Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359 Hearing dates: 2 August 2012 Decision date: 09 November 2012 Before: Beazley JA at [1]; McColl JA at [2]; Basten JA at [3]; Macfarlan JA at [60]; Sackville AJA at [61] Decision: (1) Appeal dismissed. (2) The appellant to pay the respondent's costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ABORIGINAL LAND RIGHTS - claim to Crown land, including closed police station, which was awaiting sale - land visited intermittently by police officers for the purpose of defeating earlier claim - whether land claimable Crown land - whether land lawfully used or occupied - whether land must be used or occupied beyond a notional degree - Aboriginal Land Rights Act 1983 (NSW), s 36 WORDS & PHRASES - "lawfully used or occupied" - Aboriginal Land Rights Act 1983 (NSW), s 36 Legislation Cited: Aboriginal Land Rights Act 1983 (NSW), ss 3, 36 Land and Environment Court Act 1979 (NSW), s 57 Local Government Act 1919 (NSW), s 132 Native Title Act 1993 (Cth) Public Works Act 1912 (NSW) Cases Cited: Attorney General v Brown (1847) 1 LEGGE 312 Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; 96 CLR 493 The Council of the City of Parramatta v Brickworks Ltd [1972] HCA 21; 128 CLR 1 Council of the Municipality of Randwick v Rutledge [1959] HCA 63; 102 CLR 54 Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 Eaton & Sons Pty Ltd v The Council of the Shire of Warringah [1972] HCA 33; 129 CLR 270 Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547 Mabo v Queensland [No 2] [1992] HCA 23; 175 CLR 1 Maurici v Chief Commissioner of State Revenue [2003] HCA 8, 212 CLR 111 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 379 Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; 237 CLR 285 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (Nowra Brickworks Claim (No 1)) (1993) 31 NSWLR 106 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (Winbar Claim No 3) (1988) 14 NSWLR 685 NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281; 157 LGERA 18 R v Inhabitants of St Nicholas, Rochester (1833) 110 ER 773 Category: Principal judgment Parties: Minister Administering the Crown Lands Act 1989 (Appellant) La Perouse Local Aboriginal Land Council (Respondent) Representation: Counsel: Dr J Renwick SC/Mr C L Lenehan (Appellant) Mr J T Gleeson SC/Mr M L Wright (Respondent) Solicitors: I V Knight, Crown Solicitor (Appellant) Chalk & Fitzgerald (Respondent) File Number(s): CA 2012/58920 Decision under appeal Jurisdiction: 9106 Citation: La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 5 Date of Decision: 2012-01-27 00:00:00 Before: Sheahan J; Davis AC File Number(s): LEC 2010/30404 HEADNOTE [This headnote is not to be read as part of the judgment] On 30 June 2009 the Malabar police station was closed to the public in preparation for the sale of the land on which it stood. Between that date and mid-September 2009, police used the station mostly for storage. The Aboriginal Land Rights Act 1983 (NSW), s 36(1) relevantly provided: "claimable Crown lands means lands vested in Her Majesty that, when a claim is made for lands under this Division: ... (b) are not lawfully used or occupied ...." From mid-September 2009 until early December 2009, in response to a claim by the respondent under the Aboriginal Land Rights Act, the land was visited occasionally by police and used as a command centre for an operation in the area. The Minister Administering the Crown Lands Act refused the claim. From early December 2009 until mid-February 2010 the periodic inspections by police officers ceased. On 17 February 2010 the respondent lodged a second claim. The Minister also refused the second claim. The respondent appealed to the Land and Environment Court, which upheld the claim and ordered the transfer of the land to the respondent. The Minister appealed to this Court. The issues for determination on appeal were: (i) whether the land was lawfully used or occupied at the time of the claim, and (ii) whether use or occupation beyond a notional degree is required to satisfy the definition of "claimable Crown lands". The Court held, dismissing the appeal: In relation to (i) (per Basten JA, Beazley, McColl and Macfarlan JJA agreeing) 1. In the period between early December 2009 and the date that the claim was lodged, there was no evidence of any access to the premises and the photographic evidence of the state of the premises, taken on the day before the claim was lodged, was supportive of the finding made that regular maintenance had ceased: [52] 2. It was open to the Land and Environment Court to reject the post-claim evidence as not demonstrating continuing use and occupation as a command post: [53] 3. Transitory physical activities on land do not necessarily amount to use or occupation. There is, thus, an evaluative process to be undertaken in respect of the facts of each case. It is a function of the trial court to undertake that function: [56]-[57] Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; 237 CLR 285 applied. (per Sackville AJA) 4. The Land and Environment Court did not treat acts done on or in relation to the claimed land for the purpose of defeating the land claim or facilitating the sale of the land as legally irrelevant: [63], [66] 5. Given the absence of evidence of use after 6 December 2009, and the neglected state of the premises when the claim was lodged, the Minister failed to establish actual use or occupation of the premises for policing purposes at the relevant date: [66] In relation to (ii) (per Basten JA, Beazley, McColl and Macfarlan JJA agreeing) 6. References to use or occupation "to more than a notional degree" are a permissible and helpful exercise in statutory construction. That approach has been expressly stated not to be a definition of use or occupation for application in particular circumstances in particular cases: [47] Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140; Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; 237 CLR 285 referred to. (per Sackville AJA) 7. It is by no means clear that applying the language of s 36(1)(b) of the Aboriginal Land Rights Act to the facts of a given case is materially advanced by using the expression "a notional degree": [68] Judgment 1BEAZLEY JA: I agree with Basten JA. 2McCOLL JA: I agree with Basten JA's reasons and the orders his Honour proposes. 3BASTEN JA: On 17 February 2010 the respondent Land Council lodged a claim to a double block of land, with two buildings, formerly used for residential purposes and then as a police station, on Anzac Parade, Malabar. The Minister refused the claim on the ground that the land was "lawfully used and occupied for the purposes of policing". On an appeal to the Land and Environment Court by the respondent Land Council, the Minister bore the onus of satisfying the Court that the land was not claimable Crown land under s 36(1)(b) of the Aboriginal Land Rights Act 1983 (NSW). 4The Minister was unsuccessful in the Land and Environment Court, the appeal being upheld and an order made that the land be transferred to the respondent Land Council: La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 5 (Sheahan J and Davis AC). Scope of appeal 5The appeal to this Court from the Land and Environment Court in exercise of its Class 3 jurisdiction is restricted to an appeal "on a question of law": Land and Environment Court Act 1979 (NSW), s 57(1). There was no question as to the lawfulness or otherwise of any use or occupation that may have been demonstrated on the evidence. The case turned on what was primarily a factual question, namely whether the site was used or occupied at the time the claim was lodged. 6In accordance with established principle, the Minister accepted that if the claimed land was, at the date of claim, "claimable Crown lands" within the definition in s 36(1) of the Aboriginal Land Rights Act, then the Land Council was entitled to succeed: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 at 694 ("Winbar Claim No 3") (Hope JA, Samuels and Clarke JJA agreeing). Section 36, so far as relevant provides: "36 Claims to Crown lands (1) In this section, except in so far as the context or subject-matter otherwise indicates or requires: claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division: ... (b) are not lawfully used or occupied". 7In respect of that provision, the Minister identified three issues, together with the answers sought from the Court (written submissions, par 3): "(a) Does that provision permit a threshold inquiry as to whether the asserted use or occupation is more than 'merely notional' in degree? No. That approach is a judicial gloss which finds no foothold in the text of the section and distracts from the inquiry that is actually required by that text. (b) Does that provision require the Court to have regard to the purpose for which land is claimed to be used or occupied as a matter which determines the degree of immediate physical use or actual possession required for the exclusion to be engaged? Yes. That purpose will generally be a critical element of the acts, facts, matters or circumstances said to demonstrate that the land did not meet the statutory description of 'not lawfully used or occupied'. At least in some cases, it will follow from consideration of that purpose that land is 'used or occupied' within the meaning of s 36(1)(b) notwithstanding the absence of recurring physical acts, or conduct amounting to actual possession. (c) If the acts, facts, matters and circumstances said to show that the land is being used or occupied may be characterised as being for the purpose of defeating the land claim or the purpose of facilitating the sale of the land, does it necessarily follow that the exception s 36(1)(b) cannot be engaged? No. That proposition is directly at odds with the earlier authority of this Court." 8The first issue thus identified referred to the principle, accepted by the primary judge, that "the better reading of 'occupied' in its context in par (b) is 'actually occupied' in the sense of being occupied in fact and to more than a notional degree", as held in Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 162E and, in respect of use, 164D (Priestley JA, Cripps JA agreeing; Mahoney JA dissenting). That approach has been followed in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 ("Nowra Brickworks Claim (No 1)") at 108 (Priestley JA); 119 and 121 (Sheller JA, Clarke JA agreeing); NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281; 157 LGERA 18 ("Wagga Wagga Motor Registry Claim") at [32], [49] and [55] (Mason P) and [80] (Tobias JA); Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 379 ("Bathurst Fauna Reserve Claim") at [161]-[162] (Tobias JA), [227]-[228] and [246]-[247] in my judgment; cf Ipp JA at [48]-[55]. 9With respect to the second issue, there appears to be a potential for inconsistency between the answer sought in respect of the first question and the inference inherent in the second question that some "degree of" use or occupation is to be assessed, albeit by reference to the purpose for which the land is claimed to be used or occupied. Further, the suggestion that the purpose 'determines' the degree of use or occupation might itself, contrary to the approach preferred in respect of the first issue, involve a 'judicial gloss' on the language of the section. If the question were more limited, perhaps referring to affectation on account of purpose, the answer could readily be conceded. It should be noted, however, that both the question and the proposed answer adopt the term "possession" as equivalent to occupation. Following convention, it is preferable to keep the concepts separate, occupation involving a factual inquiry and possession a conclusion as to legal entitlement. 10The third issue is also awkwardly drawn. It posits two entirely different concepts, namely conduct for the purpose of defeating a land claim and conduct for the purpose of facilitating the sale of the land, and invites the same answer to each. The respondents submitted that neither concept was raised by the findings of fact in the present case. Further, to phrase the question as to what "necessarily follows" appears to preclude a more nuanced answer. 11For these reasons, the issues raised by the Minister must be addressed with a degree of caution, at least in the terms in which they were presented. Background circumstances 12Although the appeal is limited to an appeal against an order or decision of the Land and Environment Court on a question of law, the somewhat amorphous identification of the issues sought to be raised requires an understanding of the underlying factual circumstances as accepted by the trial Court. In particular, it is necessary to note the circumstances by which the police station ceased to be used as such, which gave rise to the first land claim, as well as the circumstances subsequent to the filing of that claim, which were directly relevant to the second claim, which is the subject matter of the present appeal. 13The land for the "Malabar Police Station" was originally acquired under the Public Works Act 1912 (NSW) in May 1948. The site contained two buildings, one being described as the duty officer's house and the other as the police station. The duty officer's house is in a condition which renders it unfit for use. Prior to June 2009, the police station was open 24 hours per day and was staffed by one constable. Further a "pro-active crime team" used the facility as a base. In about March 2009 the State Government decided, as a budgetary measure, to close the police station and sell the land. The intention of the Government was that the sale take place during the 2009/2010 financial year, that is at sometime after 1 July 2009. 14On 30 June 2009 the police station was closed to the public and the officers who had been using the station were relocated. Thereafter, at least until 18 August 2009, the station was used for storage, including storage of equipment which was still in use, and by the pro-active crime team. 15On 27 July 2009 the first land claim was lodged. The existence of the land claim did not come to the attention of the relevant sections of the Police Force for some weeks. Thus, on 4 August 2009 an email from an agent at United Group Services to relevant officers in the Police Force noted that the property was due to be auctioned on 17 September 2009. It appears not to have been until 14 September that the agent was advised of the land claim and the need for the proposed auction "to be pulled". 16A Ministerial briefing note dated 15 September 2009 included the following statements: "It is understood that to overcome a land claim, the law requires that the land, the subject of the land claim, must be 'in use' or 'lawfully occupied' at the time the claim was made. It is to be noted that at the time the claim was made the PAC Team was in occupation of the Malabar premises until late August 2009. Future strategy: NSWPF will defend the claim on the grounds that the building was in use at the time of the claim. Having the claim taken off the title will take sometime and if the Minister refuses the application to have the claim lifted, the applicant has the right of appeal to the Land & Environment Court. The risk is that whilst the current claim could be rejected on the grounds the site was in use at the time the claim was made, there is nothing preventing a further claim. Therefore, NSWPF will need to examine as a matter of priority options for using/re-occupation of the premises." 17Although there was some support for the claim that the pro-active crime team was using the premises on 27 July 2009, the subsequent email exchanges between United Group and the Police Force suggests that all police use and occupation had ceased by the time the existence of the claim was made known to the agent. Accordingly, the enquiry as to use and occupation properly focused on the events subsequent to 14 September 2009. 18The Minister refused the first claim on 8 December 2009, which decision was not the subject of an appeal. A second claim was lodged on 17 February 2010. The Minister refused the second claim on 4 March 2010 and an appeal was brought from that refusal. 19The activities and events relevant to use and occupation of the land may be conveniently divided into three periods, namely from 14 September until a particular event, known as 'Operation Silva', which was completed on 6 December 2009 (the first period); the 10 weeks from 6 December 2009 until the claim on 17 February 2010 (the second period) and some months after 17 February 2010 (the third period). There are circumstances in which activities after a claim is lodged can properly be taken into account as evidencing the nature of use and occupation at the date of a claim. In the present case, the post-claim activities were of little significance. Accordingly, the primary focus of the factual dispute revolved around activities in the first and second periods, being some five months in all. 20Before turning to outline those activities, it is convenient to note that the Government had during that time two putative purposes for the land. One was to continue certain limited police operations; the other was to hold the land for disposal by sale. 21The relevant officer with responsibility for any operations undertaken at Malabar Police Station between 14 September 2009 and 17 February 2010 was Superintendent McErlain, who was Commander of the Eastern Beaches Local Area Command, which included Malabar. However, Superintendent McErlain was on leave from 20 December 2009 until 30 January 2010 and was, from the latter date, Acting Commander of the South West Region: Affidavit, 30 September 2010, paragraph 2. He agreed in cross-examination that he was not "actively in command in the Eastern Beaches from the period of 20 December 2009 to the end of August 2010": Tcpt, 03/03/11, pp 19-20. 22On 17 September 2009, Superintendent McErlain was given directions in accordance with the briefing note set out at [16] above. On 18 September 2009 he emailed Assistant Commissioner Mennilli: "Boss ... do I have to comply with this? The place is an OH&S nightmare ... its been stripped of everything." 23The Assistant Commissioner responded immediately noting that: "Unfortunately we have very little options available to us. We need to show that we still use the premises or otherwise the appeal on the claim of the land will fail. My view is that we use it for storage and if need [be occasionally] even if a car crew just works out of there every now and then. Or even as a command post for briefing for operation etc. As long as we can indicate what we are using it for." 24As noted by the trial Court at [23], Superintendent McErlain gave evidence that he was reluctant to apply resources to use the premises because he "believed it was a waste of time and resources to go back into the venue and make it fully operational only to move out again after the sale". 25Nevertheless, plans were made to have the premises available for intermittent use for particular police operations and "as a forward command post": at [24]. The Court then noted at [26]: "Inspector Shane Woolbank acted immediately on that direction. Arrangements were made to clean the premises, services were restored, and appropriate security measures were introduced. Officers were briefed and instructed to visit the site daily and record their attendances in a register .... A copy of the register [included] entries between 25 September 2009 and 6 December 2009, and then between 31 May 2010 and 12 August 2010." 26The register showed that, from 25 September to 1 December 2009 every entry in the register was described as "inspection" with one noting "property maintenance info" being supplied. At least half the visits were in the early hours of the morning. Because several took place at different hours on the same day, visits occurred on only one in five days on average. From 6 December 2009 there were no visits for approximately six months, which covered the whole of the critical second period and extended well into the third period. 27During the course of Operation Silva, which took place between 3 and 6 December 2009, the property was used to some extent by police carrying out security duties during the Australian Golf Open held at the New South Wales Golf Club at La Perouse. Just what activities took place during that time was not the subject of any finding by the Court. It noted that there were only two entries in the register, namely for 3 and 6 December 2009. Superintendent McErlain gave evidence "that he operated mainly from the golf course, but was present at the Site at some point during the operation": at [29]. Use or occupation 28The Aboriginal Land Rights Act creates a classification of lands described as "claimable Crown lands": s 36(1). Such lands must be lands "vested in Her Majesty" that are able to be "lawfully sold or leased, or are reserved or dedicated for any purpose" under Crown lands legislation: s 36(1)(a). From that broad class the section excludes particular lands. Putting to one side exclusions with respect to land which is the subject of an application for, or a determination of, native title under the Native Title Act 1993 (Cth), there are two other categories of exclusions. Both are expressed in the negative. The first is lands that "are not lawfully used or occupied": s 36(1)(b). The second category is lands which are "not needed or likely to be needed", either as residential lands or for an essential public purpose: s 36(1)(b1) and (c). Thus, relevantly for this case, if lands are lawfully used or occupied, they are not claimable Crown lands. Each aspect of the definition is to be assessed, as indicated in the chapeau, "when a claim is made". 29The distinction between the two main categories of exemption is important. Establishing a likely future need can avoid the difficulties which might arise in resisting a claim for land which has not been committed to an existing public purpose. Where land has been earmarked as surplus to government needs and is proposed to be sold, seeking to resist a claim based on future needs for any public purpose is likely to be implausible. However, the Minister's submission that it would be "breathtaking" (Tcpt, pp 3(35) and 4(5)) if surplus Crown land could not be sold without rendering the land "claimable Crown lands" appears to deny the statutory mandate that, if otherwise claimable, Crown land which is not lawfully used or occupied, can be claimed: see Wagga Wagga Motor Registry Claim, [2007] NSWCA 281 at [24] (Mason P). 30In the Wagga Wagga Motor Registry Claim in the High Court, Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; 237 CLR 285, Hayne, Heydon, Crennan and Kiefel JJ stated at [73]: "It is not necessary to decide whether 'lawfully used or occupied' has a single meaning or is better understood by separate consideration of the words 'used' and 'occupied'. This is not a case in which some relevant aspect of the meaning of the word 'used' is illuminated by the juxtaposed word 'occupied'. Whether there could be any such illumination in some other case need not be considered. It may be accepted that whether or not the expression is a compound expression having a single meaning, it is an expression that encompasses utilisation, exploitation and employment of the land." 31The joint reasons accepted the description of Mason P in this Court that "use" is a "protean word", meaning that it has connotations which will vary according to the context in which it is deployed: Wagga Wagga Motor Registry Claim, 237 CLR 285 at [69]. 32Much the same might be said of the term "occupied". Occupation, with respect to lands, may be used, relevantly for present purposes, in three broad senses. First, it may refer to gaining control of an area following an invasion or settlement by occupying forces. This involves a political conception. Secondly, the term may be used with respect to rights in relation to particular land, as in the phrase "permissive occupancy", referring to a right to occupy vested in an individual. This is a legal conception. Thirdly, it may refer to physical usage, as in the phrase "lawfully used or occupied". This is a factual conception. 33The three concepts are closely related. As to the first, as Brennan J explained in Mabo v Queensland [No 2] [1992] HCA 23; 175 CLR 1 at 33: "The enlarging of the concept of terra nullius by international law to justify the acquisition of inhabited territory by occupation on behalf of the acquiring sovereign raised some difficulties in the expounding of the common law doctrines as to the law to be applied when inhabited territories were acquired by occupation (or 'settlement', to use the term of the common law)." 34At the other end of the scale, occupancy in a factual sense may evidence the existence of a right to occupy in a legal sense: Mabo [No 2] at 188-190 (Toohey J). 35As accepted by the Minister, that which constitutes use or occupation in a factual sense will depend upon the purpose of the putative user or occupier and the surrounding circumstances. In Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; 96 CLR 493, the High Court considered whether an area of bushland owned by the Hospital, but retained in its natural state, was "used or occupied by the hospital ... for the purposes thereof" so as to be exempt from rating pursuant to the Local Government Act 1919 (NSW), s 132. Kitto J considered that the section sought to observe a distinction between occupation and use of land (at 507) and continued at 507-508: "The three elements, legal possession, conduct amounting to actual possession, and some degree of permanence, seem to me to be involved in the word 'occupy' as used in the Local Government Act (NSW). ... The word 'used', on the other hand, does not involve more than physical acts by which the land is made to serve some purpose. The acts no doubt must be recurring, but the notion of continuity or permanence is absent." 36This passage was referred to as relevant in the context of the Aboriginal Land Rights Act in the joint reasons in the Wagga Wagga Motor Registry Claim, 237 CLR 285 at [69]. Thus, although the statutory provision under consideration in Royal Newcastle Hospital expressly involved the concept of a purpose, which needed to be that of a hospital, it was accepted in the context of the Aboriginal Land Rights Act that the purpose of any putative use will, inevitably, assist in identifying the physical activities which may be sufficient to constitute use or occupation. 37In Council of the Municipality of Randwick v Rutledge [1959] HCA 63; 102 CLR 54 the High Court considered the operation of an exemption from rating of land which, in the language of Fullagar J at 61, "has been dedicated or reserved from sale by the Crown for ... recreation, enjoyment or other public purpose ... and is used for one of those purposes", with respect to Randwick Racecourse. Windeyer J (Dixon CJ, Fullagar and Kitto JJ agreeing) stated at 88: "If, instead of considering in what ways the land might lawfully be used, we consider how in fact it is used and has been used, the respondents are in no less difficulty. There is no suggestion that they and their tenant the club are not acting in accordance with the trusts and conditions of the grant and in accordance with the Australian Jockey Club Act. But is the land used for a public reserve? 'This provision', as Dixon J, as he then was, said in a similar matter, 'looks to the actual use ... of the land' (Stephen v. Federal Commissioner of Land Tax [[1930] HCA 46; 45 CLR 122, at 140]). The only way in which the trustees use the land is by leasing it to the club, to be used by it as a racecourse in accordance with the grant and the Australian Jockey Club Act. Indeed the land is not really used by the trustees at all, for they have parted with the use and occupation of it for the term of the lease.... When the Act speaks of land used for a public reserve it is referring to the actual use to which the land is put by the persons who in law control it for the time being." 38To similar effect, in The Council of the City of Parramatta v Brickworks Ltd [1972] HCA 21; 128 CLR 1, dealing with the concept of "existing use" for the purposes of a planning ordinance, Gibbs J noted that the word "use" meant a present use and did not include a contemplated or intended use: at 21. 39Referring to Royal Newcastle Hospital, Gibbs J further noted that it "is not necessary, to constitute a present use of land, that there should be a physical use of all of it, or indeed of any of it." Gibbs J adopted a passage from the judgment of Taylor J in Royal Newcastle Hospital at 515 (at 22): "The uses to which property of any description may be put are manifold and what will constitute 'use' will depend to a great extent upon the purpose for which it has been acquired or created. Land, it may be said, is no exception and s 132 [of the Local Government Act] itself shows plainly enough that the 'use' of land will vary with the purpose for which it has been acquired and to which it has been devoted. ... But where an exemption is prescribed by reference to use for a purpose or purposes it is sufficient, in my opinion, if it be shown that the land in question has been wholly devoted to that purpose even though, the fulfilment of the purpose does not require the immediate physical use of every part of the land." 40The facts of Royal Newcastle Hospital did not provide a close analogy with the present case. In that case, the use of the land for a hospital was consistent and permanent: the question, answered favourably to the Hospital, was whether the surrounding bushland was used or occupied for the purposes of the Hospital. The present case involved intermittent use of the land after June 2009. The circumstances in which intermittent use may qualify as a present and existing use were discussed by Stephen J in Eaton & Sons Pty Ltd v The Council of the Shire of Warringah [1972] HCA 33; 129 CLR 270 at 287-288: "Likewise, what may appear at first sight to be only an infrequent and intermittent use, abandoned prior to the relevant period, ... may, once the purpose of use is properly identified and understood, be seen to be a continuous use; I have in mind such purposes as use for the purpose of the seasonal storage of primary products, the use of land for the purpose of a country racecourse having an annual programme of only one or two meetings a year or the use of paddocks to the rear of bathing beaches as caravan parks during holiday periods. So too a particular type of business may have inherently fluctuating demands for space and may only occasionally physically use the whole of its site for the purposes of its business, yet it cannot be doubted that in that state of facts the whole site is used for the purpose of that particular business at all times. In [Rosenblum v Council of the City of Brisbane [1957] HCA 98; 98 CLR 35, at 46] it was said that most forms of use of land or buildings involve not continuous activity but recurring activities. The periodicity of recurrence may, of course, vary greatly." 41Against that background, it is necessary to consider the approach adopted in this Court to the proper construction of s 36(1)(b), being an approach which was the subject of challenge by the Minister. The gravamen of the complaint was that in the seminal judgment of Priestley JA (with which Cripps JA agreed) in Daruk Local Aboriginal Land Council the preferable reading of "occupied" in its context was "'actually occupy' in the sense of being occupied in fact and to more than a notional degree": at 162E. Priestley JA adopted a similar approach to the meaning of "used": at 164D. That language, the Minister submitted, involved a gloss on the statutory language and was therefore erroneous. 42The submission implied that there was a line to be drawn between a legitimate exercise in statutory construction or exegesis, and qualification of the words which appeared in the statute by way of a "gloss". However, the use of a pejorative label is not, at least in this context, of great assistance in distinguishing the legitimate from the supposedly illegitimate. Thus, the language adopted in the joint reasons in Wagga Wagga Motor Registry Claim at [69] that "a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land" was a legitimate exercise in statutory exegesis, whereas the phraseology adopted by Priestley JA in Daruk was said not to be. 43To understand the language used by Priestley JA in Daruk it is necessary to refer to the reasoning which resulted in the adoption of the language set out above. The premises to that reasoning involved, in substance, four elements, which may be identified (not necessarily in the order they appear in the judgment) in the following terms: (a) the word "occupation" is used in a wide variety of senses, which depend upon context (161E); (b) when the Aboriginal Land Rights Act was enacted the Crown was treated as the occupant of all Crown lands in New South Wales (at 160F-161B); (c) reservation or dedication for a specified purpose could also imply occupation for that purpose (160F and 161C), and (d) title in the Crown, including where the land was reserved or dedicated for a purpose, was a condition of eligibility for a claim and not a disqualification (160E and 161D). 44In accommodating each of these elements, a purposive construction, which gave effect to the intended beneficial purposes of the legislation, namely to make certain lands available for claim by Aboriginal land councils, as revealed in the preamble and statement of purposes in s 3 of the Act, was to be preferred to a construction which tended to undermine those purposes. To treat the conditions of eligibility for claim as carrying within them the conditions of exemption would have been destructive of the underlying statutory purpose. Accordingly, a concept of occupation which flowed from the vesting of lands "in Her Majesty" should not be imported into the use of that term in s 36(1)(b). Priestley JA stated at 163C-D: "The definition of claimable Crown lands stipulates initially those Crown lands which are claimable and then excludes lands which enjoy particular characteristics from those potentially claimable lands. The lands which are excluded are those lawfully used or occupied, those which, in the opinion of the relevant Crown Lands Minister, are needed or likely to be needed for residential purposes, and those needed or likely to be needed for essential public purposes. In this context I would agree that mere proprietorship is not sufficient to establish that the lands are occupied. Something more is needed. Physical acts of occupation, the exercise of control, maintaining of lands are all factors which are relevant. However, the diversity of the circumstances in which the question whether Crown lands are occupied can arise cautions me against attempting to articulate a comprehensive test for resolving the question." 45It was in this context that Priestley JA adopted a distinction drawn from the judgment of Denman CJ in R v Inhabitants of St Nicholas, Rochester (1833) 110 ER 773, between "a constructive occupation and an actual one": at 162D. Without attempting, as stated in the paragraph set out above, to formulate a test of occupation, he used the language of actual occupation in the sense of "being occupied in fact and to more than a notional degree". 46The Minister accepted that the term "occupied" was "not intended to include 'notional occupation' by the Crown of the type described in Attorney General v Brown (1847) 1 Legge 312 at 317": written submissions, paragraph 45(a). The only other specific 'gloss' was the adoption of the adjective "actual", which was the obverse of "notional". Further, the Minister did not cavil with the proposition that use of the land must be extant at the time the claim was lodged, with the effect that neither past nor proposed future usage would be sufficient: Tcpt, p 12(5) and (40)-(45). Finally, the Minister accepted that each of the concepts of use and occupation would require, in particular circumstances, evaluative factual assessments, having regard to the purpose to which the land was applied. 47Read in context, it is not possible to describe the approach adopted by Priestley JA in Daruk, expressly stated not to be a definition of use or occupation for application in particular circumstances in particular cases, as involving anything other than a permissible and helpful exercise in statutory construction. Authority supports that conclusion. When the Wagga Wagga Motor Registry Claim went on appeal to the High Court the Minister raised a similar challenge (see 237 CLR 285 at 286), but the Court declined to uphold the submission, except to say that those statements in Daruk and later cases involved responses to arguments there advanced: 237 CLR 285 at [68]. Application of principles 48The trial Court dealt with the relevant issues in a relatively short compass at [60]-[72]. There was reference to the reasoning in Wagga Wagga Motor Registry Claim in the High Court at [77] and [69]: at [60]-[61]. Royal Newcastle Hospital was referred to at [62], including reference to the judgment of Kitto J which underlay the discussion of "occupation" in the Wagga Wagga Motor Registry Claim. 49The Court then distinguished Royal Newcastle Hospital, entirely appropriately, but continued, in a passage to which objection was taken: "In the present case, on the other hand, the subject land is isolated, and any intention to use it has not been demonstrated. The use to which it has been put is for the purpose of defeating the land claim, to facilitate the sale." 50The Minister relied upon this passage to suggest that all physical activities on the land had been disregarded on the basis that they were undertaken for the sole purpose of defeating the land claim. However, as the subsequent discussion in the judgment demonstrated, that was not the approach adopted; however, the primary motive of the police in taking particular steps was a permissible consideration in the evaluation of the significance of those steps: see [55] below. At [66] the Court set out a passage from the judgment of Tobias JA in Bathurst Fauna Reserve Claim at [158]-[160]. Tobias JA had perceived a difficulty in identifying "what is an occupation which, although an actual physical occupation, is only nominal or notional" and expressed a preference for the approach of Kirby J in Wagga Wagga Motor Registry Claim that a "nominal or notional use or occupation is one which is only intended in the future or is a potential use or occupation which has not yet been translated into an actual use or occupation". 51At [67]-[69], the trial Court then identified the visits by officers prior to Operation Silva, the use of the site for Operation Silva itself and noted the "distinct lack of evidence, post-Operation Silva". The Court adopted the distinction accepted by Kirby J in Wagga Wagga Motor Registry Claim and Tobias JA in Bathurst as the proper distinction between notional and actual use, concluding that the activities proposed by Inspector Dengate months after the claim constituted no more than notional use. The Court concluded at [71]: "Visits by officers to maintain a level of possession to exclude others, or to do security checks, and visits by cleaning and maintenance contractors, are transitory visits which do not amount to use or occupation beyond a notional degree. Despite the invoices for maintenance and other services, asserted as showing that the Site was maintained (mostly post the date of claim), so that it could be used at short notice for police work, the photographs taken by Mr Ingrey on the day before the claim, while they do not lead to the conclusion the property could not be used for policing purposes, portray a general lack of maintenance as at the date of the claim." 52As may be seen from the brief history set out above, during the first period from September 2009 until Operation Silva in December, there were visits to the property described as "inspections" which were at least consistent with the possibility of future use. In the second period, between Operation Silva and the date of the claim (December 2009 - 17 February 2010) there was no evidence of any access to the premises and the photographic evidence of the state of the premises, taken on the day before the claim was lodged, was supportive of the finding made that regular maintenance had been abandoned. The absence of any cleaning invoices in that period is consistent with that conclusion. 53The third period involved the post-claim evidence. That was admitted on the basis of the principle stated in Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547, a case involving valuation of land upon resumption. The operation of that principle in respect of evidence in a land claim was considered in Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289; 168 LGERA 71 at [66]-[69]. The principle that "evidence of future events is admissible not to prove a hindsight, but to confirm a foresight", extracted from Falconer at 558B, was said to have been given aphoristic status, although it had a somewhat Delphic quality: at [69]. In the present case, the post-claim evidence was relied upon to demonstrate a continuing intention to use the property as and when the occasion arose. If it had demonstrated some degree of continued use of the premises from time to time as a command post, it might have enjoyed a substantive quality beyond that noted by the trial Court. However, as noted above, the evidence did not extend so far. Accordingly, it was open to the trial Court to reject such evidence as not demonstrating continuing use and occupation for the purpose identified. 54The Minister complained that the trial Court had erred by dismissing the visits by officers prior to Operation Silva as "miniscule or insignificant", on the basis that they "only involved officers providing access to the Site for cleaning and service staff", thereby dismissing their cumulative effect when taken in conjunction with the evidence of Operation Silva: Tcpt, pp 2(10), 8(30) and 16(10)-(15). The central element of the challenge was directed to the reasoning of the Court at [68]: "The use of the Site for Operation Silva is also to be considered in light of the directives for senior officers that it be utilised to defeat the land claim, as suggested in the memorandum of 15 September 2009, and it was not suggested in any of the evidence that a decision was made not to proceed with divestment. However, under s 36(1)(b), it is actual use or occupation as at the claim date that is relevant." (Emphasis in original.) 55The Minister submitted that the Court had treated the use of the site for Operation Silva as legally irrelevant, apparently because the use was merely intended to defeat the land claim: see [50] above. That, however, is an implausible reading of the paragraph. Read in the context of the earlier discussion of the evidence, the trial Court saw its role, correctly, as being to assess the significance of the physical activities which took place in December 2009 for the purpose of determining use or occupation as at 17 February 2010. Operation Silva involved activities limited to a period of four days: it was not an on-going or recurrent activity. However, the Minister asserted that it was one in a series of events, sufficient to demonstrate on-going use and occupation, even though no prior event had occurred in the preceding three months since the putative purpose was first articulated and none took place in the subsequent two months up to the date of the claim. Furthermore, none took place in the months succeeding the claim. In assessing the Minister's submission, the trial Court was entitled to take into account the circumstances in which the event took place, which included, (a) that it was pursuant to a directive that the land be utilised in order to defeat the land claim, (b) the reluctance of the senior officer responsible for implementing the directive to direct resources to such a purpose when the intention was to sell the land and (c) the lack of activity after the transfer of that officer until the officer replacing him sought to take further steps, after the date of the claim and without active implementation of those further proposed steps. 56In Wagga Wagga Motor Registry in the High Court, where the only purpose for using or occupying the land was to prepare it for sale, the joint reasons stated at [76]: "In the present case, subject to the possible qualification required by reference to some transitory visits to the land, nothing was being done on the land when the claim was made, and nothing had been done on the land for a considerable time before the claim was made. There was no physical use of the land during that time. The only possible qualification to that general proposition is that, in the present case, the land was surveyed and the agent appointed to sell the land had gone there and looked inside the building. But even if the agent did this more than once (and there is nothing to suggest that the agent had visited the land more than once) such transitory visits by surveyors and a real estate agent could not be said to amount to a use of the land. ... Everything that was being done towards selling the land, apart from the survey and the agent's inspection, occurred at places other than the land. ... They did not amount to a use of the land." 57Three points may be made in this context. First, it is clear from the approach of the High Court that transitory physical activities on land do not necessarily amount to use or occupation. Secondly, there is, thus, an evaluative process to be undertaken in respect of the facts of each case. Thirdly, it is a function of the trial court to undertake that evaluation. 58In the present case, the Minister did not submit that the conclusion reached by the Court, namely that the Minister had not established that the land was lawfully used or occupied, was not open on the materials before the Court. Rather, his submission focused on the proposition that the Court had not addressed the evidence by reference to the correct legal test. Once it is accepted that the Court did not err in its understanding of s 36(1)(b), the Minister's submissions are reduced to a disagreement with the outcome of the assessment, which is not an available ground of appeal. 59The appeal should be dismissed: the appellant must pay the respondent's costs in this Court. 60MACFARLAN JA: I agree with Basten JA. 61SACKVILLE AJA: I agree with the orders proposed by Basten JA. I shall briefly state my reasons. 62As Basten JA has pointed out (at [5]), the appeal to this Court from the decision of the Land and Environment Court ("L&E Court") is limited to an appeal on a question of law: Land and Environment Court Act 1979, s 57(1). Such an appeal encompasses a mixed question of law and fact: Maurici v Chief Commissioner of State Revenue [2003] HCA 8, 212 CLR 111, at [8], per curiam; NSW Aboriginal Land Council v Minister Administering Crown Lands Act [2007] NSWCA 281; 157 LGERA 18, at [8], per Mason P (with whom Tobias JA agreed) ("Wagga Wagga CA"). 63The appellant ('the Minister") does not challenge any finding of fact made by the L&E Court. The principal argument advanced by Dr Renwick SC, who appeared with Mr Lenehan for the Minister, is that the L&E Court erred in law by treating as legally irrelevant acts done on or in relation to the claimed land where those acts are done for the purpose of defeating the land claim or facilitating the sale of the land. 64Had the L&E Court taken the approach attributed to it by Dr Renwick, it would have involved an error of law. In Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; 237 CLR 285 ("Wagga Wagga HC"), the Court expressly left open (at [77]) whether steps taken on land in preparation for its sale could constitute "use or occupation" of the land for the purposes of s 36(1)(b) of the Aboriginal Land Rights Act 1983 ("Land Rights Act"). However, the mere fact that a relevant authority proposes to sell the land, or is motivated by a desire to defeat a possible land claim, would not justify disregarding acts on the land that are otherwise capable of constituting use or occupation of the land: Wagga Wagga CA, at [58], per Mason P; at [80], per Tobias JA. 65The Minister's case in the L&E Court was set out in written submissions as follows: "[T]he New South Wales Police, at the date of the claim (17 February 2010) was lawfully using and/or lawfully occupying the relevant land .... Eastern Beaches Local Area Command had continued to maintain lawful occupation of the land at this date even though the nature of the occupation had recently changed from that of a 24 hour a day police 'station' with a counter service, to a police building used for a variety of policing purposes. This occupation consisted of physical acts on the land, exercise of control over the land and maintenance of the property." The factual issue before the L&E Court was therefore whether the Minister had established that the acts upon which he relied showed that the land had been used or occupied at the relevant time "for a variety of policing purposes". 66The reasons of the L&E Court address this contention. When read as a whole, the reasons do not rely on or apply the erroneous principle identified by Dr Renwick. It is true that in one passage (at [63]), the L&E Court states that the use to which the land has been put: "is for the purpose of defeating the land claim, to facilitate the sale". Nonetheless, the Court's reasons explain why the evidence relied on by the Minister was insufficient to establish actual use or occupation of the land at the relevant date for policing purposes. The reasons make it clear that the fundamental difficulty faced by the Minister was the paucity of evidence demonstrating use of the land for policing purposes after Operation Silva had concluded on 6 December 2009. When the absence of evidence of use was coupled with the evidence as to the neglected state of the premises when the claim was lodged on 16 February 2010 (at [32]), the conclusion reached by the L&E Court was neither surprising nor indicative of error. 67The Minister also submits in this Court that the L&E Court impermissibly imposed a gloss on the statutory language by stating (at [65]) that use or occupation "beyond a notional degree is required". As Basten JA has pointed out (at [8]), this language was used in Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140, at 162, 164, per Priestley JA (with whom Cripps JA agreed) and has frequently been adopted in later cases. In Wagga Wagga HC, the plurality referred (at [62]) to Mason P's adoption of the expression in that case (Wagga Wagga CA, at [33]) without apparent disapproval. Their Honours interpreted the expression as directing attention to the need for "some physical use of the land". This understanding of the expression is consistent with the approach taken in Daruk, at 162. 68It is by no means clear that the task of applying the language of s 36(1)(b) of the Land Rights Act to the facts of a given case is materially advanced by using the expression "a notional degree". As Wagga Wagga HC suggests (at [62], [74]-[75]), the expression may do no more than direct attention to the need to consider physical use of or activities on the claimed land, as distinct from exploitation of the land or of rights of ownership without physical activities on the land itself. Alternatively, a finding that land has only been used to "a notional degree" may simply be a shorthand way of concluding that the Crown has not satisfied the statutory test. 69The plurality judgment in Wagga Wagga (at [69]) explains the difficulty of attempting an exhaustive definition of when land is (or is not) lawfully used or occupied for the purposes of s 36(1)(b) of the Land Rights Act. However, the judgment provides guidance as to the approach that should be taken in terms quoted by the L&E Court in the present case (at [61]). The plurality judgment in Wagga Wagga HC also emphasises (at [70]): "the importance of directing attention to what are the acts, facts, matters and circumstances which are said to show that land does not meet the description of 'not lawfully used or occupied'. It is the specification of those acts, facts, matters and circumstances which will provide the greatest help in deciding whether land meets the relevant description." 70The approach taken by the L&E Court to the appeal by the present respondent (the Land Council) is consistent with the guidance laid down in Wagga Wagga HC. The L&E Court appreciated that the Minister's case was that the land was used and occupied at the relevant time for policing purposes (at [71]), but found that the evidence relied on by the Minister simply did not support that case. This conclusion did not involve any error. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2012