Land not “lawfully used” merely by grant of a lease by the Crown

The legislation

The ALR Act is “intended for beneficial and remedial purposes” and has, as one of its overriding purposes, the provision of “land rights for Aboriginal persons in New South Wales”.¹

An Aboriginal Land Council may make a claim under s 36 of the ALR Act.

If referred to the Minister administering the Crown Land Management Act 2016 (NSW) (CLM Act), the Minister must grant the claim in relation to the whole or part of the land over which a claim is made if they are satisfied such land is “claimable Crown lands”.

Relevantly, s 36(1) of the ALR Act provides:

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,

The facts

• The land in question is known the Paddington Bowling Club (Land).
• From 19 May 1962 until 1 December 2010, the Land was subject to a lease from the State of NSW to Paddington Bowling Club Ltd.
• On 1 December 2010, a new lease was entered into for an additional 50 years (Lease). The purpose for which the Land was to be used was stated to be for “[c]ommunity and Sporting Club Facilities, Tourist Facilities and Services, Access”.
• On 30 December 2011, the lease was transferred to CSKS Holdings Pty Ltd (CSKS).
• By October 2015, the Land had largely fallen into disrepair, with the exception of an area used as part of the Wentworth Tennis Club pursuant to an oral sublease.
• On 10 April 2016, an officer of the Department of Primary Industries (Department) wrote to CSKS and noted various alleged breaches of the Lease concerning the state of repair of the clubhouse and grounds.
• On 22 April 2016, solicitors for CSKS wrote to the Department and denied any breach of the Lease. In the same letter it was acknowledged that the property was “unoccupied” and that engineers had been engaged in relation to the Land.
• On 19 December 2016, the NSW Aboriginal Land Council lodged a bulk claim over land within the La Perouse Local Aboriginal Land Council boundary, which included the Land.
• In around February 2018, the Lease was assigned to Quarry Street Pty Ltd (Quarry Street).
• On 10 December 2021, the Minister approved the ALR Act claim in relation to the Land.

Majority

Whilst writing separately, the majority held that land vested in the State is not “lawfully used” within the meaning of s 36(1)(b) of the ALR Act merely by reason of the existence of a lease.

Focussing on the Chief Justice’s judgment, “land” admits of two different meanings—land, in the physical sense, and in the legal sense of legal or equitable rights in respect of land. The Chief Justice reasoned, based on the text of s 36(1) and legislative history, that “land” in s 36(1)(b) had a specifically physical meaning. It followed that “use” likewise has a physical meaning, referrable to physical acts on land which serve a particular purpose. The operative provision therefore encompassed physical lands actually deployed. The Land was not and therefore the Minister was unable to conclude the land was “lawfully used”.

The other Justices in the majority reached the same conclusion by means of different reasons. Each of their Honours ultimately held however that “used” had a narrow meaning, confined to purposeful (albeit not necessarily physical) interaction with land.

Put another way, and representing a point of common ground among the majority, the meaning of “use” in s 36(1)(b) is a question of fact which must be demonstrated to more than a “notional degree” (citing Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 164).

Minority

The minority found that the Land was “lawfully used” with the meaning of s 36(1)(b) of the ALR Act by reason of the lease. Their Honours rejected the view that “use” under s 36(1)(b) of the ALR Act must necessarily be confined to the physical or practical use of land.

The minority stressed that that the alternative, narrower construction gave rise to certain impracticable consequences. In particular, their Honours adverted to the consequence that the Crown’s freehold interest in land would be liable to a successful claim under the ALR Act whenever a tenant ceased to conduct its activities on land.

Implications

As a matter of statutory construction, the decision clarifies that “lawfully used” under s 36(1)(b) of the ALR Act requires a purposeful interaction with land.

The decision also gives rise to significant practical and legal implications for the holders of interests in Crown land and claimants under the ALR Act.

For example, lessees that merely maintain property, such as by doing repairs, to comply with the lease’s terms may not substantiate use above a “notional degree”.

On the other hand, for claimants under the ALR Act, the decision suggests that land that is the subject of a lease is capable of being successfully claimed if the land is used only to a “notional degree”.

If you require advice in relation to the consequences of this decision or your obligations with respect to Crown land, please get in touch with our Environment and Planning team.