NSW RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA; NSW SMALLBORE AND AIR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA [1997] NSWCA 234

NSW_ RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA; NSW SMALLBORE & AIR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL, BEAZLEY and STEIN JJA 20 May 1997, 15 August 1997 [1997] NSWCA 234

Agreement for permissive occupancy — interpretation. Termination — reasonable notice. Unconscionability and unjust enrichment — not applicable

The Commonwealth entered into agreements which granted to the appellant associations a permissive occupancy of an area forming part of the land at Malabar known as the Anzac Rifle Range "for such period as the land is used as a rifle range". The Commonwealth's use of the land as a rifle range ceased and it sought to terminate the appellants' occupancy by giving notice to each of them. The appellants claimed that the Commonwealth could only terminate their occupancy of the land in the specified circumstances, which had not occurred, and that the appellants continued to use the land as a rifle range. The appellants claimed that the manner in which the Commonwealth sought to terminate the arrangements without the payment of compensation for the value of improvements to the land was unconscionable.

Held:

(1) the expression "use of the land as a rifle range" means the whole of the land, not just the permissive occupancy area;

(2) the term of the occupancy period refers to the use of the land for the purpose of a rifle range. This means use for that purpose by the Commonwealth. The "agreement" did not create an irrevocable licence or a lease or other estate in land;

(3) whether or not the "agreement" was contractual in nature, the period of notice granted by the Commonwealth was reasonable;

(4) the Commonwealth's conduct in determining the occupancy was not unconscionable and did not give rise to unjust enrichment.