Reported Decision : 62 NSWLR 534 New South Wales Supreme Court CITATION : Georgeski v Owners Corporation SP49833 [2004] NSWSC 1096 HEARING DATE(S) : 07/10/04, 08/10/04, 04/11/04 JUDGMENT DATE : 22 November 2004 JURISDICTION: Equity Division JUDGMENT OF : Barrett J DECISION : Declaratory relief against first defendant granted. Declaratory and injunctive relief against second and third defendants refused. CATCHWORDS : REAL PROPERTY - Crown lands - licence granted by Crown over site of jetty and slipway on bank of tidal river - nature of rights created - whether jetty and slipway are fixtures - effect of provisions of licence declaring them to be "property of" licensee but precluding alteration, removal and destruction while licence subsists - common law rights of public in relation to tidal foreshore - attenuation thereof by statute - TORTS - trespass to land - whether contractual licensee without right of exclusive possession may maintain action in trespass - Manchester Airport plc v Dutton considered - EQUITY - declaratory relief - whether court should at suit of A declare B's rights against C - lack of utility - postulated rights inconsistent with statutory provision Conveyancing Act 1919, Part II, Schedule VIII LEGISLATION CITED : Crown Lands Act 1989, ss.6, 34, 36, 45, 46, 47, 48, 50, 159, 174 Magna Carta Adair v National Trust [1998] NI 33 Adams v Commissioner of Police of the Metropolis [1980] RTR 289 Alamo Housing Co-operative Ltd v Meredith [2003] EWCA 495 Anderson v Alnwick District Council [1993] 1 WLR 1156 Attorney General (British Columbia) v Attorney General (Canada) [1914] AC 153 Attorney General of Southern Nigeria v John Holt (Liverpool) Ltd [1915] AC 599 Australian Aggregates (NSW) Pty Ltd v Maxmin (unreported, NSWSC, Hodgson J, 16 May 1988), Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 Australian Softwood Forests Pty Ltd v Attorney General (1981) 148 CLR 121 Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524 Behrens v Richards [1905] 2 Ch 614 Blundell v Catterall (1821) 5 B & Ald 268 Brinckman v Matley [1904] 2 Ch 313 Canadian Pacific Railway Company v The King [1931] AC 414 Consolidated Metal Products Ltd v Federal Commissioner of Taxation (1962) 108 CLR 120 Commonwealth v Yarmirr (1999) 168 ALR 426 Countryside Residential (North Thames) Ltd v Tugwell (2001) 81 P & CR 2 Fensom v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072 Fitzgerald v Firbank [1897] 2 Ch 96 Hill v Tupper [1863] 3 H & C 121 CASES CITED : Hindmarsh v Quinn (1913) 17 CLR 622 J N Taylor Holdings Ltd v Bond (1993) 59 SASR 432 Mabo v Queensland (No 2) (1992) 175 CLR 1 Manchester Airport plc v Dutton [2000] 1 QB 133 Marshall v Green (1875) 1 CPD 35 Minister for Lands v Kitto (1912) 12 SR(NSW) 80 Moreland Timber Co Pty Ltd v Reid [1946] VLR 237 New South Wales v The Commonwealth (1975) 135 CLR 337 North Shore Gas Co Ltd v Commissioner of Stamp Duties (1940) 63 CLR 52 Radaich v Smith (1959) 101 CLR 223 Ramnarace v Lutchman [2001] 1 WLR 1651 Re Sir Edward Hulse [1905] 1 Ch 406 Registrar of Titles v Spencer (1909) 9 CLR 641 Settlers Cove Development Pty Ltd v Noosa Shire Council [1997] 2 Qd R 618 State of New South Wales v Scharer (2003) 131 LGERA 208 Street v Mountford [1985] AC 809 Sustainable Fishing and Tourism Inc v Minister for Fisheries (2000) 106 LGERA 322 Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 55 ATR 1 Western Australia v Ward (2002) 213 CLR 1 Whangarei Harbour Board v Nelson [1930] NZLR 554 Williams-Ellis v Cobb [1935] 1 KB 310 Wm Collins & Sons Pty Ltd v Co-ordinator General of Public Works (1969) 36 CLLR 124 Annette Georgeski - Plaintiff Owners Corporation SP49833 - First Defendant PARTIES : Anne Catherine Hynd - Second Defendant Joan Mary Hutchinson - Third Defendant State of New South Wales - Fourth Defendant FILE NUMBER(S) : SC 5018/02 Mr M.F. Holmes QC/Ms K. Richardson - Plaintiff COUNSEL : Mr D.A. Smallbone - Second and Third Defendants Mr T.H. Barrett - Fourth Defendant Warren McKeon Dickson - Plaintiff SOLICITORS : Dobes & Andrews - First Defendant McCabe Partners - Second and Third Defendants I.V. Knight, Crown Solicitor - Fourth Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BARRETT J MONDAY 22 NOVEMBER 2004 5018/02 – ANNETTE GEORGESKI v OWNERS CORPORATION SP49833 & 3 ORS JUDGMENT Background 1 At one level, these proceedings are no more than a neighbourhood dispute. At another and more significant level, they raise important questions about rights to use Crown land. 2 The plaintiff is the registered proprietor of a residential property known as No 46 Harrow Street, Sylvania. The first defendant is the owners corporation under a strata scheme affecting an adjoining property at Nos 4-8 Madeira Street, Sylvania. The second and third defendants are the registered proprietors of lots in the strata scheme. The fourth defendant is the Crown in right of New South Wales. 3 The owners corporation and each lot owner in the strata scheme enjoy the benefit of a right of footway over part of the plaintiff's land. The dominant tenement is the strata scheme common property vested in the owners corporation and each lot in the strata scheme. The footway links the strata scheme parcel with the south bank of the Georges River. The part of the plaintiff's land burdened by the right of footway consists of a narrow strip of land running downhill from the northern boundary of the strata scheme parcel (where it adjoins the plaintiff's land at the south-western corner of that land) along the western boundary of the plaintiff's land in a generally northerly direction towards the river before taking a turn towards the north-west near the lower end. The lower section of the footway site, being the section beyond that turn when proceeding towards the river, is 10 feet wide and is bounded on each side by land in other ownership. The upper section is within (although on the western edge of) the bulk of the plaintiff's land upon which are erected a house and other domestic improvements. That upper section is five feet wide and runs, for part of its length, between the boundary of the plaintiff's land and the house and other improvements. 4 The northern boundary of the plaintiff's land (corresponding with the lower end of the site of the right of footway) is the mean high water mark of the Georges River. The land to the north of that boundary is Crown land. The plaintiff has certain rights in respect of part of that Crown land. Those rights are at the centre of these proceedings. 5 The plaintiff's rights in relation to the Crown land arise from Licence No L311151 granted by the Minister for Land and Water Conservation to the plaintiff and dated 21 October 1998. The licence is expressed to have been granted pursuant to s.34 of the Crown Lands Act 1989. The area of Crown land the subject of the licence is, in a physical sense, a rectangular extension of the strip of the plaintiff's land which is the lower section of the site of the right of footway. That rectangular extension runs from the northern boundary of the plaintiff's land across certain reclaimed land on the river bank and into the river. It will be necessary to say more in due course about things within the boundaries of the land affected by the licence. Those things were referred to in the course of the proceedings as "the irregular concrete path", "the jetty" and "the slipway". The plaintiff's claims 6 The plaintiff seeks declaratory and injunctive relief against the second and third defendants (who, as I have said, are the owners of lots in the strata scheme enjoying the benefit of the right of footway) and declaratory relief only against the first defendant (the owners corporation). The first defendant submits to the making of the declarations affecting it, but reserves its position on costs. The second and third defendants oppose the making of the declarations and injunctions affecting them. No relief is sought by the plaintiff against the Crown, which is, nevertheless, a proper party to the proceedings. There are no cross-claims. 7 The injunctive relief sought by the plaintiff against the second and third defendants, as eventually formulated by her counsel, Mr M. F. Holmes QC with whom Ms Katherine Richardson appeared, is as follows: "That Ms Hynd and Ms Hutchinson [the second and third defendants], their servants and agents, be restrained from: (a) trespassing on the Jetty, other than for the limited purpose and to the limited extent described by declaration 1 above; (b) trespassing on the Slipway, other than for the limited purpose and to the limited extent described by declaration 2 above; (c) interfering with the Plaintiff's enjoyment of the Jetty and the Slipway." (There are definitions of "Jetty" and "Slipway" to which I shall come. They are, as I have said, things within the boundaries of the land the subject of the licence.) 8 The declarations sought as against the second and third defendants are in the following terms: "1. That Ms Hynd and Ms Hutchinson are not entitled to use the Jetty for any purpose (including fishing, boating, skiing, swimming and other such activities) other than to traverse the Jetty in order to access the foreshore and in doing so, to traverse only that portion of the Jetty that is located on the foreshore of the Georges River, being the irregular concrete path. 2. That Ms Hynd and Ms Hutchinson are not entitled to use the Slipway for any purpose (including fishing, boating, skiing, swimming and other such activities) other than to traverse the Slipway in order to access the foreshore and in doing so, to traverse only that portion of the Jetty that is located on the foreshore of the Georges River." (The definitions of "Jetty" and "Slipway" are again relevant, as is a definition of "irregular concrete path".) 9 The declarations affecting the owners corporation are: "3. That the right of footway granted to the Owners Corporation over the Georgeski property (being dealing H800237) does not provide a right of access to the Owners Corporation to the Jetty. 4. That the right of footway granted to the Owners Corporation does not provide a grant of access to the Owners Corporation over the Slipway." The claims against the owners corporation 10 The claims against the owners corporation may be dealt with briefly. The reason why the owners corporation does not seek to resist the making of declarations 3 and 4 seems to me to be obvious. The right of footway was created by transfer H800237 dated 26 May 1961. That transfer was registered pursuant to the Real Property Act 1900. It was a transfer of what is now the plaintiff's property by the person who then owned both that property and what is now the adjoining site of the strata development. The transferor reserved to the herself her heirs, executors and administrators "a right of foot-way over the strip of land 5' wide and 10' wide marked 'Site of Proposed Right of Way'" in an identified plan. That strip of land is wholly within what is now the plaintiff's land, as I have described. The reservation secured to the transferor and her successors no more or less than the right to go, pass and repass more particularly described in Part II of Schedule VIII to the Conveyancing Act 1919, being a right confined to and exercisable only in relation to the particularly identified strip of land within the plaintiff's property and not extending beyond that property's northern boundary at the mean high water mark. The slipway and the jetty lie beyond that northern boundary. There is no basis on which the rights arising under or by virtue of the reservation in transfer H800237 could conceivably include a right to enter upon the jetty or the slipway situated outside the plaintiff's property – any more than they could include a right of access to Government House or Luna Park. The person by whom the right of footway was created had no ability to confer rights in respect of the Crown land to the north of the servient tenement. The relevance of the right of footway 11 This emphasises an important point. The plaintiff and the first, second and third defendants have had disagreements about their respective rights in relation to the site of the right of footway. There have been allegedly unpleasant and heated exchanges. The police have been called and have attended. There has been earlier litigation. But, apart from the matter I have just mentioned as relevant to the declaratory relief sought against the owners corporation, nothing in the present proceedings is concerned in any direct way with rights in relation to the site of the right of footway. To the extent that the plaintiff seeks declarations that the second and third defendants are "not entitled to use" the jetty and the slipway except for certain purposes and claims a right to have them restrained from going on to the jetty and the slipway except for defined purposes and to a defined extent, the plaintiff proceeds against them entirely without regard for their status as owners of land (in the form of strata lots) enjoying the benefit of the right of footway. 12 The plaintiff's claims against the second and third defendants are based on apprehended invasion of her legal rights referable solely to their actual or threatened entry on to the jetty and the slipway. They are sued as individuals and without regard for their ownership of land enjoying the benefit of the right of footway. It is in this way that the case raises for consideration questions of importance about rights at large in relation to Crown land. The issues that arise are issues about the extent of the rights generally of members of the public in respect of such land and the extent to which those rights are affected by the creation by the Crown of rights in a grantee of a licence of the kind held by the plaintiff in relation to the particular part of the Georges River and its bank. The issues in outline 13 The plaintiff's substantive claims against the second and third defendants raise three broad issues: first, as to the nature and extent of the plaintiff's rights in relation to the Crown land the subject of the licence; second, as to the classification, in the light of those rights, of the jetty and the slipway under the law of property; and, third, as to whether the rights of the plaintiff in relation to those items support a claim by her to resist trespass to them. The physical features of the land 14 Before turning to the terms of the licence and the legislation under which it was granted, I should say more about the physical features of the piece of Crown land affected by the licence. At the lower end of the site of the right of footway and, therefore, within the plaintiff's property are some steps. Additional steps, forming part of the same flight of steps, lie beyond the northern boundary of the plaintiff's property at the mean high water mark. The additional steps stand on the Crown land subject to the licence. The river bank has been built up at that point. There is a stone retaining wall beyond the mean high water mark, with the result that reclaimed land lies between the plaintiff's boundary and the waters of the river; but there is no suggestion that there has thereby been any accretion to the plaintiff's land at the expense of the Crown: see Attorney General of Southern Nigeria v John Holt (Liverpool) Ltd [1915] AC 599 at p.615. 15 The additional steps to which I have referred are at the start of an irregular concrete path leading to the edge of the reclaimed land where one end of a timber jetty or bridge is embedded in the soil. Its other end is supported by piers or pylons sunk into the river bed some six metres out into the stream. This timber structure, consisting essentially of supported bearers to which floorboards are fastened is referred to as "the jetty". From the end of the jetty supported by the piers there is suspended a ramp which joins the jetty to a floating pontoon further out into the river. 16 The "slipway" is separate from but contiguous with the jetty. It is a concrete ramp running beside (and to the west of) the irregular concrete path and the jetty, with its lower end beneath the surface of the river and its upper end inside the northern boundary of the plaintiff's property. The irregular concrete path (including the steps at the end abutting the plaintiff's property), the jetty (with the possible exception of its supporting piers in the river bed) and the slipway are all within the land that is the subject of the licence granted to the plaintiff by the Crown. In fact, those items occupy the whole of the licensed land. The pontoon and the suspended ramp connecting it to the jetty are beyond the licensed land and play no part in these proceedings. The statutory provisions under which the licence was granted 17 The land affected by the licence is "Crown land" as defined by s.3(1) of the Crown Lands Act 1989. Section 34 of that Act reads: " Powers of Minister (1) The Minister may, in such manner and subject to such terms and conditions as the Minister determines: (a) sell, lease, exchange or otherwise dispose of or deal with Crown land, or (b) grant easements or rights-of-way over, or licences or permits in respect of, Crown land, on behalf of the Crown. (2) (Repealed) (3) The Minister may not, under subsection (1): (a) sell or exchange Crown land, (b) lease Crown land for a term exceeding 5 years, or (c) lease Crown land for a term that, by the exercise of an option, could exceed 5 years, unless the relevant date for the sale, exchange or lease is at least 14 days after notice of intention to sell, exchange or lease the land has been published in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State. (4) For the purposes of subsection (3) the relevant date: (a) or a sale or exchange by private treaty is the date on which the Minister enters into a contract to sell or exchange the land, (b) or a sale by auction is the date of the auction, (c) or a sale by tender is the closing date for tenders, (d) or a sale by ballot is the closing date for nominations for the ballot, and (e) or a lease is the date on which the lease is granted. (5) If, under subsection (1), Crown land: (a) is offered for sale by auction and is not sold at the auction, (b) is offered for sale by tender and no tender is received or accepted, or (c) is offered for sale by ballot and no nomination of the ballot is received or accepted, subsection (3) does not apply to a sale of the land by private treaty. (6) This section does not authorise the sale of Crown land which is reserved for a public purpose. (7) In relation to the granting of licences, a reference in this Part to Crown land includes a reference to: (a) land within a travelling stock reserve under the care, control and management of a rural lands protection board, and (b) land within any other reserves for public purposes under the control of trustees or other authorities." 18 Section 6 of the Act provides: " 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 ." 19 It is also relevant to quote ss.45, 46, 47, 48 and 50: " 45 Purposes of licences A licence may authorise the use or occupation of Crown land for such purposes as the Minister thinks fit. 46 Certain dealings to be licences A disposition of Crown land by the Minister on behalf of the Crown, expressed to be a licence, is a licence even if exclusive possession of the land is conferred on a person. 47 Revocation of licences A licence is revocable at will by the Minister or on such notice as may be specified in the licence. 48 Licences not transferable A licence is not transferable. 50 Rent, royalty, fees etc (1) A licence may be granted subject to the payment of such rent, royalty, fees or other amount as the Minister may determine in respect of the licence. (2) The conditions attached to a licence may include such provisions for the determination or redetermination of any rent, royalty, fee or other amounts as the Minister thinks fit." 20 Section 34, by empowering the Minister to lease Crown land and to grant licences in respect of Crown land acknowledges a distinction between lease and licence. It makes no attempt to define either term and must be taken to use each according to its ordinary meaning. The licence and its terms 21 The licence to the plaintiff, as I have said, is by instrument dated 21 October 1998. By that instrument, the Minister granted to the plaintiff: "a Licence pursuant to the provisions of Section 34 of the Crown Lands Act 1989 in respect of the land described hereunder in Parts 1 and 2 and subject to the terms and conditions contained in the following pages and Schedule 1, and in any additional Schedules or documents referred to in Schedule 1." 22 The signature of a delegate of the Minister appears under the words of grant. Following that is a section signed by the plaintiff which reads: "In consideration of the grant of this Licence I/We agree to be bound by the terms, conditions and provisions of the Licence." 23 The contractual basis and force of the relationship are thus clear. 24 The licence defines the land to which it extends by reference to an attached plan and contains a "text description" as follows: "Crown land below mean high water mark fronting Lot 2 DP 31534 known as 46 Harrow Street, Sylvania – Georges River." 25 The land thus identified by both plan and "text description" is defined by clause 1 of the licence as the "Land": " 'Land' means the land specified in Parts 1 and 2 of this Licence under the heading 'DESCRIPTION OF LAND' (including any submerged land and waterway) or where the context so admits any part thereof." 26 There is also a definition of "Premises" in clause 1: "' Premises ' means the Land the Improvements and the Holder's Plant and where the context so permits any of the foregoing." "Improvements" is defined as follows: "' Improvements ' means all buildings structures facilities works and pontoons situated on or in the land or which under the terms of this Licence are to be situated on or in the land." The expressions "Holder's Plant" and "Plant" do not appear to be defined and there is no need to pursue their meaning. 27 Clause 21(1) identifies the subject matter of the grant by Minister: "This Licence confers on the Holder a right to occupy the Premises for the purpose specified or referred to in Column 2 of Item 4 in Schedule 1." 28 Clause 21(2) says that the Holder is not to use the Premises or allow them to be used for any purpose other than that specified in Column 2 of Item 4 in Schedule 1. The purpose there specified is "Jetty, Slipway (concrete with sliprails)". 29 Clause 22 reads: " 22. No Exclusive Possession The Holder acknowledges that this licence does not confer exclusive Possession of the Premises upon the Holder." (Although "Possession" has an upper case "P", it is not a defined term.) 30 There follow three clauses starting, "The Holder will not …". They preclude nuisance, noxious activities, illegal activities, residence and the conduct of business or trade on "the Premises". There are several other provisions precluding particular forms of activity. 31 Clauses 44 to 47 deal with improvements. Three of the clauses (clauses 44, 45 and 47) use the term "Improvements" but each contains its own definition. Given the opening words of clause 1 ("In this Licence unless the contrary intention appears"), the definition of "Improvements" in each of clauses 44, 45 and 47 must, construing the particular clause, prevail over the definition of "Improvements" in clause 1. Clauses 44 to 47 are as follows: " 44. Construction of Improvements Permitted with Consent (a) For the purposes of this clause 'Improvement' means any building structure facility work or pontoon. (b) The Holder will not construct effect erect or undertake any Improvements on the Premises other than with the prior consent in writing of the Minister. 45. Improvements – No Demolition without Consent (a) For the purposes of this clause 'Improvement' means any building structure facility work or pontoon. (b) The Holder will not demolish destroy remove take away or pull down any Improvements on the Premises without the written consent of the Minister. 46. Ownership of Improvements CLA The Holder acknowledges that the provisions of section 174 of the CLA apply. 47. Ownership of Improvements not to vest in the Minister until expiration of period (a) For the purposes of this clause 'Improvement' means any building structure facility work or pontoon. (b) An Improvement specified in Column 2 of Item 34 of Schedule 1 shall subject to the provisions of subclause (c) be the property of the Holder (and shall be taken always to have been the property of the Holder) who may within the period after the Termination Date specified or referred to in Column 2 of Item 35 of Schedule 1 remove at the Holder's expense the said Improvement (or any of them) from the Premises. (c) Where the Holder does not exercise the right to remove an Improvement conferred by subclause (b) within the period specified in Column 2 of Item 35 of Schedule 1 after the Termination Date the Minister may by notice in writing served on the Holder: (i) declare that the Improvements shall on and from a date specified in the notice become the property of the Minister and the Holder acknowledges that on and from that date the improvement shall be the property of the Minister and the Holder will not have any right to remove the said Improvement or to compensation by reason of the operation of this clause; or (ii) direct that the Holder at his own expense remove and take away an Improvement specified in the notice and leave the premises in a clean and tidy condition within a time specified in the notice. In the event that the Holder does not comply with the direction the Improvements shall become the property of the Minister and the Holder will not have any right to compensation by reason of the operation of this clause." 32 The particular Improvements referred to in clause 47(b) by reference to Column 2 of Item 34 of Schedule 1 are "As described in column 2 of item 4", that is, "Jetty, Slipway (concrete with sliprails)". The period after the termination date specified in Column 2 of Item 35 of Schedule 1 is three months. 33 Another provision with respect to improvements is clause 67: " 67. Alterations not to be made without Consent The Holder will not alter or vary any improvement situated on the said Land (whether in existence at the commencement or constructed or affected under this Licence) without the prior written consent of the Minister." 34 Clause 46 refers to s.174 of the Crown Lands Act 1989 (defined by clause 1 as "CLA"). That section is as follows: " Ownership of improvements on forfeiture etc (1) On forfeiture, surrender or other determination of a holding all improvements on the land become, subject to this section and any provision or condition of the holding, the property of the Crown and no compensation is payable for those improvements. (2) On application made within 1 month of the forfeiture, surrender or determination the Minister may permit the former holder to remove from the land any improvements effected or owned by the holder or the holder's predecessors in title. (3) On removal of improvements under this section the Crown ceases to have (and shall be taken never to have had) any right to the improvements." Clause 51 of the Crown Lands Regulation 2000 prescribes procedures for an application under s.174(2). 35 It is necessary to mention also clauses 37 and 63: " 37. Holder not to deal with Licence or part with possession of premises Subject to any other provision of this Licence the Holder will not during the Term of this Licence transfer or create any interest in the Licence or authorise or permit any person to occupy the Premises. 63. Public to have Access to Foreshore The Holder will allow the public to at all times have access over that part of the Land that is situated below Mean High Water Mark and which is commonly known as the foreshore and any structure constructed on the land shall be constructed so as not to unreasonably obstruct access by the public over such lands." 36 I refer penultimately to the provisions concerning rent and duration. Consistently with s.50 of the Crown Lands Act 1989, the licence obliges the holder to pay what is called "rent" (the section allows the charging of "such rent, royalty, fees or other amount as the Minister may determine in respect of the licence"). The duration of the licence is dealt with in clause 26: " 26. Commencement and Revocation of Licence (a) This Licence shall commence on the date specified or referred to in Column 2 of Item 5 of Schedule 1 and shall continue in force until it is revoked in accordance with the provisions of this clause. (b) The Minister may in his absolute discretion revoke this Licence at any time by serving on the Holder a notice in writing revoking this Licence. (c) A revocation made under this clause shall take effect on the date specified in the notice or where no date is specified in the notice on the date on which the notice is served on the Holder. (d) Except as may be expressly provided for in this Licence the Holder acknowledges and agrees that the Holder will not be entitled to any compensation costs or damages in respect of the revocation of this Licence." The licence is thus revocable at the will of the Crown. There is also a provision (clause 38) under which the holder may request revocation by the Crown. There is no unilateral right of termination in the holder. 37 Finally, I refer to the "whole agreement" provision in clause 20. There is no need to quote it as it is in relatively common form and makes ineffective between the parties representations and other stipulations not within the licence itself. This means that statements of policy by the Department of Conservation and Land Management are irrelevant to an understanding and assessment of the parties' contractual rights and obligations. The plaintiff's rights under the licence 38 The licence itself says that it does not confer exclusive possession of the premises on the holder. Nor, in my assessment, do the subject matter and surrounding circumstances call in question that statement of the parties. The area subject to the licence is open and unfenced. The right of occupation granted is for a purposes described as "Jetty, Slipway (concrete with sliprails)". This is not a case where the licensee's permission is to conduct some trade or business activity which, of its nature, involves an ability to regulate who comes on to the land and for what purposes. There is no plant or stock which one would expect to be the subject of an intention that it be kept from strangers. The kinds of considerations that, in Radaich v Smith (1959) 101 CLR 223, led to the conclusion that a so-called licence of a lock-up shop was in reality a lease entailing a right of exclusive possession do not exist here. 39 The plaintiff's express right under clause 21(1) of the licence is a "right to occupy" for a stated purpose. By clause 22, she acknowledges that the licence "does not confer exclusive Possession of the Premises" upon her. These provisions operate in the context of s.36 of the Crown Lands Act 1989 which says that any disposition of Crown land by the Minister on behalf of the Crown that is expressed to be a licence "is a licence" and that this is so even if exclusive possession of the land is conferred on a person. 40 Taken together, these provisions show that the particular holding or collection of rights is to be understood and accepted as being "a licence" which is the source of a "right to occupy" for the stated purpose but does not confer "exclusive possession" or, perhaps more accurately, a right of exclusive possession. 41 As McHugh J pointed out in Western Australia v Ward (2002) 213 CLR 1 at [502], the word "exclusive" in the expression "exclusive possession" is redundant. Exclusiveness is of the essence of possession. McHugh J explained that it is the exclusiveness inherent in a right of possession that, at common law, enables a lessee to bring an action of ejectment even though he or she may not have entered upon the land. Speaking of a licensee, as distinct from a lessee, McHugh J said (at [504]): "In contrast, a licence to use land ordinarily confers only a personal right that is enforceable in contract but not by an action in trespass or ejectment." 42 Considered in the light of the contractual grant to the plaintiff of a "right to occupy" for a stated purpose and the denial by the contract of any right of "exclusive possession", these principles point to the conclusion that the plaintiff's right as licensee is a right only as against the Crown as owner of the land and that there is no leasehold interest. The Crown is not a landlord subject, as an incident of the demise as such, to an obligation of quiet enjoyment, that is, an obligation that a lessee shall enjoy possession free from interception or disturbance by the landlord or persons lawfully claiming under the landlord. The licence and the right of occupation it entails mean two things: first, that the plaintiff is not a trespasser against the Crown (Canadian Pacific Railway Company v The King [1931] AC 414); and, second, that the plaintiff has a right of action in contract if the Crown acts inconsistently with its promise that the plaintiff may be in occupation for the stated purpose. 43 There is a distinction between possession and occupation. The plaintiff has a right to the latter but no right to the former. As Windeyer J pointed out in Radaich v Smith (above) at p.223, "persons who are allowed to enjoy sole occupation in fact are not necessarily to be taken to have been given a right of exclusive possession in law". McHugh J said in Western Australia v Ward (above) at [518]: "A person may retain legal possession – exclusive possession – even though some other person has sole physical occupation of land." 44 In the particular statutory context, the plaintiff's licence to occupy the relevant land for the stated purpose (jetty and slipway) has a significance beyond freedom, as against the Crown, to commit what would otherwise be a trespass. Division 5 of Part 7 of the Crown Lands Act 1989 is entitled "Protection of public land". The expression "public land" is defined, for the purposes of that Part, as including Crown land (s.153). Section 156 empowers the Minister to serve a notice on a person "prohibiting the person, without lawful authority, from making use of any structure erected on public land or from carrying on any prescribed activity on public land". It is an offence to fail to comply with such a notice. A licence such as that presently under consideration amounts to a "lawful authority" to occupy Crown land for the purpose specified in the licence and therefore puts the holder in a privileged position from the perspective of s.156. There is like protection from s.159 which invests a Local Court with jurisdiction to order removal from public land of a person in "unlawful occupation" of such land as "unlawfully using" it. 45 The Crown is, in relation to the land in question in these proceedings, in the same position as the proprietor of an estate in fee simple. The Crown is the absolute owner of unalienated lands in New South Wales, except to the extent that indigenous people may, on principles derived from Mabo v Queensland (No 2) (1992) 175 CLR 1, have an entitlement against the whole world to possession, occupation, use and enjoyment. The rights of the Crown include, in a general sense, those of an owner in fee simple, one of which is the right to possession which may be vindicated and protected by an action in ejectment, an action for damages for trespass and, in some cases, by a suit for an injunction to restrain invasion. The licence the plaintiff enjoys from the Crown frees her from claims by the Crown that she is a trespasser in respect of the land to which the licence relates but does not ground any claim by her to exclude the Crown from possession. 46 Clauses 37 and 63 of the licence are relevant to this matter. Clause 37 obliges the plaintiff not to "authorise or permit any person to occupy the Premises", while clause 63 obliges her to "allow the public to at all times have access" over part of the land and to ensure that any structures are so placed as "not to unreasonably obstruct access by the public over such lands". Clause 37 does not imply that the position of the plaintiff, apart from the clause, is such as to enable her to authorise occupation by others. It is no more than a confirmation of a lack of any such right. It merely confirms the personal nature of the primary right of occupation enjoyed by the plaintiff, which is something that is reinforced by the prohibition on assignment in s.48 of the Crown Lands Act 1989. 47 Clause 63 raises a separate issue. In Whangarei Harbour Board v Nelson [1930] NZLR 554, a public authority which had granted what was described as a lease contended that it had granted only a licence. The argument was based on the inclusion in the agreement of a reservation to the public of a right to enter the land for the purpose of picnics and excursions. Ostler J decided that a lease had been granted. He said (at p.560): "In the document before me the reservation is in favour of third persons, and the reservation is expressly assented to by the lessee. This shows that the lessee was intended to have exclusive possession. If this were not so, what reason would there be for the insertion of a covenant by which he (the lessee) agrees specifically to confer limited rights upon third persons? The rights conferred on members of the public by cl 6 are not inconsistent with the enjoyment of exclusive possession on the part of the lessee. The possession of the lessee is paramount." Ostler J also noted that the plaintiff had no power to grant licences, its only authority being to grant leases. This, coupled with "the form of the instrument and the language used therein" was entirely consistent with the view that a lease was intended. 48 In the present case, the inclusion in the parties' agreement of an analogous provision with respect to access by the public cannot lead to the same conclusion. The requirement that the plaintiff allow the public to have access over part of the land cannot, by implication, override or change the complexion of the express acknowledgment by the plaintiff in clause 22 that she is not entitled to exclusive possession or, more fundamentally, the express statement in s.46 of the Act that a disposition expressed to be a licence "is a licence" even if it purports to confer exclusive possession. In this case, the form of the instrument and the language used in it are, in the particular statutory context, entirely consistent with the view that only a licence was intended. 49 The plaintiff's rights in respect of the particular parcel of Crown land rest in contract. She enjoys no leasehold estate and, unless some form of limited profit a prendre is created by the provisions with respect to removal of the jetty and the slipway (a matter discussed at paragraph [72] below), she has no estate or interest at all. The status of improvements 50 I turn next to the provisions of the licence about "Improvements" and the general issue of their impact in relation to the jetty and the slipway. As has been noted, there is a definition of "Improvements" in clause 1 and a separate definition in each of clauses 44, 45 and 47. For present purposes, differences among the definitions may be ignored. The relevant items are the jetty and the slipway. Each is clearly within each definition of "Improvements". 51 Clauses 44, 45 and 67 impose upon the holder of the licence contractual obligations with respect to "Improvements" – in the first case, not to construct, erect or undertake them without consent, in the second case, not to demolish, destroy or remove them without consent and, in the third case, not to alter or vary them without consent, the consent being, in each case, the consent of the Crown. Clause 47(b) makes provision with respect to the improvements described as "Jetty, Slipway (concrete with sliprails)". It says that those items "shall subject to the provisions of subclause (c) be the property of the Holder (and shall be taken always to have been the property of the Holder) who may within the period [of three months after termination of the licence] remove at the Holder's expense the said Improvements (or any of them) from the Premises". 52 A first step in assessing the meaning and significance of these contractual terms, as they affect the jetty and the slipway, is to consider the legal status of those structures. 53 The jetty and the slipway, as they existed when the licence was granted, had been in place for some time. The evidence does not enable me to say how long the slipway has existed, although there is a surveyor's notation "50 years" on the slipway on one recent survey plan in evidence. Nor is there any evidence of who placed the slipway in the position it occupied when the licence was granted, although there is evidence that the plaintiff has carried out work on it since 1998 and that Mr Guzowski, a previous owner of the plaintiff's property, did likewise. It was Mr Guzowski who constructed the jetty. In March 1979, he was granted a permissive occupancy (presumably under the Crown Lands Consolidation Act 1913) in respect of the land affected by the plaintiff's licence. Having obtained the appropriate consent from Sutherland Shire Council, he had a contractor construct the jetty. Mr Guzowski sold the property in 1990. He said in cross-examination that no one asked him at that time to remove or demolish either the jetty or the slipway. The plaintiff has carried out work on the jetty as well as the slipway. 54 There is no evidence from anyone involved in the placement of the jetty and the slipway as to intentions when they were constructed. There is accordingly no explicit evidence of any intention that they were to remain in place indefinitely. Because of the absence of evidence pointing towards any other conclusion, it must be inferred that those who constructed the jetty and the slipway in the first place did so with an intention that each should remain in place indefinitely. The inference is warranted by the nature of each item. If the jetty were taken away, it would lose its identity and utility and become two bearers carrying floorboards, plus two loose piers dredged up from the river bed. Those materials might be used for some other purpose elsewhere. They might even be used again as a jetty if some place could be found where the river bank configuration and the depth of the water happened to match those of the present location. But generally speaking, someone who sinks piers, lays down bearers and attaches floorboards to form a jetty must be presumed to do so without any intention or expectation of later taking them up and making them into a jetty (or anything else) elsewhere. 55 The same analysis applies with even greater force to the slipway which is a solid concrete ramp embedded in the soil of the river bank and the river bed. Whoever placed it there must have intended that it remain indefinitely. If removed, it would be no more than useless rubble. 56 To these factual circumstances must be applied the analysis outlined by Jordan CJ in Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700: "If a chattel is actually fixed to land by any means other than its own weight, it is prima facie a fixture, and the burden of proof is on anyone who asserts to the contrary; if not fixed, but kept in position by its own weight, then prima facie it is not a fixture, and the burden of proof is on anyone who asserts that it is. The test of whether a chattel which has been, to some extent, fixed to the land, is a fixture is whether it has been fixed with the intention that it shall remain in position permanently or for an indefinite or substantial period, or whether it has been fixed with the intent that it shall remain in position only for some temporary purpose. In the former case it is a fixture, whether it has been fixed for the better enjoyment of the land or building, or fixed merely to steady the thing itself, for the better use or enjoyment of the thing fixed. If it is proved to have been fixed merely for a temporary purpose it is not a fixture. The intention of the person fixing it must be gathered from the purpose for which, and the time during which, user in a fixed position is contemplated. If a thing has been securely fixed, and, in particular it has been so fixed that it cannot be detached without substantial injury to the thing itself or to that to which it is attached, this supplies strong, but not necessarily conclusive, evidence that a permanent fixing was intended." 57 The clear conclusion, in my opinion, is that the jetty and the slipway were, at the inception of the plaintiff's licence, fixtures so that, in accordance with the maxim quicquid plantatur solo solo cedit, they were part of the land of the Crown in respect of which the licence was granted. This is the view that was taken of a wharf below the high water mark of the Brisbane River in Wm Collins & Sons Pty Ltd v Co-ordinator General of Public Works (1969) 36 CLLR 124 at p.142. 58 Against that background, I return to clause 47(b) of the licence. Applied to the present circumstances, that clause says that so much of the Crown's land as consists of the affixed jetty and slipway "shall … be the property of the Holder" and "shall be taken always to have been the property of the Holder". The first statement is expressed to be subject to clause 47(c) ("shall subject to the provisions of subclause (c) be …") but the second is not ("shall be taken always to have been …"), although I doubt that the deeming sought to be effected by the second set of words is intended to confer any greater right than that conferred by the first set of words. Clause 47(b) goes on to say that the holder may, within three months after termination of the licence, remove the improvements at the holder's expense. In default of such removal, the Crown may, by notice to the holder, either declare that the improvements are the property of the Crown on and from a specified date (whereupon the holder is taken to acknowledge that the improvements are the property of the Crown and the holder no longer has any right to remove and has no right to compensation) or direct the holder to remove the improvements (with non-compliance by the holder resulting in the improvements' becoming the property of the Crown, with no right to compensation on the part of the holder). 59 Because the jetty and the slipway (being "Improvements") are, on my finding, fixtures and therefore incorporated into the Crown's land, the subject matter upon which clause 47 operates is part of that land. It is therefore necessary to assess the effect of a contractual stipulation by which a land owner says to someone granted a licence to occupy the owner's land that part of that land is "the property of" the licensee and "shall be taken always to have been the property of" the licensee. The first thing to be said about this is that the second part of the formulation cannot sensibly be regarded as causing any form of right in the particular part of the land to have been vested in the plaintiff at a time before the contractual licence came into effect. The licence was granted in 1998. Had anyone asked in 1985 or 1990 who "owned" the jetty and the slipway, the plaintiff would have been one of the vast number of persons whose names would never have arisen for consideration. Whatever effect clause 47(b) has is confined, in a temporal sense, to the period after the grant of the licence. 60 Where the owner of land says, in a contract with another person, that some part of the land is "the property of" the other person, the owner obviously intends to confer some right upon that person in respect of that part of the land. Because of clauses 45 and 67, the relevant right in this case is not an unfettered right, while the licence continues, to remove or take away that part of the land or to make any alteration to it. Nor is it an unfettered right to destroy. Those things are forbidden during the currency of the licence unless the Crown, by separate decision, allows them to be done. In the absence of consent by the Crown, the right expressed as a "property" right is necessarily one that, while the licence continues, extends only to the relevant part of the property in its existing situation and its existing state. 61 The provisions of the licence in respect of improvements must be viewed in the light of s.174 of the Crown Lands Act. That section, by providing that "all improvements on the land" become, on forfeiture, surrender or other determination of a holding, "the property of the Crown", takes as its starting point the proposition that such improvements are not otherwise "the property of the Crown". There is, in the Act of 1989, no definition of "improvements" but the thinking behind the section has its roots in earlier Crown lands legislation. A statute enacted a century earlier (Crown Lands Act 1889) sought to deal with the problem which existed when a person with a holding from the Crown under Crown lands legislation improved the land and the holder of a subsequent right from the Crown obtained the benefit of the improvements. That Act was described by Cullen CJ (with whom Pring and Rich JJ agreed) in Minister for Lands v Kitto (1912) 12 SR(NSW) 80 at p.82: "By the Act of 1889, for the purpose of encouraging persons in occupation of lands to make improvements upon them and prevent hardship in cases where lands acquired on conditional purchase had become forfeited, the Legislature introduced a provision entitling the former owner to get the value of his improvements from the incoming owner, if he was a purchaser or lessee from the Crown. It was provided in other cases that although the incoming owner or lessee should put further improvements on the land, the Crown should get the benefit and not the previous owner." 62 The same Act worked according to concepts of "ownership" of improvements. I quote again from the judgment of Cullen CJ: "Sect. 44 of the Act of 1889 introduced the expression 'where the improvements belong to the Crown' in one case, and 'where the improvements do not belong to the Crown' in another. Later on, the words 'property in improvements' are used. Neither of these expressions is a strictly accurate description of the right that the Legislature intended to create and protect, because it is obvious that the conditional purchaser who forfeited, or the lessee whose lease came to an end, ceases to be the owner of the land, including improvements which merged in the fee simple. The Crown thereupon became the owner of the land and the immovable improvements, and the subsequent purchaser from the Crown became in his turn the owner. When the words 'owner of improvements' and 'property in improvements' were used by the Legislature, it was meant that the right to be paid the value of improvements should accrue to the party, whether the Crown or a private subject, whose right it was intended to protect. In the Act of 1895, the principle of compensation received a considerable extension under s.4." 63 Later in the judgment, the Chief Justice referred to the true legal nature of the improvements: "It is Crown land, and the improvements which merge in the freehold become Crown property." 64 Provisions dealing with the same pre-occupations of fairness in relation to improvements made by holders under the various Crown land tenures were included in the Crown Lands Consolidation Act 1913 which was superseded by the Crown Lands Act 1989: see A.G. Lang, "Crown Land in New South Wales", 1973, at pp.379 to 388. 65 Section 174 of the present Act, as well as clause 47 of the licence, seem to me to reflect notions of property and ownership carried over from earlier Crown lands legislation. It is recognised, by implication, that the Crown should not have full rights to improvements unless and until the holder of a terminated holding has first had an opportunity to salvage them. Thus, while, as a matter of land law, the improvements, if fixtures, belong to the Crown as part of the land, that ownership is subject to a form of right akin to "tenant rights", with "tenant" here used in a broad sense applicable to a person entitled to a Crown land holding, including a licence of the kind now under discussion. A general description of "tenant rights", as applicable to a situation of landlord and tenant strictly so called, may be found in Consolidated Metal Products Ltd v Federal Commissioner of Taxation (1962) 108 CLR 120, a case involving the meaning of the expression "improvements not subject to tenant rights" in taxation legislation. The main types of such "tenant rights" were said to be a right to remove improvements at the end of the term and a right to be compensated by the landlord for improvements not so removed. The central characteristic was captured in the description of such rights by Dixon CJ at p.127 as "rights of the lessee arising after the term and created for the purpose of modifying the operation of the common law in the interests of fairness". 66 It was submitted by counsel for the plaintiff that there is, in the present case, an analogy with tenant's fixtures. The analogy is, however, imperfect. This is so for two main reasons. First, tenant's fixtures are items erected or installed by the tenant for the more advantageous use and enjoyment of the land. Here, by contrast, the jetty and the slipway were in place when the plaintiff became the licensee. She did not install them, although she has spent money to repair and renovate them. Second, a tenant's right in respect of tenant's fixtures is not just a right to remove them at the expiration of the term. It includes a right to remove at any time during the term, being a right that, in the present case, is denied to the plaintiff by clause 45. 67 In any event, and as was pointed out by Mr D.A. Smallbone of counsel who appeared for the second and third defendants, tenant's fixtures are nonetheless fixtures unless and until the right to remove is exercised. He referred to the statement of Dixon J in North Shore Gas Co Ltd v Commissioner of Stamp Duties (1940) 63 CLR 52 at p.68: "Though removable tenants' fixtures may during the term be detached and become chattels belonging to the tenant, yet the better opinion appears to be that unless and until the tenant exercises his right of removal they form part of the realty … and for this reason, subject to the exercise of the tenant's right to convert them again into chattels, pass with the land." 68 Mr Smallbone also referred to the observations of Ormiston JA (with whom Warren CJ and Buchanan JA agreed) in Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 55 ATR 1 in relation to Dixon J's statement. His Honour described the statement as "cautious" and explained that it had been made after a period of controversy about the true nature of tenant's fixtures, with the High Court itself having previously accepted (in Registrar of Titles v Spencer (1909) 9 CLR 641) the view of Buckley J in Re Sir Edward Hulse [1905] 1 Ch 406 that tenant's fixtures "never became part of the soil". But that, as Ormiston J said, is "not the common law as it is presently understood". 69 I would add that the present case is distinguishable from one in which there is an immediate sale of something upon and forming part of land. Marshall v Green (1875) 1 CPD 35 involved a contract for the sale of growing trees to be taken away at once. The nature of the contract was such that it caused the land to become "a mere warehouse of the thing sold, and the contract is for goods": see also Australian Softwood Forests Pty Ltd v Attorney General (1981) 148 CLR 121 at p.130 per Mason J. The lack of immediacy and the circumstances that, under the parties' contract, the jetty and the slipway must, unless the Crown allows otherwise, remain in place and intact until termination of the licence, without alteration, removal or destruction by the plaintiff as holder, make this case wholly different. 70 My view of the present case is that the combined effect of s.174 of the Crown Lands Act and clause 47 of the licence, construed in the light of the other provisions of the licence concerning improvements, is, first, to create in the plaintiff no more than a contractual right to remove the jetty and the slipway after termination of the licence, provided that she does so within a specified period, and, second, to create in the Crown certain contractual rights concerning the jetty and the slipway which will come into play if the plaintiff does not exercise her right to remove. The references to the improvements being (and having always been) "the property of" the plaintiff, coupled with the express prohibitions upon demolition, removal, destruction, alteration and variation during the currency of the licence, are, to my mind, no more than an acknowledgement that the Crown's ownership of the relevant items will not stand in the way of the licensee's exercising dominion over them once the licence is no longer in force. 71 It follows from this that, during the currency of the licence, the jetty and the slipway, being "Improvements" as defined by clause 1 and therefore within the definition of "Premises" in the same clause, are subject to the right to occupy the "Premises" granted by clause 21(1), may be used for the purposes that clause 21(2) specifies in relation to the "Premises" and are within the plaintiff's clause 22 acknowledgement that there is no conferral of exclusive possession. Unless and until the rights related to removal become exercisable under clause 47, the licensee's rights in relation to the jetty and the slipway are, on this analysis, the same as those in relation to the remainder of the land of which the jetty and the slipway form part. 72 It is conceivable that the right of the plaintiff to remove the jetty and the slipway after termination of the licence involves something in the nature of a profit a prendre, at least in equity. The plaintiff may, on that basis, have an interest in the land commensurate with the right to remove after termination, although I note that a profit a prendre is not identified as one of the interests in land that may be created under the Crown Lands Act 1989. But even if such an interest has been created the interest is not one that entails any right during the currency of the licence beyond the right to occupy for the stated purpose. Such an interest, if truly existing, would affect the Crown's title in such a way that it could not itself destroy the jetty or the slipway or otherwise render them incapable of being removed at the time when the plaintiff's right to remove became exercisable without the concurrence of the Crown. But it would in the meantime not enlarge or alter the plaintiff's rights of enjoyment. It would, in short, be irrelevant to the question whether, during the currency of the licence, the plaintiff's right in relation to the land, including the jetty and the slipway, was a right of possession or, as I have found, was no more than a licence to occupy for the particular purpose. In Hindmarsh v Quinn (1913) 17 CLR 622, it was held that, even if the right of a share farmer was more than a mere licence and amounted to a profit a prendre, the right to enter and remove that that entailed (and the concomitant interest in the land) was not the source of a right of possession exclusive of the grantor. Likewise, in Australian Aggregates (NSW) Pty Ltd v Maxmin (unreported, NSWSC, Hodgson J, 16 May 1988), an interest by way of a profit a prendre was distinguished from the interest of a lessee. The plaintiff's claims in context 73 I have concluded that the plaintiff's right of occupation rests in contract only (whether or not there is an interest in the nature of a profit a prendre to take away the jetty and the slipway after termination of the licence) and that she has no leasehold or other right of possession in respect of the relevant land, being land of which the jetty and the slipway, as fixtures, form part. 74 The plaintiff's claims against the second and third defendants must be considered in the light of that conclusion. The claims for injunctive relief (set out at paragraph [7] above) proceed on the footing that the second and third defendants are, as against the plaintiff, capable of committing trespass by entering upon the jetty or the slipway; also that they are, as against her, legally precluded from "interfering with [her] enjoyment of" the jetty and the slipway. The declarations the plaintiff seeks (see paragraph [8] above) are predicated on the existence of a legal right of the plaintiff that is inconsistent with (and excludes) an entitlement of the second and third defendants to "use" the jetty and the slipway otherwise than for certain purposes. 75 Although the claims are framed in such a way as to be based on differently expressed rights in the plaintiff, it seems to me that they share a common foundation, namely, the proposition that the plaintiff occupies a position in relation to the part of the Crown land that consists of the jetty and the slipway that involves a legal right to exclude other persons either absolutely or to the extent that their entry is otherwise than for particular purposes. 76 The first step in considering that proposition is to consider the rights a person must have in relation to land in order to have a sustainable cause of action in trespass in respect of that land. But that inquiry can most advantageously be undertaken after a brief examination of the public's rights in relation to land of the kind under discussion. Common law rights of the public in relation to tidal waters and the foreshore 77 These proceedings were argued on the express footing, accepted by all parties, that the land the subject of the plaintiff's licence is Crown land and that the Georges River is tidal at point in question. Submissions were made about the nature and extent of common law rights in relation to tidal waters and the adjacent foreshore. 78 In Attorney General (British Columbia) v Attorney General (Canada) [1914] AC 153 at p.170, Viscount Haldane LC, speaking for the Privy Council, said: "In the tidal waters, whether on the foreshore or in creeks, estuaries, and tidal rivers, the public have the right to fish, and by reason of the provisions of Magna Charta no restriction can be put upon that right of the public by an exercise of the prerogative in the form of a grant or otherwise." 79 These common law rights of fishing are referred to in the extensive discussion of the legal nature of the sea by Stephen J in New South Wales v The Commonwealth (1975) 135 CLR 337 at pp.422ff. In relation to the foreshore of tidal waters, it is relevant to quote an observation by Beaumont and von Doussa JJ in Commonwealth v Yarmirr (1999) 168 ALR 426 at p.470: "At common law, the intertidal zone is treated as the shore or foreshore, that is to say, the land lying between the ordinary flux and reflux of the tide being the mean high water mark and the mean low water mark of ordinary tides occurring between the spring and neap (ie ordinary) tides, which is alternatively covered and left dry by the flux and reflux of the tide: see for example Attorney General v Chambers [1854] 43 ER 486 ; Bowen v Minister for Urban Affairs and Planning for Willoughby City Council (1996) 90 LGERA 368 per Bannon J at 369. The public right to fish, and ancillary rights (eg bait-digging, the taking of shell-fish or worms) may be exercised on the foreshore: see ; Anderson v Alnwick District Council [1993] 3 All ER 613 ; Adair v National Trust [1998] NI 33." 80 Mr T.H. Barrett of counsel who appeared for the Crown referred to a number of English cases concerning rights recognised by the common law as exercisable by the public in relation to the foreshore in the absence of any dedication to the public. In Williams-Ellis v Cobb [1935] 1 KB 310, Lord Wright referred to "the difficult question of the extent of the rights of the public over the foreshore". His Lordship noted that it had been decided in Blundell v Catterall (1821) 5 B & Ald 268 (and confirmed by the Court of Appeal in Brinckman v Matley [1904] 2 Ch 313) that the public have no right to use the foreshore for bathing and "there is certainly no right in the public to pass and re-pass over the foreshore for all purposes". In the latter case, Buckley LJ said that recognition of limited and specific rights in relation to the foreshore precluded the implication of any such general right. Among the specific rights, according to Buckley LJ, are a right to cross the foreshore for purposes of navigation in case of peril or necessity and, as an adjunct to the right of fishing in tidal waters, "it may be that there is – I do not say that there is – a right to cross the foreshore in order to launch a boat". Lord Wright noted that, in Behrens v Richards [1905] 2 Ch 614, Buckley LJ "seems to recognise that there might be, both in fact and in law, a public right of access to the foreshore for fishing". Lord Wright's own doubts on that were summed up at the start of his next sentence: "Such a right, if it exists …". 81 These matters have received more recent attention in England in Anderson v Alnwick District Council [1993] 1 WLR 1156 where a Divisional Court was called upon to decide whether there is a public right to take from the foreshore bait for fishing. Evans LJ and Macpherson J began with the proposition that, subject only to the possibility of the existence of a grant pre-dating Magna Carta (a possibility that may be ignored in New South Wales), "the public right to fish in tidal waters is beyond doubt". That right is "closely linked with the public's right to navigate on the seas". The judgment continues (at p.1166): "A sea fisherman who does so from a boat exercises both rights. There have been suggestions that the right to land and to cross the foreshore as an incidental to the right to navigate is limited to occasions of emergency (see eg per Harman LJ in Alfred F Beckett Ltd v Lyons [1967] 1 All ER 833 at 842 , [1967] Ch 449 at 469) but it is not suggested that any such limitation applies to the right to fish." 82 The conclusion with respect to the taking of bait from the foreshore was that a right to do existed as ancillary to the public right to fish since denial of the right to take bait for fishing would amount to a curtailment of the right to fish itself. The existence of such an ancillary common law right to take bait was accepted in Adair v National Trust [1998] NI 33, where it was held that there is no common law right to harvest shellfish from the foreshore analogous with the right to take fish from tidal waters. 83 Questions about the consequences of interference with public rights of the kind under discussion were considered by Ambrose J in Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524. It is sufficient, for present purposes, to note without comment his Honour's general conclusion that interference with the common law right to navigate tidal waters is an actionable public nuisance but that, despite suggestions to the contrary in some Canadian cases, there is no corresponding right of action in case of interference with the common law right to fish. 84 In the context of the proceedings with which I am dealing, the point of particular significance is that, while, in Anderson v Alnwick District Council (above), the court had no difficulty in identifying a public right to fish in tidal waters as having existed since before Magna Carta, the question whether a fisherman may lawfully take worms from the foreshore for use as bait took a further eight centuries to emerge and be resolved. This, coupled with the reservations expressed by Lord Wright in Williams-Ellis v Cobb (above), emphasises a point that is important for this case, namely, that it is not possible to make, with any degree of confidence, a complete and exhaustive statement of the common law rights of the public in relation to tidal waters and the foreshore. The matter is a "difficult question" no less today than when so described by Lord Wright in 1935. Are the common law rights attenuated by statute? 85 The principles I have outlined as derived from English common law apply alike to land in private ownership and land of the Crown. In the present case, the relevant land is Crown land in New South Wales. That adds a statutory dimension. Section 6 of the Crown Lands Act 1989 is set out at paragraph [18] above. It says that Crown land "shall not be … used … unless the … use … is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989". It makes corresponding provision with respect to occupation. By virtue of s.7, any other Act authorising Crown land to be disposed of or dealt with takes precedence over s.6. It is not suggested that any other Act is relevant to the land now under consideration. Section 159 of the Crown Lands Act (see paragraph [44] above) empowers a justice to issue a summons for the appearance before a Local Court of a person who, according to an information laid before the justice by an authorised person, "is unlawfully using public land", with "public land" including, by virtue of s.153, Crown land. 86 The words "used" and "using" in ss.6 and 159 of the Crown Lands Act 1989 are significant. The concept of the "use" of land is one that has received extensive judicial treatment in a number of contexts. In Settlers Cove Development Pty Ltd v Noosa Shire Council [1997] 2 Qd R 618, for example, it was said by McPherson JA and Helman J that, leaving to one side any statutory definition of "use": "… using the sand-dune area as a means of access to Noosa Inlet would be a 'use' that is or would be incidental to and associated with the purpose for which the other part of proposed Lot 2 is to be used…" In Sustainable Fishing and Tourism Inc v Minister for Fisheries (2000) 106 LGERA 322, it was held that the taking of fish by professional fishermen from estuaries of the Manning River near Taree, not being ancillary or incidental to any other use of the relevant land, was itself "use of land" for the purposes of s.110 of the Environmental Planning and Assessment Act 1979. 87 Section 6 of the Crown Lands Act 1989 is an expanded version of the first part of s.6 of the Crown Lands Consolidation Act 1913: "Crown lands shall not be sold leased dedicated reserved or dealt with except under and subject to the provisions of this Act ..." This core provision of the previous Crown lands legislation was described by Bryson J in Fensom v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072 as laying down "a constitutional principle for New South Wales". Its effect was to curtail the prerogative of the Crown by denying power to create interests in Crown land otherwise than in accordance with that legislation. Cases in which that principle was recognised and applied from 1902 are discussed in the judgment of Tobias JA in State of New South Wales v Scharer (2003) 131 LGERA 208. 88 The addition of references to both occupation and use when the provision was re-enacted as s.6 of the Crown Lands Act 1989 meant that the section came 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. There is nothing in the Minister's second reading speech (Legislative Assembly, 15 November 1988, Hansard, Vol 205, p.3306) or in the accompanying explanatory memorandum stating any reason for the addition of the references to occupation and use in s.6. But the Minister's speech does comment on the philosophy behind the group of provisions which includes s.159: "Clauses 153 to 168 inclusive of the bill deal with the protection of public lands and substantially re-enact the provisions of the existing legislation in this respect, although in a modern form and imposing more realistic penalties. Because of the history of settlement in New South Wales and what was in the past perceived to be almost unlimited reserves of Crown land, some members of the public still tend to treat Crown land as something to exploit or use without proper care or authority. The provisions of the bill will assist in the management and care of the Crown estate for the benefit of the general community." 89 From this it may be inferred that a policy of checking propensities of the public "to treat Crown land as something to exploit or use without proper care or authority" also lay behind the adoption of the revised form of s.6. Such an inference is, in any event, warranted by the words themselves and reinforced by s.10 which says that the objects of the Act "are to ensure that Crown land is managed for the benefit of the people of New South Wales". Part 3 of the Act makes provision for the creation and implementation of a programme for the assessment of Crown land, including the identification of suitable uses (s.30). Section 33 specifies matters to which regard is to be had in identifying suitable uses for Crown land. 90 I mention these matters because they affect an appreciation of the position occupied, in relation to Crown land, by persons who, like the second and third defendants, hold no licence or other authority granted under the Crown Lands Act. In the light of s.6, it may be contrary to statute for a person not holding any authority from the Crown to cross the land the subject of the plaintiff's licence to access the Georges River, on the basis that taking advantage of the land for that purpose and in that way amounts to "use" of it within the meaning of the section. The "use" of Crown land by the public in the absence of both dedication and any specific authority under the Crown Lands Act is, at best, use at the sufferance of the Crown. Resisting trespass to land 91 Against that background, I return to the question of the position that a plaintiff must occupy in relation to land to support a claim based on trespass to that land. In Western Australia v Ward (above), McHugh J said (at [504]): "The right of the occupant to bring an action of ejectment and after entry an action in trespass for wrongful entry has always been the mark of the lessee." 92 His Honour continued: "In contrast to the lessee, a licensee, whose occupation is wrongly terminated or interfered with, must sue in contract or for some tort other than trespass to the land. If wrongly ejected from the land, the licensee cannot maintain an action in ejectment. If ejected by the grantor, the licensee may be able to obtain an injunction restraining the grantor from breaching the personal contract. If ejected by a stranger, the licensee may have an action in trespass to the person or some other tort. But in neither case is the action of ejectment or trespass to land available to the licensee." 93 This is, of course, the traditional way of looking at matters consistently with Radaich v Smith (above). Windeyer J there said: "A right of exclusive possession is secured by the right of a lessee to maintain ejectment and, after his entry, trespass." 94 Hill v Tupper [1863] 3 H & C 121 is often cited as authority for the proposition that a licensee without any possessory interest has no remedy against anybody who disturbs him in the exercise of his licence. In that case, a canal company had granted to the plaintiff by contract a right to put and use pleasure boats on its canal, declaring the right to be "sole and exclusive". The licensee sued another person who also put pleasure boats upon the canal. It was held that the plaintiff had no maintainable cause of action. Martin B said (at p.128): "This grant is perfectly valid as between the plaintiff and the canal company; but in order to support this action, the plaintiff must establish that such an estate or interest vested in him that the act of the defendant amounted to an eviction. None of the cases cited are at all analogous to this, and some authority must be produced before we can hold that such a right can be created. To admit the right would lead to the creation of an infinite variety of interests in land, and an indefinite increase of possible estates. The only consequence is that, as between the plaintiff and the canal company, he has a perfect right to enjoy the advantage of the covenant or contract; and, if he has been disturbed in the enjoyment of it, he must obtain the permission of the canal company to sue in their name." 95 This result emerged because trespass to land entails interference with possession and is maintainable only by someone who has a right of possession. As between landlord and tenant, it is the tenant who may sue for trespass. As between licensor (freeholder) and licensee, where no right of possession is involved, it is the licensor who may sue for trespass. The latter proposition requires qualification where the licence is coupled with the grant of an interest, such as a profit a prendre. In such a case, the licensee may, because of the interest, sue in trespass for direct interference with the subject matter of the grant, although if the interest is equitable only the remedy may be confined to equitable relief. But the remedy, whether at law or in equity, is merely commensurate with the interest, as distinct from the contractual right with which it is associated: see Fitzgerald v Firbank [1897] 2 Ch 96, Moreland Timber Co Pty Ltd v Reid [1946] VLR 237. 96 It was submitted on behalf of the plaintiff that the traditional approach to which I have referred requires re-examination in the light of the decision of the English Court of Appeal in Manchester Airport plc v Dutton [2000] 1 QB 133. That case arose from plans by the owner of the airport at Manchester to build a second runway in such a position that its flight path would be over a wood owned by the National Trust. To make the new runway safe, some trees in the wood needed to be lopped or felled. The National Trust granted to the airport company a licence to enter and occupy the wood for the purpose of removing trees. Before grant of the licence, however, protesters had entered the wood and set up camps preventing the carrying out of such works. The airport company, having been granted the licence, brought summary possession proceedings against these occupiers and was successful. The Court of Appeal (Laws and Kennedy LJJ, Chadwick LJ dissenting) dismissed an appeal and the House of Lords refused leave to appeal. 97 Chadwick LJ in dissent took an approach consistent with traditional trespass jurisprudence: "The question is whether a person who has a right to occupy under a licence but who does not have any right to exclusive possession can maintain an action to recover possession. But, in that context, the observations of Windeyer J in the High Court of Australia, in Radaich v Smith (1959) 101 CLR 209 at 222, adopted with approval by Lord Templeman in Street v Mountford [1985] 2 All ER 289 at 300, [1985] AC 809 at 827, are of relevance:" 98 After quoting from the judgment of Windeyer J in Radaich v Smith (above), his Lordship continued: "The lessee, having a right to exclusive possession, could, before entry into possession, maintain an action for ejectment. A licensee, if he did not have a right to exclusive possession, could not bring ejectment. A tenant or a licensee who was in actual possession—that is to say in occupation in circumstances in which he had exclusive possession in fact—could maintain an action for trespass against intruders; but that is because he relied on the fact of his possession and not on his title. The licence in the present case, as it seems to me, is a clear example of a personal permission to enter the land and use it for some stipulated purpose. In my view, it would be contrary to what Windeyer J described as 'long-established law' to hold that it conferred on the airport authority rights to bring an action in rem for possession of the land to which it relates." 99 Laws LJ, with whom Kennedy LJ agreed (adding observations of his own), expressly rejected this line of reasoning. Laws LJ said that in the older cases one could hear the "rattle of mediaeval chains" resonating in the evolution of the modern writ of possession out of the peculiar law of ejectment. At pp.149-150 he said: "But I think there is a logical mistake in the notion that because ejectment was only available to estate owners, possession cannot be available to licensees who do not enjoy de facto occupation. The mistake inheres in this: if the action for ejectment was by definition concerned only with the rights of estate owners, it is necessarily silent upon the question, what relief might be available to a licensee. The limited and specific nature of ejectment means only that it was not available to a licensee; it does not imply the further proposition, that no remedy by way of possession can now be granted to a licensee not in occupation. Nowadays there is no distinct remedy of ejectment; a plaintiff sues for an order of possession, whether he is himself in occupation or not. The proposition that a plaintiff not in occupation may only obtain the remedy if he is an estate owner assumes that he must bring himself within the old law of ejectment. I think it is a false assumption. I would hold that the court today has ample power to grant a remedy to a licensee which will protect but not exceed his legal rights granted by the licence. If, as here, that requires an order for possession, the spectre of history (which, in the true tradition of the common law, ought to be a friendly ghost) does not stand in the way. The law of ejectment has no voice in the question; it cannot speak beyond its own limits. Cases such as Radaich v Smith and Street v Mountford were concerned with the distinction between licence and tenancy, which is not in question here. In my judgement the true principle is that a licensee not in occupation may claim possession against a trespasser if that is a necessary remedy to vindicate and give effect to such rights of occupation as by the contract with his licensor he enjoys. There is no respectable distinction, in law or logic, between the two situations. An estate owner may seek an order whether he is in possession or not. So, in my judgment, may a licensee, if other things are equal. In both cases, the plaintiff's remedy is strictly limited to what is required to make good his legal right. The principle applies although the licensee has no right to exclude the licensor himself. Elementarily he cannot exclude any occupier who, by contract or estate, has a claim to possession equal or superior to his own. Obviously, however, that will not avail a bare trespasser." 100 The House of Lords has not been called upon to consider the majority decision in Manchester Airport v Dutton, except in the limited context of an application for leave to appeal. Later cases in which the Court of Appeal's decision has been cited have been disposed of without any need to analyse the reasoning of the majority: see Countryside Residential (North Thames) Ltd v Tugwell (2001) 81 P & CR 2; Alamo Housing Co-operative Ltd v Meredith [2003] EWCA 495. That reasoning has, however, been criticised by several commentators: see P Birts, "Trespass and possession: no loosing of the chains" (2000) 144 Sol J 316; M Wonnacott, "Flawed judgment" [1999] Estates Gazette 165; E Paton and G Seabourne, "Unchained remedy: recovery of land by licensees" [1999] Conv 535; W Swadling, "Opening the numerus clausus" (2000) 116 LQR 354. It is instructive to look at some of these criticisms. 101 In Birts' view, it was a misconception to allow to a licensee a remedy enforceable by writ of possession, which is the modern and summary version of writ of ejectment. That, as he points out, is a remedy in rem directing the sheriff to evict from the land all persons found on it. He asks rhetorically: "What is the sheriff to say to tenants or other lawful occupiers on receipt of such a writ (or more picturesquely, what are they likely to say to him)?" Because the law as stated in Radaich v Smith (above), approved by Lord Templeman in Street v Mountford [1985] AC 809 (a case described by Lord Millett, speaking for the Privy Council in Ramnarace v Lutchman [2001] 1 WLR 1651 as having restored orthodoxy in England), has, as Birts puts it, "always been that trespass was not maintainable by a licensee unless he had exclusive occupation amounting to possession", the objection to the making of a possession order in the Manchester Airport situation is that "it offends against the law of trespass, not ejectment". 102 Wonnacott's view is that the majority in Manchester Airport fell into the trap of assuming that "occupation" and "possession" are the same thing. "Occupation", as he points out, entails physical presence or physical use or enjoyment in some tangible way. "Possession", on the other hand, does not describe a relationship between a person and any tangible property. It describes "a relationship between a person and an estate or interest in land, rather than a relationship between a person and any physical feature of the land". The learned author explains the possession concept further: "The relationship between a person and an estate or interest in land ('possession') may be of one of two sorts – a relationship of right or a relationship of fact. A person has a right to possession of an estate or interest in land if he has acquired a title to it that is 'vested in possession'. A title to an estate or interest is vested in possession when a person has an immediate fixed right of present enjoyment of it. The relationship of fact (having or being in possession) exists when a person is, as a matter of observable fact, enjoying the rights and incidents of an estate or interest in land. So a person in occupation of land, whose occupation is otherwise unexplained, is in possession of the fee simple, because occupation is one of the ways in which a fee simple can be enjoyed." Remedies for trespass vindicate possession, not occupation. 103 Paton and Seabourne say that Laws and Kennedy LJJ failed to relate their decision to a principle clearly established by 1850, namely, "the insufficiency of a mere licence (as opposed to … an easement or a profit) to found an action to restrain interference by a third party". They continued: "By the time of Allan v Liverpool Overseers [[1874] LR 9 QB 180], the same principle could readily be understood and applied in relation to ejectment and trespass. Far from 'not [being] concerned with the rights of a [mere] licensee' [Laws LJ], the 'old law' was by the late nineteenth century defining the limits of those rights with increasing clarity. If a licensee not in possession could not sue in ejectment in the nineteenth century, no procedural developments in the last century have altered that position." 104 Swadling's main criticism of the majority position in Manchester Airport v Dutton appears from this passage: "The error into which, with respect, Laws LJ falls in failing to notice that a contractual licensee in occupation of land has rights derived from two separate sources, some from the contract, some from the fact of possession. Those derived from the contract prevent the licensor from denying him possession of the land. But those rights, because of the doctrine of privity, and notwithstanding the recent reform of that doctrine, bind the licensor alone. It is the rights derived from the second source, from the fact of possession, which bind third parties. But since the protesters were not party to the contract entered into by the plaintiff company and the National Trust, and since the plaintiff did not have any factual possession of the land, then, unless a contractual licence to occupy land has suddenly leapt the personal/property divide, it could not have bound the protesters. There is, therefore, a distinction which does still need to be drawn between a plaintiff whose right to occupy the land in question arises from title and one whose right arises from the contract alone." 105 I must prefer the approach taken by Chadwick LJ in dissent. To do otherwise would be to fail to accept principles about the nature of trespass to land which are deeply rooted in Australian law and have been recognised by the High Court. The issue that the majority in Manchester Airport v Dutton had with the traditional approach to trespass was some perceived illogical distinction between a licensee in possession and a licensee out of possession. But focus on the licensee's bare rights overlooks the nature of the wrong of trespass and its foundation in possession. 106 Trespass to land is sometimes said to be an unlawful interference with one's property, but more particularly it is an interference with possession. A right of possession of the kind enjoyed by a lessee will support an action in trespass. Possession in fact may also be sufficient, at least as against a defendant having no right of possession. Such a defendant, unless entering with the authority of the owner or lessee, may not plead that person's right to possession as a defence and, for that reason, may be unable to resist an action by a plaintiff whose possession is possession in fact only. But possession in fact is by no means the equivalent of occupation, even sole occupation. It may be found to exist where, as Wonnacott put it (see paragraph [102] above), a person "is, as a matter of observable fact, enjoying the rights and incidents of an estate or interest in land". Mere physical presence or physical use can never satisfy that test. Conclusions in relation to the plaintiff's claims based on trespass 107 The plaintiff has no legal right of possession in respect of the land the subject of the licence. Its effect is no more than to confer on her the landowner's permission to occupy for a stated purpose. Nor, as a factual matter, is she in possession. The land is unfenced and open and, under the terms of the licence (clause 44), the plaintiff may not construct any fence or other barrier on the land without the Crown's consent. The plaintiff does not reside on the land or conduct any sustained activity there that causes other persons to be excluded in a physical and factual sense as in Radaich v Smith (above) – indeed, her right to occupy is only for the limited purpose of "Jetty and Slipway (concrete with sliprails)" and that is not a purpose that contemplates sustained activity of a kind that would be expected to entail ongoing physical exclusion of other persons. The plaintiff is, by the terms of the contract granting her licence, subject to an explicit requirement that she allow access by the public over the land. 108 For these reasons, the plaintiff does not occupy in relation to the land in question any position from which she may resort to the law of trespass to land in order to restrain entry by another person, to obtain an award of damages against a person who has entered without her permission or to obtain an order for possession of the land. 109 I have postulated above (paragraph [72]) the possibility that the provisions of the licence giving the plaintiff a right to remove the jetty and the slipway (which, as fixtures, are incorporated into the land) may have the effect of causing the plaintiff to have an equitable interest in the land in the nature of a profit a prendre. I have also referred to the possibility that the plaintiff may be entitled to bring proceedings based on trespass in the event of direct interference with the subject matter of the grant. If such an interest in the land in truth existed and a person took action towards dismantling the jetty or the slipway and taking them away, the plaintiff might, by reference to her interest, rely on trespass as a means of obtaining injunctive relief to restrain that action. But it would be in no sense inconsistent with or an invasion of the postulated interest in the land for any person merely to enter upon the jetty or the slipway. The possibility that such an interest therefore need not be considered further in these proceedings where there is no suggestion that the second defendant or the third defendant has any intention of dismantling and removing the jetty or the slipway and the plaintiff's complaints are confined to their entering upon those structures in a normal way. The claims for injunctive relief 110 The plaintiff's first two claims are claims for injunctions framed by means of the words "be restrained from trespassing on …". An injunction in those terms would be unacceptably imprecise. It would not specify the acts that are enjoined ("trespassing" involves a legal conclusion as to the quality of unspecified acts rather than identifying the acts themselves). What the plaintiff really seeks is, in each case, an injunction restraining the second and third defendants from entering and being upon the relevant structure without the permission of the plaintiff. The right to resist trespass to land that I have found the plaintiff to lack is the only conceivable basis for a claim to such an order in respect of either the jetty or the slipway. Such an order will therefore not be made. 111 The plaintiff also seeks an order that the second and third defendants "be restrained from … interfering with the plaintiff's enjoyment of the Jetty and the Slipway". Again, there is an unacceptable degree of imprecision. It might, at one level, "interfere with" the plaintiff's "enjoyment" of the jetty if the second defendant plays a trumpet loudly on a boat moored near the river bank when the plaintiff is exercising her right of occupation under the licence; or if washing hung on the third defendant's clothesline casts a shadow over the slipway when the plaintiff, for the purposes of her permitted occupation of it, wishes to have it bathed in sunshine. The course the proceedings took did not suggest that these are the concerns that motivate the plaintiff. Even if they were, the claim to restrain persons from "interfering with the enjoyment of" land carries overtones of a claim based in private nuisance where, as in trespass, possession grounds the right of action. It seems to me, in any event, that the plaintiff, in seeking to restrain the second and third defendants from "interfering with the plaintiff's enjoyment of" the jetty and the slipway, is again motivated by a concern to preclude physical entry and presence; and that again the lack of any basis for a claim in trespass to land by the plaintiff means that there is no entitlement to relief. The claim for declaratory relief 112 The declarations the plaintiff seeks in relation to the jetty and the slipway are that the second and third defendants are "not entitled to use" them for any purpose other than the purpose of crossing to the river foreshore. 113 The second and third defendants, as I have said, do not, in relation to the jetty or the slipway, occupy any position vis a vis the plaintiff beyond that of any other member of the public. The declarations the court is asked to make are therefore declarations as to the rights of the public, so far as use of the jetty and the slipway is concerned. 114 It may be that the plaintiff, by virtue of her contractual right of occupation, has a sufficient interest in the matter to have standing to seek relief in the form of a declaration as to the rights of other persons to use the jetty and the slipway. The present case is, in that respect, somewhat similar to J N Taylor Holdings Ltd v Bond (1993) 59 SASR 432. But there will be no utility in a declaration in the terms the plaintiff seeks as against the second and third defendants. The plaintiff has no right to restrain the second and third defendants from entering upon the jetty and the slipway. The right to seek to control their conduct in that respect lies with the Crown. Armed with a declaration by the court as to the rights of the second and third defendants (who are, in this context, no more than representative members of the public), the plaintiff would be in no better legal position than if she had no such declaration. The declaration, of its nature, would be a declaration about the rights enjoyed (or not enjoyed) by the second and third defendants against the Crown, being rights that were not enforceable by the plaintiff. And it would, of necessity, be a declaration as at a particular time. The rights could change at some later time. There is nothing in the relevant statute or in the contract between the plaintiff and the Crown precluding it from authorising other persons to use the same land. 115 Considerations of this kind lay behind the decision of Jupp J in Adams v Commissioner of Police of the Metropolis [1980] RTR 289 (Queen's Bench Division) to refuse declaratory relief. In that case, residents on a private estate who considered that the driving of motor vehicles on a road within the estate was dangerous had failed to persuade police to deal with the matter. The police had advice that the road was not a "road" within a statutory provision relevant to their powers. The residents sought a declaration that the Commissioner of Police was not precluded from prosecuting offences on the road by reason of the statutory definition. The residents succeeded in showing that the road was a "road" as defined and therefore amenable to the police jurisdiction. It was also held that, by reason of their genuine and substantial interest in the subject matter, the residents had standing to seek declaratory relief. But that relief was refused. 116 Jupp J stated three main reasons for declining to grant declaratory relief. The first was that the plaintiffs were not asking for an order that the Commissioner actually do anything. Second, the court could not, in the particular proceedings, establish the status of the road in such a way as to make it effective in any subsequent prosecution under the road traffic legislation. Anyone prosecuted would have a right to litigate the status of the road in proceedings in which different evidence might be given and a different standard of proof would apply. As his Lordship said: "In my judgment it would be undesirable to have in existence a declaratory order which had even the appearance of establishing the status of Aberdeen Park for all time." The third reason for refusing a declaration was "… it is difficult to see what right as between the parties to the present proceedings would be embodied in such a declaration." 117 The first of these reasons does not apply in the present case, although it is of some significance that the injunctions the plaintiff seeks against the second and third defendants will not be granted. The second reason is of relevance here since any tangible relief in respect of use of the land by the second and third defendants would require proceedings of some kind between the Crown and them. The third reason certainly applies here. The decision in Adams illustrates why the declaratory relief the plaintiff seeks against the second and third defendants would be of no utility. 118 It is, to my mind, significant that the Crown, which has been made a party to these proceedings, has not seen fit to seek, by way of cross claim, any declaration as to the rights of the second and third defendants to use the land in question. 119 The terms of the declaration the plaintiff seeks against the second and third defendants are, in any event, in conflict with s.6 of the Crown Lands Act 1989. As has been seen (paragraph [85] above), that section says that Crown land "shall not be … used … unless the …use … is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989". Faced with that statutory provision, the court will, as a matter of discretion, not make a declaration that persons in respect of whom no authority under either such Act has been shown to exist "are not entitled to use [particular Crown land] for any purpose … other than [a specified purpose]". This is because the declaration would convey the message that the persons concerned "are … entitled to use" the land for the specified purpose. The verb "use" is employed to describe the very conduct that s.6 precludes. Disposition 120 The plaintiff's claims against the second and third defendants will be dismissed. As I have noted, the first defendant (owners corporation) has filed a submitting appearance except as to costs. In view of what is said in paragraph [10] above, the declarations affecting the first defendant, as set out at paragraph [9] above, will be made. The plaintiff seeks no relief against the Crown. 121 In relation to costs, my present inclination is to think that the plaintiff should pay the costs of all defendants. If any party wishes to make submissions on costs, I shall hear those submissions at a time to be fixed. ********** Last Modified: 11/29/2004 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.