date of the claim is a question of fact (Winbar at 691G-692A; 271 per Hope JA and Dorrigo at [10](1) per Jagot J). 188 Second, the concept of "needed" in s 36(1)(c) of the ALRA means "required or wanted" (Castlereagh at 254D; 104 per Handley and Powell JJA). 189 Third, the need for land must be a reasonable need (Wanaruah Local Aboriginal Land Council v Minister Administering Crown Lands Act (2001) 113 LGERA 163 (Wanaruah) at [16]-[17] per Lloyd J; New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act (the Tuncurry claim) (2008) 159 LGERA 400 at [42] per Lloyd J and Daruk Local Aboriginal Land Council v Minister Administering Crown Lands Act (No 2) (1995) 89 LGERA 194 at 204 per Bignold J). 190 Fourth, the Court may come to a different conclusion concerning whether or not the land is needed than that reached by the Executive (Minister Administering Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 (Nambucca CA) at [40] per Basten JA). 191 Fifth, "essential" means "necessary" or "indispensable" (NSW Aboriginal Land Council v Minister for Natural Resources (The Tredega Claim) (1986) 59 LGRA 318 (Tredega) at 331-332 per Stein J). The concept "sets a high standard" and involves a "significant restriction" on the exception from claimable Crown lands. The reference to "essential" ensures that it "is not enough that the public purpose to be served is 'desirable' or even that it is 'highly desirable'", rather it must be "essential" (Illawarra at [32](2) per Hodgson JA, Maroota at [55] per Spigelman CJ, Dorrigo at [10](3) per Jagot J, Deerubbin Local Aboriginal Land Council v Minister Administering Crown Lands Act [2012] NSWLEC 68 (O'Hara's Creek) at [111] per Pain J). 192 Sixth, a "public" purpose is one that is normally carried out by the Government, or is regarded as a governmental function (La Perouse Local Aboriginal Land Council v Minister Administering Crown Lands Act (1991) 74 LGRA 176 (La Perouse) at 183 per Bannon J). To constitute such a purpose, it must have connotations of the "community, state or nation as a whole" (Tredega at 331). A "purpose" may be defined as "the object in view or the object for which something is done" (Tredega at 331 per Stein J). It follows that "public" may be distinguished from "private" (Tredega at 331). 193 Seventh, what will constitute an essential public purpose in some circumstances may not be sufficient in others (Illawarra at [65] per Basten JA; Batemans Bay Local Aboriginal Land Council v Minister Administering Crown Lands Act [2007] NSWLEC 800 (Batemans Bay) at [107]-[108] per Sheahan J, Dorrigo at [34] and [48] and O'Hara's Creek at [113]). However, the mere fact that the Government undertakes the activity does not, of itself, make it an "essential public purpose" (La Perouse at 183). 194 Eighth, normally it is expected that steps would be taken to achieve an essential public purpose before the date of the claim if it was "essential" (Batemans Bay at [110] per Sheahan J). Thus evidence of varying purposes over time suggests that the land is not needed for an essential public purpose for the purposes of s 36(1)(c). And unresolved, changing or conflicting proposals militate against the land being needed or likely to be needed for an essential public purpose (Castlereagh at 254F; 104 and O'Hara's Creek at [161] and [166]). 195 Ninth, it is irrelevant in determining whether or not s 36(1)(c) of the ALRA has been satisfied whether the essential public purpose could have been achieved in some other way (Castlereagh at 252C; 102 per Meagher JA and 253E; 103 per Handley and Powell JJA). 196 Finally, it should be observed that a wide range of purposes have been regarded as essential public purposes: coastal protection and public access to the shoreline (Coffs Harbour and District Local Aboriginal Land Council v Minister Administering Crown Lands Act (2013) 199 LGERA 372); the provision of trigonometric stations and power lines (Wanaruah); the provision of drainage and sewerage infrastructure (Darkinjung Local Aboriginal Land Council v Minister Administering Crown Lands Act (2006) 149 LGERA 162 (Darkinjung)); nature conservation (Illawarra); public access and recreation with respect to tidal waters (Worimi Local Aboriginal Land Council v Minister Administering Crown Lands Act (1991) 72 LGRA 149); national parks (Maroota); and cemeteries (Deerubbin Local Aboriginal Land Council v Minister Administering Crown Lands Act (1997) 95 LGERA 353). 1. These principles were recently adopted and applied by Duggan J in New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act – Waverton Bowling Club [2022] NSWLEC 130 (at [49]), where her Honour further observed that (at [50]): 50 Where it is contended that there is a "likely" need for the essential public purposes, as opposed to an actual need, such need must be a real or not remote chance: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] (2001) 113 LGERA 148 at [57] (Maroota). 1. The principles set out in Newcastle Post Office and Waverton Bowling Club may be supplemented with the following: 1. to be a public purpose, the purpose must have connotations of the community or the nation as a whole (New South Wales Aboriginal Land Council v Minister for Natural Resources (The Tredega Claim) (1986) 59 LGRA 318 at 331). Merely making land available for a private purpose does not make the purpose a public purpose (Newcastle Post Office at [207]-[216] and [227]). Having said this, the purpose is not precluded from being characterised as "public" merely because it is provided by a private operator (Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 95 LGERA 353 at 360-361); 2. the concept of "needed" connotes necessity; 3. the mere fact that land is suitable or has a capacity for a particular purpose does not mean that it is "needed" for that purpose (Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act [No 2] [The Londonderry Claim] (1995) 89 LGERA 194 at 204); 4. the relevant 'need' must be a need or likely need by the Government of the day (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 ("Castlereagh") at 254D at 254D-F). What is required is a "specific Government intention" (Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800 at [110]), and not proposals developed by agencies or non-government agencies, and even then steps must be taken towards the making of a decision on the land to be used for the stated purpose (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 113 LGERA 148 ("Maroota No 2") at [57]); 5. the requirement of a real and not remote chance in respect of the concept of "likely" need means a substantial chance (Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289; (2009) 168 LGERA 71 ("Illawarra CA") at [32(1)]). It is not satisfied by a possibility (Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 68; (2012) 211 LGERA 100 ("Deerubbin") at [118] and [128]); 6. while "likely" can invite consideration of the likelihood of a formal decision being made in the absence of an actual decision, the likely decision must still be that of the Government rather than a departmental desire, agency or local government body without relevant decision-making power (Illawarra CA at [35]); 7. to determine "likely need" regard must be had to the statutory scheme pursuant to which decisions concerning the claimed land are made (Maroota No 2 at [62]-[64]); and 8. it is not the case that "any decision of or indication at any level within the executive that it wants or may want to use land for a purpose without anything more necessarily establishes the existence of the relevant need or likely need" (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [2008] NSWLEC 13 at [93] per Jagot J, as her Honour then was). 1. In Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2022] NSWCA 275; (2022) 110 NSWLR 535 ("Gosford CA"), the Court of Appeal emphasised that the time for determining whether claimed land is needed for an essential public purpose is when the claim is made. This requires ascertaining the view held by the executive on that date. 2. For land to be needed there should be an actual decision concerning the use of the land by the Government as at the claim date, not at some earlier point in time. Holding a view or making a decision that land is needed for an essential purpose involves the formation of a positive opinion of that fact by the Government at that temporal point (Gosford CA at [65]-[68]): 65 The statutory test under s 36(1)(c) is clear: lands will be claimable Crown lands unless the Minister establishes that the lands are needed or likely to be needed for an essential public purpose "when a claim is made for the lands." This phrase sets an essential temporal condition: the need or likely need of the land to be used for an essential public purpose is to be determined at the date when the claim for the land was made. 66 Establishing whether land is needed at this date requires ascertaining "the view held by the government on the day the claim was made" (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 (Deerubbin No. 1) that the land was needed (per Meagher JA at 252) or "required or wanted" by the government at the date of the claim (per Handley and Powell JJA at 254). The government which is to hold the view that the land is required or wanted for an essential public purpose, is the executive government of the State at the appropriate government level: Minister Administering Crown Lands Act v Illawarra Local Aboriginal Land Council (2009) 168 LGERA 71; [2009] NSWCA 289 (Illawarra CA) at [35]. 67 Establishing that the government holds the view that the land is required or wanted for an essential public purpose at the date of the claim may involve showing that the government has made a decision to that effect at or before the date of the claim. The existence or non-existence of a government decision concerning the use of the land at the date of the claim has been held to be a distinction between whether land is needed or likely to be needed: "for land to be needed, as opposed to likely to be needed, there should be an actual decision concerning use at the level of executive government": Minister Administering Crown Lands Act v NSW Aboriginal Land Council (2009) 171 LGERA 56; [2009] NSWCA 352 at [25] and see also Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665; [2001] NSWCA 28 (Deerubbin (No 2)) at [50]. 68 Holding a view or making a decision that land is needed for an essential public purpose involves the formation of a positive opinion of that fact. The government has to have turned its mind to the question and formed the opinion that the land is needed for an essential public purpose. And this turning of its mind to the question and forming the positive opinion that the land is needed for an essential public purpose must have been done when the claim was made for the land. Was the Claimed Land Needed for the Essential Public Purpose of Education? 1. The essential public purpose relied upon by the Minister was that of education, and not, as the NSWALC submitted, of "public schooling". The mere fact that it was dedicated for the purpose of public schooling did not prevent the Minister from claiming that the land was needed for the more general purpose of education. The dedication does not fetter or circumscribe the nominated essential public purpose. Use contrary to the dedication will undoubtedly give rise to issues pursuant to s 36(1)(b) of the ALRA, but not necessarily under s 36(1)(c). 2. As is elaborated upon below, that education is an essential public purpose as claimed by the Minister was not seriously in dispute. But this is not the end of the matter. 3. The evidence discloses that since 1991, when Jannali Girls High School was closed, up until the date of the claims, the Government had determined that the entire site was surplus to its educational requirements and was to be sold. Thus at 11 October 2016, the Minister for Education declared the former Jannali Girls School site as "surplus to educational requirements" and approved its disposal to the SGSCC. The Minister for Education approved the sale of, among other lots, the claimed land to the College, and only the College, not to the public at large. 4. The NSWALC argued that because the claimed land is surplus to the Government's educational requirements it was not needed for the public purpose claimed by the Minister. It relied upon the decision in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Corporation [2016] NSWCA 253 ("Moira Park") where Leeming JA said (at [98]): 98 It is to be recalled that the purpose of the Act is to provide economic compensation to land councils, and that the land transferred to a land council may and often will be sold. Land which is needed or likely to be needed for an essential public purpose is land which is excluded from claimable Crown lands. As a matter of the ordinary meaning of the statutory language, I would not consider that land which is proposed to be sold (whether to developers for on-sale or directly to owner occupiers) for private residential purposes would amount to land which is needed or likely to be needed for an essential public purpose. 1. The Minister's rejoinder was that because as at the date of the claims it was the Department of Education's intention to sell the claimed land specifically to the SGSCC so that the College could continue its use for the delivery of education, it was needed for the essential public purpose of education. That the land had been identified as being surplus at an earlier point in time and was to be sold was immaterial. 2. Just as the fact that a function is undertaken by the Government is not a determinative indicia that it is a public function, the fact that an essential public purpose is being provided by a private body does not in and of itself mean that the purpose is not "public". Hence in Deerubbin the Court held that the operation of a cemetery by a private operator could amount to the provision of an essential public purpose. Similarly, in Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 20; (2001) 113 LGERA 163, the Court determined that a trigonometrical station was an essential public purpose notwithstanding that it was used for both private and public surveying purposes. 3. Equally, I do not accept the statement relied upon by the NSWALC in Moira Park as amounting to an immutable principle that whenever a decision is made to dispose of Crown land by sale this will without more serve to defeat the need for the land for an essential public purpose. With respect, I do not construe Leeming JA's remarks as having that reach. 4. As referred to above, no real contest existed between the parties that education was an essential public purpose (although the NSWALC qualified this concession by indicating that it depended on the circumstances). Merely describing a course as "educational", however, as the NSWALC submitted, does not render its provision an essential public purpose. 5. In the present case, the fact that the courses were offered by a private organisation did not in and of itself mean that the claimed land was not needed for the essential public purpose of education. Having regard to the SGSCC's continued use of the claimed land over decades to provide a range of educational services to a range of students, even if some were provided for a fee, did not mean that the asserted essential public purpose of education was not available or being given effect to. 6. This may be contrasted with Moira Park where Leeming JA stated (at [96]-[97): 96. The Minister invoked authorities directed to "public purposes" being activities normally carried out by government or regarded as a governmental function, and maintained that "[t]here is nothing inherent in residential use or development that necessarily excludes it from constituting an essential public purpose in every case". He submitted that the Court should have regard to (a) the Government's identification of the land through the Crown Lands Homesites Program, (b) the statutory context in which Landcom operates, and (c) the Government's recognition of the need for land for housing in Morisset in planning strategy documents, both at state and local government level. 97. The large difficulty confronting this submission is that it was at all times intended that the subdivided land be sold, either directly to owners who would build residences on the land, or "englobo" to developers who would on-sell the land to owner occupiers or other investors. In other words, at all times, all of the steps upon which the Minister placed reliance were intended to facilitate a purpose whereby the majority of the land is vested in private ownership. 1. In Moira Park the Minister relied upon the residential lands exception contained in s 36(1)(b1) and upon the need for the land for an essential public purpose under s 36(1)(c) of the ALRA, namely, residential accommodation, to defeat the claim. The Court of Appeal rejected the submission that "ordinary private sector residential ownership, whether land be owned by developers or owner occupiers, falls within an essential public purpose" (at [108]). A distinction was drawn between the essential public purpose articulated in s 36(1)(c) of the ALRA and the private purpose of ordinary residential housing. 2. In the present case, the land proposed to be sold (which includes the claimed land) is not for a private purpose such as individual residential housing. It is to be sold so that members of the public can continue to attend the SGSCC and receive education, whether it be for vocational purposes, or academic tutoring, or whether some of it is fee paying or fully Government funded, as they always have done. 3. In the present case, as at the date of claims, the SGSCC: 1. was, unlike a developer, a not-for-profit organisation with deductible gift recipient and public benevolent institution status; 2. was a Registered Training Organisation; 3. had its Workskills program funded by the Government; 4. provided vocational courses to international students and was a CRICOS registered provider, regulated by the Commonwealth; 5. offered an English language stream supported by the Department of Education's ACE program; 6. the DisAbility Department was funded by the National Disability Insurance Scheme; 7. students with a disability used the carparking on the claimed land and undertook courses in the Mates Shed; 8. the School Age Department offered tutoring services and operated school holiday programs, some of which were supported or subsidised by the Government; 9. offered fee for service classes for recreational activities; and 10. offered a mental health program in partnership with the South East Sydney Local Health District. 1. The SGSCC was, and continues to, provide educational services on behalf of the Government, including the Department of Education. The land was, as at the date of the claims, being sold because of its need for the public purpose of education. 2. The NSWALC argued that the largely vocational post-secondary education offered by a private provider such as the SGSCC was not an essential public purpose. But merely because the education offered is vocational, post-secondary, or even fee paying, does not necessarily render it non-essential. The SGSCC provides education not offered at other institutions to a cohort of disabled and disadvantaged persons in the community. This is both "essential" and "public". 3. The submission by the NSWALC ignores the context in which the declaration of surplusage was made and the concomitant decision by the Department of Education to sell the entire site, including the claimed land, to the SGSCC, and only the SGSCC, so that the College could continue to operate in the manner that it had done so for many years. This was evident from the material before the Court from 16 August 2015 onwards up until the date of the claims. The Department had determined to sell the land on this narrow and exclusive basis. 4. This conclusion is consistent with the chronology set out earlier in the judgment. As early as 16 August 2015 (and if not by 8 April 2016) up until 30 November 2016 (and thereafter), the Jannali Girls High School site was identified as an asset to be sold by the Department of Education to the SGSCC and no other entity. There was no sale at large to the public, or even to other educational providers. The sale was for the sole purpose of enabling the SGSCC to continue providing the educational services that it did. No change of use was mooted. It was for this reason that, for example, on 15 May 2016, Property NSW wrote to the Department of Primary Industries – Crown Lands seeking advice on the process that it needed to undertake to vest the land into its name in order to transfer it to the SGSCC. 5. The post claim evidence is consistent with this intention, that is, the vesting and transfer by sale to the SGSCC of the claimed land for the essential public purpose of education. There is nothing in the reasoning in Moira Park or Gosford CA that derogates from this finding. Was All of the Claimed Land Needed for the Essential Public Purpose of Education? 1. During the hearing a discussion arose as to whether all of the claimed land was needed for the essential public purpose of education as at the date of the claims, or whether some part of the claimed land was not needed for this purpose, and therefore, was claimable Crown land (see s 36(7) of the ALRA). 2. The NSWALC submitted that if the essential public purpose could be given effect to elsewhere on the SGSCC site, or by some other means, this was an indication that the claimed land was not needed for the essential public purpose claimed. Furthermore, the onus was on the Minister to prove that the essential public purpose could only be carried or given effect to on the claimed land. 3. In my view, neither proposition is correct. First, as stated in Newcastle Post Office, it is irrelevant in determining whether or not s 36(1)(c) of the ALRA has been satisfied that the essential public purpose could have been achieved in some other way (at [195] citing Castlereagh). Second, while the Minister bears the onus of demonstrating that the claimed land is not claimable Crown lands for the purpose of s 36 of the ALRA, this does not extend to proving the counterfactual, as the NSWALC posited. The NSWALC offered no authority in support of this submission. 4. It is convenient to examine the question of whether part of the subject land was claimable Crown land having regard to the evidence given by Mills concerning the separate components of the claimed land, namely: 1. the Mates Shed; 2. the community garden; 3. the area used to store the four minibuses; 4. the carparking and area used as a disabled drop-off and pick-up zone; 5. the remaining carparking used by both able bodied and disabled students; and 6. the unidirectional road. 1. Upon further examination, when regard is had to the totality of the evidence before the Court, it is apparent that all of the claimed land is needed for the essential public purpose of education, and that therefore, none of the claimed land is claimable Crown land for the purpose of s 36(1)(c) of the ALRA. 2. First, in relation to the Mates Shed, the evidence discloses that it was in use for the essential public purpose of education as at the date of the claims. It was Mills's evidence that there were 67 students enrolled in various vocational educational programs offered by the SGSCC in that location in December 2016. Woodworking classes were held in the Mates Shed both before (T48:48-49:02 and 50:13) and continuously after the claim dates. From December 2016 to December 2021, 1,383 students were enrolled in the courses in the Mates Shed. In other words, as at the date of the claims, the Mates Shed was needed for the essential purpose of public education. 3. Second, it was Mills's evidence that the community garden had been used since it was established by the SGSCC in 2002, to provide students with disabilities the opportunity to build their skills, knowledge and understanding of healthy living. It served, and continues to serve, an educative function and is needed for this essential public purpose. Although the general community can access the community garden, they do not use it (T52:11-12). I therefore find that the community garden was needed for the essential public purpose of education. 4. Third, in terms of the use of the claimed land to house the SGSCC's four minibuses, there was, however, nothing preventing the storage of these vehicles elsewhere on the site. While the parking of the buses at that location may be desirable, it was not essential for the public purpose of education. However, as discussed immediately below, this area was also used as a drop-off area, especially for disabled students. 5. Fourth, the accessible drop-off point located on the claimed land was the only option to access the lower level of D Block, which was more than one storey and had no elevator (T48:28-32). Although there were four other disabled drop-off zones on the site, "each drop-off point has a different access point to a different building, but you can't go from all those access points to all the different disability services" (T47:23-25). The carparking at Jannali Oval was only suitable for able bodied persons (T49:29-46). I readily find that this specific area was essential for the public purpose of education. 6. Fifth, it was Mills's evidence that all of the carpark spaces located within the claimed land were used continuously by able bodied students, students with a disability, and by elderly students, even though there were no accessible spaces designated in the back carpark on the claimed land (T46:06). The "back carpark" was also used by students enrolled in courses in the Mates Shed. On balance, I find that the entirety of the carparking area on the claimed land was needed for the essential public purpose of education. 7. Although carparking in and of itself serves no specific educative function, given the student cohort attending the SGSCC (especially the disabled students and their carers), it may be regarded as sufficiently proximate to, or be comprehended within, the provision of educational services that it falls for present purposes to be determined as an aspect of the essential public purpose of education. 8. Sixth, as for security and maintenance arrangements, again, it is not clear why other carparking on the site cannot be used for this purpose, especially during school shutdown periods when it may be inferred there is less traffic on the site and a concomitant decrease it the demand for carparking by staff and students. I do not accept that this need is indispensable or necessary. 9. Seventh, the Minister argued that the claimed land was needed for the essential public purpose of education because without access to it, vehicles could not access the entire SGSCC site given that the direction of the traffic was unidirectional throughout (except for the entrance near the Bransgrove building). 10. The potential for the present vehicular circulation arrangements at the SGSCC site to be disrupted if the Court finds that all of the claimed land is claimable Crown land is very real. The road closest to D Block is, on any view, needed for the essential public purpose of education. Without it, access to the site becomes all but impassable, especially given the narrowness of the road leading from the student carpark entry past C and B Blocks and the Elouera building that would preclude two-way traffic flow (T52:33). Moreover, a person who dropped students off near B Block could not turn around to exit the site (T55:03). 11. Eighth, I do not consider, however, that the physical constraints of the claimed land, namely, that it is presently landlocked, to be a valid reason for denying relief to the NSWALC. Were the Court to determine that the claimed land was claimable Crown lands for the purposes of the ALRA, the NSWALC could have, for example, sought the grant of an easement under ss 88k and 89 of the Conveyancing Act 1919 to access the land. 12. Finally, it was suggested in the Minister's further written submissions in reply that s 36(5A) of the ALRA was available to the parties in circumstances where the Minister is not satisfied that the whole or part of the land claimed is claimable Crown land because the lands are needed for an essential public purpose, but the purpose could be met if the claim were granted in whole or in part subject to the imposition of a condition. One available option, according to the NSWALC, was for the Minister to grant the current claims subject to the imposition of an appropriate condition. 13. The submission should be rejected. First, at no time has any such condition been proposed by the Minister in response to the claims, and second, the NSWALC has not consented to any condition, as required by that provision. Conclusion and Orders 1. The Minister has proven that as at the date of the claims none of the claimed land is claimable Crown lands within the meaning of s 36(1) of the ALRA. The Court therefore orders that: 1. the appeal is dismissed; and 2. the exhibits are to be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2024