The Crown Lands Act 1989 has been amended by the Crown Lands Amendment (Multiple Land Use) Act 2013 which commenced on 27 November 2013, to ensure the legal validity of interests such as leases, licenses, and easements or rights of way (“secondary interests”) that have been granted over reserve Crown land.
The amendments have been made in response to the NSW Court of Appeal’s decision in the Goomallee case (Minister Administering the Crown Lands Act 1989 v NSW Aboriginal Land Council  NSWCA 358) in which the Court found that a grazing licence granted over a parcel of Crown land reserved for the purpose of public recreation was unlawful.
The Second Reading speech explains that up to 90% of the 8,000 secondary tenures issued by the NSW Government over Crown reserves are potentially subject to challenge because they are for purposes that are not in furtherance of or incidental to the primary purpose of the reserve. These tenures cover Crown reserves up to 12 million hectares in area and generate up to $10million in annual rent. In addition, there are also thousands of secondary tenancies issued by reserve trust managers such as councils and showground trusts that generate income used for maintenance of reserves and other priority activities of government. Examples of secondary tenancies cited are grazing and farming, surf clubs, Rural Fire Service sheds, kiosks, marinas, telecommunication towers, sporting clubs and tourist parks.
The Goomallee case involved a claim by the New South Wales Aboriginal Land Council under the Aboriginal Land Rights Act 1983 in respect of an area of Crown land reserved from sale for the purpose of public recreation. The land was subject to a grazing licence granted by the Minister Administering the Crown Lands Act. The Minister refused the claim on the basis that the land, being lawfully used or occupied, was not claimable Crown land under the Aboriginal Land Rights Act.
The Land Council appealed to the Land and Environment Court. Biscoe J found that as the land had been reserved for the purpose of public recreation, the licence granted for the purposes of grazing did not give rise to lawful use or occupation. It followed that the land was claimable Crown land and an order was made for transfer of the land. The Minister appealed from that decision.
The issue for determination by the Court of Appeal was whether, to be lawful, the use and occupation must be (a) for, or incidental to, the purpose of the reservation, or (b) merely not inconsistent with, or not incompatible with, that purpose.
The Court of Appeal found that the more stringent test of being ‘for, or incidental to, the purpose’ should be applied. The grazing licence did not satisfy that test.
Material Harm test
The Crown Lands Act, as amended, now provides that a secondary interest cannot be granted unless the Minister is of the opinion that the use or occupation of the Crown reserve pursuant to the secondary interest would be in the public interest and would not be likely to materially harm its use or occupation for the reserved purpose (s34AA(2))). In deciding this, the Act provides an inclusive list of relevant considerations:
- the proportion of the area of the Crown reserve that may be affected by the secondary interest,
- if the activities to be conducted pursuant to the secondary interest will be intermittent, the frequency and duration of the impacts of those activities,
- the degree of permanence of likely harm and in particular whether that harm is irreversible,
- the current condition of the Crown reserve,
- the geographical, environmental and social context of the Crown reserve,
- such other considerations as may be prescribed by the regulations.Specifically addressing the findings in the Goomallee case, the legislation now provides, for the avoidance of doubt:
Protection of existing and future secondary interests
- the purpose for which a secondary interest is granted need not be a public purpose and need not be ancillary or incidental to the reserved purpose, and
- the fact that the use and occupation of the Crown reserve pursuant to the secondary interest may be inconsistent or incompatible with the reserved purpose does not of itself mean that its use or occupation pursuant to the secondary interest will materially harm its use or occupation for the reserved purpose, and
- the fact that the Crown reserve may be used or occupied for the grazing of animals pursuant to the secondary interest does not of itself mean that that use or occupation will materially harm its use or occupation for the reserved purpose of public recreation or of future public requirements (s34AA(4));
To give further legal protection to secondary interest, the legislation:
- allows the Minister to validate the grant of a secondary interest which would otherwise fail the material harm test, by making such changes to to the purpose for which the secondary interest was granted, or to the terms and conditions on which it was granted, as may be necessary to ensure validity (see s34AA(5);
- operates retrospectively such that existing secondary tenures are taken to have been validly granted from the date of original grant and the use and occupation in accordance with the secondary interest is taken to be and always to have been valid (s34AA(6));
- provides that, it is to be conclusively presumed that when an existing secondary interest was granted, the ‘material harm test’ (set out above) was satisfied;
- provides that, before proceedings to challenge the validity of a secondary interest, a party must give 3 months notice to the Minister of the alleged invalidity.
Note: This information is not to be relied upon as legal advice.