Land and Environment Court New South Wales Medium Neutral Citation: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Berrima) [2014] NSWLEC 188 Hearing dates: 5 May 2014 and 6 May 2014, further written submissions 10 September, 23 and 31 October 2014 Decision date: 01 December 2014 Jurisdiction: Class 3 Before: Pain J Decision: 1. The New South Wales Aboriginal Land Council's appeal is dismissed. 2. Costs reserved. 3. Exhibits to be returned. Catchwords: ABORIGINAL LAND RIGHTS - whether land dedicated for public purpose of gaol under Crown Lands Act claimable at date of claim - revocation of gaol use under Crimes (Administration of Sentences) Act 1999 - whether Berrima Correctional Centre buildings and gardens lawfully occupied at date of claim when use as gaol had ceased Legislation Cited: Aboriginal Land Rights Act 1983 s 36 Blackwattle Bay Land Reclamation Amendment Act 1878 (repealed) Commons Management Act 1989 Constitution Act 1855 Crimes (Administration of Sentences) Act 1999 s 2A, s 3, s 108, s 232, s 237 Crimes (Administration of Sentences) Regulation 2008 (repealed) Ch 6, cl 211 Crown Lands Act 1989 s 3, s 6, s 10, s 11, Pt 5, s 78, s 80, s 84, s 92, s 153, s 155 Crown Lands Alienation Act 1861 (repealed) Crown Lands Consolidation Act 1913 (repealed) Land and Environment Court Act 1979 s 38 Cases Cited: Bathurst Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 82; (2008) 158 LGERA 43 Bell IXL Investments Ltd v Life Therapeutics Ltd [2008] FCA 1457; (2008) 68 ACSR 154 Codelfa Construction Pty Ltd v State Rail Authority [1982] HCA 24; (1982) 149 CLR 337 Cope v Rowlands (1836) 150 ER 707 Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54 Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 Davies v Littlejohn [1923] HCA 64; (1923) 34 CLR 174 Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 Housing Commission (NSW) v Falconer [1981] 1 NSWLR 547 Johnson v Kent (1975) 132 CLR 164 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 5; (2012) 187 LGERA 46 Luxton v Vines (1952) 85 CLR 352 Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 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 Illawarra Local Aboriginal Land Council [2009] NSWCA 289; (2009) 168 LGERA 71 Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359; (2012) 193 LGERA 276 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee Claim) [2012] NSWCA 358; (2012) 84 NSWLR 219 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2014] NSWCA 69 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Newcastle City Council v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 158 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Boggabri) [2014] NSWLEC 58 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Kinchela claim) [2009] NSWLEC 46; (2009) 166 LGERA 137 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Newcastle Post Office Claim) [2014] NSWLEC 72 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 New South Wales v Commonwealth (1926) 38 CLR 74 NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18 O'Keefe v Williams [1907] HCA 64; (1907) 5 CLR 217 R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 Re Mataranka Land Claim (1986) 15 FCR 520 Richard Evans & Co Ltd v Astley [1911] AC 674 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 Vilro Pty Ltd v Roads and Traffic Authority (NSW) [2010] NSWLEC 234; (2010) 179 LGERA 47 Wentworth Park Sporting Complex Trust v Leichhardt Council [2002] NSWLEC 152; (2002) 122 LGERA 271 Williams v Attorney-General for New South Wales [1913] HCA 33; (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 A Stewart SC (Respondent) Chalk & Fitzgerald (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 30197 of 2013 Judgment Aboriginal land claim over Crown land 1These Class 3 proceedings are an appeal under s 36(6) of the Aboriginal Land Rights Act 1983 (ALR Act) from the Minister's refusal of Aboriginal land claim 36016 (ALC 36016). ALC 36016 was refused by the Minister administering the Crown Lands Act (the Minister) on 20 November 2012 on the ground that the land was lawfully used and occupied by Corrective Services NSW (CSNSW). I thank Acting Commissioner Davis for her assistance in this matter. 2ALC 36016 was lodged by the New South Wales Aboriginal Land Council (NSWALC) on 24 February 2012 (the date of claim). The land the subject of ALC 36016 is Lot 7304 DP 1146099 (Lot 7304) and Lot 447 DP 751252 (Lot 447) (the claimed land). The claimed land is Crown land on the banks of the Wingecarribee River in the town of Berrima in New South Wales. Aboriginal Land Rights Act 3Section 36 of the ALR Act relevantly 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, ... (5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall: (a) if the Crown Lands Minister is satisfied that: (i) the whole of the lands claimed is claimable Crown lands, or (ii) part only of the lands claimed is claimable Crown lands, grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be, or (b) if the Crown Lands Minister is satisfied that: (i) the whole of the lands claimed is not claimable Crown lands, or (ii) part of the lands claimed is not claimable Crown lands, refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require. (6) An Aboriginal Land Council may appeal to the Court against a refusal under subsection (5) (b) of a claim made by it. (7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council. 4The ALR Act is remedial and beneficial legislation. The exceptions to claimable Crown land should be construed narrowly: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665 (Maroota) per Spigelman CJ at [53] - [54], NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18 (Wagga Wagga (CA)) per Mason P at [21] and [25] with whom Tobias JA agreed. Note also Kirby J in a separate judgment at [9]-[21] in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 at [69] (Wagga Wagga (HCA)). Any uncertainty or ambiguity in the language of the ALR Act is to be resolved in favour of the intended beneficiary: Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157, cited in Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 (Bathurst (CA)) by Basten JA at [217]. 5The Minister bears the onus of establishing on the balance of probabilities that the claimed land is not claimable Crown land: Bathurst (CA) per Basten JA at [202]; 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 692D-693D. 6The relevant date for determining whether land is claimable Crown land is the date that the claim is lodged: Winbar [No 3] at 691F-G per Hope JA. Issues 7The parties agreed that the following questions arise for determination by the Court: (1)Whether any or all the indicia of occupation relied on by the Minister if established, amount to occupation in fact of the claimed land within the meaning of s 36(1)(b) of the ALR Act at the time that the claim was made (the first question); (2)In the event that the answer to the first question is yes, whether such occupation of the claimed land was lawful within the meaning of s 36(1)(b) of the ALR Act (the second question). Evidence 8The NSWALC tendered an aerial photograph of the site (exhibit A). The Minister tendered the court book (exhibit 1) and the evidence book (exhibit 2). The court book contains the Class 3 application (tab 1), the Minister's statement of facts and contentions (tab 2), the NSWALC's statement of facts and contentions (tab 3), the agreed real issues for determination (tab 4), agreed chronology (tab 5), agreed list of characters (tab 6), the NSWALC's list of objections to evidence (tab 7) and the Minister's list of objections to evidence (tab 8). 9The evidence book contains the amended agreed statement of facts (tab 1), the affidavit of Mr Ian Harrington affirmed on 23 August 2013 (tab 2), the affidavit of Mr Clive West affirmed on 9 September 2013 (tab 3), the affidavit of Mr Mark Tate affirmed on 23 September 2013 (tab 4), the affidavit of Mr Peter Hay affirmed on 17 December 2013, the Minister's tender bundle (tab 6) and the NSWALC's tender bundle (tab 7). 10The parties agreed a statement of facts (ASF) as follows (excluding footnotes): ... 3. At the date of the claim, both Lots which form the claimed land had as their registered proprietor "The State of New South Wales" and were dedicated under the Crown Lands Act 1989 (NSW). 4. As at the date of claim, Lot 7304 was subject to two dedications both for gaol purposes, each of which covered separate sections of Lot 7304. The first, Dedication 1001173, was notified in the Gazette on 11 November 1891 for "Gaol Site (extension)". The second, Dedication 1001174, was notified on 19 October 1894 for "Gaol Purposes". Both dedications were pursuant to s 104 of the Crown Lands Act 1884 (NSW). 5. As at the date of claim, Lot 447 was subject to Dedication 100366 which was notified on 5 December 1958 for "Gaol Site (addition)" pursuant to s 24 of the Crown Lands Consolidation Act 1913 (NSW). 6. Prior to November 2011, the claimed land was used as the Berrima Correctional Centre. The gaol itself and other buildings are on Lot 7304 and part of the gaol gardens and a gaol building are on Lot 447. 7. On 6 September 2011, Corrective Services NSW announced that the Berrima Correctional Centre would be closed by early November 2011. 8. The historical status of the claimed land is set out in the Agreed Chronology. Relevantly, on 19 October 2001, the claimed land was proclaimed in the Government Gazette to be "Berrima Correctional Complex" pursuant to the Crimes (Administration of Sentences) Act 1999 (NSW)(CAS Act). 9. Also on 19 October 2001, the claimed land was proclaimed in the Government Gazette to be "Berrima Correctional Centre" pursuant to the CAS Act. 10. On 6 September 2011, Corrective Services NSW announced that the Berrima Correctional Centre would be closed by early November 2011. 11. On 10 February 2012, the proclamation of "Berrima Correctional Complex" was revoked pursuant to the CAS Act by notice in the Government Gazette. 12. Also on 10 February 2012, the proclamation of the "Berrima Correctional Centre" was revoked by notice in the Government Gazette pursuant to the CAS Act. 13. On 17 November 2011, following the closure of the Berrima Correctional Centre, the State Property Authority (SPA) wrote a letter to the Crown Lands Office of the Department of Primary Industries (Crown Lands) advising that Corrective Services NSW had requested SPA to "undertake initial due diligence for each of the properties to assess their likely future use." 14. By 19 December 2011, SPA had completed its initial review and had concluded that "the preferred use of the property is likely to involve the creation of a Crown Reserve under the management and care of a Reserve Trust" and recommended that ownership of the claimed land would transfer to Crown Lands. 15. An email from George Rounis of the State Property Authority dated 13 February 2012 states, amongst other things, that: 15.1 The local council had expressed an interest in working with Crown Lands to retain the asset in a Reserve Trust, the process for which was to be managed by Crown Lands, with an officer from the Goulburn Office of Crown Lands having been appointed to work on the project; 15.2 Crown Lands were to manage the disposal of the adjoining cottage; 15.3 Corrective Services NSW had requested SPA attend a meeting in early March with Corrective Services, the local council and Crown Lands to "assist in ensuring all parties work towards a May 1 2012 handover" of the claimed land. 16. In a Ministerial Briefing, signed by the Parliamentary Secretary on 15 February 2012, it was noted that: "In investigating possible future uses SPA has concluded that, under the existing constraints, the property would have no significant commercial value. Furthermore, even if the dedication were lifted, the other constraints on the site would limit its commercial value to the extent that the potential return is unlikely to justify the risks to this approach, including strong community opposition. SPA has consulted with the Crown Lands Division of the Department of Trade and Investment, Regional Infrastructure and Services (Crown Lands) regarding the appropriate future ownership and/or management arrangements for the property. One such model under consideration is the creation of a Crown Reserve under the management and care of a Reserve Trust." 17. A letter from the Parliamentary Secretary for Treasury and Finance to the Wingecaribee Shire Council enclosed with that Ministerial Briefing stated: "With regard to your request for a meeting, it is suggested that this be deferred until the Crown Lands Group has determined a suitable model for future management of the property, at which point Council's role can be discussed with more certainty" 11The Minister read the affidavit of Mr Harrington, community corrections officer at CSNSW (par 1) (exhibit 2 tab 2). Mr Harrington is responsible for arranging work crews, comprising offenders subject to community service orders (CSOs) and a field supervisor, to attend various work sites in the Campbelltown area. This includes attending work sites on occasion and giving oral instructions to the field supervisors as to the work to be performed at the site (par 2). In October 2011 Mr Harrington attended a meeting with the director of community corrections, Mr Morgan (par 3). Mr Morgan said to Mr Harrington that they were going to start working at Berrima Correctional Centre and that he wanted Mr Harrington to organise community service workers and a field supervisor. Mr Morgan wanted the crew to maintain the grounds of Berrima Correctional Centre and to look after the outer and inner grounds of the gaol (par 4). 12In October 2011, one week before work was to commence, Mr Harrington and Mr Morgan attended Berrima Correctional Centre and inspected the site to determine what work needed to be done (par 5). Mr Morgan advised Mr Harrington that work was to be conducted at the Correctional Centre and that he will need to trim the trees, weed, mow the lawns, replace the sprinkler system and maintain the gardens (par 6). 13In October about a week after Mr Harrington's attendance with Mr Morgan, Mr Harrington organised and continued to manage a work crew to go to Berrima Correctional Centre and conduct work on the grounds (par 7). On the first occasion Mr Harrington attended with Mr Tate, a field supervisor, and instructed Mr Tate that the main work was to be done at the front and side of the gaol. This was maintaining gardens, mowing lawns and looking after rose trees at the front of the gaol and the fruit and rose trees around the side (par 8). Concerning the front of the gaol Mr Harrington instructed Mr Tate that the lawns were to be mowed and the gardens next to the buildings at the front were to be watered, weeded and maintained (par 9). As at October 2011 a lot of work needed to be done at the side of the gaol where the rose trees and all the fruit trees were located. Mr Harrington instructed Mr Tate that the fruit and rose trees needed to be cut back and the vegetable gardens weeded (par 10). At the back of the gaol there was a vegetable patch. Mr Harrington instructed Mr Tate to move it and that it should be weeded and maintained (par 11). Mr Harrington instructed Mr Tate to replace the sprinkler system (par 12). 14From approximately October 2011 to April 2013 Mr Harrington organised for work crews to attend and maintain the grounds and gardens of Berrima Correctional Centre. Mr Harrington went to Berrima Correctional Centre approximately four or five times between October 2011 and April 2013 when the work crew was there (par 14). Initially Mr Harrington organised for a work crew comprising nine to ten offenders who were subject to CSOs (CSO workers) to attend Berrima Correctional Centre on Saturdays and Sundays (par 17). Mr Harrington also arranged from time to time for the work crew and field officer to attend during the week (par 18). The work crew would arrive at Berrima Correctional Centre at approximately 9:30am and leave at approximately 2:30pm (par 20). 15Mr Harrington observed that the majority of the time was spent around the side of the gaol on the vegetable gardens, trees and roses. On average ten CSO workers went to the gaol on each occasion, two or three of them worked at the front and the rest at the side (par 26). Around January or February 2012 Mr Harrington was informed by Mr Tate that the sprinkler system had been replaced (par 27). Mr Harrington was informed by Mr Tate that on a couple of occasions the work crews had used one of the sheds adjoining the old chicken coop to store a wheelbarrow (par 28). 16The Minister read the affidavit of Mr West, member of the Illawarra/Southern Highlands Branch of Heritage Roses in Australia Inc (Heritage Roses) (par 1) (exhibit 2 tab 3). Heritage Roses is a group concerned with species and varieties of roses generally developed in the nineteenth century or earlier (par 3). Heritage Roses was interested in visiting the Berrima Correctional Centre because of its noteworthy collection of roses, both in terms of its diversity and presentation (par 6). Heritage Roses was concerned about the fate of the collection and wanted to check that they were still there and maintained. The collection is regarded as a significant public collection of roses and continued public access to the collection is of great concern to Heritage Roses (par 8). 17Between 4 February 2012 and around 7 March 2012 Mr West took various steps to organise a visit by Heritage Roses to Berrima Correctional Centre including speaking to Mr Morgan at CSNSW who stated it was okay for Heritage Roses to visit Berrima Correctional Centre (par 9-15). On 10 March 2012 Mr West visited Berrima Correctional Centre with some other members of Heritage Roses (par 16). Heritage Roses members walked from the front of the gaol past the old Superintendent's House around the side past the chicken coop and down to the lower area where the roses are (par 17). Heritage Roses took around 40 minutes to an hour viewing the roses (par 18). Mr West annexes a copy of an aerial photograph of Berrima Correctional Centre showing the area visited by Heritage Roses hatched in red (par 19, annexure D). From the inspection it was clear that the roses were being maintained. Overall Heritage Roses were happy with the state of the roses (par 20). Mr West did not observe many weeds and the bushes were in good order and had been pruned (par 21). Key signs that the roses were in good order were that there was no disease on the foliage and some of the roses were in flower (par 22). The roses had also been dead headed (par 23). 18The Minister read the affidavit of Mr Tate, retired field officer at CSNSW (par 1) (exhibit 2 tab 4). In his role as field officer Mr Tate was involved with supervising CSO workers performing work at Berrima Correctional Centre from October 2011 to November 2012. Mr Tate worked under the direction of Mr Harrington (par 3). In October 2011 Mr Harrington told Mr Tate what he wanted to achieve by way of gardening and maintenance and Mr Tate told Mr Harrington what specifically needed to be done to achieve what he wanted (par 4-5). Typically Mr Tate would take a group of between 5 and 12 CSO workers to Berrima Correctional Centre. At the start Mr Tate was doing this about once a fortnight. From January 2012 Mr Tate would go to Berrima Correctional Centre at least once per week on a Saturday or Sunday and possibly one day midweek (par 6). Following each visit to Berrima Correctional Centre Mr Tate filled out a worksheet which was signed off by Mr Harrington. The worksheets included the date, location, number of participants, time of arrival and departure, and summarised the work done (the weed species removed and the method, the area treated and the description, the volume of rubbish and any further comments) (par 7). 19Work was conducted at the front and back of the gaol, back meaning the part of the gaol with the chicken pen and heritage roses (par 9). The area behind the print house and down to the river was not worked on because Mr Tate did not perceive them as part of the gaol but as the Council's property (par 10). Mr Tate outlines when the CSO workers would arrive and depart from the gaol (par 11-14). When he began work in October 2011 at the gaol Mr Tate concentrated on the roses. There were gardens virtually everywhere including near the print house which Mr Tate tried to re-establish and had climbing roses on the outside fence (par 15). There were also fruit trees and rose trees at the back of the gaol (par 17). Mr Tate outlines how he would organise the CSO workers in distributing work at the gaol (par 18-21). For example Mr Tate would have two or three CSO workers in the front of the gaol mowing the lawns and maintaining and weeding the gardens, two CSO workers in the rose garden pruning the roses and weeding, and three to four CSO workers in the back working on the vegetable gardens (par 18). 20Mr Tate describes the type of work done in the front of the gaol such as watering plants, weeding and maintaining gardens, trimming and maintaining bushes, flowers and rose trees and mowing lawns (par 22-26). Mr Tate also outlines the type of work done at the back of the gaol such as mowing, weeding, maintaining the rose trees, fruit trees, and vegetable gardens (par 27-33). Concerning the interior of the gaol, occasionally they would go inside to maintain and cut the grass (par 34). At one stage Mr Tate had a key to the main gate to get in to mow and weed, otherwise Mr Tate had to get the security guards to let him in so the CSO workers could mow inside (par 35). The interior would have been mowed once per month which would take about half an hour (par 36). This was the only work they did inside the gaol (par 37). Regarding the buildings Mr Tate had a key to a store room near the chicken house and on occasions he left a wheelbarrow and some gardening tools in that store room (par 38). Mr Tate did not go into any other buildings and did not have keys to go inside (par 39). Around December 2011 or January 2012 Mr Tate arranged for the CSO workers to begin repairing the irrigation system on the grounds at the front and back of the gaol (par 40). This work is recorded in the worksheets on 7 November 2011, 13 December 2011 and 10, 14 and 28 January 2012 (par 42). 21The Minister read the affidavit of Mr Hay, director, asset management, within CSNSW (par 2) (exhibit 2 tab 5). The asset management branch is responsible for the maintenance of correctional centres including Berrima Correctional Centre from November 2011 to March 2012 (par 5). At Berrima Correctional Centre responsibilities included the provision of security guards, contractors to conduct maintenance work on essential services (fire system, electricity and water), and CSO workers to maintain the grounds and arrange for electricity, water and sewerage services to be connected (par 6). Mr Hay states that inmates were removed from Berrima Correctional Centre in or before October 2011 (par 7). 22Mr Hay states that keys to Berrima Correctional Centre were issued to ATMAAC Pty Ltd (ATMAAC) who were providing 24 hour security 7 days a week at Berrima Correctional Centre. Asset management branch at the head office in Sydney also had a set of keys and sometime after February 2012 a set of keys was also given to the Campbelltown Community Corrections Office (par 8). These keys are the keys to the actual correctional centre (par 9). 23The arrangement for security to be provided by ATMAAC was in place from 17 October 2011 and continued beyond April 2012. Copies of the tax invoices from ATMAAC were annexed for the period between 17 October 2011 and 29 April 2012 (par 10). The annexures show that for the period 20 February 2012 to 4 March 2012 the security provided by ATMAAC consisted of two 12 hour shifts, being one guard from 6am to 6pm and one guard from 6pm to 6am (par 11). 24The asset management branch is responsible for overseeing maintenance of essential services (par 12). ProGroup Management Pty Ltd (ProGroup) was contracted to perform maintenance services between 23 May 2005 and 22 May 2010 (par 13). On 15 April 2011 a one year extension of the contract with ProGroup was approved (par 15 and annexure B). The approval was for $2,834,679.78 plus GST which was to cover 25 correctional centres including Berrima Correctional Centre. Annexure C sets out the cost for each correctional centre showing $61,123.61 for Berrima Correctional Centre (par 16). Mr Hay states that the contract with ProGroup only covered the interior of Berrima Correctional Centre and not the grounds. The maintenance of the grounds was conducted by CSO workers (par 17). During November 2011 to March 2012 ProGroup continued to perform work at Berrima Correctional Centre but on a reduced service delivery model compared to what had been previously arranged. This reduced service delivery model was for work to be conducted on a "when needed" basis. That is ProGroup remained engaged by CSNSW in relation to Berrima Correctional Centre. However, rather than performing services on a regular basis, ProGroup only conducted work when requested by CSNSW (par 18). 25CSO workers were facilitating maintenance works to the grounds of Berrima Correctional Centre (par 19). Maintenance work by the CSO workers at the Berrima Correctional Centre was arranged by the Campbelltown Community Corrections team (par 22). 26Following the withdrawal of inmates from Berrima Correctional Centre in October 2011 assets belonging to CSNSW were housed within the facility. This was the situation in February 2012. These items have since been removed (par 23). 27Following the withdrawal of inmates electricity, water and sewer remained connected. This includes the period from November 2011 to February 2012. This was for the purpose of the security officers provided by ATMAAC, general maintenance and the grounds maintenance performed by CSO workers (par 24). 28The Minister relied on documents in the Minister's tender bundle (exhibit 2 tab 6). The bundle contains an aerial view of Berrima Correctional Centre gazetted 2 April 1999 (p 55) and reports of land status investigation by the Department of Trade and Investment, Crown Lands Division (Crown Lands) dated 17 May 2013 attaching title search documents (p 56-81). It also contains section 3 of the contract between CSNSW and ProGroup (the ProGroup contract) (p 82-102). Berrima Correctional Centre is included in the ProGroup contract (p 82). The scope of work includes electrical services, freshwater installation, sewerage system, gas service, mechanical services, fire protection system, coating systems and removal and disposal of liquid waste (p 83-84). Detail concerning the types of work and services are set out (p 84-86). The authorisation of the Governor/Centre Manager and other CSNSW staff to issue notifications or to give directions is set out (p 88). The ProGroup contract states that the first contract year will commence on 1 November 2003 with a total of five contract years, the last expiring on 31 October 2009 (end of year five). If the contract is extended for three years the last date of expiry would be 31 October 2012 (end of year 8). Contract run-out may be applicable for end of contract years five and eight (p 96). Contract run-out is the period commencing 1 November following the last contract year and ends on 31 December. During the contract run-out only callouts will continue (p 97). Callout/corrective maintenance work is described as generally of a "breakdown" nature requiring ProGroup's attention. ProGroup is required to provide a service to all facilities to carry out such repairs within the response times nominated by the minimum maintenance and performance standards (p 86). 29The Minister's tender bundle also includes a submission by Mr Woodham, Commissioner for CSNSW, to the Minister requesting an extension for a year of the ProGroup contract from 23 May 2011 to 22 May 2012 (p 103) approved by the Minister (p 104). Mr Gordon, general manager at Wingecarribee Shire Council (the Council) wrote to Mr Furness of the State Property Authority (SPA) on 6 December 2011 about Berrima Correctional Centre requesting that when transfer of the property moves to the SPA 24 hour security surveillance continues noting the significant value of the gardens surrounding the facility (p 118). On 19 December 2011 Mr Furness, executive director commercial transactions and development, replied to Mr Gordon (p 119). Mr Furness stated that the SPA had completed an initial review of the property and concluded that the preferred future management of the property is likely to involve the creation of a Crown Reserve under the management and care of a reserve trust. Ownership of the property would not transfer to the SPA but to Crown Lands. Arrangements were currently underway to transfer control of the property to Crown Lands and it was expected that consultation would commence with the Council in the near future regarding its role in the future management of the property and the creation of a reserve trust. CSNSW had undertaken to maintain the existing 24 hour security surveillance until new arrangements had been implemented (p 119). 30A community agency application dated 9 January 2012 aiming to maintain grounds/maintenance of rose/fruit trees with the community benefit of beautification was made (p 120-123). Tasks included were lawn mowing, whipper snipping, maintaining fruit/rose trees maintaining irrigation, removal of graffiti, removal of weeds and weed spraying (p 121). This was to be supervised by departmental field officers and work was to occur weekly (p 121). CSO workers were to be working in proximity to licensed areas (p 122). The application states that the project was previously maintained by Berrima gaol but the closure of the gaol required an alternative maintenance team to be provided (p 122). The application was signed by Mr Tate and Mr Harrington. 31An email by Mr Rounis, manager property transactions at SPA, to Mr Thomas and Mr Furness dated 13 February 2012 states concerning Berrima Correctional Centre that (p 124): ∙ Wingecarribee Council have expressed an interest in working with Crown Lands to retain the asset in a Reserve Trust. ∙ Process of establishing Trust to be managed by Crown Lands. ∙ An officer from the Goulburn office of Crown Lands has been appointed to work on the project. ∙ Project meeting scheduled for early March on site to be attended by Corrective Services, the Council, Crown lands and SPA. ∙ Corrective Services have requested SPA to attend the meeting and assist in ensuring all parties work towards a May 1 2012 handover of the asset. ∙ Currently Corrective Services still maintaining gardens and providing security. Actions required following the meeting were identified. Subject to the outcomes discussed it was expected no further input would be required from SPA. It was anticipated that a final invoice would be issued in March (p 124). 32A letter from Mr Barnard, service manager - fire at MDL Asset Services Pty Limited (MDL), to Mr Robinson dated 8 March 2012 states that Berrima Correctional Centre was attended yesterday afternoon and describes what was reported, the solutions and a quote for those solutions (p 126-127). A work order approval form containing (p 128), a handwritten service report dated 17 November 2011 (p 129), a handwritten inspection test and preventative maintenance records report dated 17 November 2011 (p 130) are attached. 33An email from Ms Weiss of Crown Lands to Ms Illiadis and Mr Byers of the Crown Solicitor's Office dated 17 April 2013 attaches photographs of Berrima Gaol education room, Berrima Gaol internal courtyard, Berrima Gaol internal garden and "trusty" cells, Berrima Gaol inside smaller residence, Berrima Gaol rear wall, Berrima Gaol tennis courts, Berrima Gaol and Berrima Gaol toilet and showers dated 9 March 2012 (p 160-169). 34Handwritten worksheets for the Campbelltown Combined Community Project between 18 October 2011 and 30 April 2012 are included (p 170-198). Those dated closest to the claim date include on 4 February 2012 recording there were nine participants, the time of arrival was 9:30am, time of departure was 2:20pm, comments were "mowed and whipper snip [sic] front and sides of jail [sic]. Started mowing down back, weeded more of the front gardens, finish weed original vegi [sic] garden. Transplanted tomato into new gardens" (p 183). On 5 February 2012 there were nine participants, the time of arrival was 9:45am, time of departure was 2:35pm, comments were "mowed and whipper snip rock (not finish) [sic]. Weeded rock garden. Dehead roses in back. Plant plants that were up the back" (p 184). On 12 February 2012 there were 11 participants, the time of arrival was 9:45am, time of departure was 2:20pm, comments were "mowed and whipper snip [sic] front and some of the back weeded and started laying mulch on rock rose bed. Weed vegi [sic] gardens and put chicken poo on rock vegi [sic] gardens " (p 185). 35On 18 February 2012 there were 11 participants, the time of arrival was 9:30am, time of departure was 2:20pm, comments were "mowed and whipper snip [sic]. Weeded front gardens and planted seeds in vegi [sic] gardens" (p 186). On 19 February 2012 there were 14 participants, the time of arrival was 9:45am, time of departure was 2:15pm, comments were "mowed and whipper snip [sic] back area. Weeded fruit trees, weeded and prune [sic] dead heads of roses" (p 187). 36There is one reference in these worksheets to workers going inside Berrima Correctional Centre building in April 2012 when there were 12 participants, the time of arrival was 9:45am, time of departure was 2:15pm, comments were "mowed and whipper snip and use blower inside gaol. Rake up grass out front, weeded down back and planted agas [sic] near print shop" (p 198). 37Tax invoices from ATMAAC to CSNSW for "static" guards from 31 October 2011 to 30 April 2012 are included (p 199-212). One guard was provided during the day shift and two guards during the night shift from 17 October 2011 to 22 January 2012 (p 199-205). One static guard was provided during the day shift and one static guard during the night shift from 23 January 2012 to 29 April 2012 (p 206-212). 38Energy Australia invoices to CSNSW from 7 March 2012 to 3 April 2012 were included (p 213-220) for the supply period 1 February 2012 to 29 February 2012 (p 213-216) and 1 March 2012 to 31 March 2012 (p 217-220). 39Council invoices to the State of NSW for water and sewerage from 26 April 2012 to 21 August 2012 were included (p 221-223) for the 2011-2012 financial year third billing period of 6 December 2011 to 12 April 2012 (p 221-222) and the 2012-2013 financial year first billing period of 12 April 2012 to 9 August 2012 (p 223). 40The NSWALC relied on documents in the NSWALC's tender bundle (exhibit 2 tab 7). This included a SPA ministerial briefing from chief executive officer, SPA to the Minister for Finance and Services concerning the closure of Berrima Correctional Centre dated 15 February 2012 (p 226-230). It states that feasibility studies were completed by the SPA and forwarded to the Department of Attorney-General and Justice on 4 November 2011. The investigations regarding Berrima Correctional Centre disclosed that title to the land is in the name of the State of NSW and is deemed to be subject to the provisions of the Crown Lands Act 1989 (CL Act). Accordingly any action in relation to future ownership of the land requires action under the CL Act administered by the Minister for Primary Industries. The property is also dedicated for public purposes and the removal of the dedication would be a convoluted and public process. In investigating possible future uses the SPA has concluded that under the existing constraints the property would have no significant commercial value. The SPA consulted Crown Lands regarding the appropriate future ownership and/or management arrangements for the property. One model under consideration is the creation of a Crown reserve under the management and care of a reserve trust. The reserve trust system enables the NSW Government, local councils and community members to manage and care for suitable properties for the use and benefit of the general community (p 226). The Council had requested a meeting with the Minister, the SPA recommended that regardless of whether the Minister wished to agree to the request, it would be better to wait for advice from Crown Lands on its preferred management model before meeting with the Council (p 227). 41A letter from the Council to the Minister for Finance and Services dated 2 November 2011 is attached to the ministerial briefing advising that a delegation from the Council had met with the Attorney-General on 20 October 2011 in relation to the closure of Berrima Correctional Centre and advises that the Attorney-General indicated he would support the Council in presenting a case for the building to be handed to the community through a trust. The letter further advises that the Council passed a resolution on 26 October 2011 which in part states "that Council advise... [the] Minister... that it is interested in becoming a major stakeholder and requesting that Council be kept informed of all progress in relation to the use of the property" (p 229). 42A letter from Mr Mason-Cox, Parliamentary Secretary for Treasury and Finance to the Council is also attached to the ministerial briefing. It states that the SPA is currently in consultation with Crown Lands regarding the appropriate future ownership and/or management arrangements for the Berrima Correctional Centre property. One model under consideration is the creation of a Crown reserve under the management and care of a reserve trust. The Council's interest in becoming a major stakeholder in the future care and management of the Berrima Correctional Centre is noted and will be an important factor in the SPA's consultations with Crown Lands. The Minister has requested the SPA to keep the Council informed of any significant developments regarding the future of the property (p 228). A. Whether land occupied in fact Minister's submissions Occupation in fact 43As at the date of claim, the following acts, facts, matters and circumstances pertained to the claimed land. 44CSNSW maintained static security guards on the claimed land, consisting of one guard on a day shift, from 6am to 6pm, and two guards on the night shift, from 6pm to 6am which became one guard from mid January. Such security services were maintained from at least 17 October 2011 to 29 April 2012 at a cost of $192,175.50 for that period (exhibit 2 tab 6 p 199-212, affidavit of Mr Hay par 8-11 and annexure A); exhibit 2 tab 6 p 118-119 and p 124-125, tab 7 p 232). 45The provision of electricity (exhibit 2 p 213-220, affidavit of Mr Hay par 24), water and sewerage (exhibit 2 tab 6 p 221-223, affidavit of Mr Hay par 24) remained connected to the claimed land and was paid for by CSNSW. 46Pursuant to the ProGroup contract (exhibit 2 tab 6 p 82-109), ProGroup provided maintenance of essential services, such as the fire system and generator, in relation to the Berrima Correctional Centre (not the grounds) (exhibit 2 tab 6 p 82-104, affidavit of Mr Hay par 12-18). This was in a "reduced capacity role" to what had been previously arranged prior to the closure of the Berrima Correctional Centre whereby work was performed on a "when needed" basis (that is ProGroup remained engaged by CSNSW in relation to the Berrima Correctional Centre, however, rather than performing work on a regular basis, it only conducted work when requested by CSNSW) (affidavit of Mr Hay par 18 and 12-17, exhibit 2 tab 6 p 126-130). 47The fruit trees, rose trees, gardens and lawns were maintained by CSO workers (exhibit 2 tab 6 p 120-123, p 170-198, affidavits of Mr Tate and Mr Harrington). Such maintenance work was conducted at least once a week, by between 3 to 22 CSO workers supervised by a field officer from CSNSW, from 18 October 2011 to at least 29 April 2012 (exhibit 2 tab 6 p 170-198). This amounted to approximately 1300 hours of work performed by CSO workers and 120 hours of supervision by the CSNSW field officers for this period. As recorded in the worksheets for 7 November 2011, 13 December 2011 and 10, 14 and 28 January 2012 (exhibit 2 tab 6 p 172, 175, 177, 179 and 182), the irrigation system was checked and repaired by the CSO workers including replacement of elbow joints, nozzles and T-pieces (affidavit of Mr Tate par 40-42). 48The buildings on the claimed land, including the Berrima Correctional Centre, were locked, with keys being issued to the security guards (affidavit of Mr Tate par 35 and 38-39, affidavit of Mr Hay par 8-9). 49On at least one occasion, a member of the public wanting to organise a visit to the gardens for a heritage group had to seek permission from CSNSW. Permission was granted, access was arranged and the visit took place (affidavit of Mr West par 9-15). 50The acts, facts, matters and circumstances which are cited above and include 24 hour security guard presence, weekly maintenance of the gardens, a contracted maintenance service for the buildings, the continuation of water, sewerage and electrical services, and that the premises were secured by lock and key and access was supervised, all support a conclusion that there was actual possession with some degree of permanence or continuity (Wagga Wagga (HCA) at [69]). Equally, there were physical acts of occupation, the exercise of control, and maintaining of the lands (Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 163D (Daruk)); the occupation was of some substance rather than so miniscule, insignificant or token as to be disregarded (Bathurst (CA)). 51The factual circumstances of Wagga Wagga (HCA) and Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359; (2012) 193 LGERA 276 (Malabar (CA)) are noticeably weaker than the present case. The case is closer to Bathurst (CA) on the facts. In that case a majority found that there was occupation albeit that occupation was not reasoned separately from use. Purpose of occupation 52It is significant in the present case that the purpose of the occupation, if any is required, was to hold the land pending a decision on its future use. That purpose, similar to Bathurst (CA), does not require substantial occupation in order to be fulfilled. 53In the circumstances it was submitted that the claimed land was occupied within the meaning of s 36(1)(b) of the ALR Act. NSWALC's submissions Whether land occupied in fact 54The claim that the land was occupied in fact is not supported by the evidence. As at the date of claim: (a)the land remained dedicated under Crown land legislation for "Gaol site extension" and "Gaol Purposes"; (b)the former gaol had closed, and the buildings of the former correctional centre had been vacated and abandoned; (c)all of the many buildings which covered most of the 2.026ha area of land were empty and locked; (d)there were no inmates (all having been removed in or before November 2011: affidavit of Mr Hay par 7)), no officers of CSNSW, or officers of any other Department or part of a Department were located on the claimed land; (e)its proclamation as "Berrima Correctional Centre" and "Berrima Correctional Complex" had been revoked pursuant to the Crimes (Administration of Sentences) Act 1999 (CAS Act); (f)apart from one or two transitory visits to one building, there is no evidence that any person entered any building on the claimed land. 55The claimed land was, in fact, in limbo: (a)its future use had not yet been determined. Future ownership and/or management arrangements were under consideration (exhibit 2 p 226). It was, in the words of the former Attorney-General being "mothballed" (exhibit 2 p 229); and (b)it was not being made to serve any purpose (Wagga Wagga (HCA) at [69], Malabar (CA) at [35]-[36]) and certainly not any purpose of the dedications under Crown lands legislation for "Gaol Purposes" and "Gaol Site" (Malabar (CA) Sackville AJA at [66]). Purpose is relevant to the assessment of permanence or continuity. 56The Court should not be satisfied that the matters relied on by the Minister to establish occupation alone or in combination establish that the claimed land was occupied in fact, in whole or in part, within the meaning of s 36(1)(b) of the ALR Act. In particular, that the Minister relied on administrative acts rather than actual occupation highlights the de minimis nature of actual occupation. 57The Minister relied on the fact that at least one member of the public wanted to organise a visit to the gardens. This is said to be one of the indicia of occupation of the claimed land, that access was arranged and the visit took place. The only evidence of visitation by members of the public relates to a visit by Heritage Roses. That visit occurred some two weeks after the date of claim. 58In any event, in order to establish occupation within the meaning of s 36(1)(b) of the ALR Act, there must be a present, rather than a contemplated or intended occupation (Wagga Wagga (CA) per Mason P (with whom Tobias JA agreed) at [32] and [50]). As at the date of claim, the visit by Heritage Roses was merely contemplated or intended, and did not amount to actual occupation of the claimed land. 59The Minister relied on the fact that the buildings were locked and a security guard had the key. However, the mere locking of decommissioned buildings or exclusion of the public is insufficient to amount to occupation of land New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 (Education Building) per Stein J at 199, La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 5; (2012) 187 LGERA 46 (Malabar (LEC)) per Sheahan J at [64]. Mere locking of decommissioned buildings and exclusion of the public is neither a physical activity on the claimed land nor establishes the requisite degree of permanence or continuity. In Education Building at 196-197, New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 158 (Wagga Wagga (LEC)) at [42] and [47], and Malabar (LEC) at [47], the relevant building was locked or access was provided by security guards, and there was intermittent visitation. In Wagga Wagga (LEC) (at [47]) and Malabar (LEC) (at [47]) there were no security guards, but there was evidence of actual visitation in circumstances where the land in question was a small area. 60The reliance on security overstates the evidence. The Minister relied on invoices, but these do not identify the nature of the physical activity on the claimed land. Malabar (LEC) at [71] highlights the risk of relying on invoices to establish actual use and occupation. Even if there was a physical presence of security on the claimed land, the claimed land is a relatively large area, and the evidence does not establish where any such security activity occurred. None of the Minister's evidence establishes the nature of the physical activity on the claimed land by the static security guards (which suggest having no motion, being at rest, fixed or stationary) for example, whether a security guard ever entered a locked building, or whether security was maintained upon the claimed land itself. The Minister's evidence is silent as to the nature, quality or extent of any such presence. In any case, the authorities are clear that mere control of a building by security officers is insufficient to amount to actual occupation (Education Building at 198). 61That electricity and water were not disconnected, and that sewerage and water rates were paid take the matter no further. These matters are consistent with the building having been decommissioned, and there being no decision in relation to its future use. In each of Malabar (LEC) (at [47]) and Education Building (at 196), utilities were connected. In neither case did it establish that the claimed land was actually occupied. 62The NSWALC submitted concerning maintenance by ProGroup: (a)The Minister relied on a general document which outlines the types of services that ProGroup carried out in relation to a range of correctional centres under an amalgamated head contract. As the claimed land was no longer a correctional centre at the date of claim, it is unclear why such a general document would still operate in respect of the claimed land as at that date; (b)The mere existence of a contract does not constitute actual occupation of land any more than the mere existence of a lease or licence; (c)The assertion by the Minister that ProGroup undertook maintenance pursuant to a contract is without any factual basis. There is no evidence that any employee or agent of ProGroup ever attended the claimed land or performed any act which could amount to occupation of the claimed land after the facility ceased to be a correctional centre and correctional complex; (d)Even before the proclamation of the claimed land as a correctional centre and correctional complex was revoked, the only document that identifies any actual presence by ProGroup on the claimed land was a single report from 17 November 2011, some three months before the date of claim, which involved a single fire panel test. That report also noted "Gaol has closed down" (exhibit 2 p 129); (e)Mr Hay in his affidavit at par 18 deposes that contractors only came onto the claimed land on an "as needed" basis and when requested by CSNSW. There is no evidence of any request. The absence of any such evidence gives rise to an inference there was no request; and (f)In any event, as held by Sheahan J in Malabar (LEC) at [71], transitory visits by maintenance contractors do not amount to occupation to more than a notional degree. 63Concerning the Minister's reliance on the fact that fruit trees, rose trees, gardens and lawns were maintained by CSO workers the NSWALC submitted that: (a)The aerial photograph (exhibit 2 p 55) shows that at least half of the claimed land is concrete, and only covered in part by lawn. The area where the fruit trees, rose trees and gardens are located is a discrete part of the claimed land; (b)Much of the "1300 hours of work performed" occurred while the claimed land was a correctional facility. The observations below in relation to the decommissioning of the facility are relevant in this regard; (c)The attendances were not "at least once a week" as alleged; (d)The evidence of mowing the lawn is not as the Minister's submission would suggest. In relation to the interior of the gaol, Mr Tate at par 34 deposes that "occasionally we would go inside the gaol to maintain and cut the grass inside the gaol. The lawn inside the gaol is in the front section of the gaol complex." He also deposes that the "interior would have to be mowed about once per month". However, the work sheets (exhibit 2 p 125-198) record that the only time the grass was cut inside the gaol was on 31 April 2012 (exhibit 2 p 198), some two months after the claim date; (e)There is no evidence adduced by the Minister of any activity at all inside the decommissioned buildings on the claimed land at the date of claim. Mr Tate expressly deposes at par 39 that apart from mowing the grass in the interior of the gaol and entering "on occasions" the store room near the chicken house: "I didn't go inside any other buildings. I never had the keys to go inside. I didn't want them because it was too much responsibility if anything went wrong." 64Reliance by the Minister on worksheets after the date of claim is contrary to Housing Commission (NSW) v Falconer [1981] 1 NSWLR 547 at 558 which states that post claim evidence can be used to prove a hindsight that has continued. New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171 (Camberwell) uses post claim evidence prospectively leading to the claim, not retrospectively at [62]. 65The only evidence of storage is the storage "on occasions" (affidavit of Mr Tate par 38, affidavit of Mr Harrington par 28) of gardening equipment in "a store room near the chook house" (affidavit of Mr Tate at par 38) which appears, in fact, to be no more than "one of the old sheds adjoining the old chicken coop" (affidavit of Mr Harrington par 28). 66It would appear from aerial photographs that any storage would have amounted to no more than a few tools in a garden shed on a property of an area of 2.206 ha. On any analysis, any such storage should be regarded by the Court as "so miniscule, insignificant or token as to be disregarded" (Bathurst (CA) per Tobias JA at [161]). 67The statement by Mr Hay at par 23 that he is informed that "assets belonging to Corrective Services" were housed within the facility in February 2012, but have "since been removed and distributed accordingly", cannot take the matter any further. Not only is the statement hearsay from an unidentified source which cannot be verified, the "assets" which were stored and when they were removed are not explained. It can only be inferred that Mr Hay does not know. Referring to an event as "the situation in February" is entirely consistent with the relevant items being removed on or around 10 February 2012 when the building was decommissioned, and with them having been removed by 23 February 2012 when the claim was made. 68Concerning the proper approach to the evidence, the NSWALC submitted that the Court ought not be placed in the position of having to guess at the existence of facts fundamental to the Minister's case in circumstances where the Minister has placed no, or uncertain, evidence before it. Relying on speculation or conjecture is an impermissible basis upon which to make factual findings. Section 36(7) of the ALR Act places the onus on the Minister to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands. Part of land can be claimable 69The NSWALC submitted that s 36(7) of the ALR Act requires the Minister to satisfy the Court that the whole of the claimed land was lawfully occupied at the date of claim. If the Minister fails to satisfy the Court that the whole of the claimed land was occupied, then the Court is required to transfer to the NSWALC that part of the land in relation to which the Minister has failed. The Minister referred to the matters identified above as if those matters applied to the whole of the claimed land. Such an approach invites the Court not only to pass over the limited nature of the activities, but also the fact that they did not occur on the whole of the claimed land. 70The claimed land has an area of 2.206ha. Most of that area consists of decommissioned prison buildings. Even if the Court were to find that activities on parts of the claimed land at the date of claim amount to more than notional occupation, the Court should find that the area of the decommissioned buildings is claimable Crown land because there is no evidence capable of establishing occupation of them. Minister's submissions in reply 71The NSWALC's submission as to the lack of evidence of the physical presence of security guards on the claimed land is without substance. The tax invoices record the details of the guarding in respect of which the invoices were raised (exhibit 2 tab 6 p 199-212). Several record that they were paid (exhibit 2 tab 6 p 199-202). Others bear manuscript notations consistent with processing for payment (p 203-211 except p 205 and 209), giving rise to the inference that the guarding was indeed supplied as recorded. This is also confirmed in the affidavit of Mr Hay at par 10-11. 72In this case, there is no "sensible competing and alternative inference" that has been suggested or that could be drawn. The NSWALC's failure to adduce any evidence or argument as to what the tax invoices demonstrate represents a failure by the NSWALC to discharge an evidential, as distinct from a legal or persuasive, burden that rests upon it in the face of the invoices (Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2014] NSWCA 69 (Limbri) at [39], see also Camberwell at [88] and [93]-[94]). 73The same considerations apply in relation to NSWALC's submissions about the ProGroup contract. There is evidence that work was done under the ProGroup contract at the claimed land on 17 November 2011 and 8 March 2012 (exhibit 2 tab 6 p 126-130). The principle of continuance supports the conclusion that the contractual circumstances remained the same in that period (Camberwell at [62], [125] and [127]). 74The Minister's reliance on the interest of Heritage Roses in visiting the claimed land is not confined to the fact that there was a visit. It is the process of arranging the visit including the perceived and actual need for permission and the granting of permission and physical access through the provision of the keys, the actual visit, and what was found there that are relevant. All these are facts, acts, matters and circumstances that cumulatively with others support the ultimate conclusion that the claimed land was occupied to the requisite degree. That is because they demonstrate: (a)a perception in the public that the claimed land was not freely accessible and was subject to the control of the Crown; (b)that that perception was accurate in the sense that there existed in fact a system of permission and controlled access; and (c)that adequate maintenance of the not insignificant rose collection had continued. 75The fact that the visit itself took place two weeks after the claim date is insignificant. The visit, and the circumstances surrounding it, demonstrate a continuing state of affairs that existed at the time of the claim. In that regard, events that took place after the date of claim are not for that reason alone irrelevant in considering occupation (Camberwell at [62], [125] and [127]). Neither is it necessary to establish occupation on the precise date of claim (Camberwell at [125]). 76Regarding the NSWALC's submission that the buildings had been abandoned, there is no evidence of that. Locked and secured is not the same as abandoned. It is accepted that the buildings were not used. It is not correct that the buildings were never entered. There was 24 hour security so at least one of the buildings was used by security guards. The only inference that can be drawn is from human experience and the evidence reveals that they kept the keys (affidavit of Mr Hay at par 8). 77Concerning the use of post claim date evidence, the Minister submitted that there is no rule that events after the date of claim are irrelevant. If the evidence is logically probative of the relevant enquiry it should be considered. Falconer stands for the principle that evidence of future events, at the relevant date for the enquiry, can be used to prove a foresight. In every case where Falconer has been applied except Malabar (LEC) and Malabar (CA), the issue has concerned whether there is a need or likely need for an essential public purpose. In Malabar it crept into the some degree of permanence or continuity test to confirm a foresight (in the Court of Appeal at [53] and at first instance at [34]). Use of Falconer in relation to use or occupation is novel. The status of occupation is not about hindsight or foresight but about fact and the Falconer principle is not relied on. Any fact after the claim date must be treated with caution but here the activities were in place for some time and into the future revealing a degree of permanence. That the activities did in fact continue confirms this and there is nothing to show that this was affected by the fact of the claim. Land not divisible 78The Minister submitted that: (1)the buildings and the surrounding gardens were so integrated with and related to one another and enjoyed the same status of occupation so as to be sufficiently occupied to result in the claimed land not amounting to claimable Crown lands; and (2)insofar as it may be found that the buildings taken on their own were insufficiently occupied, the buildings do not constitute a reasonable or practically separable part of the claimed lands such as to be amenable to separate transfer. 79With regard to (2), since continuous physical presence on every part of the land does not have to be shown to establish occupation (Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 (Tweed Byron) at 140.8 per Clarke JA, Samuels and Meagher JJA concurring), part as referred to in s 36(5) and s 36(7) must have some limitation to it. Limitation must be with reference to reasonableness and practicality and the nature of the land itself. In this case the buildings and gardens all form part of the same establishment, the gardens enhance the buildings and give them a physical context. It would be unreasonable and lead to an unreasonable and impractical result for the two to be separated. Claimed land occupied at date of claim The test of occupation 80The Minister relies on occupation of land to establish her case. Use and occupation can be considered separately, as occurred in Tweed Byron per Clarke JA (Samuels and Meagher JJA concurring) at [139] deciding that case on the basis of occupation. The High Court in Wagga Wagga considered use rather than occupation: joint judgment at [69]. More recently this was recognised in Bathurst (CA) by Basten JA at [249] and in Malabar (CA) at [28]. 81Priestley JA in Daruk at 163D emphasised that actual occupation as evidenced by the exercise of control, maintaining of lands and physical acts of occupation are relevant factors which must be in fact and to more than a notional degree (at 162E). That reasoning which has been adopted in numerous cases since including Bathurst (CA) Tobias JA at [119(b)] and [119(e)], with some variation which I refer to below at [158]-[160], and Basten JA at [225]-[228]. 82There are several cases where Crown land surplus to requirements or changing from one use to another (undefined) future use has been considered in the ALR Act context. The first case was Education Building (1992). The Minister for Education decided to vacate the claimed building in Bridge Street Sydney and initially sell it, later to offer a 99 year lease. The physical acts of occupation relied on were that six staff remained in the photocopy room constituting a very small part of the large vacant building. Maintenance occurred with services and utilities remaining connected. There was exercise of control over the building with a security firm employed to control access to the building. Stein J was not satisfied that the building was occupied as the occupation was so slight, at 198. The mere exercise of control and maintenance did not constitute the necessary occupation, at 198. A locked, maintained and not abandoned building was not a lawful use or occupation, at 198. Stein J held the building was used given the provision of maintenance and cleaning of the building, active marketing of the building, security personnel controlling the building, the central car park being utilised and office furniture being stored in parts of the building. In obiter remarks in Wagga Wagga (CA) Tobias JA at [84] considered these indicia of use were insufficient to render the building non claimable. 83Wagga Wagga considered whether steps taken to sell a former motor registry building were a use of the land which rendered it unclaimable Crown land. At first instance the decision to sell the land and the steps taken to further that intention were found to be an actual use of land. On appeal, the Court of Appeal held that used means actually used in the sense of being used in fact and to a more than a notional degree, Mason P at [33]. The decision to sell and taking steps to sell most of which were not on the claimed land did not constitute the actual use of the land. Mason P also stated at [24]: In short, Crown land that has been vacant for years, has fallen into a state of disrepair, has been identified as surplus to departmental needs and for which there is no known reason for retention is precisely the type of land which the ALR Act envisages ought to be available for claim absent any suggestion that other exclusions apply. It is not being used in any relevant sense. 84The High Court upheld the Court of Appeal. Hayne, Heydon, Crennan and Kiefel JJ found more generally at [69]-[70]: 69 No matter whether the question is framed in the statutory terms ("not lawfully used or occupied") or, as here, is framed more narrowly as one about use, attention must be given to identifying the acts, facts, matters and circumstances which are said to deprive the land of the characteristic of being "not lawfully used or occupied". Of course, it is necessary to measure those acts, facts, matters and circumstances against an understanding of what would constitute use or occupation of the land. But three points should be made. First, nothing that was said in the earlier decisions of the Court of Appeal, and nothing that is said in these reasons, should be understood as attempting some exhaustive definition of when land is not lawfully used or occupied or of what is relevant use or occupation that will take lands outside the definition of claimable Crown lands. Secondly, as Mason P rightly said, "use" is a protean word. Thirdly, recurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land. And a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land. But while these propositions may sufficiently identify the most common cases where it can be said that there is use or occupation of the land, they are not propositions that chart the metes and bounds of those ideas. As the decision in Council of the City of Newcastle v Royal Newcastle Hospital ("the City of Newcastle Case") shows, land adjoining hospital grounds and purposely kept in its natural state to provide clean air and quiet undeveloped surroundings, can be said to be "used or occupied by the hospital for the purposes thereof". 70 Hence 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". 85Kirby J in a separate judgment referred to Priestley JA in Daruk with approval at [32]. 86Bathurst Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 82; (2008) 158 LGERA 43 (Bathurst (LEC)) also considered whether Crown land was lawfully used and occupied as its use changed. The land was reserved under the CL Act for the preservation of native flora. The land was used for a nature park by the local council which largely focused on housing native animals. The park was closed by the local council and remained closed at the date of claim. I found that there was insufficient evidence to support use and occupation as the principal matter able to be relied upon in terms of lawful use and occupation was the fencing of the relevant land which I found was insufficient at [102], [104] and [110]. The High Court's decision in Wagga Wagga was then delivered and was referred to by the Court of Appeal in Bathurst (CA). In the Court of Appeal Tobias JA held in obiter at [158]-[161]: 158 Before leaving this part of the appeal I would refer again to the judicial gloss placed upon the words of s 36(1)(b) to the effect that the occupation of the claimed land must be an actual occupation which, as a matter of degree, is more than nominal or notional. As I have sought to point out at [120] above, there is a difficulty in identifying what is an occupation which, although an actual physical occupation, is only nominal or notional. 159 On the basis of what fell from Kirby J in Wagga Wagga, 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. If this be correct, then a notional or nominal use or occupation is, in effect, a constructive, as distinct from an actual, use or occupation being a form of occupation rejected as satisfying s 36(1)(b) by Priestley JA in Daruk at 162. Kirby J seems, therefore, to have conflated the two concepts which would not appear to accord with Priestley JA's approach in Daruk. 160 There is no express majority decision as to the meaning of the limitation which Priestley JA sought to impose in Daruk. The joint judgment of the High Court in Wagga Wagga did not, at least expressly, mention the matter although their Honours' third point as articulated at [69] of their judgment (see [122] above) would seem to indicate that it was not considered to be a relevant consideration although it might be regarded as subsumed in their Honours' description of their third point. I would, if permitted, prefer the approach of Kirby J to the effect that a notional or nominal use or occupation is one which is not an actual use or occupation but only one which is constructive. This accords more with the statutory text which ascribes to language its ordinary meaning rather than using words as terms of art. 161 However, given that this court on a number of occasions has stated that the use or occupation must be a present actual use or occupation that is more than nominal, it seems to me that what is required is an actual use or occupation which is more than de minimus. Or, to put the matter another way, the relevant use or occupation must in the circumstances of the particular case, and in terms of its nature, quality and extent, be of some substance rather than so miniscule, insignificant or token as to be disregarded: cf what I said in Wagga Wagga at [83]-[84] with respect to Stein J's finding in the Dept of Education case that although there was no occupation of the building by the Department, it was still being used by it. 87His Honour held that given the amount of activity on the land that I incorrectly found that the land was not used or occupied. The occupation established was unlawful however as it was not carried out in accordance with the purpose of the reservation of the land under the CL Act. The Crown land was therefore claimable. 88Basten JA cited Priestley JA in Daruk at [225]-[228] with approval, noting the principles stated by his Honour have been applied in a number of subsequent cases including in Wagga Wagga (HCA). 89More recently, Malabar (LEC) considered whether a police station which was closed and being prepared for sale was being used or occupied at the claim date. At first instance Sheahan J cited Kitto J in Newcastle City Council v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 (Newcastle Hospital) at 507-508 finding that occupation connotes more than legal possession, requiring permanence and/or a degree of continuity of occupation, and Tobias JA in Bathurst (CA) at [158]-[160] distinguishing nominal use or occupation from actual use or occupation. At [70] Sheahan J identified that intention to use the property gives rise to a notional not actual use citing Tobias JA in Bathurst (CA) and Kirby J in Wagga Wagga (HCA). His Honour found the land was claimable, it not being used or occupied. 90Sheahan J's decision was upheld on appeal, Basten JA (Beazley, McColl, Macfarlan JJA and Sackville AJA concurring) held at [35]-[36]: 35 As 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." 36 This 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. Does occupation require a purpose? If so what is it? 91The above authorities inform my consideration in this matter as I now discuss. This case raises the extent to which occupation must be assessed in relation to a purpose (in contrast to use where the authorities confirm a purpose of a use is relevant to an assessment of its lawfulness) for example Wagga Wagga (HCA) at [69] and Malabar (CA) at [35] (quoted above at par 90) where Basten JA stated that what constitutes use and occupation will depend on the purpose of the user/occupier (expressed as putative use) and the surrounding circumstances. The NSWALC relied on both these authorities to submit that occupation of land had to be seen to serve a purpose in order to assess activities occurring on land. This is not a settled matter, somewhat surprisingly given the volume of cases in this Court, the Court of Appeal and the High Court in relation to s 36(1)(b) of the ALR Act. I do not regard the authorities relied on by the NSWALC as clearcut in this regard. 92The High Court in Wagga Wagga at [69] distinguished between use and occupation, stating physical acts by which the land is made to serve some purpose usually constitutes use of land. A consideration of legal possession and some degree of permanence or continuity will usually constitute occupation of the land, also stressing that each case must be considered on its own facts. The same distinction was made by Kitto J in Newcastle Hospital cited by the High Court in Wagga Wagga at [69] and Basten JA in Malabar (CA) at [35]. The Minister submitted that no purpose is required for occupation. On a strict reading of Wagga Wagga (HCA) that is correct. 93If it is necessary for occupation to be seen to serve a purpose to effect a construction which accords with the beneficial intent of the ALR Act, the importance of which is identified by Kirby J in Wagga Wagga (HCA) at [3]-[21], then the NSWALC submitted that any occupation must be for the purpose of a gaol given the dedication of the land for that purpose under the CL Act. Alternatively, according to the Minister the purpose of the occupation was to hold the land pending a decision on its future use which is a purpose that does not require substantial occupation in order to be fulfilled. I consider the Minister's alternative approach is available to support the consideration of occupation. That purpose is not unlawful for the Crown as owner of the land a matter which I consider extensively in relation to the second question below. The occupation at the date of claim to possess, control, secure and maintain the claimed land pending a further decision on its future use did not conflict with the dedication of land for the public purpose of use as a gaol. 94That decisions about the claimed land's future use were being made at the date of claim are clear from the correspondence tendered in the Minister's tender bundle between the SPA and the Council dated 19 December 2011 which states that the preferred management was likely to be the creation of a Crown Reserve under the management and care of a reserve trust and that CSNSW had undertaken to maintain 24 hour security until new arrangements were in place (par 29). These interim arrangements are also confirmed in a SPA email dated 13 February 2012 summarised above in par 31. Correspondence and a ministerial briefing saying similar things (set out above in par 40) was relied on by the NSWALC to submit that the premises had been "mothballed" (quote of the Attorney-General in a meeting with the Council on 20 October 2011 recorded in a letter of 2 November 2011 by the Council) and that in February 2012 the SPA was consulting with relevant parts of the Crown and the Council about the future of the claimed land (SPA ministerial briefing dated 15 February 2012 and a letter from the parliamentary secretary for treasury to the acting mayor summarised in par 40 and 42). That can all be accepted but does not mean that the claimed land was not theoretically occupied for the purpose identified by the Minister at the date of claim. 95It remains to be determined if the evidence establishes occupation as a matter of fact. Onus of proof borne by Minister 96Section 36(7) of the ALR Act places the onus on the Minister to satisfy the Court that land or a part thereof is not claimable Crown land on the balance of probabilities. The NSWALC submitted that nothing said by Macfarlan JA in Limbri at [39] overruled or modified the statement of Basten JA in Bathurst (CA) at [202] that: the Minister, bearing the burden of satisfying the trial judge of the ultimate fact, namely that the lands were not claimable Crown Lands also bore the burden of establishing such primary facts and inferences as must be drawn there from in order for his decision to be upheld. 97At [39] in Limbri Macfarlan JA referred to Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [46]-[64] the decision of Heydon J in dissent where his Honour considered the nature of the evidential burden of proof in negligence proceedings. Some of Heydon J's findings are summarised and adopted by Macfarlan JA at [39] where his Honour states that where the Minister bears the onus of proof the court could take into account the failure of the land council to adduce evidence of or identify in submissions any sensible competing alternative inference that could be drawn. The evidential burden referred to by Macfarlan JA in Limbri only operates according to the NSWALC where the evidence is compelling. In Strong at [46]-[64] Heydon J explores inter alia the nature of the evidential burden held by a party with the legal burden, here the Minister. Heydon J in obiter in Strong is not authority that the evidence must be compelling before the evidential burden shifts to another party and that is not the test adopted by Macfarlan JA in Limbri at [39]. It is not necessary to analyse all of Heydon J's findings at [46]-[64] except to note that his Honour discusses three senses in which the evidential burden can arise at [52]-[54] one of which is the submission made by the NSWALC. The Minister is not required in proceedings of this type to establish a compelling case before an evidential burden shifts to the NSWALC. 98In Class 3 of its jurisdiction the Court is not bound by the rules of evidence, and can inform itself on any matter and in such manner as it thinks appropriate under s 38(2) of the Land and Environment Court Act 1979. The NSWALC submitted that broad power is limited to what "the proper consideration of the matters before the Court" permits, referring to R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 where Evatt J said at 256: some stress has been laid by the present respondents upon the provision that the Tribunal is not 'bound by any rules of evidence'. Neither it is. But this does not mean that all rules of evidence can be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of enquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer substantial justice. 99The NSWALC submitted, and I accept, that the issues in dispute must be determined by probative evidence: Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289; (2009) 168 LGERA 71 per Basten JA at [114]. 100The NSWALC submitted and I accept that relying on speculation or conjecture is an impermissible basis upon which to make factual findings, the NSWALC relied on Luxton v Vines (1952) 85 CLR 352 per Dixon, Fullaghar and Kitto JJ at 358, Richard Evans & Co Ltd v Astley [1911] AC 674 per Lord Robson at 687, Bell IXL Investments Ltd v Life Therapeutics Ltd [2008] FCA 1457; (2008) 68 ACSR 154 per Middleton J at [14] and my decision in Vilro Pty Ltd v Roads and Traffic Authority (NSW) [2010] NSWLEC 234; (2010) 179 LGERA 47 at [105]-[107]. As Dixon CJ observed in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305, the law: ... does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied. 101I referred to a number of these including the quote from Jones v Dunkel at 305 and other authorities to similar effect in Camberwell at [93]-[95]. The evidence relied on by the Minister will be assessed in light of the need for probative evidence which allows an inference to be drawn rather than speculation, mindful of the need to administer justice. Evidence establishes occupation 102Actual occupation such as evidence of actual exercise of control and physical acts of occupation must be assessed at the date of claim of 24 February 2012. The claimed land is 2.206 ha (exhibit 2 p 145). It consists of the larger Lot 7304 on which is located the large gaol complex surrounded by a perimeter fence (note not boundary fence) inside which are prison buildings built around two internal courtyards the smaller one of which is grassed. Separate buildings of various sizes exist outside the perimeter fence of the gaol and formal gardens and grounds are located on three sides of the gaol complex, as can be seen in the aerial photograph in exhibit A. The entry to the gaol is through the formal gardens at the front facing Argyle Street and the Old Hume Highway on Lot 7304. Lot 447 is much smaller and contains grounds and one shed-like building. 103The Minister submitted the following indicia of occupation established maintenance and control of the claimed land pending a decision on its future at the date of claim: (a)24 hour on-site security was maintained; (b)the premises on the claimed land were kept locked; (c)water supply to the claimed land was maintained; (d)electrical supply to the claimed land was maintained; (e)sewerage services to the claimed land were maintained; (f)there was a continuing contract for the maintenance of essential services and any emergency maintenance at the claimed land; (g)approximately every week, 8 to 15 CSO workers attended the claimed land, including replacement of the sprinkler system; (h)gardening tools and implements were stored on the claimed land for the use of CSO workers; and (i)members of the public wanting to visit the gardens sought permission from CSNSW and/or the on-site security personnel. 104The NSWALC extensively criticised the Minister's evidence as not sufficiently probative of activity at or near the claim date to give rise to the required inference of occupation. The evidence was also said to show activities that were transitory and de minimis and not to amount to occupation at the date of claim. The evidence in relation to security services is contained in the affidavit of Mr Hay director asset management within CSNSW who attests to arranging 24 hour 7 day security at the claimed land with arrangements from October 2011 up to and beyond the date of claim. Keys to Berrima Correctional Centre were provided to the security company ATMAAC Pty Ltd. Invoices attached to Mr Hay's affidavit date from 17 October 2011 to 29 April 2012. The NSWALC did not cross-examine Mr Hay. Numerous invoices are contained in the Minister's tender bundle for the period 17 October 2011 to 29 April 2012 and refer to the provision of one guard during the day and two guards at night from 17 October 2011 to 22 January 2012 and one static guard for two twelve hour shifts from 23 January 2012 to 29 April 2012. The NSWALC criticised this evidence because it did not provide specific detail of what the security guards did on a large site and therefore the nature, quality and extent of the presence was not proven. 105As the Minister submitted this evidence does give rise to a proper inference, not mere speculation, that the provision of adequate security to the claimed land on a 24 hour basis was provided given payment of invoices for a specific number of guards (as summarised in the Minister's submissions in reply above at par 71). It is reasonable to infer that static guard does not mean that a guard stood in one place at all times but rather that a guard was stationed at the land, in contrast to a mobile security service. The NSWALC has not provided evidence suggesting a sensible competing alternative, Limbri at [39]. 106Similar conclusions apply to the ProGroup contract for maintenance of the gaol buildings. The NSWALC submitted that there was no evidence that ProGroup attended the claimed land and that the contract and payment for services under a head contract was not probative that work was carried out inside the gaol building. I disagree. The existence and terms of the ProGroup contract are as attested to in the unchallenged evidence of Mr Hay, the contract contained in the Minister's tender bundle and the approval by the Minister for Corrective Services of an extension of the contract for the period before and after the date of claim. Invoices were received and payment was made under that contract which gives rise to the inference that maintenance was carried out in accordance with the contract. I note that included a reduced service delivery model in the three months leading up to the claim in February 2012 meaning on an as needed basis. No competing alternative inference arises in the absence of evidence from the NSWALC. 107Provision of fire management services by MDL Asset Services Pty Ltd is identified in documents referred to in par 32, a service report dated 17 November 2011 and an inspection test and preventative maintenance report dated 17 November 2011. The single report in November 2011 was criticised by the NSWALC as not establishing this service as a permanent activity. 108The evidence relied on by the Minister in relation to the carrying out of maintenance of fruit trees and rose bushes, gardening and grounds maintenance by CSO workers is found in the affidavit evidence of Mr Harrington, who had overall supervision of the program, and Mr Tate who supervised the CSO workers when they were present on the claimed land. Neither deponent was cross-examined. The community agency application dated 9 January 2012 in evidence identifies the work to be carried out, its frequency and how departmental supervision would be undertaken. 109According to Mr Harrington the program commenced in October 2011 and continued until April 2013. His affidavit summarised above at par 11-15 identifies that work needed to be done at the front and at the side of the premises. Work crews of about ten members were originally arranged for Saturdays and Sundays and spent several hours working in the grounds. From time to time crews attended during the week. Mr Tate's affidavit is summarised above at par 18-20 where he identifies what he did from October 2011 to November 2012 and that he completed worksheets for the days he attended. These were in evidence at p 170-198 of the evidence book (exhibit 2). They show Mr Tate attended the claimed land twice in October 2011, twice in November and three times in December 2011 for several hours with between 4-8 participants. In January 2012 he attended six times with between 7-17 participants, in February 2012 seven times with between 9-14 participants. The work sheets in evidence continue after the date of claim up to April 2012. This evidence firmly establishes regular attendance as part of an on-going program of maintenance of the grounds and gardens at the date of claim which I do not consider was transitory or insubstantial. The evidence identifies that mowing took place inside the gaol building according to the affidavit of Mr Tate at par 35-36. The only documentary evidence referring to mowing inside the gaol is a worksheet dated April 2012. 110Evidence of storage of gardening tools is identified in the unchallenged evidence of Mr Tate as summarised above in par 20. Mr Hay's evidence of storage of CSNSW assets in the facility (above at par 26) was criticised as vague, imprecise and lacking in probative value as he did not identify where storage occurred. I agree. 111The evidence concerning the arranging of a visit by Heritage Roses in the affidavit of Mr West (above at par 16-17) assists in establishing that CSNSW was exercising control of the claimed land in the period leading up to the date of claim. The Minister's submissions in reply summarised at par 74-75 are accepted. It is not in dispute that electricity and water services were connected at the date of claim. 112The evidence relied on by the Minister outlined immediately above is probative of the question of occupation. There is nothing in any of the Minister's evidence to cause the Court to undertake methods of inquiry which disadvantage the NSWALC so that no injustice referred to in ex parte Bott arises. The Court's conclusions can be drawn by appropriate inference of what is probable and does not descend into speculation as the many cases referred to by the NSWALC (set out in par 100) identify. 113I agree with the Minister that the various activities should be considered collectively rather than individually. When this is done it is not accurate to describe the premises as locked up and abandoned. It is true to say the maintenance visits were likely to be of short duration and in the case of the fire management service there is specific evidence of only one visit before the date of claim. These activities of security and maintenance for the gaol buildings, provision of services as well as grounds maintenance should be assessed as being part of CSNSW exercising control over the claimed land in order to maintain it. 114In Wagga Wagga (HCA) at [69] permanence or continuity was found to usually constitute occupation. As the Minister submitted an activity which is transitory should be given some weight in a cumulative assessment. Transitory is used to describe acts for which there is evidence. As the Minister submitted, in Wagga Wagga the events relied on were happenstance and not part of a program, unlike the facts in this matter. When assessed as a whole all the activity taking place at the date of claim was more than nominal and was not insubstantial, being directed to the maintenance of the claimed land pending a decision about its future use. The NSWALC's submissions seek to disaggregate the activities to minimise their significance. 115The NSWALC submitted that the Minister's reliance on evidence after the date of claim was contrary to the application of Falconer. The principle in Falconer provides that events after the date of acquisition may be considered to confirm a foresight, not a hindsight. In Aboriginal land claim matters it has generally been directed to the question of whether claimed land is likely to be needed for an essential public purpose, which can require consideration of whether there is likely to be a future need after the date of claim, as confirmed by a list of cases which have considered the principle supplied by the Minister during the hearing. The Falconer principle was not relied on by the Minister. Continuity of activities at the date of claim was demonstrated by evidence of what occurred before and immediately after the date of claim to infer what was occurring at the date of claim, applying a principle of continuity of activity, an approach applied by me in Camberwell at [62], [125] and [127] to assess activity on the claimed land at the date of claim. 116The NSWALC submitted that the activities taking place at the date of claim were not permanent because they would not necessarily continue into the future. The Minister submitted and I agree that possible plans for the future are irrelevant because they say nothing about occupation at the claim date. The key analysis is of the quality and nature of the occupation at the date of claim. No similarity with other cases 117Each case must be decided on its facts per Wagga Wagga (HCA) at [69]. To the extent it can be relevant, the factual circumstances of Education Building, Wagga Wagga and Malabar are noticeably weaker than the present case. One obvious reason is because in all those cases the decision had been made to sell or offer for a 99 year lease the Crown land in issue, so that it was clearly surplus to requirements of the Crown and that informed the analysis of use and occupation by the Court. 118The circumstances in Education Building are referred to above in par 82 and do not provide much assistance in analysing this matter. In Malabar (LEC) there were two claims, one on 27 July 2009 which was refused, and the second claim on 17 February 2010 which was also refused and was the subject of the appeal. A decision was made in May 2009 to sell the claimed land. The evidence disclosed little activity at the date of claim. Officers had stopped occupying the station in preparation for its sale, the station continued to be furnished including police desks and chairs. The station was locked and the back area fenced with a locked gate. The building had a continuous supply of utilities and was serviced by consistent contract cleaning and maintenance (at [47]). The Minister relied on water and electricity being maintained, the reconnection of the phone and computer terminals, security codes and alarm system changed by a security company, urgent cleaning and then routine cleaning (at [49]). The evidence was that on the day before the second claim the premises were unattended, gardens were overgrown and the premises did not appear secure (at [32]). The Minister relied on various invoices for work done for inter alia cleaning, electricity, security and rubbish removal (at [39]). These were described as mostly post dating the claim (at [71]). There was no private security firm employed at the date of claim, safety of the building being checked by police officers who attended the premises, at [48]. Sheahan J found the use to which the premises were put was for the purpose of defeating the land claim to facilitate the sale, at [63]. The evidence relied on by the Minister to establish occupation was insufficient with the premises left largely vacant and unoccupied at the date of claim. 119The NSWALC cited Malabar (LEC) as highlighting the risk of relying on invoices to establish actual use and occupation, but in that case the invoices were criticised on the basis that most were in respect of a period after the date of claim. Photographs taken the day before the claim suggested that the maintenance and other services which the invoices were said to evidence had not been supplied prior to and at the date of claim (at [71]). 120In Wagga Wagga the activity relied on by the Minister related to the preparation of land for sale, most of which occurred off the land. 121In Bathurst (CA) one use of Crown land was ceasing at the date of claim with a possible intention to change to another use. Two judges in the Court of Appeal, Ipp and Tobias JJA, found contrary to my finding that there was evidence of occupation albeit that occupation was not reasoned separately from use. My analysis of insufficient activity to establish use and occupation in Bathurst resulted from the case presented by the Minister which relied on activities I found were not lawful, an approach recognised on appeal by Basten JA at [247]. The circumstances in Bathurst provide little assistance in assessing this case. 122After the hearing New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Newcastle Post Office Claim) [2014] NSWLEC 72 was determined in which the former post office building in Newcastle was found to be claimable Crown land as it was not used or occupied inter alia. The old post office building had been purchased by the State of NSW for a future as yet undetermined use. The building had been vacant for a lengthy period at the time of the sale, and at the date of the land claim. A helpful recitation of principles relevant to the determination of that question is identified at [154]-[160]. These paragraphs do not address the issue of purpose and occupation separately from use. As the Minister submitted the reasoning of Pepper J was largely directed to use and occupation together. Her Honour's reasoning suggests that the issue of purpose and occupation was not identified as an issue in the way I am being asked to consider here. While the NSWALC relied on one sentence at [171], that refers to both use and purpose, reflecting no doubt the issues put by the parties. The balance of the reasoning focusses on use of the building at [172]-[173] and use and purpose thereafter. The facts are different to this matter. The building in question was dilapidated and badly in need of repair. The activities relied on by the Minister identified at [177]-[178] as remediation and emergency works were found to be intermittent and nominal in the context of that case. The work undertaken in the two months leading up to the claim date were identified as installation of fencing, fumigation, rubbish and weed removal, installation of a street sign and maintenance of alarms on several occasions at [179]. These were held to be peripheral activity on the land. The different facts and reasoning reflecting the parties' cases in that matter do not assist in resolving this matter. Land not divisible 123The Minister relied on Newcastle Hospital (a rating case) as indicating that activity on the whole of the claimed land may not be needed in order to establish use and occupation. Williams J held that to exclude others from purchasing and developing vacant land next to the hospital land was sufficient use and occupation given that the use of the hospital grounds for respite was part of its use for hospital purposes (at 499-500). The most substantial activity occurred in the gardens and grounds of the claimed land leading up to and beyond the date of claim. Occupation of that area of the claimed land is established at the date of claim. The activity directed to the gaol building focussed on its maintenance and security which was less. 124If I am wrong that occupation in relation to the land as a whole has not been established because activity in the gaol building complex is not sufficient, an issue that arises is whether the occupation of one part of the claimed land is to be regarded as occupation of the whole of the land. While there are several cases where part of an area claimed has been found to be claimable as provided for in s 36(7) of the ALR Act so that such an outcome is theoretically possible, each case must be determined on its facts. 125Contrary to the NSWALC's submission that I should infer the gardens and grounds were not significant in size compared to the concrete gaol buildings as these occupied about half the site, the opposite conclusion is equally open namely that the gardens and grounds were extensive given that they do occupy about half the site. I have not been provided with areas of the respective parts of the claimed land, but the gardens and grounds would be at least half of the overall land size based on the aerial photograph tendered (exhibit A). That I have found that activity in the gardens and grounds amounts to occupation is a significant finding for the whole of the land. Further the gaol building and grounds/gardens are integrally related not least because the only access to the gaol building complex is through the formal gardens at the front of the building. I do not consider it would be feasible for the gaol building to be occupied in isolation from the grounds as the two are integrally related, another reason the claimed land should be considered as a whole. It follows that the activities relied on by the Minister should be considered as applying to the whole of the land and not disaggregated as between the gaol building and the grounds/gardens. Conclusion on occupation 126The Minister has discharged the onus of proof she bears of establishing that the claimed land was occupied at the date of claim. B. Any occupation must be lawful 127Having found that occupation in fact at the date of claim is established by the Minister the question arises of whether that occupation was lawful within s 36(1)(b). Crown Lands Act 1989 128The relevant sections of the CL Act provide: Part 1 Preliminary 3 Definitions (1) In this Act: ... 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: ... (e) the reservation or dedication of Crown land for public purposes and the management and use of the reserved or dedicated land ... 11 Principles of Crown land management ... Part 5 Dedication and reservation of land Division 1 Preliminary 78 Definitions In this Part and in Schedules 3, 4 and 5: ... reserve means land which is dedicated or reserved under this Act or which immediately before the commencement of this section was a reserve within the meaning of Part 3B of the Crown Lands Consolidation Act 1913... Division 2 Dedications 80 Power of Minister to dedicate land (1) The Minister may, by notification in the Gazette, dedicate Crown land for a public purpose. (2) The dedication takes effect on publication of the notification. Division 4 Formation of reserve trusts 92 Reserve trusts (1) The Minister may, by notification in the Gazette, establish and name a reserve trust and appoint it as trustee of any one or more specified reserves or any one or more parts of a reserve. (2) A reserve trust established under subsection (1) is constituted by this Act as a corporation having as its corporate name the name assigned to the trust in the notification of its establishment. (3) The Minister may, by notification in the Gazette: (a) dissolve a reserve trust, or (b) alter the corporate name of a reserve trust, or (c) revoke the appointment of the reserve trust as trustee of any one or more specified reserves or any one or more parts of a reserve. (4) A reserve trust has the functions conferred on it by or under this Act. (5) A reserve trust is charged with the care, control and management of any reserve (or any part of a reserve) of which it is appointed trustee.... Part 7 Miscellaneous Division 5 Protection of public land 153 Definitions ... public land means Crown land or land within a reserve as defined in Part 5 or any other land granted, dedicated or reserved for a public purpose. 155 Offences on public land (1) A person shall not, without lawful authority: (a) reside on public land, (b) erect a structure on public land, (c) graze stock on public land, (d) drive stock on public land, (e) clear, dig up or cultivate public land, (f) enclose public land (other than a road or watercourse to which section 63 applies), (g) fail to pay any rent due and payable in respect of the enclosure of public land that is a road or watercourse, (h) interfere with any substance, whether on or in, or forming part of, public land, or (i) deposit or leave on public land: (i) any rubbish, litter, refuse, dead animal, filth or other similar matter, or (ii) any matter of a prescribed class or description, whether or not of a kind referred to in subparagraph (i), except in a place or receptacle provided for the purpose.... Crimes (Administration of Sentences) Act 1999 129Relevant sections of the Crimes (Administration of Sentences) Act 1999 (CAS Act) provide: Part 1 Preliminary 2A Objects of Act (1) This Act has the following objects: (a) to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment, (b) to ensure that other offenders are kept under supervision in a safe, secure and humane manner, (c) to ensure that the safety of persons having the custody or supervision of offenders is not endangered, (d) to provide for the rehabilitation of offenders with a view to their reintegration into the general community. (2) In the pursuit of these objects, due regard must be had to the interests of victims of the offences committed by offenders. (3) Nothing in this section gives rise to any civil cause of action or can be taken into account in any civil proceedings. 3 Interpretation (1) In this Act: ... correctional centre means: (a) any premises declared to be a correctional centre by a proclamation in force under section 225, including any juvenile correctional centre declared under section 225A ... correctional complex means any premises declared to be a correctional complex by virtue of a proclamation in force under section 224. Corrective Services NSW means that part of the Department of Justice and Attorney General comprising the group of staff who are principally involved in the administration of this Act. ... Minister's submissions 130The occupation was lawful. Firstly, the claimed land is public land which the Crown owns. It is not Crown land as defined in s 3 of the CL Act and therefore s 6 of the CL Act does not apply. Secondly, nothing in the CAS Act restricts CSNSW to only occupy land that is a Correctional Centre or a Correctional Complex as defined under the CAS Act. Thirdly, CSNSW occupied the claimed land as a department of executive government. Nothing in the CL Act restricts government departments from performing the functions of the Crown. The claimed land was public land 131The claimed land was dedicated for a public purpose and is not Crown land as defined in s 3 of the CL Act. The prohibition on its use other than pursuant to s 6 of the CL Act does not apply to it. Because the land was "public land" as defined in s 153, the offences as laid down by s 155(1) of the CL Act do not apply to the claimed land. As legal proprietor and registered owner of the claimed land, and in the absence of any provision to the contrary, the Crown could lawfully occupy the claimed land and take the entirely expected and usual measures of any landowner to control, service, maintain and secure the land. No legal provision has been identified which prevents the forms of occupation asserted by the Minister, including consenting to CSO workers working on the land. The relevant activities even if otherwise prohibited were in this case undertaken with "lawful authority". 132The Minister contended that the premises were occupied by the Crown to possess, control, secure and maintain the premises pending further decision on the purpose for which the premises would be used. A future use could be contrary to the dedication for gaol use because that dedication could be revoked under s 84 of the CL Act. In the meantime the occupation of the premises gave rise to no conflict with the dedications as a gaol. 133Contrary to the NSWALC's argument that dedicated land passes out of the Crown's control in reliance on Windeyer J in Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54 at 74 where Windeyer J stated "lands granted for public charitable purposes were removed from control of the Crown and were properly described as dedicated", the Minister argued that Rutledge does not state the converse; that lands dedicated under the CL Act are necessarily removed from the control of the Crown. Only if the dedication has the effect of placing the land in the control of a trust does the control of the land pass from the Crown (if the Crown is not itself the trustee). This is reinforced by Windeyer J at 76.1 stating "... there can be no dedication in any strict sense unless a public trust be created". Where the land is simply dedicated for a public purpose and vesting in a trust is not effected, and in particular where the public purpose is one necessarily carried out by the Crown (such as a gaol purpose), control of the land remains with the Crown subject to the parameters of its use by the terms of the dedication: see New South Wales v Commonwealth (1926) 38 CLR 74 at 91-92 per Isaacs J. 134The NSWALC has not identified any section within Pt 5 of the CL Act (dealing with dedications and reservation of Crown land) where the Crown's occupation of the claimed land is in conflict. The restrictions on the use and occupation of "Crown land" otherwise set out in the CL Act do not apply to it. Crimes (Administration of Sentences) Act 1999 does not restrict the activities of CSNSW 135The NSWALC's argument is predicated upon the assumption that CSNSW can only do things authorised by the CAS Act. While the CAS Act gives certain powers and responsibilities to CSNSW it does not restrict the powers of the Crown in the possession, maintenance, control and securing of property registered in its name. The Minister argued that the CAS Act does not restrict CSNSW occupying only land that is a "Correctional Centre" or "Correctional Complex" as defined by the CAS Act. Exercise of executive power 136There is nothing in the CL Act that prevents a government department of the Crown from performing the functions of the Crown in respect of the maintenance and occupation of Crown land. CSNSW does not exist in law or fact separately from the Crown in right of NSW or constitute a distinct entity such as a statutory corporation. It has no separate legal personality. Section 3 of the CAS Act defines Corrective Services NSW as being that part of the Department of Justice and Attorney-General (now the Department of Justice) comprising the group of staff who are principally involved in the administration of the CAS Act. CSNSW is merely an administrative unit of the Crown. CSNSW occupied the claimed land as a department of the executive government and requires no statutory authorisation to do so. A particular government department occupied land that was registered in the proprietorship of the State of NSW and therefore no impediment to the lawfulness of CSNSW's occupation of the claimed land at the date of claim. 137The ministerial briefing dated 15 February 2012 in evidence identifies that arrangements are being made between the SPA, Crown Lands and CSNSW for the future use of the land. There is no suggestion of a dispute within the Crown as to who should manage the land. Within the Crown it is entirely to be expected that CSNSW would be the relevant department maintaining and securing the land pending a decision about its future. In a letter to the Council the SPA stated that arrangements were underway to transfer control of the property to Crown Lands and that meanwhile CSNSW had undertaken to maintain the existing 24-hour security surveillance of the land until new arrangements had been implemented. NSWALC's submissions 138Firstly, CSNSW did not have statutory authority over the claimed land at the date of claim under s 36(1)(b). Secondly, to the extent that activities occurred on the claimed land at the date of claim, work performed for CSOs and activities undertaken by contractors were not capable of being legally authorised by CSNSW and therefore could not satisfy lawful occupation for the purposes of s 36(1)(b). Neither the correctional service officers nor contractors for CSNSW had authority to authorise members of the public to come onto the claimed land. CSNSW had no authority to authorise activities on the claimed land 139The proclamation for the claimed land was as "Berrima Correctional Complex" and the "Berrima Correctional Centre" for functions granted under the CAS Act. When the proclamations of the claimed land were revoked by publication in the Gazette on 10 February 2012, the Commissioner of Corrective Services and his or her delegates no longer had statutory authority over the claimed land. This was the situation as at the date of claim. 140CSNSW did not have authority to occupy the land "as a department of the executive government" because it is well established that the constructive occupation of the Crown is insufficient for the purposes of s 36(1)(b) of the ALR Act: Daruk per Priestley JA at 160F-G and 162D-E. No evidence suggested that officers of CSNSW occupied the site. Any suggested occupation arose only from the occupation by others under the "purported" authorisation of CSNSW. 141CSNSW had no authority to occupy the claimed land. CSNSW is defined in s 3 of the CAS Act as that part of the Department of Justice and Attorney-General "comprising the group of staff who are principally involved in the administration of this Act". By definition CSNSW is limited to the administration of the CAS Act. Further the powers of the Commissioner are prescribed by statute. Section 232(1) of the CAS Act provides that: 232 Commissioner (1) The Commissioner: (a) has the care, direction, control and management of all correctional complexes, correctional centres and residential facilities... 142Secondly the claimed land is dedicated land pursuant to Pt 5 of the CL Act. The CL Act provides a statutory framework by which such land is to be managed and used: s 10 (e) and Pt 5. This statutory framework sets out a regime for the care, management and control of reserved and dedicated land that must be complied with, consistently with strong judicial statements in relation to conformity with Crown lands legislation: see for example O'Keefe v Williams [1907] HCA 64; (1907) 5 CLR 217 per Griffith CJ at 225, Davies v Littlejohn [1923] HCA 64; (1923) 34 CLR 174 at 183, New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Kinchela claim) [2009] NSWLEC 46; (2009) 166 LGERA 137 at 153 and Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (Mabo (No 2)) per Brennan J at 63. Neither the Department of Justice and Attorney-General nor CSNSW are empowered by the CL Act to deal with land reserved or dedicated under that Act. Consequently, as an extension of this, the NSWALC contended that CSNSW had no power to enter into contracts to authorise the occupation of land that is dedicated under Pt 5 of the CL Act. 143The effect of dedication under the CL Act was identified in Rutledge. Windeyer J (at 74) stated that land which becomes dedicated passes out of the Crown's control: see also Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404 at 462 per Higgins J, Re Mataranka Land Claim (1986) 15 FCR 520 at [18] per Wilcox J and Wentworth Park Sporting Complex Trust v Leichhardt Council [2002] NSWLEC 152; (2002) 122 LGERA 271 at [42] per Bignold J. Activities not capable of being legally authorised by CSNSW 144The Minister was not legally authorised to permit the activities of CSO workers on the claimed land. If the Minister relies on CSOs as evidence of occupation, then the activity cannot constitute lawful occupation because CSOs do not attach to land, or authorise entry onto land and CSOs require authorisation by a person or body with authority to empower that entry. 145At the date of claim, CSOs were governed by Pt 5 of the CAS Act and Ch 6 of the Crimes (Administration of Sentences) Regulation 2008 (CAS Regulation) (repealed). Section 108(a) of the CAS Act provides that certain standard conditions apply to community service work and those conditions are set out in cl 211 of the CAS Regulation, including several references to "attendance site" and "work site". The CAS Regulation defines "attendance site" as "in relation to an offender under Ch 6, a place where the offender performs, or is required to perform, community service work involving participation in personal development, educational or other programs". Similarly "work site" is defined as "in relation to an offender under Ch 6, a place where the offender performs, or is required to perform, community service work (not involving participation in personal development, educational or other programs)." 146A CSO as administered under the CAS Act and the CAS Regulation is insufficient to authorise the presence of CSO workers and their supervising officers on any land, public or private and so the provisions of these two Acts do not of themselves authorise the entry onto land. Rather, they assume the existence of legal authority that is to be found elsewhere for offenders and supervising officers to enter upon land to undertake community service work. There is no evidence that any authorised person in relation to the claimed land permitted the entry of CSO workers onto the land for the purposes of community service work. Their presence was purportedly authorised by CSNSW in the mistaken belief that it still had authority in relation to the claimed land. 147Section 237 of the CAS Act empowers the Commissioner to engage contractors in regard to "correctional centres". CSNSW had no power to enter into a contract authorising occupation of land which was a former correctional centre or former correctional complex. 148CSNSW was restricted to the administration of the CAS Act. Therefore as at the date of claim, any contract between CSNSW and ATMAAC and ProGroup was without legal power and void: Cope v Rowlands (1836) 150 ER 707 per Parke B at 710 inter alia. 149The primary contracts in regard to the claimed land were void, any sub-contract between MDL and ProGroup would also be void for illegality as ProGroup cannot confer on MDL legal rights which it does not have. Or, if not void, frustrated by the statutory action of the Government in revoking the proclamations: see Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 per Lord Radcliffe at 729 and the frustration of a contract by government action in Codelfa Construction Pty Ltd v State Rail Authority [1982] HCA 24; (1982) 149 CLR 337. Occupation lawful at date of claim 150The registered proprietor of the claimed land is the State of New South Wales. Following the revocation of the proclamations of the land as a correctional centre and correctional complex under the CAS Act, the CAS Act had no application to the land. Its legal status therefore derives from the dedication of the land for a public purpose under the CL Act. It is not Crown land, as defined in s 3 of the CL Act. It is land owned by the Crown which is public land as defined under the CL Act. That is all agreed. I note for completeness the land is claimable Crown land as defined by the ALR Act in that it is land vested in Her Majesty. The land is the subject of dedications for "Gaol Site (extension)", "Gaol Purposes" and "Gaol Site (addition)" under the CL Act (by virtue of transitional provisions). It is not the subject of a reserve trust as provided for in Pt 5 of the CL Act for dedicated and reserved land. One issue in dispute is how the claimed land can be lawfully managed given its status as public land under the CL Act owned by the Crown. This issue also informs the question of the purpose of occupation which I refer to above in par 93. If CSNSW cannot lawfully occupy and manage the claimed land any purpose the Crown may have in occupying the land cannot be effected through it. My finding in this part of the judgment will inform the lawfulness of the purpose of occupation. 151The NSWALC submitted that Crown land dedicated for a public purpose under the CL Act must be managed by the Minister administering that Act. The Minister submitted that as the land remains in the control and ownership of the Crown essentially any part of the Crown can manage it. As CSNSW is part of the Crown it is lawful for it to occupy the claimed land and manage it through exercising control over it (as I have accepted it has done above). Crown can occupy dedicated public land 152I will first consider the question of whether the Crown generally can occupy (to be distinguished from use) and manage dedicated public land which it owns for which no reserve trust has been established under Pt 5 of the CL Act. In further submissions filed after the substantive hearing at the Court's request, the NSWALC submitted that Pt 5 provides for the formation of reserve trusts over land which is dedicated or reserved under the CL Act. Reserve trusts can be established under Div 4 of Pt 5 for land which is dedicated or reserved (s 78 and s 92). One mechanism available under the CL Act for the management of dedicated land is through a reserve trust. That is all correct however, as the Minister submitted, there is no obligation imposed on the Minister administering the CL Act to create a reserve trust for public land under that Act. None has been created under Pt 5 in relation to the claimed land to date. This management option is being considered according to the departmental communications in evidence (ASF par 14-16, exhibit 2 tab 6 p 119, p 124, tab 7 p 226, p 228). 153Another mechanism available according to the NSWALC is the revocation of the dedications pursuant to s 84 of the CL Act and the management of the land in accordance with principles of Crown land management in s 11 and the powers under the CL Act in relation to Crown land. Such a mechanism is provided in the CL Act but is not specified as being required in any circumstances. The NSWALC's submissions would have greater traction if the use of the land by the Crown was in issue, but it is not. 154That separate legislation can apply to dedicated land as the NSWALC correctly submitted does not assist in the construction of the CL Act which is the only relevant Act in these circumstances. As the Minister submitted, once land is dedicated for a public purpose the restrictions on the use of Crown land do not apply. Division 2 of Pt 5 of the CL Act deals with the dedication of land. Divisions 3-8 of Pt 5 all deal with reserved land or reserve trusts for reserved or dedicated land. No mechanism for management of dedicated land is mandated under the CL Act. The authorities relied on by the NSWALC cited in par 142 which emphasise the importance of conforming with Crown lands legislation can all be accepted but do not address the particular circumstances before me. 155No compulsory mechanism exists in the CL Act for managing public land. Once dedicated under the CL Act the Minister has no statutory obligations for the land under the CL Act. At issue is whether the Crown as the owner of public land can lawfully manage and occupy the land in these circumstances. That has not proved a straightforward issue to answer and no case which has directly considered such a question in relation to NSW Crown land legislation or the history of Crown land in NSW was referred to by the parties. One reason the matter is difficult to resolve is that neither parties' submission is supported expressly by the CL Act. 156There is no statutory basis in the CL Act for the NSWALC's submission that in the absence of a reserve trust lawful control and occupation by the Crown can occur only by a statute conferring power on the Crown to occupy land dedicated for a public purpose. Relying on Rutledge per Windeyer J at 74 the NSWALC submitted that the dedication of Crown land as public land places it outside the control of the Crown. Windeyer J's judgment, as the Minister identified, must be read a whole and does not support the NSWALC's submission. Windeyer J recognised in 76 that control is not relinquished until a trust is established. The NSWALC submitted that the part of the judgment relied on by the Minister was considering a series of constitutional and legislative questions that arose before the Crown Lands Alienation Act 1861(repealed) and prior to provisions such as s 80 of the CL Act which permit dedication of Crown land. The same submission applies equally to the NSWALC's argument, namely there are now statutory provisions for Crown land in NSW not in existence at the time of Rutledge. The NSWALC further submitted the effect of s 80 was to remove the land from the control of the Crown. Section 80 does not state that it has the effect of removing land from the control of the Crown, it provides simply for the dedication of land. 157Wilcox J in Re Mataranka Land Claim cites the passage from Windeyer J in Rutledge relied on by the NSWALC (at 524-525) as a submission of one of the parties. The judgment does not assist in this matter as Wilcox J does not ultimately accept the submission based on that part of Rutledge as relevant to the context before him (of whether a stock route is a road available as a public right of way) at 525. 158In Wentworth Park Bignold J quoted Windeyer J in Rutledge at 74-76 at [41]-[43] in the context of determining whether land was owned by the Crown, the land in question having been dedicated in perpetuity as a park under the Blackwattle Bay Land Reclamation Amendment Act 1878 (repealed). His Honour found that the beneficial ownership of the land had passed out of control of the Crown. That finding was made in the particular statutory context before his Honour. It does not assist me in the construction of the CL Act. 159Williams v Attorney-General for NSW (1913) considered whether land used for Government House in Sydney was under the control of the Crown in right of NSW or the Imperial Crown in England and involved consideration of the meaning of waste land of the Crown under the Constitution Act 1855. It is factually and legally somewhat removed from the current CL Act scheme which applies in NSW. If I understand the NSWALC's case correctly, reliance is placed on the dicta of Higgins J at 462 where his Honour held that to dedicate or set apart land for some public use connotes the giving to the public of some rights in land which subtract from the Crown's full ownership. Since then the Crown Lands Consolidation Act 1913 (repealed) and then the CL Act have been enacted. That case does not address the circumstances before me. Interestingly the Minister relied on the same part of Higgins J's judgment as supportive of her submissions. 160The NSWALC submitted in relation to New South Wales v Commonwealth (1926) 38 CLR 74 that Isaacs J at 91 stated that the use of dedicated land is restricted by the terms of the dedication. That can be accepted but as the Minister submitted that statement does not address restrictions upon the occupation and management of dedicated land while it is being transitioned from one use to another. 161Further, the legal position of the Crown as occupier of public land which it owns is not necessarily informed by cases such as Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee Claim) [2012] NSWCA 358; (2012) 84 NSWLR 219, Limbri and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Boggabri) [2014] NSWLEC 58 referred to by the NSWALC. Those cases considered whether use or occupation of Crown land by a third party was lawful. Goomallee and Limbri concerned the use of land reserved for specified purposes under the CL Act by third parties. As the Minister submitted the facts of Boggabri are quite different, concerning land held under a trust established under the Commons Management Act 1989 (CM Act). At issue was the power of a common trust established under the CM Act to deal with the land. Those facts are not comparable to the Crown in right of the State of NSW exercising control over land dedicated for a public purpose. The occupation (not use) of land by the Crown as the owner is a markedly different issue in legal terms. Does Crown occupy land as owner of land? 162In response to a question from the Court of whether occupation and maintenance by the Crown of the claimed land was an incidence of ownership the NSWALC submitted that the power of the Crown in relation to land is derived from the prerogative of the Crown rather than as an incidence of ownership citing Johnson v Kent (1975) 132 CLR 164. The NSWALC also relied on several older authorities including Williams (1913) to suggest that the occupation by the Crown of land must be pursuant to a prerogative power rather than as owner. None of the cases cited, including Rutledge which I have considered above, expressly supports the NSWALC's submissions. 163In Johnson v Kent the High Court held that the Crown (in right of the Commonwealth in the ACT) does not require statutory authorisation to undertake activities on land as long as these are within its prerogative power and not prohibited by statute. The Minister submitted that it does not matter if the power is derived from the prerogative or because the Crown is the owner of land as the Crown can do what it does in relation to land which the Crown owns, as is the case here. That submission appears correct in this case. Further, Johnson v Kent had a different factual basis. 164I conclude that the Crown can occupy the land it owns which is public land dedicated for gaol purposes, gaol site (extension) and gaol site (addition). It cannot use the land for a purpose contrary to the dedications (and is not doing so). Can CSNSW lawfully occupy the land? 165I have held the Crown can occupy the claimed land. The next issue to arise is whether CSNSW is a part of the Crown which can occupy the land, the NSWALC submitting it cannot. The definition of Corrective Services NSW in s 3 of the CAS Act explicitly recognises other administrative functions of CSNSW as the definition is not exhaustive. The objects of the CAS Act are not directed to the care and maintenance of prison buildings but to the management, rehabilitation and supervision of offenders (s 2A of the CAS Act). The Minister submitted that there are a number of other Acts under which CSNSW has functions conferred on it. More fundamentally CSNSW undertakes its functions as a manifestation of the Crown in NSW. I agree it is highly artificial to require one part of the Crown, for example Crown Lands, rather than CSNSW, another part of the Crown, to manage the claimed land where it remains under the control of the Crown. Nor do I accept the NSWALC's submission that the only function of CSNSW was the carrying out of functions under the CAS Act, which Act now cannot apply to this land. 166Further there is no statutory basis for the NSWALC's submission in the CL Act. 167CSNSW has power to control the land as a manifestation of the Crown in NSW. CSNSW is lawfully able to exercise control over the premises and to enter into contracts to authorise occupation of the land. Given that some of the work relied on was carried out by CSO workers supervised by CSNSW staff CSNSW was engaged in actual occupation in relation to some activity on the land. The NSWALC's submission in relation to CSOs not being authorised by statute falls away. The NSWALC's submissions at par 145-146 as to why the statutory regime for CSOs cannot authorise those activities on the land can be accepted but do not mean that CSNSW could not lawfully authorise entry onto the land. The same finding applies to the entry into contracts for security providers and maintenance so that the NSWALC's further argument falls away. The NSWALC relied on Daruk to argue that constructive occupation was not permitted. That argument does not recognise the entitlement of CSNSW as part of the Crown to exercise control over the land. Daruk was considering the adequacy of indicia of occupation, holding this could not be constructive and must be actual. That is not a finding relevant to whether CSNSW can lawfully control the claimed land and in this case engage others to occupy the land under its authority such as ProGroup, ATMAAC and MDL. 168I conclude that CSNSW lawfully occupied the claimed land at the date of claim. Purpose of occupation by Crown is lawful 169A consequence of the findings in this section of the judgment is that the purpose of occupation (assuming one is required, as discussed above in par 93) by CSNSW in occupying the claimed land pending a decision about its future is lawful. The activities which I have found establish occupation of the land at the date of claim can be relied on by the Crown. I therefore find that pursuant to s 36(1)(b) of the ALR Act the land was lawfully occupied at the date of the claim. Conclusion 170The land the subject of this appeal is not claimable Crown land. The NSWALC's appeal should be dismissed. Orders 171The Court makes the following orders: (1)The New South Wales Aboriginal Land Council's appeal is dismissed. (2)Costs reserved. (3)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: 04 December 2014