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Aboriginal - Aboriginal Land Claim - Aboriginal Land Rights Act 1983 (NSW) - Definition of 'Claimable Crown Land' - whether claimed land was 'lawfully used'
Words and Phrases - 'lawfully used and occupied'
Facts:
On 19 March 1987 the New South Wales Aboriginal Land Council (the 'NSWALC') lodged a claim under s. 36 of the Aboriginal Land Rights Act 1983 (NSW) to 20 ha of land near Nowra on the New South Wales south coast. At the date of claim, part of the land was covered by a mining lease but not physically being used for that purpose. The claim was refused in part by the Minister on the basis that the land affected by the mining lease was:
(a) needed for an essential public purpose; and
(b) lawfully used or occupied.
The NSWALC appealed the part-refusal of the claim. In the Land and Environment Court at first instance, Justice Bignold allowed the appeal, holding that the mining at issue was not an essential public purpose and the land was neither lawfully used nor lawfully occupied: NSWALC v Minister Administering the Crown Lands Act (1992) 78 LGERA 1. The Minister appealed to the Court of Appeal on the limited grounds that Justice Bignold applied the wrong test in determining that the land was not being lawfully used, in that he did not consider that the passive use of land could amount to a use sufficient to defeat the Aboriginal land claim. The appeal was upheld and the matter remitted to the Land and Environment Court for redetermination: Minister Administering the Crown Lands Act v NSWALC (1993) 31 NSWLR 106. An application for special leave to appeal that decision to the High Court was refused. Upon redetermination, Justice Bignold again upheld the NSWALC's appeal against the original refusal on the basis that although the land was being used for mining and brick making purposes, it was not being lawfully used as there was no valid development consent as required by s. 76 of the Environmental Planning and Assessment Act 1979 (NSW): NSWALC v Minister Administering the Crown Lands Act (1995) 13 April 1995, per Bignold J (unreported). The Minister again appealed to the Court of Appeal on the basis that:
(a) 'Lawfully' in the phrase 'lawfully used and occupied' meant only as against any interest in the Crown rather than in a broader sense and therefore a failure to comply with the Environmental Planning and Assessment Act 1979 did not render the use of the land unlawful for the purposes of determining whether the land was 'claimable Crown land' under the Aboriginal Land Rights Act 1983.
(b) There was no lapsing of development consent and therefore the use was not unlawful.
(c) Unless actual physical use had begun, there was neither a need for development consent nor a breach of the Environment Planning and Assessment Act 1979. The use of the land was lawful at the date of the claim.
Held:
Per Handley JA:
(1) The prohibition on the carrying out of development in s. 76(2) of the Environmental Planning and Assessment Act 1979 by the use of land can only be contravened by an active use and has no application where the use is entirely passive. North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20; (1996) 185 CLR 470 distinguished.
Per Sheller JA, with whom Handley and Priestly JJA generally agreed:
(2) The failure to substantially commence a development for which consent was required and the subsequent lapsing of the development consent did not, in the absence of the land being actually used for that purpose, render the use unlawful.
(3) In the composite phrase in s. 36(1)(b) of the Aboriginal Land Rights Act 1983, 'lawfully' must qualify both 'used' and 'occupied'.
(4) 'Lawfully' in the phrase 'lawfully used and occupied' is not limited to only having to be lawful as against an interest in the Crown. If a Crown grant which allows occupancy of land also allows the grantee to use the land in a particular way, for example, to mine for brick clay, such use is a lawful use, unless, in the circumstances, it is made unlawful by some other law such as the Environmental Planning and Assessment Act 1979.
Priestley JA:
Like Handley JA, I agree generally with the reasons and conclusions of Sheller JA.
I also agree with the summary by Handley JA on p. 2 of his reasons of the steps in the reasoning of the trial judge. It seems to me that steps 1 and 3 in the trial judge's reasoning cannot stand together. If the passive use of the ML2 land fell within the definition of development in s. 4 of the Environmental Planning and Assessment Act, then I do not see why such use would not be substantial commencement for the purposes of the consent granted in 1971.
This may seem a highly artificial result. However, the opposite result seems to me to be even more so, as Handley JA shows at p. 3 of his reasons.
In my opinion the appeal should be upheld and orders made as proposed by Sheller JA.
Handley JA:
In this appeal I have had the advantage of reading in draft form the reasons for judgment of Sheller JA. I agree generally with his reasons and with his conclusion that at the relevant date the 14 ha within ML2 were being lawfully used or occupied for the purposes of s. 36(l)(b) of the Aboriginal Land Rights Act and so were not claimable. However I wish to add some further brief observations of my own.
Because of a concession made by the Minister in the earlier appeal to this Court, the land must be treated as unoccupied. The only question in the appeal was whether the land was being lawfully used. There was no active use of the land in ML2 at the relevant date, but for some purposes land may be used although that use is entirely passive. See Newcastle City Council v Royal Newcastle Hospital (1959) AC 248; Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1.
Bignold J held that ML2 was being passively used for mining purposes at the relevant date, being held for active mining in the future, but that this use was unlawful. The Environmental Planning and Assessment Act (the Act) defines development in s. 4 as including the use of land, but there is no definition of use. The trial judge's conclusions may be summarised as follows:
(1) The passive use of the land in ML2 for mining purposes involved development of that land for the purposes of the Act.(2) This was contrary to s. 76 and unlawful without consent.
(3) The consent granted in 1971 had lapsed because there has been no substantial commencement of the development, passive use not being sufficient.
(4) No other consent was in force.
If passive use for a purpose which requires consent is unlawful without that consent, it should constitute substantial commencement and be capable of keeping a relevant consent alive. On the other hand, if passive use is not capable of constituting substantial commencement for this purpose, it should not constitute development either.
The Court is somewhat embarrassed in dealing with the question of unlawful use because all the issues are not before the Court, either because of earlier concessions, or because findings by Bignold J have not been challenged.
In my opinion the appropriate conclusion is that a person making a passive use of land does not 'carry out' development for the purposes of s. 76(2) of the Act. There is no decision, either of the High Court or this Court, which constrains the Court to a different conclusion. The decisions before the 1985 amendments to ss. 106 and 109 of the Act referred to by Sheller JA established that existing use rights enabled the area actively devoted to a protected use to be extended into other land in the same ownership held in reserve for that use. Although the extension of an existing use into land not previously physically used for that purpose constitutes development which is no longer protected by existing use rights, these decisions do not establish that the passive user is carrying out development for the purposes of s. 76(2).
If the operator of a working mine holding adjoining land for future mining, without any active use in the meantime is carrying out development on that land, he may be restrained from continuing such development in contravention of
s. 76(2) and penalised for past breaches of that section. On that view, the Act would penalise an owner's intentions which are not manifested by any overt activity on his land. It would be remarkable if a passive use of land was unlawful merely because of its owner's intentions for its future use. Can an injunction be granted to restrain the owner from having such intentions? How could such an injunction be enforced? How could such 'use' be penalised?
In my opinion the prohibition on the carrying out of development in s. 76 (2) by the use of land can only be contravened by an active use and has no application where the use is entirely passive. Although a passive use of land may be a use of it for some purposes, the remarks of the High Court in North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20; (1996) 185 CLR 470 at 477 referred to by Sheller JA were not directed to this question in the context of s. 76(2) and in my opinion have no application in that context.
The use of this land on the relevant date was entirely passive and was therefore not unlawful. I agree with the orders proposed by Sheller JA.
Sheller JA:
On 19 March, 1987 the respondent, New South Wales Aboriginal Land Council (the Land Council), made a claim, under s. 36 of the Aboriginal Land Rights Act 1983 (the Land Rights Act), for about twenty hectares of land three or four kms south of Nowra on the Princes Highway. The land claimed fell into three parts of which one of about fourteen hectares was the subject of mining lease 6322 (ML2). The appellant Minister refused the claim.
ML2, which was dated 8 March, 1972, granted and demised to Claude Downes for a term of twenty years the subject land 'Being the surface and the land to a depth of one hundred feet below the surface thereof And all those mines, veins seams or deposits of brick clay In and under the said land' to be held 'for the purpose of mining therein for brick clay and for purposes connected with such mining being 'Mining Purposes' within the 'Mining Act, 1906, as amended', and for no other purpose'. Condition 12 of ML2 provided 'The said lessee shall observe and comply with the conditions set out in the Instrument of Allowance of Appeal dated 24th September, 1971 issued by the State Planning Authority of NSW'. In summary, these conditions dealt with the permitted area of excavation, the removal of timber and replanting, the hours of blasting, vehicular access and the lodgment of a bond.
On 8 January, 1948 ML5087 (MLl), a mining lease over land which abutted the northern boundary of the ML2 land, was granted to Mr Downes for a five year term for clay shale and brick-clay extraction. ML1 was renewed on 8 January, 1953 for a further fifteen year term, on 8 January 1968 for a further five year term and on 8 January, 1973 for a further twenty year term. Both the ML1 and ML2 lands adjoined freehold land on which were erected buildings associated with the brickworks and in which brickmaking took place.
On 19 February, 1976 the appropriate Minister, pursuant to the provisions of regulation 43(3)(a) of the Mining Act 1973, authorised the amalgamation of ML1 and ML2, and in 1990 approved a transfer of ML1 and ML2 from Mr Downes to Nowra Brickworks Pty Limited, which, on 21 June, 1991 applied for a renewal of the lease for a further period of twenty years.
The Land Council appealed against the Minister's refusal of its claim. On 28 September, 1992 Bignold J upheld the appeal and ordered that the land claimed, except for a strip fronting the Pacific Highway which was required for future road expansion, be transferred to the Land Council. The main question on the appeal was whether the land claimed consisted of 'claimable Crown lands' and in particular whether the ML2 land was, within the meaning of s. 36(1)(b) of the Land Rights Act, 'not lawfully used or occupied' by the holder of ML2 at the time when the Land Council's claim was made. Bignold J held, inter alia, that the ML2 land was not lawfully used by the holder of ML2. From that decision the Minister appealed to this Court, which on 14 July 1993, allowed the appeal and remitted the proceedings to the Land and Environment Court for redetermination in accordance with law; (1993) 31 NSWLR 106 (Priestly, Clarke and Sheller JJA).
The Minister conceded that the ML2 land was not lawfully 'occupied' within the meaning of s. 36(1)(b) when the land claim was made; (1993) 31 NSWLR 111E. This Court was of the opinion that Bignold J, in determining whether the land was 'used' within the meaning of para. (b), had applied a different and narrower test than this Court had held to be appropriate in Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140.
During the hearing of an application by the Land Council for special leave to appeal to the High Court from this Court's decision, members of the High Court raised the question whether the meaning of the word 'used' could or should be considered divorced from the meaning of the word 'occupied' about which the Minister had made a concession. In refusing leave the presiding Judge, Brennan J, said:
This case turns on the construction of the composite phrase 'not lawfully used or occupied' in s. 36(1)(b) of the Aboriginal Land Rights Act 1983 (NSW). That was not the approach taken in the Court of Appeal. Although we are unable to affirm the judgments in the Court below as propounding the test applicable to all land subject to a mining lease, the facts of the present case do not reveal that the applicant has sufficient prospects of ultimate success to justify the grant of special leave.
The remitted proceedings came back before Bignold J on 31 May, 1994. On 13 April, 1995 his Honour allowed the appeal against the Minister's refusal of the Land Council's claim and ordered that the lands claimed be transferred to the Land Council in accordance with s. 36, except for the strip fronting the Princes Highway. His Honour said:
Applying the Daruk test (as applied by the Court of Appeal to the present case) to my factual findings leads me to the ultimate and inevitable conclusion that as at the date of the Applicant's land claim the whole of the land (comprising the freehold land upon which the brickworks buildings were situate and the two adjoining lands contained in mining leases ML1 and ML2) was being used in fact because it was wholly devoted to the purpose of quarrying and brick making and was being used for that purpose even though the subject land, alone of all three land components comprising the whole of the land, was not being physically so used, but was being held in reserve for future excavation when the clay deposits in MLl became depleted.
Bignold J next considered whether the land was 'lawfully' used. His Honour said that if it was correct to conclude that at the relevant date the subject land was being used for the purpose of mining/brickmaking, as an integral part of the whole of the land (comprising the brickworks and excavation lands) devoted to that purpose, that very 'use' must also constitute a 'use of land' within the meaning of that phrase in the definition of 'development, in relation to land' in s. 4(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) which is:
(a) the erection of a building on that land;(b) the carrying out of a work in, on, over or under that land;
(c) the use of that land or of a building or work on that land; and
(d) the subdivision of that land,
but does not include any development of a class or description prescribed by the regulations for the purpose of this definition.
His Honour held that the Minister, who carried the burden of proof that the use of the subject land was relevantly 'lawful', had failed to prove the lawfulness of the use of the subject land for mining and/or brickmaking purposes. This conclusion was based upon the issue and then lapse of the 'Allowance of Appeal under Section 342V(5) of Local Government Act 1919' (the LG Act) of 24 September, 1971 referred to in condition 12 of ML2 which permitted 'the extraction of clay and shale from' ML2. Section 342V(5) of the LG Act as in force on 24 September, 1971 provided that the decision of the Authority on an appeal under the subsection should be final and should have effect as if it were a decision of the council.
Interim Development Order number 1 for the Shire of Shoalhaven was gazetted on 28 February, 1964. On 17 July, 1970 standard or model provisions (the model provisions) adopted pursuant to s. 342U (3) of the LG Act were gazetted. Clause 1 contained definitions of extractive industry and extractive material.
Extractive industry was defined as meaning 'an industry or undertaking, not being a mine, which depends for its operations on the winning of extractive material from the land upon which it is carried on' and extractive material as 'sand, gravel, clay, turf, soil, rock, stone and similar substances'.
On 4 June, 1971 by a further amendment of IDO 1, as amended, cl. 2(2) was deleted and a new subclause substituted which provided that the model provisions should be adopted for the purposes of the IDO. Clause 8 of the model provisions stated:
Any consent of the council given under an interim development order shall be void if the development to which it refers is not substantially commenced within twelve months after the date of the consent: Provided that the Council may, if good cause be shown, grant annual extensions or renewals of such consent beyond such period up to a period of three years.
Bignold J found 'that there was no substantial commencement of the development referred to in the interim development permission [that is to say, permission for the extraction of clay and shale from ML2] within the statutory twelve months lapsing period and that accordingly, the interim development permission lapsed on 24 September, 1972'. Therefore, the Minister had failed to prove that the relevant use of the subject land at the relevant date was a 'lawful use'.
The Minister appealed to this Court from Bignold J's decision. By leave the Land Council filed in Court a notice of contention to keep alive, in case of appeal to the High Court, the contention that Bignold J erred in law in holding that the ML2 land was used for the purposes of s. 36(1)(b) of the Land Rights Act. Since Bignold J approached this question in accordance with this Court's decision of 14 July, 1993, the Land Council put no arguments in support of the notice of contention.
The Minister challenged the meaning Bignold J gave to the word 'lawfully' in s. 36(1)(b) of the Land Rights Act and the finding he made in accordance with that meaning. The Minister submitted that the phrase 'lawfully used or occupied' meant lawfully as against any interest of the Crown rather than lawfully in a more general sense. Further the Minister submitted that although the ML2 land was being 'used' for the purpose of the Land Rights Act, the time for development consent under the EP&A Act had not arrived when the land claim was made. Unless actual physical use had begun there could be no breach of s. 76(2) of the EP&A Act and accordingly the ML2 land was being lawfully used when the land claim was made.
Section 76 (2) provides:
Subject to this Act, where an environmental planning instrument provides that development specified therein may not be carried out except with consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies unless:(a) that consent has been obtained and is in force under this Act, and
(b) the development is carried out in accordance with the provisions of any conditions subject to which that consent was granted and of that instrument.
The Land Council relied upon Bignold J's finding that the ML2 land was at the date of the land claim 'being used for mining/brickmaking purposes in conjunction with the adjoining properties (the freehold and ML 1) upon which the brickworks and excavation uses were physically in existence'. There was no challenge to that finding. To have used or occupied the ML2 land otherwise than in compliance with the 1971 consent would have involved a non-fulfilment of a condition of the lease and continued use after the consent became void was unlawful. Furthermore, the Land Council argued that it was wrong to suggest that the need for development consent was dependent upon 'actual physical use' of the land. The Land Council relied upon North Sydney Council v Ligon 302 Pty Limited [1996] HCA 20; (1996) 185 CLR 470 at 477.
Both parties sought to draw comfort from this Court's decision in Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 at 142-3 where Clarke JA said:
I do not think that the definition of claimable Crown land is concerned with nice distinctions of town planning laws nor do I accept that a court charged with determining whether a user is lawful is concerned to investigate whether the actual use conforms in every respect with the minute detail of particular town planning schemes or ordinances. What the court is concerned with is whether the user of a particular Crown land is legally authorised.
I would agree that, for instance, permission to use land reserved for public recreation for grazing of sheep would almost certainly be insufficient to establish that grazing of sheep on the land was lawful. But the reason for this would be that public recreation was the only permissible use of the land and not because of any local town planning scheme.
On the other hand it may be that it would be wrong to find a particular user a legal one when it contravened the zoning regulations of a particular scheme. This point was not debated in detail and for this reason I should do no more than express my reservations about any proposition which proceeded on the basis that any contravention of a town planning provision rendered a use unlawful.
In particular the Land Council relied upon his Honour's reference to non-compliance with zoning regulations as a possible unlawful use within the meaning of s. 36(1)(b) of the Land Rights Act.
In North Sydney Council v Ligon 302 Pty Limited at 475-6, the High Court said:
the need for consent to a use of land is not dependent on the terms of the proprietary or contractual rights of persons proposing to use the land or to suffer the use of the land by others. The Act is concerned with the environment and amenities of the various areas of the State. The statutory powers to control planning of those areas are not qualified or affected by private rights except in so far as the Act fastens on the holders of interests in land to impose certain restrictions or duties.
At 477, their Honours, after setting out the definition of 'development, in relation to land' in s. 4(1) of the EP&A Act, said:
The inclusion of 'use' in this definition brings all manner of activity - or even inactivity (Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1 at 21-2) - into the statutory concept of 'development'. ...
Existing uses constitute 'development' under the Act but do not require consent when they are covered by exempting provisions. Although the word 'use' in a definition of 'development' in the Local Government Act 1919 (NSW) was construed by this Court in Vumbaca v Baulkham Hills Shire Council [1979] HCA 66; (1979) 141 CLR 614 to mean a change of use after the making of an interim development order under that Act (ss. 342T, 342U), the present Act contains different provisions.
At 478 their Honours remarked: '[a]ny use of land is 'development''.
It would be curious if a hospital which acquired adjoining land as a buffer to obtain 'the resultant benefits that are derived from the presence of plenty of fresh air and the avoidance of overcrowding' (Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 at 499), required development consent, even though it proposed to do nothing whatever to the land, which remained vacant, and, if that consent were refused, would be in breach of s. 76. In Eaton & Sons Pty Limited v The Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270 at 273, Barwick CJ, in considering whether a use was an existing use within the meaning of a planning scheme ordinance said: '[m]ere acquisition of land with the intention of using it for a particular purpose in the future would not make the possession of the land an existing use of it for the purposes of the planning scheme'. In Council of the City of Parramatta v Brickworks Limited [1972] HCA 21; (1972) 128 CLR 1 at 21, Gibbs J, speaking of a clause in the Cumberland Planning Scheme Ordinance, said:
I would agree that the word 'use' in cl. 32 means a present use; it does not include a contemplated or intended use. It is not enough to bring cl. 32 into operation that land has been acquired with the intention of using it for a particular purpose in the future. On the other hand, it is not necessary, to constitute a present use of land, that there should be a physical use of all of it, or indeed of any of it.
At 23-24 his Honour concluded that in that case the evidence made it abundantly clear that the land was acquired and kept for the purpose of using it in conjunction with land earlier acquired.
It became part of an entire area which was wholly devoted to the purpose of quarrying and brickmaking and was used for that purpose immediately before the appointed day. It follows that in my opinion the respondent was entitled under cl. 32 to continue to use the whole of the land for quarrying and brickmaking.
Use is not confined to physical use, but does not include contemplated or intended use.
In the first appeal I concluded, by reference to what had been said in Newcastle City Council v Royal Newcastle Hospital, Parramatta City Council v Brickworks Limited and Eaton & Sons Pty Limited v Warringah Shire Council, that the answer to the question whether or not the ML2 land had been used within the meaning of s. 36(1)(b) depended on whether the lands or the relevant part of the lands, taken as a whole, had been devoted to mining purposes rather than whether they were being immediately physically used for those purposes. But the use needed to be more than notional and be present use when the claim was made rather than contemplated or intended use; (1993) 31 NSWLR 106 at 121. Bignold J applied this test. The use for mining and/or brickmaking was not merely a contemplated or intended use. But it does not follow, in my opinion, that such use of the ML2 land at any time constituted development or required consent. It is to be observed that Bignold J found that at the date of the Land Council's claim, the whole of the land comprising the freehold land upon which the brickworks buildings were situated and the two adjoining lands contained in ML1 and ML2 were being used as a whole.
In the first appeal I considered it unnecessary to decide whether, when the claim was made, the lands, if they were being relevantly used, were being lawfully used. I said that the lapse of the interim development permission in 1972 did not alone unequivocally point in that direction ((1993) 31 NSWLR 106 at 122).
Bignold J found that, at the date of the land claim, the ML2 land as a component of the whole of the brickworks land was being used for quarrying and brickmaking even though it was not being physically so used, but held in reserve for future excavation when the clay deposits in ML1 became depleted. Even so, his Honour found that, since there had been no substantial commencement of the development permitted by the 1971 allowance of appeal within twelve months of its issue (compare Drummoyne Municipal Council v Lebnan [1974] HCA 34; (1974) 131 CLR 350 at 360), the use was unlawful within the meaning of s. 36(1)(b) of the Land Rights Act. The finding against substantial commencement was not, nor could it be, challenged in this Court.
It is not clear why the lapse of the 1971 consent on failure substantially to commence the development, namely the extraction of clay and shale from the ML2 land, to which the consent referred, should make the use of the land at the time the land claim was made unlawful. Bignold J inferred from the terms of the instrument of allowance of the appeal, read against the statutory framework of Div 7 of Pt 12A of the LG Act, that the extraction of clay and shale from the subject land required the grant of interim development permission. However, apparently no clay or shale was extracted within the twelve month period or at any time up to the date of the land claim. How then was the use of the land during this latter period unlawful?
In 1972, s. 342T of the LG Act defined 'Development in relation to any land' in a manner different from the definition in s. 4(1) of the EP&A Act, to include 'the erection of any building, and the carrying out of any work, and any use of the land or building or work thereon for a purpose which is different from the purpose for which the land or building or work was last being used'. In Vumbaca v Baulkham Hills Shire Council [1979] HCA 66; (1979) 141 CLR 614 the High Court said, at 627 and 629, that 'development', as then defined, with the words 'the subdivision of the land' added after the words 'the erection of any building', was concerned with change of use after the making of an interim development order. At 629 in a joint judgment Mason, Aickin and Wilson JJ quoted from a passage in the judgment of Sugerman J in Ex parte Arnold Homes Pty Ltd; re Blacktown Municipal Council (1962) 9 LGRA 268 at 271, a case concerned with whether the definition in its earlier form, included 'mere subdivision'. Sugerman J said that mere 'subdivision' of land in the defined sense was not the doing of any of those things which were specifically mentioned in the definition of 'development':
It is not, that is to say, the erection of a building or the carrying out of a work, or a use of the land either for a purpose which is different from the purpose for which it was used or at all. It is something done, no doubt, in contemplation that ultimately there will be a new use for the several lots for a purpose (residential) which will be different from the purpose (rural) for which the entirety was last used. But it is not in itself a putting of the land to any such new use, or to any use.
The definition of 'development' in s. 342T gave 'use' a narrower more precise meaning than 'used' has in s. 36(1) of the Land Rights Act. Consistently with what Sugerman J said under the legislative scheme which existed until the EP&A Act came into force, the holding in reserve of ML2 for the future extraction of clay and shale, without any extraction taking place, although future extraction was contemplated, was not development. When in 1971 extraction of clay and shale was, presumably, about to be undertaken, an application was made and its refusal successfully appealed against. This application treated the ML2 land as the subject of a separate development. The Nowra Brickworks land incorporating the ML1 and ML2 land was not treated as one development for which consent was sought. In fact the approved development was not begun, the lease holder apparently being content to defer any further application for consent to extract clay and shale from the ML2 land until such time as the land was to be put to this new use. None of this means that within the meaning of s. 36(1)(b) the ML2 land was any the less devoted to and hence being used, by the lease holder for the purpose of quarrying and brickmaking. But there was, it seems to me, nothing that made the use of the ML2 land unlawful between the time that the consent lapsed and the coming into force of the EP&A Act.
Section 106 of the EP&A Act, as amended in 1985 and operative from 3 February, 1986, relevantly defined 'existing use' in Division 2 of Part 4, 'Environmental planning control', as 'the use of ... land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for ss. 100A and 101, have the effect of prohibiting that use'. Section 107 (1) in the same division provided: 'Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use'. Section 107 (2), as amended in 1985, provided:
(2) Nothing in subs. (1) authorises -(a) any alteration or extension to or rebuilding of a building or work;
(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned;
(b1) without affecting para. (a) or (b), any enlargement or expansion or intensification of an existing use;
(c) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in s. 91(3)(b); or
(d) the continuance of the use therein mentioned where that use is abandoned.
Section 109 of the EP&A Act, provided:
(1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.(2) Nothing in subs. (1) authorises -
(a) any alteration or extension to or rebuilding of a building or work;
(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned;
(c) without affecting para. (a) or (b), any enlargement or expansion or intensification of the use therein mentioned;
(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in s. 91(3)(b); or
(e) the continuance of the use therein mentioned where that use is abandoned.
(3) Without limiting the generality of subs. (2)(e), a use shall be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.
Section 109A provided:
(1) The use of a building, work or land which was unlawfully commenced shall not be rendered lawful by the occurrence of any subsequent event except -(a) the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefor; or
(b) the granting of development consent to that use.
(2) The continuation of a use of a building or work or of land that was unlawfully commenced is, and shall be deemed always to have been, development of the land within the meaning of and for the purposes of any deemed environmental planning instrument applying, or which at any time applied, to or in respect of the building, work or land.
The Land Council submitted that since there was not extant development consent in relation to the ML2 land, any existing use rights enjoyed by the lease holder would have been of no avail from the date of commencement of the EP&A Act; s. 109(2). Undoubtedly, this would be true if extraction of clay or shale from the ML2 land had occurred. In Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 366 at 371 Mahoney JA said that the intention of the legislature in enacting s. 109(2), which occurred in 1985, was to place restrictions upon what otherwise would have been the operation of existing use rights. His Honour said:
The various paragraphs of s. 109(2) clearly restrict what previously could be done. In my opinion para (b) distinguishes between things which, within one existing use, were 'actually physically' being done in pursuance of that use and things which were not 'actually physically' being done. In this respect, it distinguishes between the area of the use of land which was 'actually physically' being used for the relevant purpose and the area which, though being 'used' for that purpose, was not 'actually physically' being so used. In the present example, it distinguishes between the quarry or mine and the land merely held in reserve. It was, I think, the purpose of the paragraph to make that kind of distinction.
This at once acknowledges the lawfulness of the continued use of ML2 as a reserve of clay or shale to be extracted in the future and the unlawfulness of physically extracting clay or shale without consent. At 373 Priestley JA remarked that s. l09(2) required:
that 'use' be understood in a much narrower sense than before; its effect was, in my opinion, to limit the continued use previously permitted by s. 309 [of the LG Act] and s. 109 without consent, to the actual use of the land on the day when the planning laws otherwise would have affected it, that actual use being confined to the land actually, as opposed to potentially, physically being used, and the extent of the use of that land likewise being limited to its extent on that day.
At 376 Meagher JA, referring to s. 109(2)(b), said:
In normal parlance, land which was vacant on the relevant day, and which was held in reserve for future operations, but which was untouched by mining operations of any kind on that day, would not be described as 'actually and physically' used for 'mining'.
Steedman v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562 concerned the use of land for the purposes of extractive industry which at all relevant points of time was permissible with the consent of the responsible authority. At 567 Kirby P said:
In circumstances where consent has never been granted for a particular use - even where such consent would be necessary for a newly commenced use - the continuance of a lawful existing use would relieve the user from the need to obtain fresh consent. In cases where the use has never been permissible without consent, establishing the existing use has been thought to involve a retrospective analysis of planning law back to the time of the first applicable planning control governing the property. By such analysis, the property owner would be obliged to ascertain whether or not the use of the property came within the existing use exception of the first, and each successive, planning instrument.
At 572 his Honour concluded that the use referred to by s. 109(1) must be a lawful one, and that in relation to a use at all times permissible only with consent of the relevant authority, the previous use relied upon must have consent under the previous planning instrument or fall within the existing use provisions of that previous instrument (such that the use is lawful). Otherwise the use in question will not attract the protection of s. 109(1).
Neither the coming into force of the EP&A Act nor of the 1985 amendments, it seems to me, made the passive use of the ML2 land, previously lawful, unlawful during the period up to the date the Land Council made its claim under the Land Rights Act.
In the composite phrase in s. 36(1)(b) of the Land Rights Act, 'lawfully' must qualify both 'used' and 'occupied'. The legislature could scarcely have intended that a claim be defeated by unlawful occupation. The disjunctive 'or' contemplates that land may be used, though not occupied, and occupied, though not used. I can see no reason why claimable Crown lands should not embrace both land that is unoccupied but used, though not lawfully used, and land that is occupied, but not lawfully occupied. Thus the expression would embrace land occupied by trespassers. 'Lawfully' may include either or both of two different meanings. It may mean used for lawful purposes or occupied for lawful purposes. It may, in addition or alternatively, mean used by a person who has the right to use the land or occupied by a person who has the right to occupy the land; Wyong Shire Council v Associated Minerals Consolidated (1972) 25 LGRA 305 at 317.
To speak of land being lawfully occupied is to speak of a situation in which a person is in lawful occupation; compare Polly v Police [1985] 1 NZLR 443 at 448. A tenant may be in lawful occupation of the land, the subject of a lease, even though the tenant carries out unlawful activities on the land such as the cultivation of a prohibited plant in contravention of s. 23 of the Drug Misuse and Trafficking Act 1985. The expression speaks of the status of the person who has the right for the time being to occupy. If a Crown grant which allows occupancy of land also allows the grantee to use the land in a particular way as, for example, to mine for brick clay, such use is a lawful use, unless, in the circumstances, it is made unlawful by some other law such as the EP&A Act.
The Mining Act 1906 provided the means by which the holder of ML2 obtained the right lawfully to occupy or use Crown land for specified mining purposes; s. 23. That right of occupation or use was for the purpose of mining for brick clay and purposes connected with such mining, being mining purposes within the Mining Act, and for no other purpose. Undoubtedly had the lessee used the ML2 land for some other purpose, that use would have been unlawful, but it did not so use the land. Condition 12 required the lessee to observe and comply with the conditions set out in the instrument of allowance of appeal. Although there was no substantial commencement, there is nothing to suggest that the lessee failed to observe or comply with those conditions to the extent required in the circumstances.
In my opinion, at the time of the Land Council's claim the ML2 land was being lawfully used. Accordingly, the appeal should be allowed.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1998/20.html