Land and Environment Court New South Wales Medium Neutral Citation: New South Wales Aboriginal Land Council v Minister administering the Crown Lands Act (Limbri) [2013] NSWLEC 67 Hearing dates: 1 December 2011, 21 February 2013 Written submissions 11 March 2013 Decision date: 22 May 2013 Jurisdiction: Class 3 Before: Pain J Decision: 1. The appeal is upheld. 2. The Minister to transfer the lands claimed in Aboriginal Land Claims 8734 and 8736 in fee simple to Tamworth Local Aboriginal Land Council. 3. The Minister to do all things necessary to enable the transfer of the lands in accordance with order 2, including surveying the lands, as soon as reasonably practicable. 4. Costs reserved. 5. Exhibits to be returned. Catchwords: ABORIGINAL - land claims - whether Crown lands claimable - Crown lands reserved from sale for future public requirements - whether claimed lands lawfully used or occupied under a permissive occupancy and licence for grazing purposes Legislation Cited: Aboriginal Land Rights Act 1983 s 36 Civil Procedure Act 2005 s 36 Crown Lands Act 1989 s 3, s 6, s 10, s 33, s 34, s 34A, s 87, s 91, s 121A, Sch 8 cl 1 Crown Lands Consolidation Act 1913 s 5, s 6, s 28, s 29, s 136K Crown Lands (Continued Tenures) Act 1989 Rural Fires Act 1997 Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Attorney General v Cooma Municipal Council (1962) 8 LGRA 111 Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54 Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 180; (2006) 149 LGERA 162 Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 68 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 1; (2012) 186 LGERA 323 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (Winbar No 3)(1988) 14 NSWLR 685 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] [2001] NSWCA 28; (2001) 50 NSWLR 665 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee) [2012] NSWCA 358 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 20; (2001) 113 LGERA 163 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Waverley Municipal Council v Attorney General (1979) 40 LGRA 419 Williams v The Attorney-General for New South Wales [1913] HCA 13; (1913) 16 CLR 404 Category: Principal judgment Parties: New South Wales Aboriginal Land Council (Applicant) Minister administering the Crown Lands Act (Respondent) Representation: Ms S Pritchard SC (Applicant) Mr N Williams SC with Mr H El-Hage (Respondent) Chalk & Fitzgerald (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 30052 of 2011 Judgment 1The NSW Aboriginal Land Council has appealed against the refusals of two land claims under s 36(6) of the Aboriginal Land Rights Act 1983 (the ALR Act). 2I thank Acting Commissioner McAvoy for his assistance in this matter. 3Section 36(1)(b) of the ALR Act 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, 4The Minister has the onus of satisfying the Court that the lands claimed were not claimable Crown lands under s 36(7), including the establishment of primary facts and inferences to the satisfaction of the Court: Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 at [202] per Basten JA. 5The ALR Act is remedial and beneficial legislation enacted to address the injustice and loss suffered by Aboriginal people through losing their land after the settlement of Australia by giving their representatives rights in Crown land: Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 157 per Kirby P; Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 20; (2001) 113 LGERA 163 at [97] - [98]; Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 180; (2006) 149 LGERA 162 at [14] - [15]. Given that beneficial purpose, exceptions to the right to claim Crown land should be narrowly construed: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] [2001] NSWCA 28; (2001) 50 NSWLR 665 at [53] - [54] per Spigelman CJ; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18 at [21] and [25] per Mason P with whom Tobias JA agreed. 6The relevant date for determining whether land is "claimable Crown land" is the date that the claim is lodged: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (Winbar No 3)(1988) 14 NSWLR 685 at 691F-G per Hope JA. 7The word "lawfully" qualifies both use and occupation. It encompasses utilisation, exploitation and employment of the land; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 (Wagga) at [73] per Hayne, Heydon, Crennan and Kiefel JJ. Background 8There is no disagreement about the facts as disclosed in the relevant departmental files and summarised in the Minister's submissions. The Minister's tender bundle of documents contains colour maps identifying the lands in question, the claims, the reservations, the licence, the permissive occupancy, gazettals of the reservations and the Minister's decisions refusing the claims. ALC 8734 9ALC 8734 was made on 19 December 2005. The land claimed in ALC 8734 is located in the parish of Bullimball, County of Parry, about 11 km east of the village of Limbri and about 45 to 50 km east of Tamworth. It is adjacent to a property called Eagles Dare, which is owned by Mr and Mrs Knee. It is also adjacent to a property called Bannockburn, which is owned by Mr Hertner as tenant in common with his daughter and her partner. 10By notification published in the Government Gazette on or about 19 November 1982 the land the subject of ALC 8734 was reserved from sale for future public requirements (Reservation 96464), in accordance with s 28 of the CLC Act. 11The land within ALC 8734 was previously subject to Permissive Occupancy 1982/5 to Mrs and Mrs Hawkes, the previous owners of Eagles Dare. On 4 July 1996, Mr and Mrs Knee acquired Eagles Dare from Mr and Mrs Hawkes. 12On 17 September 1997, Permissive Occupancy 1982/5 was terminated with effect from 4 July 1996, and the Minister granted licence number 305371 under s 34 of the CL Act to Mr and Mrs Knee (Licence 305371) with effect from 4 July 1996. Licence 305371 applies to the whole of the land within ALC 8734. ALC 8736 13ALC 8736 was made on 19 December 2005. The land within ALC 8736 is adjacent to a property called Johryn, which is owned by Mr and Mrs Hertner. 14By notification published in the Government Gazette on or about 15 September 1967, part of the land which is the subject of ALC 8736 was reserved from sale for public recreation (Reserve 86431), in accordance with s 28 of the CLC Act. 15By notification published in the Government Gazette on or about 5 November 1982, the remaining part of the land which is the subject of ALC 8736 was reserved from sale for future public requirements (Reservation 96423), in accordance with s 28 of the CLC Act. 16Licence 305371 applied not only in respect of all of the land which is the subject of ALC 8734 but also in respect of part of the land which is the subject of ALC 8736, namely, a triangular piece within Portion 54, located on the eastern side. 17The balance of the land claimed in ALC 8736 was subject to Permissive Occupancy 1967/25, which was transferred to Mr and Mrs Hertner on 30 October 1981 with effect from 25 September 1981. Permissive Occupancy 1967/25 was for the purpose of grazing. 18In a letter dated 25 October 1982, the Land Board Office advised Mr and Mrs Hertner of an error concerning the boundaries of the area covered by the permissive occupancy. A small part of the land was mistakenly included in the permissive occupancy. This error did not affect Portion 54. Subsequently, on or about 8 November 1983, Mr and Mrs Hertner signed a document titled "Permissive Occupancy Offer - Amendment", reflecting the above amended area and commencing on 1 February 1983. In subsequent years, more land was added to the area covered by Permissive Occupancy 1967/25. The permissive occupancy was in force as at the date of ALC 8736. Evidence as to use or occupation 19The Applicant accepts that at the date of claim the claimed lands were used and occupied for grazing pursuant to Licence 305371 and Permissive Occupancy 12341. The Applicant does not contest that there has been actual use or occupation of the lands which are subject to ALC 8734 and ALC 8736, as set out in the relevant documents included in the Minister's tender bundle and: (a)Affidavit of Urs Peter Hertner, affirmed 20 June 2011; (b)Affidavit of Heidi Hertner, affirmed 20 June 2011; (c)Affidavit of Brian William Knee, sworn 20 June 2011; (d)Affidavit of Wayne Edward Fenwick, affirmed 15 September 2011. 20The position can be briefly summarised as follows. ALC 8734 21The evidence discloses that: (a)Mr and Mrs Knee have been using part of the land the subject of ALC 8734 west of the boundary fence running through the land for grazing around 40 cattle on a rotational basis. The balance has been used by Mr Hertner and his family to graze cattle; (b)Mr and Mrs Knee share responsibility for maintaining boundary fences with their neighbour, including replacing fence posts and repairing fences; (c)Mr Knee sprays the land within the boundary fences for weeds about twice per year. ALC 8736 22The evidence discloses that: (a)Mr and Mrs Hertner have been using the land the subject of ALC 8736 since 1981 for grazing around 400 cattle on a rotational basis; (b)There is a boundary fence at the northern edge and the eastern edge of the land which is the subject of ALC 8736; (c)The part of the land within ALC 8736 to the south of Weabonga Road is fenced in; (d)Mr Hertner and his daughter's partner share responsibility for maintaining boundary fences with their neighbour; (e)Mr and Mrs Hertner have used the land subject to ALC 8736 as a convenient location to gather the stock before taking them to Bannockburn; (f)Mr and Mrs Hertner continuously carry out duties in relation to the land which is the subject of ALC 8736 including maintaining the fences, controlling noxious plants and feral animals. Issues 23While this matter was part-heard, Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee) [2012] NSWCA 358 (Goomallee) was determined by the Court of Appeal on 9 November 2012. As a result part of the Applicant's claims in relation to Crown land reserved for public recreation will be upheld. There are two issues remaining for determination. 24On the date ALC 8734 was made, being 19 December 2005, was the whole of the claimed land, being land subject to Reservation 96464 (for future public requirements), lawfully used or occupied pursuant to Licence 305371 to Mr Knee and Mrs Knee, and therefore not "claimable Crown lands" within the meaning of s 36(1) of the ALR Act. 25On the date ALC 8736 was made, being 19 December 2005, was that part of the claimed land, being land subject to Reservation 96423 (for future public requirements), lawfully used or occupied pursuant to Permissive Occupancy 1967/25 (also described as Permissive Occupancy 12341 or Licence 12341) to Mr Hertner and Mrs Hertner, and therefore not "claimable Crown lands" within the meaning of s 36(1) of the ALR Act. 26The parties have identified two issues reflecting the two claims before the Court. The issues in relation to both claims are the same however and they can be considered together. Crown Lands Consolidation Act 1913 27Relevant sections of the Crown Lands Consolidation Act 1913 (the CLC Act) provide: Interpretation of terms. 5. (1) ... "Crown lands" means lands vested in His Majesty and not permanently dedicated to any public purpose or lawfully contracted to be sold under the Crown Lands Acts. Crown lands to be dealt with subject to this Act. 6. Crown lands shall not be sold leased dedicated reserved or dealt with except under and subject to the provisions of this Act. The Governor on behalf of His Majesty may grant lease or make any other disposition of Crown lands in any case where he is hereby authorised so to do, but only for some estate interest or purpose authorised by this Act and subject in every case to its provisions. The Minister on behalf of His Majesty may lease dedicate reserve or make any other disposition of Crown lands in any case where he is hereby authorised so to do, but only for some estate interest or purpose authorised by this Act and subject in every case to its provisions: Provided always that this section shall be read subject to the provisions of sections 2 and 4. Reserves from sale for public purposes. 28. (1) The Minister may by notification in the Gazette declare what portions of Crown lands shall be reserved temporarily or otherwise from sale for any public purpose or for commonage and the lands which are the subject of any such notifications shall thereupon be reserved from sale accordingly... Reserves from sale lease or license. 29. The Minister may by notification in the Gazette reserve any Crown lands therein described from being sold or let upon lease or license in such particular manner as may be specified in such notification; and the lands shall thereupon be temporarily reserved from sale or lease or license accordingly, and, unless the contrary is expressly declared, shall not be reserved from sale or lease generally. Permissive Occupancies. 136K. (1) The Minister may grant permissions to occupy Crown lands, whether above or below or beyond high water mark, or whether reserved from lease or license or not, for such purposes and, subject to this section, upon such terms and conditions as to him may seem fit. ... (5) A permission to occupy Crown lands or a permissive occupancy of Crown lands referred to in subsection (3) or a permission to occupy Crown lands granted under subsection (1) shall be terminable at will by the Minister. ... 28The gazettal notice for the reservation of R96464 under the CL Act stated "reserved from sale for the public purpose specified". Crown Lands Act 1989 29Relevant sections of the Crown Lands Act 1989 (the CL Act) provide: 3 Definitions Crown land means land that is vested in the Crown or was acquired under the Closer Settlement Acts as in force before their repeal, not in either case being: (a) land dedicated for a public purpose, or (b) land that has been sold or lawfully contracted to be sold and in respect of which the purchase price or other consideration for the sale has been received by the Crown. 6 Crown land to be dealt with subject to this Act etc Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence, reservation or dedication or other dealing is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989. 10 Objects of Act The objects of this Act are to ensure that Crown land is managed for the benefit of the people of New South Wales and in particular to provide for: (a) a proper assessment of Crown land, (b) the management of Crown land having regard to the principles of Crown land management contained in this Act, (c) the proper development and conservation of Crown land having regard to those principles, (d) the regulation of the conditions under which Crown land is permitted to be occupied, used, sold, leased, licensed or otherwise dealt with, (e) the reservation or dedication of Crown land for public purposes and the management and use of the reserved or dedicated land, and (f) the collection, recording and dissemination of information in relation to Crown land. Part 3 (s 30 to 33) provides for the land assessment of Crown land 33 Identification of uses (1) In identifying suitable uses for land and, where practicable, the preferred use or uses, regard shall be had to: (a) the particulars relating to the land as contained in the inventory, (b) the assessment of the land's capabilities, (c) the principles of Crown land management and any current policies relating to the land approved by the Minister, and (d) the views of any government department, administrative office or public authority which has expressed an interest in the land. (2) The Minister may from time to time cause an identified preferred use to be reviewed and either confirmed or varied having regard to any changes in the particulars contained in the inventory or the capabilities of or policies relating to the land. 34 Powers of Minister in relation to Crown land (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. ... (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 five 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. ... (6) This section does not authorise the sale of Crown land which is reserved for a public purpose. ... 34A Special provisions relating to Minister's powers over Crown reserves (1) Despite any other provision of this Act, the Minister may grant a lease, licence or permit in respect of, or an easement or right-of-way over, a Crown reserve for the purposes of any facility or infrastructure or for any other purpose the Minister thinks fit. Any such lease, licence, permit, easement or right-of-way is referred to in this section as a relevant interest. (2) The following provisions apply in relation to the granting of a relevant interest: (a) the Minister is to consult the following persons or bodies before granting the relevant interest: (i) the person or body managing the affairs of the reserve trust (if any) appointed under Part 5 as trustee of the Crown reserve that is the subject of the relevant interest, (ii) if the Crown reserve is being used or occupied by, or is being administered by, a government agency-the Minister to whom that agency is responsible, (b) if the Crown reserve is to be used or occupied under the relevant interest for any purpose other than the declared purpose (as defined in section 112A) of the reserve-the Minister is to specify, by notice published in the Gazette, the purposes for which the Crown reserve is to be used or occupied under the relevant interest, (c) the Minister is not to grant the relevant interest unless the Minister: (i) is satisfied that it is in the public interest to grant the instrument, and (ii) has had due regard to the principles of Crown land management. (3) Failure to comply with subsection (2) (a) does not affect the validity of the relevant interest concerned. (4) The proceeds from a relevant interest are to be applied as directed by the Minister.... (7) In this section: Crown reserve means land that is, or is part of, a reserve within the meaning of Part 5, and includes: (a) land within a travelling stock reserve, or (b) land within any other reserves for public purposes under the control of trustees or other authorities. (8) For the avoidance of any doubt, the power of the Minister to grant a relevant interest in respect of a Crown reserve under this section includes the power to enter into an agreement for such a relevant interest. ... 87 Power of Minister to reserve land (1) The Minister may, by notification in the Gazette, reserve any Crown land from sale, lease or licence or for future public requirements or other public purpose. (2) The reservation takes effect on publication of the notification. 91 Requirement for assessment (1) Land shall not be reserved unless the Minister is satisfied that the land has been assessed under Part 3. (2) No assessment is required if: (a) the reservation is from sale or for future public requirements, or (b) the Minister is satisfied that it is in the public interest to reserve the land without assessing the land under Part 3 and, in reserving the land, has had due regard to the principles of Crown land management. Section 121A was inserted in 2005: 121A Minister may authorise reserve to be used for additional purpose (1) In this section, declared purpose has the same meaning as in section 112A. (2) The Minister may, by order published in the Gazette, authorise a reserve specified in the order to be used for a purpose that is additional to the declared purpose of the reserve. (3) The Minister may not authorise a reserve to be used for any such additional purpose unless the Minister is satisfied that: (a) the additional purpose is compatible with the declared purpose of the reserve, and (b) the use of the reserve for the additional purpose is consistent with the principles of Crown land management, and (c) it is in the public interest for the reserve to be used for the additional purpose. (4) The Minister is to consult the following persons or bodies before making an order under this section in relation to a reserve: (a) the person or body managing the affairs of the reserve trust (if any) appointed as trustee for the reserve, (b) if the reserve is being used or occupied by, or is being administered by, a government agency-the Minister to whom that agency is responsible. (5) Failure to comply with subsection (4) does not affect the validity of the order. (6) An order under this section may relate to any number of reserves or to a specified group of reserves. 30Clause 1 Sch 8 provides: Schedule 8 Savings, transitional and other provisions (Section 186) Part 1 General provisions consequent on enactment of this Act 1 Existing dedications and reservations (1) A dedication or reservation in force or taken to be in force under a repealed Act immediately before its repeal has effect as if it had been made under this Act. (2) The dedication or reservation: (a) is for the same purpose and on the same terms as the original dedication or reservation, and (b) dates from the date of the original dedication or reservation. (3) This clause applies whether or not the original reservation was temporary. A. Lawfulness of the licence and the permissive occupancy Minister's submissions 31The Minister submitted that the question of lawfulness of the licence (granted under s 34 of the CL Act) and the permissive occupancy (granted under s 136K of the CLC Act) arises in light of the judgment in Goomallee. That case concerned the validity of a licence for grazing issued under s 34 of the CL Act over land which was reserved from sale for the purpose of public recreation. 32At [22], Basten JA (who delivered the leading judgment and with whom the other members of the Court agreed, with qualification by Sackville AJA), said: The logical formulation of the question which the Minister should have asked himself or herself, before granting the licence, must be 'Is a licence for the proposed purpose one which can be granted given the terms of the reservation of the land for a different purpose?' 33The question whether s 34 of the CL Act empowered the Minister to grant a licence for grazing over Crown land reserved for future public requirements was not addressed in Goomallee. The Minister submitted that s 34 empowered the Minister to grant such a licence or permissive occupancy in this case. 34On the basis of the reasoning in Goomallee the Minister could have granted a licence for grazing over Lot 53 given the terms of the reservation from sale, but not from lease or licence, for a different purpose. This directs attention to the characteristics and nature of a reservation from sale for future public requirements. Unlike public recreation, which is an identifiable and immediate purpose, the purpose of future public requirements is an inchoate and indeterminate purpose. The reservation of Crown land from sale for future public requirements does not attribute a current use to the land for a specific purpose. The public use to which the land will be put is not known before a further decision is made as to the specific public requirement to which the Crown land will be put (which may occur years or decades after the reservation was made). The reservation from sale here was made under the more limited power conferred by s 28 of the CLC Act, but "has effect as if it has been made under [the CL Act 1989]" (cl 1, Sch 8 CL Act). 35Crucially, the reservation does not restrict the use of the land to any particular purpose: Goomallee at [37]. The reservation of Crown land from sale for future public requirements does not confer on members of the public any specific privileges or freedoms with respect to the use of the land in the way that a reservation for public recreation might, as suggested by Basten JA in Goomallee, at [27]. 36Given these factors, the Minister submitted that it is apparent that the reservation of Crown land from sale for the purpose of "future public requirements" allows for the land to be used in the period before the relevant "future" requirement(s) arises and is therefore distinguishable from Goomallee. 37Goomallee is distinguishable on another basis. In that case there was an inconsistency between the grant of a licence for grazing and the reservation for public recreation: at [27] - [29] and [44] - [47] per Basten JA. By contrast, no inconsistency arises here between the grant of the licence for the purpose of grazing (or the use of the lands for grazing) and the reservation for future public requirements. The authorisation of the use of the lands for grazing, for example, allows for the lands to be maintained and to be kept clean and free of noxious plants and animals. The Minister submitted that to hold otherwise would potentially immunise the reserved lands from any use whatsoever pending its need for future public requirements, during the period before the public requirement is determined. It follows that the licence was validly granted over the land within Lot 53. 38The Minister made similar submissions in relation to the validity of the permissive occupancy over ALC 8736. 39For ALC 8734, the land claimed was not claimable Crown land within s 36(1)(b) of the ALR Act as at the date of claim. For ALC 8736, that part of the land claimed which has been reserved for future public requirements (Reservation 96423) was not claimable Crown land. Applicant's submissions and Minister in reply 40The Applicant submitted that the principal question which remains in this proceeding, following Goomallee (and the Minister's concession), is whether a licence or permissive occupancy for grazing is for (or ancillary to) the purpose of a reservation for future public requirements. 41The Applicant submitted that the purpose of a reservation for future public requirements is the beneficial setting aside of land for the needs of the people as a whole or the community that will be or come thereafter, pending the identification of its appropriate future use or uses. This setting aside is of immediate benefit. 42Grazing, as presently carried out by a private property owner, does not involve use of the land for the identified public purpose stated in the public reservation: Goomallee at [23]. 43The Applicant submitted that its approach is reinforced by a consideration of the history of legislation in NSW in relation to the reservation from alienation of lands likely to be required for public needs in the future. That history confirms that from the outset, the making of a reservation for public purposes does not permit the occupation of the reserved land by any private person for any private purpose, relying on Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54 Windeyer J at 71 - 72 who cited a dispatch from Earl Bathurst, Secretary of State for the Colonies to Governor Brisbane dated 1 January 1825 which, his Honour observed, formed the first formal statement of a general policy and the prototype of all future enactments. 44In response to this submission, the Minister argued that Rutledge does not deal with the issue raised here, namely, whether the Minister could exercise another statutory power, separate from the reservation power, to grant a licence or permissive occupancy over land reserved for future public requirements which allowed the land to be used for the purpose of grazing. The extracts relied on by the Applicant were concerned with the reservation of Crown land only. 45The Applicant also submitted that the language of s 28 of the CLC Act is to be contrasted with that of s 29 which allowed for a reservation from sale, lease or licence at large, without the identification of a public purpose. Consistently with the approach in s 28 of the CLC Act, under the CL Act a "reserve for future public requirements" is a reserve for a "public purpose". Section 87 of the CL Act authorises the Minister to reserve land "from sale, lease or licence or for future public requirements or other public purpose." (emphasis added). 46In response to this submission, the Minister submitted that the fact that s 29 allowed the Minister to reserve Crown land without specifying a public purpose does not detract from the Minister's analysis. As a starting point, s 28 and s 29 are of little relevance here, given that, under cl 1 of Sch 8 to the CL Act, a reservation under the CLC Act has effect as if made under s 87 of the CL Act. Further, and in any event, it is difficult to see how the differences between s 28 and s 29 assist. As Basten JA explained in Goomallee at [20], the reservation of land from sale for a public purpose does not preclude the Minister from granting a licence (or permissive occupancy) over that land. 47The Applicant also submitted that the structure of the CL Act suggests that a reservation of land for future public requirements is a setting aside of the land for a future (public) use, as opposed to authorising present (private) uses. This is because: (a) Central to the scheme of the CL Act is the proper assessment of Crown land: s 10 provides that the objects of the Act are to ensure that Crown land is managed for the benefit of the people of NSW and in particular to provide for "(a) a proper assessment of Crown land". (b)Part 3 of the CL Act provides for the assessment of Crown land. (c)Land is not able to be reserved unless the Minister is satisfied that the land has been assessed under Part 3: s 91(1) of the CL Act. The only exception is where the Minister exercises the power to waive a land assessment pursuant to s 91(2)(b). (d)However, no assessment is required if the reservation is from sale or for future public requirements: s 91(2)(a) of the CL Act. 48It follows from the structure of the CL Act that land might be set aside for future public requirements pending an assessment of the capabilities of the land and the identification of future suitable uses: s 91(2)(b) and s 33 of the CL Act. The effect of the reservation for future public requirements would be to protect the land while such assessment occurs. 49The Applicant submitted that the setting aside of land for a future use by reserving it for future public requirements constitutes a significant restriction on the manner in which the land can be used. This has been recognised by this Court in Darkinjung where I observed at [79] that a reserve for future public requirements was not managed for recreation because that was "not its current purpose". 50In response to this submission, the Minister argued that Darkinjung is not on point because the Court was not concerned with the question whether the Minister could exercise another statutory power, separate from the reservation power, to grant a licence or permissive occupancy over land reserved for future public requirements which allowed the land to be used for the purpose of grazing. 51In response to the Minister's submission that Goomallee is distinguishable because of the comments of Basten JA at [23] and [38], concerning the argument that no particular and current use is specified, the Applicant submitted that even though the ultimate use of the lands is yet to be determined this does not alter the effect of its reservation for both a particular and current public purpose, namely its setting aside for future public requirements, and the restraint imposed upon its use for anything other than that particular purpose. As to the submission that no current use is attributable to the lands, the Applicant submitted that this involves an impermissible slide between use and purpose, contrary to the admonition of Basten JA at [26]. 52In response to the Minister's submission that the reservation for future public requirements is inchoate and indeterminate, the Applicant argued that once the power in s 28 was exercised to reserve land for future public requirements, everything that was needed to reserve the land for that purpose had been done. No further steps were required. This contention ignores the fact that under both the CL Act and the CLC Act future public requirements are regarded as a specific "public purpose". 53In response to the Minister's argument that Goomallee is also distinguishable on the basis that in the circumstances of that case, there was an inconsistency between the grant of a licence for grazing and the reservation of the same land for public recreation the Applicant argued that Basten JA at [27] - [29] was only applying the Minister's test which his Honour had in any event rejected. This submission is a direct invitation to revisit the not inconsistent/not incompatible test rejected by the Court of Appeal in Goomallee. 54The Minister's emphasis on statements by Basten JA at [20] and [22], the Applicant submitted, ignores the Court of Appeal's reasoning as a whole. 55The Minister's submission concerning "immunisation" is incorrect because it disregards the plain terms of the reservation and the legal principles stated in Goomallee. It involves a blank cheque approach which would permit any use of land reserved for future public requirements. The Applicant argued that this argument is also misconceived because it ignores the beneficial public purpose the reservation serves, whether the reservation remains wholly within the Minister's power it does not grapple with the history of reservations in NSW and in the context of the CLC Act. It ignores the distinction between reserves from sale in s 28 and reserves from sale, lease or licence in s 29. The introduction of s 121A and s 34A in the CL Act were also referred to in this context. B. Ancillary purpose 56Submissions addressing an additional argument raised by the Minister were filed by both parties after the hearing, the issue being identified for the first time at the hearing. An evidentiary issue was raised in the Applicant's submissions that the Minister had produced and relied on conditions of the permissive occupancy which were not in force at the relevant claim date. 57The Applicant submitted that the Minister relied on the schedule to an earlier version of the permissive occupancy and the Court is therefore being asked to infer additional purposes when it does not have the relevant instrument before it. In response to this assertion, the Minister argued that this is the first occasion the Applicant has suggested that the conditions identified are not the relevant conditions for the permissive occupancy and the Applicant should therefore not be permitted to make that suggestion now given the length of time of these proceedings relying on s 56 of the Civil Procedure Act 2005, the principles in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 and the public interest in the finality of litigation. Nevertheless, the Minister submitted that these are the relevant conditions given that they were attached to a letter of offer addressed to the holders of the permissive occupancy which has the same permissive occupancy number and file reference, the letter of offer specifies a new rent period which commenced at the same date as the permissive occupancy and the subsequent amendment only involved the addition of an area. I agree with the Minister's submissions and will consider the terms of the permissive occupancy as relied on by the Minister. 58The parties agreed the permissive occupancy was for grazing. The amendment of the permissive occupancy notified by letter from the Department signed 21 April 1988 states that the purpose of the permissive occupancy is "grazing". 59Relevant conditions of the permissive occupancy include: 1. The rent for each year shall be paid in advance to the Under Secretary for Lands, Sydney. 18. The tenant shall not overstock the land occupied; wholly or in part, the decision as to overstocking to rest with the Minister. 32. The tenant shall throughout the currency of the occupancy effectually destroy or cause to be destroyed all or any of the following on the land occupied, viz. Bathurst burr, noogoora burr, African boxthorn, Mexican poppy, prickly-pear, lantana, blackberry, wild tobacco, fireweed, crofton weed, mint weed, St John's wort, serrated tussock, briars, and all scrub (except edible scrub), undergrowth, and such plants or weeds as are, or may from time to time be declared noxious under the Local Government Act, 1919, as amended by subsequent Acts, in all municipalities and shires, or in the particular municipality or shire in which the land occupied, or any part of it, is situated. 33. The tenant shall take effective steps to keep the land free from foxes, rabbits, and other noxious animals during the currency of the occupancy. 60Relevant conditions of the licence include: 20. Permitted Use (a) 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. [Schedule specifies grazing as the purpose for which the premises may be used] (b) The Holder will not use the premises or allow them to be used for any purpose other than the purpose specified in Column 2 of Item 4 in Schedule 1. (6.032) ... 26. Payment of Rent (No CPI) (a) For the purposes of this clause: "Due Date" means each anniversary date of the Commencement Date. "Initial Rent" means the rent specified in Column 2 of Item 13 of Schedule 1. "Market Rent Review Date" means the date of the expiration of each period of years as specified or referred to in Column 2 of Item 14 of Schedule 1 calculated from the Commencement Date. "Market Rent Review Period" means the period between each Market Rent Review Date. (b) The Holder covenants with the Minister that the Holder will during the whole of the Term pay to the Minister in accordance with the provisions of this clause without demand free of exchange and without deduction whatsoever the rent as hereinafter provided. (c) The Holder will pay to the Minister on the commencement Date the Initial Rent and thereafter shall pay on each Due Date rent in advance calculated as hereinafter provided. (d) On the first market Rent Review Date after commencement and on each Market Rent Review Date thereafter the rent may be determined by the Minister pursuant to the provisions of Section 142 and 143 of the CLA. (e) A redetermination of rent for the purposes of subclause (d) shall be deemed to have been made on the Market Rent Review Date if it is made at any time within the period of six months before the market Rent Review Date. ... 39. Premises to be kept in clean and tidy condition The Holder will at all times during the Term keep the Premises in a clean and tidy condition and will (subject to any other provision of this Licence) on the Termination Date leave the Premises in a clean and tidy condition. (6.088) 40. Land Not to be Cultivated The Holder will not cultivate the Land. (6.110) 41. Overstocking Where the Minister is of the opinion that the Holder is overstocking either the whole or part of the Land the Minister may from time to time direct the Holder by notice in writing that the number and type of stock that may be depastured on the Land or such part as may be described in the notice shall not exceed the number and type of stock specified in the notice and the Holder will ensure that the number and type of stock so specified shall not be exceeded. (6.112) 42. Holder to Eradicate Noxious Plants Animals etc. The Holder will take steps to eradicate or control all noxious plants noxious animals and noxious insects on the Land which he may by law be required to eradicate or control. (6.115) ... 44. Holder Not to Clear Land (a) The Holder shall not undertake any act upon the Land which would amount to the clearing of any of the land. (b) For the purposes of this clause the expression "clearing of any of the land" has the same meaning as that expression in the definition of "low impact future act" in section 234 of the Native Title Act 1993 (Commonwealth). (6.117A) 45. Holder Not to Burn Off The Holder will not carry out any burning off on the Land except with the prior consent of the Minister in writing and after compliance with the requirements of the Bush Fire Act 1949. Any consent granted in accordance with this condition shall be subject to such conditions as the Minister may impose. (6.118) 46. Holder to provide Gates etc. The Holder will if directed by the Minister erect and maintain gates in any fence constructed by the Holder or in any fence situated on the land for use by persons authorised to obtain timber or other material from such land. (6.120) ... 48. Holder not to take Timber The Holder will not interfere with by ring-barking or otherwise any trees or saplings on the land licenced except under the authority of a permit issued under the provisions of the Forestry Act 1916. (6.122) 49. Holder not to remove Materials (a) The Holder will not mine remove extract dig up or excavate any sand stone gravel clay loam shell or similar substance or permit any other person to undertake any such action without the prior consent in writing of the Minister and subject to such conditions as the Minister may determine. (b) Subclause (a) shall not apply to any removal digging up or excavation as may be necessary to construct or undertake any improvement authorised by or under this Licence provided that any such removal digging up or excavation is undertaken in accordance with the requirements of that authority. (c) The Minister and the Holder expressly agree that a failure by the Holder to comply with any condition imposed pursuant to subclause (a) shall constitute a failure by the Holder to comply with a provision or covenant of this Licence. (6.194) Minister's submissions 61The Minister submitted that the grant of the permissive occupancy and the licence for the purpose of grazing was ancillary to, incidental to or in furtherance of the reservation of the lands for future public requirements. The permissive occupancy was granted pursuant to s 136K of the CLC Act and the licence under s 34 of the CL Act. 62When considering the scope of the powers to grant a permissive occupancy or a licence over Crown land reserved from sale, the Court needs to have regard to the terms of the reservation: Goomallee at [20], [22] and [26] per Basten JA. Basten JA stated that land reserved from sale could "be the subject of the exercise of other powers so long as those powers were exercised for the public purpose stated in the reservation", or for a purpose ancillary to, or in furtherance of, or incidental to, the public purpose: at [23] and [33]. This precise argument was not raised in Goomallee. 63The terms of each instrument as a whole imposed by the Minister determine their purpose. The terms of each instrument record "grazing" as the relevant permitted activity and include terms to pay rent to the Crown, to keep the land clean and free of noxious plants and animals and to avoid overstocking. The purpose therefore is to grant a conditional authorisation to the holder to carry out grazing on the basis that the holder take specified steps to manage and maintain the lands regardless of whether these words appear in the permissive occupancy or licence. The Applicant's approach impermissibly isolates each term and condition and focuses on grazing alone. 64The Minister submitted that the grant of the licence and permissive occupancy is ancillary to the public purpose of the reservation because the instruments allow for the lands to be maintained, managed and looked after until the future public requirement arises without any public expenditure. When the public requirement crystallises, the Minister may terminate the permissive occupancy and the licence at will. Applicant's submissions and Minister in reply 65The Applicant submitted that the ancillary argument mischaracterises and considers in isolation a number of clauses in the licence and permissive occupancy. It also attempts to retrospectively reconcile interests that were granted for a purpose other than the purpose for which the lands were reserved. This is similar to the error identified in Goomallee of asking "retrospectively after the exercise of both powers, whether they can be 'reconciled' by a test of 'compatibility'" at [22]. 66The Applicant submitted that the permissive occupancy and its amended version, and the licence identify the purpose as "grazing". The Applicant placed importance on the purpose expressed in cl 20(a) of the licence as "grazing". In addition, the emphasis in the CL Act is on the exercise of power for "purposes". The express prohibition in the licence on the use of the premises for any other purpose in cl 20(b) was relied on to submit that the purpose of the licence is not to manage or maintain the lands. The Minister criticised the Applicant's focus on cl 20 of the licence because it is not in line with the principle of construing statutes and statutory instruments as a whole as set out in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[71]. 67The words "maintain" and "manage" do not appear in the licence. The Minister argued that despite the words "manage" and "maintain" not being used, the obligations still amount to a requirement on the holder to maintain and manage the lands. Further, the requirement to pay rent is not a land management obligation. Most licences/permissive occupancies are likely to contain such obligations. The obligations concerning the management of noxious weeds, removal of feral animals, prohibition on overstocking, soil conservation, prohibitions on cultivation, land clearing and the removal of timber and other materials should be understood as aimed at regulating the grazing purpose authorised by the licence, not as independent obligations capable of altering the character or purpose of the licence. The Minister submitted that this characterisation does not correctly depict the Minister's argument. Rent draws attention to the management required until the future public requirement arises without any public expenditure. 68In Goomallee an identical provision to cl 20 was accepted as a licence for grazing because that was its stated purpose at [10], [25], [27], [29] and [44] and this was so despite the licence in Goomallee containing prohibitions on overstocking and land clearing: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 1; (2012) 186 LGERA 323 (Goomallee LEC) Biscoe J at [31]. In Goomallee there was evidence that the licensee "killed off blackberry by spraying them, baited foxes and dealt with rabbits" which could be argued to benefit a reserve for recreation but this did not convert the licence for grazing to the purpose of land management ancillary to public recreation: Goomallee LEC Biscoe J at [70]. The Minister submitted in response that the Court in Goomallee was concerned with a reserve for public recreation not future public requirements as here. Also the Minister did not argue that the licence in that case was for a purpose ancillary to public recreation and as such the Court of Appeal was not required to consider this issue and did not decide it. 69The Applicant submitted that the licence authorises activities not directed towards land management or land maintenance. To the contrary, the grazing purpose is likely to compromise any future use of the lands for a public requirement by altering or compromising the qualities of the lands, its soil and vegetation. The licence, other than the overstocking prohibition, does not constrain grazing and this could inhibit the growth of native vegetation and threaten the health of native flora and fauna. This may damage the future uses involving the enjoyment of natural scenic values, environmental conservation and bush walking. In response, the Minister submitted that regardless of the number of stock on the lands, the obligations concerning soil conservation still apply. Also the Applicant's approach was criticised because it descends into actual use. The inference put forward by the Applicant that the grazing purpose will compromise the lands does not have regard to the evidence in these proceedings such as that of Mr Hertner and Mr Knee. The evidence indicates that the holders of the permissive occupancy and licence take steps to maintain and look after the lands as per the requirement imposed under each instrument. Lands are claimable Crown land 70In Goomallee the Court of Appeal Basten JA with whom Beazley, McColl, Macfarlan and Sackville JJA agreed held at [20] - [30]: 20. The preferable understanding of the Crown Lands Act is that it confers a broad range of powers on the Minister, the exercise of any one of which, with respect to particular land, may foreclose the exercise of others. As already explained, the mere fact that reserved land remains Crown land does not mean that the Minister can exercise a power which is inconsistent with the terms of the reservation, but which would be available in respect of Crown land which was not so reserved. 21. The Minister also submitted that - "in the circumstance where the power in s 34 is exercised to grant a licence for use of a Crown reserve for a purpose which differs from the purpose for which the land has been reserved, the exercise of powers to (i) reserve the land for one purpose and (ii) authorise the use of the land for another purpose can be reconciled by adopting a test of compatibility between the purpose for which a licence is issued under s 34 and the purpose for which the Crown land over which the licence applies has been reserved under s 87." 22. That submission had in common with the previous submission the misconceived formulation of a question by assuming the existence and exercise of the power to grant a licence for a purpose other than the purpose of the reservation. The logical formulation of the question which the Minister should have asked himself or herself, before granting the licence, must be 'Is a licence for the proposed purpose one which can be granted given the terms of the reservation of the land for a different purpose?'. A prospective identification of the availability of a power, taking into account the current status of the land at the time the power is to be exercised is preferable to asking, retrospectively after the exercise of both powers, whether they can be "reconciled" by a test of "compatibility". In any event, the proposed test of 'compatibility' impliedly accepts that the power conferred by s 34 must be limited by reference to the reserved status of the land and the purpose of the reservation. 23. The approach adopted by the primary judge, accepting the contentions of the Land Council, was, in effect, that a reservation under the Crown Lands Act bound the Minister according to its terms, until revoked. Thus, land reserved from sale could not be the subject of the power of sale contained in s 34. It could, however, be the subject of the exercise of other powers so long as those powers were exercised for the public purpose stated in the reservation, namely public recreation, or for some purpose incidental thereto. All other purposes were excluded. Grazing, as carried out by a private property owner, did not involve use of the land for the identified purpose. An instrument which purported to confer such a right was therefore invalid. 24. By contrast, the Minister sought to apply the test of inconsistency or incompatibility to the permitted use of the land, or, in the alternative, the actual use made of the land. The Minister could, according to that submission, authorise uses of the land for any purpose, private or public, so long as those uses were not inconsistent or incompatible with the use resulting from the purpose identified in the reservation. On that approach, although grazing was not a form of public recreation, if it were not inconsistent or incompatible with public recreation, it was a permissible use of the land. The appellant's written submissions identified the primary issue before this Court in the following terms: "Is the correct test for determining lawfulness under the Crown Lands Act whether the use and occupation under that licence is for the reserved purpose, or to further it, or be ancillary to it (as the primary judge found) or merely to be consistent or compatible with it (as the Minister contends)." 25. It is convenient to address first the suggestion that the actual use of the land could determine the issue on the appeal. It was common ground that the appeal was restricted to a question of law: Land and Environment Court Act 1979 (NSW), s 57. That requirement was satisfied on the Minister's primary argument that the validity of the grazing licence did not depend on the actual use made of the land but on the scope of the statutory power to grant the licence. Even though the scope of the reservation for "public recreation" involved ordinary English words, as did the purpose of the licence for "grazing", the meaning of which did not give rise to a question of law, the construction of the statutory instrument did: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 395-397. That question was not to be addressed by reference to the actual use of the land by the licensee, nor its actual use by members of the public, and evidence of such usage was irrelevant. That is why the challenge to the fact-finding exercise undertaken by the primary judge need not be addressed. 26. However, the scope of the power to grant the licence did not depend on the use of the land, actual or potential, under the licence. Rather, it depended on the terms of the restraint imposed by the reservation. Those terms did not refer to the manner in which the land could be used, but the purpose for which it could be used. To define a power by reference to purpose is a quite different exercise to defining a power by reference to permitted activity. The Minister's submission erroneously conflated purpose and activity, as restraints on power. 27. Even if the Minister's contention were correct, the test of inconsistency or incompatibility of use would be answered by reference to the legal rights or privileges of the public and the rights conferred on the licensee in respect of grazing. Public recreation on the land would include camping and picnicking by members of the public at any time and in such numbers as the land might accommodate, and by such means of ingress and egress as might be reasonably necessary. 28. By contrast, the licence permitted the holder to use the land for the purpose of grazing but not for any other purpose: cl 20. While the holder of the licence was required to acknowledge that the licence did not confer exclusive possession (cl 21), the holder was required to enclose the land whether separately or conjointly with other lands held in the same interest with a substantial fence and to maintain that fence in effective repair (cl 53); and the holder was required "if directed by the Minister" to erect and maintain gates in any fence "for use by persons authorised to obtain timber or other material from such land" (cl 54). The licence contained no reference to use of the land for public recreation, nor to public access. While the Minister was entitled, if of the opinion that the holder was overstocking the land, to give directions limiting the number and type of stock that might be depastured (cl 49), the licence otherwise permitted the holder to run such stock in such numbers as the holder considered appropriate. The latter were limited only by the identified purpose and the express terms of the licence, for example with respect to overstocking. The licence thus permitted bulls and alpaca, as well as sheep, to be depastured on the land, not for the amusement or entertainment of the public, but for the private purposes of the grazier. 29. Assuming, contrary to the conclusion reached above, that the Minister's approach was correct and a licence could be granted for any purpose which was not inconsistent nor incompatible with public recreation, the grazing licence in question did not satisfy that test 30. Where land is reserved for a specified public purpose (or indeed for public purposes) the power to lease, licence or vest land in trustees in order to effectuate the purpose has long been accepted. It may be that a public purpose can properly be effectuated by making the land available to a private interest which can make a profit from providing facilities to the public, so as to effect the relevant public purpose, so long as those profits are devoted to the public purpose: Council of the Municipality of Randwick v Rutledge [1959] HCA 63; 102 CLR 54 at 92-93 (Windeyer J). However, that is not this case. 71Similar to the observation in Goomallee of Basten JA at [12], this case also raises a question of statutory construction of whether for lands reserved from sale for the purpose of future public requirements, the Minister had power to grant a grazing licence over the lands to a private interest. The reservation of land from sale in Goomallee was for public recreation. His Honour identifies s 6 of the CL Act which states that Crown land cannot be occupied, sold, leased or reserved unless any such dealing is authorised by the CL Act or the Crown Lands (Continued Tenures) Act 1989. His Honour considered the scope of the power in s 34 and the reservation power in s 87. The exercise of one power under the CL Act may limit the exercise of other powers. The Minister must exercise a power which is consistent with the terms of the reservation at [20]. The question for a Minister administering the CL Act is whether a licence for the proposed purpose can be granted given the terms of the reservation of land for a different purpose at [22]. The grant of a licence was limited by the terms of the reservation of Crown land at [23]. Basten JA held that the power to grant a licence can be exercised for the public purpose of the reservation or for an ancillary purpose at [23]. The scope of the power to grant a licence does not depend on the actual or potential use of the land under the licence, the restraint is imposed by the reservation at [26]. 72Goomallee considered two cases where the Crown land in question was reserved for public recreation, Attorney General v Cooma Municipal Council (1962) 8 LGRA 111, a finding of the Full Court of Appeal that a tourist information centre could be not be built, and Waverley Municipal Council v Attorney General (1979) 40 LGRA 419 where the Court of Appeal considered the power of the local council to construct buildings in Bronte Park and held it was limited to promote the use of the park for the enjoyment of public recreation. 73It is necessary to consider the finding in the Court of Appeal in Goomallee to determine its application in this case in light of the parties' respective submissions. A. Lawfulness of licence and permissive occupancy Is reservation from sale for future public requirements a reservation of land for a current purpose? 74The first question to arise is whether reservation from sale for future public requirements is a reservation of land for a particular purpose created at the time of the reservation of these lands on 19 November 1982 (ALC 8734) and 5 November 1982 (ALC 8736) under s 28 of the CLC Act. The Minister submitted it is not, the purpose of future public requirements being inchoate and in the future. 75Section 28 of the CLC Act then provided that land could be reserved for any public purpose. The reservation under the CLC Act continues under the transitional provisions in the CL Act Sch 8 cl 1. In Goomallee it was accepted at first instance and in the Court of Appeal that the effect of the reservation, there under the CLC Act, must be assessed by reference to the provision for reserving land under the CL Act, s 87, at [9]. Section 87 of the CL Act provides power for the Minister to reserve land for future public requirements or other public purpose. The proper construction of the scheme for the management of Crown land in the CL Act suggests that the reservation of land for future public requirements is a reservation for a public purpose and that is a current purpose not a purpose that will eventuate in the future. No more steps are required as submitted by the Applicant at par 52. 76As the Applicant submitted, applying the usual meaning of the words "future", "public" and "requirements", the purpose of the reservation is the beneficial setting aside of land for the needs of the people or the community, pending the identification of appropriate future use or uses which conform with that purpose. That setting aside is of immediate benefit. The Macquarie on-line dictionary definitions referred to in the Applicant's submissions are adopted, namely that "future" means future events at some future date, "public" means of or relating to or affecting the people as a whole or the community, state or nation and "requirements" means a need to meet the requirements of daily life. It follows that in so concluding I do not accept the Minister's submission that the purpose of the reservation of future public requirements is inchoate or indeterminate. What is undetermined is the use or uses to which such land can be put in order to achieve that purpose. 77The Applicant's submissions quoted from Rutledge where Windeyer J at 71 - 72 cited a dispatch from the Secretary of State for the Colonies to Governor Brisbane dated 1 January 1825 in which the importance of reserving land for public use is highlighted and that such land should not be occupied by private persons for a private purpose: . . . the next subject for consideration is the making the necessary reservations for public purposes. Of these the first, in order and importance, is the reservation, which must be made throughout every county, of Lands to be used for Public Roads and internal communications; of lands to be set apart as the sites of towns and Villages; of Lands to be appropriated for the erection of churches, school-houses, Parsonage houses and burying grounds; of lands which may be proper to reserve in the neighbourhood of populous places as vacant grounds, either for the future extension of Towns and Villages, or for the purposes of health and recreation; and lands in the neighbourhood of navigable streams or the sea Coast, which it may be convenient at some future time to appropriate as Quays and Landing Places; more generally every object of public convenience, health or gratification, for the furtherance of which specific appropriations of Land will probably be necessary, should, as far as possible, be anticipated and provided for before the waste lands of the Colony are finally appropriated to the use of private persons". In the instructions issued to Governor Darling on his appointment the matter was again referred to. He was to constitute Commissioners for Lands, and they were to be required to report what lands it might be proper to reserve for various public purposes including "places fit to be set apart for the recreation and amusement of the Inhabitants of any Town or Village, and for promoting the health of such Inhabitants . . . or which it may be desirable to reserve for any other purpose of public convenience, utility, health or enjoyment ". And he was strictly enjoined that he do not, "on any account or on any pretence whatsoever, grant, convey or demise to any person or persons any of the Lands so specified as fit to be reserved as aforesaid, nor permit or suffer any such Lands to be occupied by any private person for any private purpose" (Historical Records of Australia, I, XII, p. 117). [emphasis added by Applicant] 78The Applicant also referred to a practice of reserving land for future purposes identified by Isaac J in Williams v The Attorney-General for New South Wales [1913] HCA 13; (1913) 16 CLR 404 at 451: A tract of waste forest land marked out on a map, and formally set aside for a future township, or reservoir or police station, was still waste land of the Crown in fact and in ordinary parlance, but it was reserved waste land. If, however, the reservations were formally revoked, and the purpose abandoned, the land naturally fell back into the general stock of Colonial waste lands. 79Contrary to the Minister's submissions, it is helpful to consider the historical context provided by Rutledge and the cases referred to therein in considering the nature of the reservation for future public requirements. These older authorities support the Applicant's submission that the reservation for future public requirements is a current purpose effected at the time of making the reservation (and that private use of such land is not compatible with that reservation). 80The Minister submitted that as no particular use of the lands for a specified purpose is identified by future public requirements there is no purpose for the lands specified in the reservation, citing [37] in Goomallee. At [37] Basten JA held that where use of land is restricted to a particular purpose use for another purpose is not authorised, which is not supportive of this submission as it is addressing a different issue. 81The reasoning in Goomallee at [26] suggests by inference that the reservation for future public requirements is for a current purpose which constrains the purpose for which the land can be used. At [26] Basten JA identifies that the scope of the power to grant a licence does not depend on the use of the land, actual or potential, under the licence. Rather, it depends on the terms of the restraint imposed by the reservation which identify the purpose for which land can be used, not the manner in which the land could be used. Defining power by reference to purpose is different from defining a power by reference to permitted activity. That finding of Basten JA is significant in this case also and supports the Applicant's case which focuses on the purpose of the reservation as constraining the use to which the lands may be put. 82The Applicant also relied on the management scheme for Crown land under the CL Act as supporting the reservation allowing for future public uses, not as authorising present private uses. These submissions are set out above at par 47 - 48 and I agree with and adopt them. 83I consider that the reservation for future public purposes is a reservation of the lands for a current purpose under the CL Act. Is grazing licence/permissive occupancy permissible under the restraint created by the reservation? 84The next issue to arise for consideration is whether a licence or permissive occupancy for grazing for private purposes is permissible under the current purpose of the reservation. The Minister submitted that the reservation does not restrict the use of the lands to any particular purpose citing Goomallee at [37] but that paragraph does not support that statement. Basten JA there held that where the use of land is restricted to a particular purpose the use for an unrelated purpose is not authorised. 85Basten JA in Goomallee at [30] held that where land is reserved for a specified public purpose (or public purposes), the power to lease or licence the land to effectuate that purpose has been accepted for some time, citing Rutledge [1959] as an example where making land available for a private interest which made profit from providing public facilities could give effect to a public purpose if profits were devoted to the public purpose. 86Basten JA was critical of the Minister's case which relied on finding whether the grazing licence and the purpose of the reservation were inconsistent at [24] - [26] because this approach impermissibly focused on the actual use of the land. The scope of the power to grant the licence did not depend on the use of the land, actual or potential, under the licence. Although not accepting the Minister's inconsistency argument, his Honour considered the uses permitted under the grazing licence were inconsistent with the reservation for public recreation at [27] - [28] and in doing so considered individual conditions in the licence. While not directed to the purpose of the reservation, in this case his Honour's approach is instructive because the conditions referred to concern the maintenance of land such as requirements to fence, and limitation of stock numbers. 87These findings both suggest that private grazing is not permissible because of the restraint created by the reservation for a public purpose. 88In Darkinjung the land claimed was also reserved from sale for future public requirements. No trustee of the land was appointed as manager of the land under the CLC Act or the CL Act. The local council went onto the land and undertook maintenance activities such as activities under the Rural Fires Act 1997. In the context of distinguishing activities on land reserved for public recreation, I observed at [79] in assessing whether the land was used or occupied that the land was not managed as a recreation area or park as that was not its current purpose. While the context for that conclusion is different to this matter, it does reflect a recognition of the limited uses for which land reserved from sale for future public requirements can be used. In Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 68 (O'Hara's Creek) the claimed land was also reserved for future public requirements and I held at [158] that its use for recreation purposes was not reflective of the purpose of its reservation. My reasoning was limited in these cases and both pre-date Goomallee, but are consistent with the result in that matter. 89Ultimately, the exercise of the licensing power for the use of lands is restrained by a reservation of land for a purpose. The grant of a licence for private grazing purposes is not in accordance with, incidental to and unrelated and independent of the purpose of reservation of lands for future public requirements and the Applicant's submissions to that effect are accepted. B. Ancillary purpose 90The amendment of the permissive occupancy in 1988 states that it is for the purpose of grazing. The licence states in cl 20 that the holder has a right to occupy the premises for the purpose of grazing. The argument of ancillary to the purpose of the reservation from sale for future public requirements raised in this case by the Minister was not explicitly argued in Goomallee. The Minister submitted that it is consistent with that case, the Applicant to the contrary. The Minister submitted that the permissive occupancy and licence must be construed as a whole so that the various conditions which require land management and maintenance should be considered as ancillary to the reservation purpose. The words land management and maintenance are not explicitly stated in the conditions in the permissive occupancy or the licence but there are conditions attached which are directed to those objectives. 91The management and maintenance conditions in the permissive occupancy concern weed control and the control of feral animals in conditions 32 and 33. In the licence, such conditions are aimed at the prevention of overstocking (41), the eradication of noxious plants and animals (42), prohibition on clearing (44), holder not to burn off without consent of the Minister (45), prohibition on taking timber without the required consent (48), and prohibition on mining and extraction without the consent of the Minister (49). Pursuant to condition 46 the licence holder must erect fences and gates if directed to do so by the Minister. 92While Goomallee did not consider this precise argument, a number of observations by Basten JA suggest that it cannot be correct. The stated purpose of the permissive occupancy and licence is grazing, similar to findings in Goomallee referred to by the Applicant. The licence in Goomallee also had a number of land management provisions relating to weed and feral animal control but that was not considered to alter its overall purpose of grazing at [28]. I accept that whether such conditions did alter its overall purpose or were ancillary to that purpose was not expressly before the Court of Appeal but it is relevant to observe that is the thrust of Basten JA's consideration at [28]. His Honour there held that the licence permitted grazing and not any other purpose and identified a number of clauses in the licence similar to those set out above. His Honour noted that the licence contained no reference to use of the land for public recreation, nor to public access. His Honour concluded that the licence was for the private purposes of the grazier. 93An important part of the reasoning in Goomallee dealt with the Minister's submission that the appropriate test was whether the use for grazing was inconsistent with the purpose of the reservation for public recreation. This argument was not accepted by Basten JA at [25] - [27] on the basis that it was not appropriate to identify the scope of the power to grant the licence by the use of the land under the licence. The power depended on the terms of the restraint imposed by the reservation. Those terms did not refer to the manner in which the land could be used but the purpose. That suggests another reason why, applying the reasoning in Goomallee to this part of the Minister's case, it does not succeed. As the Applicant submitted the alternative argument of the Minister essentially requires that impermissible approach to be taken. That Goomallee was considering a reserve for public recreation does not suggest the reasoning does not apply to a reserve for future public requirements given that both are a public purpose. 94Part of the Minister's argument is that the land maintenance and management conditions in the licence and permissive occupancy mean that the lands were occupied and managed appropriately pending a decision on their public use. While it can be accepted that the conditions relied on by the Minister are conditions serving the objectives of land maintenance and management they are nevertheless directed to serving the private purpose of grazing. As the Applicant's submissions at [69] identify, it is not self evident that conducting the private purpose of grazing is conducive to the preservation of land for future public requirements, such as recreation or conservation for example, regardless of whether the conditions of the licence or permissive occupancy are complied with. The Minister criticised that submission as impermissibly descending into the actual use of land but I do not agree. While this arrangement means that the lands were managed without public expenditure, a matter also relied on by the Minister, that is not relevant to the construction of the powers imposed under the CL Act, about which I have made findings. That rent is paid under the permissive occupancy and licence appears a neutral factor in the context of the parties' arguments on the substance of the powers being exercised under the CL Act. 95This case raises inferentially the question of what uses lands reserved for future public requirements can be put to. If I am correct the permissible uses of such reserved land are more limited than this matter suggests has been the practice of the Minister of granting private grazing licences over land reserved for future public requirements. Indeed the Minister submitted that such reserved land would be immunised from most uses pending a decision on the appropriate use of the land. Examples of permissible uses given by the Applicant include a licence for surveying the land as part of the preparation of an inventory of the land, an assessment of its capabilities or the identification of suitable or preferred uses which is a limited range of uses. The Applicant's response to this submission identified measures within the CL Act which enable the Minister to revoke in whole or part the reservation of land under the CL Act s 90. Further, since 2005, under s 121A the Minister can add purposes to a reserve to allow for a purpose that is additional to the declared purpose of the reserve. Under s 34A the Minister has the power to issue licences for purposes additional to the reserved purpose, provided the relevant procedures are followed. These provisions in the CL Act suggest that mechanisms exist which enable the Minister to widen the range of purposes and hence permissible uses of land. Conclusion 96My conclusion in relation to the two issues identified by the parties is as follows. On the date ALC 8734 was made, being 19 December 2005, the whole of the claimed land, being land subject to Reservation 96464 (for future public requirements), was not lawfully used or occupied pursuant to Licence 305371 to Mr Knee and Mrs Knee, and therefore is "claimable Crown lands" within the meaning of s 36(1) of the ALR Act. 97On the date ALC 8736 was made, being 19 December 2005, that part of the claimed land, being land subject to Reservation 96423 (for future public requirements), was not lawfully used or occupied pursuant to Permissive Occupancy 1967/25 (also described as Permissive Occupancy 12341 or Licence 12341) to Mr Hertner and Mrs Hertner, and therefore is "claimable Crown lands" within the meaning of s 36(1) of the ALR Act. 98It is necessary for the Court to make appropriate orders in order to give effect to these findings. The order sought by the Applicant seeks the transfer of lands to the Tamworth Local Aboriginal Land Council and there is provision in s 36(7) of the ALR Act to do so. Orders 99The Court makes the following orders: 1. The appeal is upheld. 2. The Minister to transfer the lands claimed in Aboriginal Land Claims 8734 and 8736 in fee simple to Tamworth Local Aboriginal Land Council. 3. The Minister to do all things necessary to enable the transfer of the lands in accordance with order 2, including surveying the lands, as soon as reasonably practicable. 4. Costs reserved. 5. Exhibits to be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 May 2013