Land and Environment Court New South Wales

• Medium Neutral Citation: Coffs Harbour and District Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2013] NSWLEC 216
• Hearing dates: 13-16 September 2011
• Decision date: 24 December 2013
• Jurisdiction: Class 3
• Before: Craig J

Decision

Orders as set out at [170]

• Catchwords: ABORIGINAL LAND CLAIM - land claim made under s 36(6) of the Aboriginal Land Rights Act 1983 - required for an essential public purpose - public access to low and high water marks of the shoreline - coastal and environmental protection - public recreation - whether land claimable crown land as defined in s 36 of the Aboriginal Land Rights Act 1983 - whether beach and dune areas may be claimed - lengthy delay in determining land claim by Minister - land assessment - implementation of government coastal policy
• Legislation Cited: Aboriginal Land Rights Act 1983 (NSW); Crown Lands Act 1989 (NSW); Crown Lands Alienation Act 1861 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Environmental Planning and Assessment Regulation 1980; Fisheries and Oyster Farms Act 1935 (NSW); La Perouse Local Aboriginal Land Council v The Minister (No 2) (1991) 74 LGERA 178; Land and Environment Court Act 1979 (NSW); National Parks and Wildlife Act 1974 (NSW); North Coast Regional Environmental Plan 1988 (NSW); Ulmarra Local Environmental Plan 1992 (NSW)
• Cases Cited: Bateman's Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 168 LGERA 379; Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106; Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249; Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWSC 28; (2001) 50 NSWLR 665; Minister Administering The Crown Lands Act v Ilawarra Local Aboriginal Land Council [2011] NSWCA 127; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352; (2009) 171 LGERA 56; New South Wales Aboriginal Land Council v The Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (Windbar (No 3)) (1988) 14 NSWLR 685
• Category: Principal judgment
• Parties: Coffs Harbour and District Local Aboriginal Land Council (Applicant); Minister Administering the Crown Lands Act (Respondent)
• Representation: S E Pritchard (Applicant); C Mantziaris with A K Flecknoe-Brown (Respondent); Chalk & Fitzgerald Lawyers (Applicant); I V Knight, Crown Solicitors Office (Respondent)
• File Number(s): 30278 of 2010

Judgment

1 The Coffs Harbour and District Local Aboriginal Land Council (Coffs Harbour LALC or the Land Council) lodged Aboriginal Land Claim 5133 (ALC 5133 or the Land Claim) with the Minister on 29 October 1993. The claim was made under s 36(3) of the Aboriginal Land Rights Act 1983 (the Land Rights Act).

2 By letter dated 17 December 2009, that is more than16 years after ALC 5133 had been lodged, the Minister advised the Chief Executive Officer of Coffs Harbour LALC that its Claim was refused.

3 Coffs Harbour LALC appeals to the Court against the Minister's refusal of its claim. It does so pursuant to the provisions of s 36(6) of the Land Rights Act. Its appeal is confined to that part of ALC 5133 that comprises part of Lot 7015 in DP 1113712 outlined in green on the map attached and marked "A" (the claimed land).

4 When first lodged, the Land Council's claim was for an area of land that not only included the claimed land but also a substantial area to the west of that land. Shortly thereafter it was realised that land to the west of the claimed land was, at the time, freehold land, with the consequence that it could not be the subject of claim under the Land Rights Act.

5 In notifying his refusal of the Application, the Minister identified the basis upon which he did so. His letter of 17 December 2009 states:

" ... I am satisfied that when the claim was made the land shown by blue hatching [the claimed land] was lawfully used and was needed or likely to be needed for the essential public purposes of access, public recreation and environmental protection."

As ultimately refined in submissions, the Minister sought to contend that ALC 5133 should be refused because the claimed land was likely to be needed for the essential public purpose of -

(i) coastal and environmental protection by the Department of Planning;

(ii) public access to the low and high water marks of the shoreline; and

(iii) public recreation (although this seemed to be confined to the need for access to the low and high water marks of the shoreline).

The original ground of refusal that the claimed land was needed for an essential public purpose was no longer maintained.

Background

6 At the date of the claim, the claimed land was vacant Crown land under the administration of the Department of Lands in accordance with the provisions of the Crown Lands Act 1989. The claimed land comprises a strip of land on the New South Wales North Coast running between the townships of Red Rock in the north and Corindi in the south. The land includes about 3.7 km of beach and foredune, known as Red Rock Beach. Apart from the sandy beach area, the claimed land is covered in grass and vegetation of the kind typical of its coastal location. It extends inland from the high water mark of the South Pacific Ocean for distances that vary between 100m and 250m. The claimed land does not include the area described as the "foreshore", being the area between the high and low water marks.

7 For reasons that will later be discussed, the nature of landholdings bounding the claimed land on 29 October 1993 needs to be noticed. Adjoining the claimed land to the north was Reserve 64746 (R 64746) for Public Recreation under the Crown Lands Act. This Reserve was known as the Red Rock Reserve, managed by the Red Rock Reserve Management Committee, a community trustee body. Land bordering the claimed land to the south was Reserve 55008 (R 55008) for Public Recreation under the provisions of the Crown Lands Act. This was known as the Corindi Beach Reserve, managed by the Corindi Beach Reserve Management Committee which was also a community trustee body. This land provided access to the beach adjacent to the township of Corindi.

8 Land adjacent to the claimed land to the west was freehold land. The major part of the freehold land was owned by Iris Cratchley. It is convenient to refer to that land as "the Cratchley land". As will later become apparent, in 2003, the Department of Planning negotiated to purchase a substantial portion of the Cratchley land and after completion of that purchase in late 2004, it was transferred to the National Parks and Wildlife Service.

9 On 19 April 1991 land to the east of the claimed land, that is from the high water mark of the South Pacific Ocean which formed its eastern boundary, was declared to be a marine reserve known as the Solitary Islands Marine Park. That reserve, which extended for three nautical miles east of the high water mark, was declared as a marine reserve under the provisions of the Fisheries and Oyster Farms Act 1935 (as the Act was then titled).

Legislative provisions

10 As is apparent from the Minister's letter of 17 December 2009 refusing ALC 5133, that refusal was founded upon s 36(5)(b) of the Land Rights Act as the Minister was satisfied that the land claimed were not "claimable Crown lands". The assertion that the lands claimed was not "claimable Crown lands" is founded upon the definition of that expression in s 36(1) which provides:

" ... claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division:

...

(c) are not needed, nor likely to be needed, for an essential public purpose, ... ".

As I have already indicated, the Minister's case, as refined, relies upon the likely need for the public purposes that I have earlier identified.

11 The relevant date for determining whether land is "claimable Crown land" is the date that the claim is lodged. This necessitates consideration of those facts as they existed on 29 October 1993 demonstrating that the likely need for one or more of the identified public purposes was then shown to exist (New South Wales Aboriginal Land Council v The Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (Windbar (No 3)) (1988) 14 NSWLR 685 at 691). That same obligation is imposed upon the Court when determining an appeal under s 36(6) of the Land Rights Act.

12 Section 36(7) requires that if the Minister "fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands" an order for transfer of the lands or relevant parts to the Land Council is required to be made. Thus, the Minister bears the onus of establishing in the present case that the claimed land is likely to be needed for one or more of the identified essential public purposes (Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (166) LGERA 379 at [202]).

13 Ultimately, the Land Council conceded that so much of the claimed land as comprised "beach", together with a single track passing through the northern section of that land affording access to the "beach" is not claimable Crown land, on the basis that at the date of claim it was likely to be needed for the essential public purpose of public access. Having made this concession, the Land Council submits that the provisions of s 36(5A) of the Land Rights Act are enlivened. While that concession will require consideration in due course, it is appropriate to recite the provisions of the subsection which are as follows:

"(5A) Where, under subsection (5), a Crown lands Minister is not satisfied that the whole or part of the lands claimed is claimable Crown lands because the lands are needed, or likely to be needed, for an essential public purpose, but that the need for the lands for the public purpose would be met if the claim were to be granted in whole or in part subject to the imposition of a condition (whether by way of covenant or easement or in any other form) relating to the use of the lands, the Crown lands Minister may, notwithstanding that subsection, where the condition is agreed to by the Aboriginal Land Council making the claim, grant the claim under that subsection subject to the imposition of the condition."

The power of the Minister under subsection (5A) is also a power available to the Court when determining the present appeal: s 39(2) of the Land and Environment Court Act 1979 (the Court Act).

14 In addressing these statutory provisions, it is necessary to notice the manner in which key provisions of present relevance have been considered in past decisions. First, it is appropriate to observe that since the introduction of the Land Rights Act, the Courts have been at one in describing the legislation as being beneficial and remedial. In Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 Sheller JA (Priestley and Clarke JJA agreeing) acknowledged the need (at 117):

" ... to give the Act the most beneficial operation compatible with its language [citation of Authority omitted] and my consciousness of the legislative policy expressed in the recital to the Act and elsewhere to return land to the Aboriginal people of New South Wales as a form of economic compensation ... ".

Observations to similar effect were expressed by Spigelman CJ (Powell and Heydon JJA agreeing) in Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665 (Maroota) where the Chief Justice stated (at [53]-[54]) that the beneficial purpose of the Land Rights Act "suggests that the exceptions to the right to make claims on Crown land should be narrowly construed."

15 In the context of the issues raised in the present proceedings, the phrase "likely to be needed" requires consideration. It is now accepted that when used in s 36(1)(c), the word "likely" is taken to mean "a real or not remote chance" (Maroota at [57]). In Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289; (2009) 168 LGERA 71 (Illawarra) Hodgson JA (McColl JA agreeing) stated (at [32]) that the "real and not remote chance" meaning of "likely" conveyed the notion of a "substantial" chance. When that understanding of the word "likely" is included in the phrase "likely to be needed" there is involved an element of reasonable futurity. In context, the word "needed" must be understood as meaning "required" (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 (Castlereagh) per Handley and Powell JJA at 254).

16 Application of the phrase "for an essential public purpose" as used in s 36(1)(c) of the Land Rights Act is not, in the present proceedings, in dispute. As I understand the position of the Land Council, coastal and environmental protection, public access to the shoreline and public recreation would, in principle, qualify as "essential public purposes". However, the Land Council's case is that the Minister has not discharged the onus of establishing the likely need of the whole of the claimed land for any of those purposes at the date of claim. Expressed in a way that interprets the provisions of s 36(1)(c) in the manner that I have indicated, the Land Council contends that the Minister has failed to discharge the onus of establishing the existence of a substantial chance that in the future the executive government will require the claimed land for one or more of the identified essential public purposes (Illawarra at [35]).

17 Before leaving the relevant statutory provisions, I should notice the provisions of s 37(2) of the Court Act. In hearing these proceedings I was assisted by Acting Commissioner Edmunds. I gratefully acknowledge that assistance.

The evidence

Prior to the date of Claim

18 As would be expected in determining an appeal of the present kind, the evidence relied upon by both parties is primarily documentary. In addition to the tender of documents, each party has sought to adduce evidence by affidavit or report although the nature of that evidence differs between them. For its part, the Land Council read, over objection by the Minister, an affidavit by Dee Murphy whose evidence was directed to Aboriginal involvement with the claimed land and surrounding land. The Minister tendered, over objection, a report by Professor Andrew Short, a geomorphologist and marine scientist, whose evidence sought to assess the geomorphology of the claimed land. I will address the evidence of each of these witnesses in due course. However, it is first appropriate to address the important documentary evidence.

Documentary evidence

19 By notice published in the Gazette on 21 January 1884, Reserve 1082 for Roadway and Other Public Purposes was notified under the provisions of the Crown Lands Alienation Act 1861. The area so reserved extended from the Tweed River in the north to the Bellingen River in the south and included the claimed land. The width of land reserved was expressed to be "5 chains landward from high-water mark" (approximately 100.6 metres). That reservation was revoked on 22 September 1978.

20 Notwithstanding the revocation of that reservation, a plan of subdivision for freehold land adjoining the claimed land to the west and prepared in 1982 erroneously recorded Reserve 1082 as remaining in effect. The significance to be attached to this error will be addressed in due course.

21 I have earlier referred to the lands joining the claimed land both to the north and to the south as being lands reserved under Crown lands legislation. Adjoining land to the north was the subject of Reservation R 64746 for public recreation, notified on 14 September 1934. Adjoining land to the south was part of reserve R 55008 for public recreation. That Reserve was first notified on 9 December 1921. Further land to the south was a reserve for public recreation R 87401, notified on 26 September 1969 with areas added to it in 1972 and again in 1980.

22 On 18 December 1987 the Minister for Planning made the North Coast Regional Environmental Plan 1988 (the REP) pursuant to the provisions of s 51 of the Environmental Planning and Assessment Act 1979 (the EPA Act). That plan applied to a number of local government areas within the northern region of New South Wales, including the local government area of the Shire of Ulmarra. The claimed land was located within that local government area.

23 The provisions of the REP, in their essence, sought to control the content of local environmental plans prepared by Councils to whom that instrument applied by addressing the requirements of such local environmental plans as they pertained to various forms of development. Division 2 of Pt 3 of the REP was headed "Coastal development". The first clause within that Division was cl 30. It expressed the objectives of the REP "in relation to coastal planning". One of the objectives (paragraph (b)) is "to provide for the appropriate recreational use of beaches". Clause 32 of the REP, being one of the plenary provisions within Div 2 of Pt 3 provides:

"32 A draft local environmental plan that applies to land adjoining or adjacent to a coastal foreshore area should -

(a) introduce provisions that -

(i) restrict development so as to minimise long term risk to life and property and its impact on the coastal processes; and

(ii) minimise the visual impact of development near the shore; and

(iii) require that the impact of engineering works on coastal processes be assessed; and

(iv) prohibit development landward from the back beach erosion scarp that is at immediate risk from coastal processes, other than development involved in stabilisation works; and

(b) not alter or move existing zoning or identification of land for coastal lands protection areas or harbour or foreshore protection areas."

24 Part 6 of the REP addresses tourism and recreation. Within that Part, cl 78 relevantly provides:

"78 Plan preparation - public recreation areas

(1) A draft local environmental plan shall -

(a) identify areas of potential active or passive recreational use in both urban and rural areas;

...

(d) identify land for use by the general public to gain access to water bodies and foreshores; and

(e) manage access to water bodies or foreshores where the environmental features of the area are likely to be damaged by increased public access.

(2) Before preparing a local environmental plan referred to in subclause (1) which refers to Crown land, the Council shall consult with the Director of Crown lands and take into account his comments."

25 As will be apparent, the REP did not, by its terms, identify land required for access to the foreshore or land required for coastal and environmental protection. Identification of land to fulfil either of those purposes was left to the provisions of a local environmental plan.

26 In 1989 the New South Wales Cabinet Office issued a document entitled "The New South Wales Coast: Government Guidelines". These guidelines were expressly published for public discussion "prior to the preparation of a detailed policy statement." That policy statement came in the form of the "New South Wales Coast: Government Policy" issued from the Cabinet Office on 10 September 1990 (the Coastal Policy). Because of the importance that the Minister attaches to this document, it is necessary to notice some of its provisions in detail.

27 The Coastal Policy is expressed to apply to the full length of the New South Wales coast, except for the urban areas of Wollongong, Newcastle and Sydney. For the purpose of the Policy, the coastal area "covers the one kilometre landward strip from the low watermark and extends three nautical miles out to sea", subject to qualifications that are not presently relevant (Ex 2: p 18).

28 Section 1 of the Coastal Policy is directed to protection of the natural environment. When addressing dedication, reservation and management of land that is the subject of the Policy, it states (at Ex 2: p 22):

" ... land owned by the Crown can be retained in public ownership and, where appropriate, dedicated or reserved from sale, lease or licence for a public purpose using the Crown lands legislation."

29 Having acknowledged that the Crown Lands Act provides a statutory framework "for effective planning and management" of Crown land and identified the objectives of that Act, the Policy continues (at Ex2: p 23):

"In future, vacant Crown land will not be disposed of or reserved for a public purpose until a full assessment is undertaken to establish the preferred use. An evaluation of the land's capabilities will be integral to this process and a range of uses will be considered, including community or public purposes, environmental protection, nature conservation, water conservation, forestry, recreation, tourism, agriculture, residential and commercial uses."

30 There then follows (at Ex 2: p 23) a paragraph upon which the Minister focuses for the purpose of supporting the contention that the claimed land is "likely to be needed" for the essential purpose of public access. That paragraph states:

"The Government will put public ownership of our beaches beyond doubt for a concerted and ongoing program of registering title to all beaches within Crown control in the name of the State of NSW. These beaches and any surrounding Crown land will be dedicated for the purposes of public recreation, access and environmental protection. Private acquisition of NSW beaches will not be permitted."

31 Further reference is made to the assessment process required under the Crown Lands Act, indicating that where the assessment recommends "that a vacant Crown site could be disposed of" the recommendation would be the subject of public advertisement for the purpose of soliciting comment before any final decision for disposal is made. Preference for disposal by leasing rather than sale is expressed.

32 Actions directed to the topic of land conservation and management are identified on p 28 of Exhibit 2. They include:

"● The Department of lands will ensure that assessment of coastal Crown land is given priority under the Crown lands Assessment Program.

The Government will register the title of all beaches currently under Crown control in the name of the people of NSW and will dedicate those beaches for public use."

As will later become apparent, assessment of the claimed land under the Crown Lands Act was waived in 2006. Registration of title in the name of the State of New South Wales occurred on 7 August 2009.

33 Implementation of the Policy was addressed in Section four. Paragraph 4.2 summarises the actions to be taken in accordance with the Policy. A table to that paragraph identifies "the administrative body that has been assigned responsibility for ensuring that these measures are taken." Preceding the table the following two paragraphs appear:

"In general, it should be noted that the key planning initiatives which arise in relation to a number of issues will be implemented by way of the mutually reinforcing measures of prescribing the policy for the purposes of Section 90 of the Environmental Planning and Assessment Act and issuing a Section 117 Direction to local councils.

The Section 117 Direction is to ensure that when councils are preparing Local Environmental Plans to rezone areas, the draft plans are consistent with the Coastal Policy. The prescription of the Coastal Policy under Section 90 will ensure that when councils are determining all future development applications the policy will be taken into account."

34 The table to paragraph 4.2 of the Policy understandably identifies the Department of Lands as having responsibility both to "ensure that assessment of coastal Crown land is given priority under the Crown Lands Assessment Program" and also for registering the title of beaches currently under Crown control "in the name of the people of NSW" and dedicating those beaches for public use (Ex 2: p 80). The Department was also assigned the responsibility of preparing plans of management for "coastal Crown lands which are dedicated or reserved for a public purpose."

35 The Department of Planning was assigned responsibility for implementing strategic action identified in the Policy pertaining to environmental assessment and land use control. Those strategic actions included gazettal of the Coastal Policy as a matter for consideration by consent authorities when determining development applications, the need for public exhibition of studies, when rezoning associated with the development was proposed in the coastal zone, and the issuing of directions for local environmental plans "to ensure the prohibition of development on beaches, frontal dunes and undeveloped headlands and the inclusion of appropriate building height, setback and scale controls" (Ex 2: p 91).

36 Both the Department of Minerals and Energy and the Department of Planning were assigned responsibility for implementing the heavy mineral or sands mining component of the Policy. Although the Policy indicated constraints upon such mining (Ex 2: pp 45-46), there was no absolute prohibition upon such mining. The policy states (at p 46):

"Heavy mineral sands mining will not be permitted on beaches or on incipient dunes (the most seaward and immature dunes in the dune system), except where it can be clearly demonstrated that this would be environmentally acceptable." (Emphasis added.)

37 At the time of releasing the Coastal Policy in September 1990, the then Premier forwarded Memorandum No. 90-49 to all Ministers, drawing attention to the terms of the Policy. The primary aim of the Policy was expressed in the Memorandum to be the protection of "the coastline and beaches for the enjoyment of future generations and to ensure that coastal development is balanced, well planned and environmentally sensitive." The Memorandum continued by noting that government agencies with a key role in the implementation of the Policy had been provided with copies "to enable distribution to their regional officers." The Premier's Memorandum to Ministers concluded:

"Would you please draw this matter to the attention of all organisations within your administration."

38 At the time of releasing the Coastal Policy, the Government also released the NSW Coastline Management Manual (the Management Manual). Section 1.5 of the Management Manual expressed its objective as being to assist local councils "in developing balanced plans of management for the coastline."

39 Appendix D3 to the Management Manual was directed to implementation of planning controls through land use zones. Broad categories of zones appropriate for coastline planning and incorporation into local environmental plans were identified. Among the land use zones so identified was one entitled "coastal protection". Two species of land use zones were proposed for coastal lands protection. The delineation of those proposed zones was to be undertaken by reference to the Government's Coastal Lands Protection Scheme under which different lands along the coast had been separately coloured so as to indicate their characteristics and significance. Lands coloured "yellow" are said to be important because of their scenic qualities. Those lands are said in Appendix D to require "special protection" and are recommended to be zoned "Environment Protection 7(f1) - Coastal Lands Protection" under local environmental planning instruments.

40 Lands designated "red" under the Coastal Lands Protection Scheme are identified as having "important environmental or access characteristics and are to be acquired by the Government". The recommendation is that under local environmental plans those lands be zoned "Environment Protection 7(f2) - Coastal Lands Acquisition".

41 Part of the process recommended in the Management Manual was for councils to undertake a coastline management study and, as a consequence of that study, to prepare a coastal management plan. In carrying out the study and preparing a management plan, the Management Manual recommends that consideration be given to land tenure. "Key areas of concern" to be considered in that process are said to include the role of public lands, particularly Crown lands in providing public amenities that include "access, club houses, parking, infrastructure, picnic areas" (Ex2: p 109).

42 After referring to the statement in the Coastal Policy that beaches be dedicated as Crown land for public use, the Management Manual acknowledges that a beach is an active zone that can change over time, with the consequence that the area to be dedicated will vary "from embayment to embayment". The Manual therefore suggests that recommendations be made to the Department of Lands specifying those areas of Crown land "which should be dedicated for the multiple purposes of public recreation, access and environmental protection" (Ex 2: p 110). The same paragraph of the Management Manual states that prior to any development, reservation or dedication of Crown land, an assessment will be required under the Crown Lands Act.

43 Section 5 of the Management Manual is headed "Hazard Management Options". Within that Section, environmental planning options are identified. They are stated to include the provision of a buffer zone. The expression "buffer zone" is defined in the Glossary to the Manual to mean:

"An appropriately managed and unalienated zone of unconsolidated land between beach and development within which coastline fluctuations and hazards can be accommodated in order to minimise damage to the development".

44 In identifying buffer zones as a means of environmental planning, the Manual suggests the reservation or zoning "of an appropriately managed area between the beach and development within which natural fluctuations can be accommodated" (at p 125). The width of the buffer zone, so it is suggested, should "take account of the natural foredune". The word "foredune" is defined in the Glossary as meaning:

"The larger and more mature dune lying between the incipient dune and the hind dune area."

45 I have already referred to Appendix D of the Management Manual. In section 3 of that Appendix, the topic of "buffer zones" is addressed as a form of land use control. The observation is made that a buffer zone is able to be achieved "through zoning in LEP's, reservation, acquisition of existing land, or by reclamation of the beach by groynes or sand nourishment." The Manual states that a maintenance program is essential "for designated buffer zones."

46 On 10 September 1990 the Department of Planning notified all coastal Councils in NSW of the release of the Coastal Policy. It did so by a circular directed to each of those Councils, summarising the elements of the Policy and, in particular, drawing attention to the manner in which the EPA Act would be amended so as to impose additional controls upon coastal development. A new direction under s 117 of the EPA Act was attached to the circular, requiring that when preparing draft local environmental plans, effect was to be given to the Coastal Policy. Also attached to the circular was a copy of an amendment to the Environmental Planning and Assessment Regulation 1980 (as then in force), prescribing for consideration of any development application for the purpose of s 90 of the EPA Act, the need to consider the provisions of the Coastal Policy.

47 In November 1991 the Department of Conservation and Land Management published a document entitled "Crown Land Foreshore Tenures Policy (Non-Commercial Occupations)" (the Tenures Policy). The Policy is expressed to apply to non-commercial waterfront occupations of Crown tidal and adjoining foreshore lands administered under the provisions of the Crown Lands Act (Ex 1: p 25). Crown tidal lands are said to be lands below the mean high water mark in tidal areas and the policy is said to apply to Crown foreshore land immediately above the mean high water mark.

48 The strategies expressed in the Tenures Policy are directed to the future allocation, use, development or occupation of Crown tidal land and adjoining foreshore areas, together with the issue of leases or licences for non-commercial occupations of such land. After referring to the need for land assessment in accordance with the Crown Lands Act, the Tenures Policy states at paragraph 2.2 (Ex 1: p 26):

"Foreshore Crown land occupations, whether by way of lease or licence, will normally be granted to persons or corporations where such persons or corporations are the owner of the adjacent lands."

The following paragraph then states that practical public access within the intertidal zone and along adjoining Crown foreshore "will be a prime consideration in the management of these lands."

49 Finally, of present relevance, is paragraph 4.1. It contemplates the grant of a lease or licence for occupation of foreshore Crown land provided the grant is supported by land assessment and the new occupation complies with the objective and strategies of the Tenures Policy. The grant of any lease or licence must also meet the statutory requirement of other instrumentalities.

50 As I have earlier recorded, the claimed land was, at the time of claim, within the local government area of the Ulmarra Shire Council. On 30 January 1992 the Minister made a new local environmental plan for that local government area known as Ulmarra Local Environment Plan 1992 (the LEP). Under the provisions of the LEP the claimed land, as well as land adjoining to the west, was zoned Environmental Protection (Coastal Lands Protection) 7(f1). "Agriculture" and "bushfire hazard reduction" were the only purposes of development within land so zoned that could be carried out without the need to obtain development consent. Development that was permissible with consent in that zone comprised:

"Camping grounds; caravan parks; dams; drainage; dwelling-houses; extractive industries; forestry; golf courses; home industries; mining; roads; utility installations (other than gas holders or generating works)."

All other development was prohibited.

51 Clause 19 of the LEP was directed to development on land within the 7(f1) zone. Subclause (1) required that development, other than "agriculture", not be carried out on land so zoned except with the concurrence of the Director of Planning. Subclause (2) identified a number of matters to be considered by the Director when determining whether to concur in the carrying out of development. The Director was required to consider the likelihood of the proposed development -

"(a) adversely affecting, or being adversely affected by, the sea or any bay, inlet, lagoon or lake,

(b) adversely affecting any beach or dune or the bed, bank, shoreline, foreshore, margin or floodplain of the sea or of an arm of the sea or of any bay, inlet, lagoon, lake, body of water, river, stream or watercourse, and

(c) adversely affecting the landscape or scenic quality of the locality."

52 No coastal lands acquisition zone, of the kind contemplated by the Management Manual, was identified in the LEP. Relevantly, the Minister for Planning expressed the view in 1993 that land adjoining the claimed land to the west was not sufficiently significant to require its acquisition for a public purpose. That observation requires some elaboration.

53 I have earlier recorded that land adjoining the claimed land to the west was, at the date of ALC 5133, privately owned. The larger portion of that land comprises Lot 21 in DP 1055862 and is the land that I have earlier referred to as the Cratchley land. The balance of the adjoining land which is located to the south of the Cratchley land is Lot 12 in DP 624949.

54 In August 1979 and again in March 1987 the Cratchley land had been investigated by the Department of Planning and its predecessor, the Planning and Environment Commission, for possible acquisition under the Coastal Lands Protection Scheme. On each occasion a decision was made that the land would not be acquired. At the time of those decisions the Cratchley land was known as Lot 2 in DP 558256.

55 Following further representations by Mrs Cratchley to have her land acquired by the Department of Planning, the Minister for Planning wrote to her on 3 May 1993 (Ex A: (p 263). In his letter the Minister said:

"Your land has previously been considered for acquisition under the Coastal Lands Protection Scheme. In March, 1987, the Department concluded that the land was not sufficiently environmentally significant to warrant acquisition under the Scheme. This conclusion was based on the Department of Planning's view that the land type and vegetation is well represented in the Yuraygir and Bundjalung National Parks and that the site is therefore not significant in a regional context."

The Minister's letter continues by indicating that the conservation value of the land is sufficiently protected by its current zoning and partial inclusion under State Environmental Planning Policy No 14. The existing planning controls were said to be adequate "without recourse to tax-payer funded acquisitions." The letter concludes:

"I understand that you are keen to derive some financial return from your land. I would therefore reiterate my advice to you of August, 1992 that you might seek expert planning advice to develop a proposal which would be acceptable in terms of the land's prime coastal location."

56 In the context of land use controls, it is to be noted that the LEP did not, in terms, impose any "buffer zone" nor, in terms, did it impose controls directed to the "foredune", as was contemplated by the Management Manual. It may be that a layer of control is apparent from the provisions of cl 19 of the LEP but those controls, directed to matters for consideration when the Director is asked to concur in development of land within the 7(f1) zone, are not specific to the reservation of beach or any particular component of the dunal system as a unit for protection, access or recreation.

57 It must be assumed that the LEP was prepared taking into account the provisions of the Coastal Policy. So much follows from the fact that although prepared as a draft instrument by Ulmarra Council, the LEP itself is an instrument made by the Minister some 16 months after the release of the Policy by the Premier.

58 There is no evidence before me to indicate that a coastline management study or coastline management plan of the kind or with the content contemplated by the Management Manual was undertaken or prepared by the Council or any other public authority. Further, there is no evidence of any recommendation to the Department of Lands directed to the dedication of Crown land for recreation, access or environmental protection (cf Ex 2: p 110).

59 I have earlier referred to Reservation R 55008 for public recreation located immediately south of the claimed land and known as the Corindi Beach Reserve. The Reserve was notified in the Gazette in 1921. A plan of management for that Reserve was prepared in 1987 and adopted under s 114 of the Crown Lands Act on 16 August 1991. That Reserve is adjacent to the town of Corindi and has been developed over the years for sporting and recreational activities ranging from a camping and caravan area to a cricket pitch, golf practice area and parking area. A racecourse had also been located within the area of the Reserve.

60 The Management Plan for that Reserve identifies a number of "site resources". Among those "resources" are what are described as "land systems". Under that head there is reference to vacant Crown land "extending from Red Rock in the north to Arrawarra in the south and incorporating basically the whole dune system along the beach." That is described as "the only basic land system" in the vicinity of the Reserve land. Reference to the "dune system along the beach" is a reference to land that includes the claimed land.

61 Under the "land systems" head, reference is made to a 1986 Policy for Crown land expressed as follows:

"Where possible, Crown land would be maintained or assembled with the intention of forming linkages between public lands for a regional and State wide network of nature conservation, public access and public recreation lands. This will particularly affect long narrow parcels such as roads, T.S.R.'s, river beds and waterfront strips".

62 As might be expected, the adopted Corindi Beach Reserve Plan of Management confined its strategies and recommendations to the use of the Reserve area. To the extent to which the Plan of Management had any impact upon the beach to the north of the Reserve, it did so indirectly in two respects. First, it encouraged public access to the beach on the eastern edge of the Reserve. That beach was part of the continuum of beach extending from Red Rock in the north and so linked with the beach that forms part of the claimed land. Pedestrian access to the Reserve beach was required to be provided by controlled access points with "uncontrolled pedestrian access to the beach being discouraged" (Ex 3: p 45).

63 The second aspect of the Corindi Beach Reserve Plan of Management that indirectly impacted upon the beach to the north arose from its consideration of the use of off-road vehicles. Access to the beach on the eastern edge of the Reserve for such vehicles was to be restricted to one location and access by those vehicles to the beach north of the Reserve was "considered undesirable". Elsewhere in the Plan the northern beach is described as being "unsuitable for off-road vehicles and the statement made that the beach be "designated as vehicle free" (Ex 3: p 32)

64 In fact, dunal damage along and adjacent to Red Rock Beach had been the subject of correspondence directed to Ulmarra Shire Council and to the Department of Lands for some time. One group expressing concern as to this damage was the Red Rock Preservation Association. In a letter dated 7 March 1993 (Ex A: p 182) the Association wrote to the Regional Manager of the Department of Lands in Grafton directed to that dunal damage by the use of off-road vehicles in the area. It is claimed in the letter that the Red Rock Recreation Reserve Trust (responsible for the management of Reserve R 64746 to which I have earlier referred) supported the call for closure of the beach and dunes to vehicular traffic "between Red Rock and Corindi in accordance with the Plan of Management." The letter continued:

"In view of the strong stand taken by the Minister in the Red Rock Plan of Management, against the use of the dunes and ridgeline by off-road vehicles, would your department please negotiate with the Ulmarra Shire Council for the closure of the beach to off-road vehicles, as Council has already done south of Corindi and at Wooli? This would prohibit the use of such destructive vehicles on all of the Crown land beach reserve from Red Rock to Corindi as well as on the beach ... ".

There is no evidence before me of any response by the Department of Lands to that letter.

65 The concern for dunal damage on and adjacent to Red Rock Beach expressed in that letter is reflective of hearsay evidence also received from Dee Murphy, whose evidence was read on behalf of the Land Council. Ms Murphy is an anthropologist, currently employed as a project officer by the Yarrawarra Aboriginal Corporation (Yarrawarra) in Corindi Beach. She was first employed by Yarrawarra as an archaeologist in October 1993. Yarrawarra, an Aboriginal corporation incorporated under Commonwealth legislation, has its place of business in Red Rock. It works closely with the Coffs Harbour LALC. Since commencing work with Yarrawarra, Ms Murphy has become familiar with the claimed land and its environs. Her training and employment with Yarrawarra has also enabled her to become familiar with the Aboriginal cultural heritage of the area, including the claimed land. She records damage to the dunal system adjacent to Red Rock Beach, including damage to items of environmental heritage, occasioned by uncontrolled vehicular access as being apparent in 1993. In evidence that I accept from her as one who was living and working in the area in October 1993, there was no apparent step taken by any government agency to manage the claimed land so as to protect it from the damage occasioned by unlimited access by off-road vehicles.

66 The only other relevant event that occurred prior to October 1993 and which is the subject of documentary evidence is a proposal involving the use of Lot 12, being the southern section of land adjoining the claimed land to the west. In 1992 and 1993, that Lot was one of four sites then being considered as a site for a sewage treatment plant to service the township of Corindi. The option being considered for Lot 12 was described in a letter from the Department of Public Works dated 23 March 1993 (Ex A: p 273) as a "dunal disposal system" involving the construction of a discharge pipeline having a number of outlets "along the strip of vacant Crown land adjacent to and immediately east of Lot 12 DP 624949". The letter referred to the "reclaimed water" being dissipated by infiltration into the existing sand strata immediately behind the frontal dune.

67 The response to that option by the Department of Conservation and Land Management, being the Department then responsible for administration of the Crown Lands Act, was contained in a letter of 28 April 1993. That letter indicated that as a general policy the Department opposed the granting of a licence or other title authorising the disposal of effluent on Crown land from private lands. Having referred to the general policy, the letter acknowledged that investigations had been undertaken elsewhere to determine the feasibility of treated effluent disposal behind the frontal dunal system with the consequence that the proposal was not then rejected outright. Rather, the matter would be further investigated by that Department with an indication that there would be no objection to the Department of Public Works conducting its investigations into the feasibility of using the land in the manner identified.

68 Sewage treatment options were being investigated by the Department of Public Works in conjunction with Ulmarra Shire Council. As a result of the consideration of options by the Council, it had indicated that its preferred option was to locate treatment works on Lot 12 with discharge into the frontal dunes adjacent to that Lot, that is, into the claimed land. Consideration of that option was sought by the Department of Public Works from the Environment Protection Authority on 28 September 1993 (Ex 1: p 50). At that stage the Department of Public Works had not carried out any geotechnical investigation of the dunes and surrounding area in order to provide any detailed design for consideration.

69 The response from the Environment Protection Authority to the Department of Public Works was given on 21 October 1993. The requirements of that Authority for the quality of effluent to be discharged were given, effectively indicating that further design was required before that Authority could exercise any statutory licensing function.

70 In the course of opening his case before me, the Minister sought to amend the particulars of the essential public purpose for which he contended by adding that such purpose extended to use of part of the claimed land for sewage disposal. That amendment was opposed by the Land Council. As it had not been foreshadowed and was raised for the first time when the hearing had commenced, I refused to allow the amendment. Nonetheless, the evidence to which I have referred remained as being relevant to the issue as to whether the whole or part of the claimed land was required for the essential public purposes of either coastal protection or public access and recreation. The Land Council foreshadowed a submission that the failure to reject such a proposal outright by the relevant government authorities was inconsistent with a contention that the whole of the claimed land was required for environmental and coastal protection, access and recreation. I will return to that submission in due course.

71 In addition to the Crown Reserves that I have identified bounding both the southern and northern boundaries of the claimed land, it is relevant to notice actions that have been taken in relation to much larger tracts of land in nearby regions. Large areas of coastal land to the north of the claimed land had been reserved as national parks. Yuraygir National Park extended from the town of Red Rock north to the Clarence River. In 1980 the former Red Rock National Park and Angourie National Park together with "all Crown lands available for reservation at that time" were incorporated into Yuraygir National Park (Ex A: p 92).

72 To the north of Yuraygir National Park coastal lands have been included in the Bundjalung National Park, encompassing the coastline north of the Clarence River. To the north again is the Broadwater National Park resulting in the stretch of coastline between Red Rock in the south and the Richmond River in the north being substantially included in national parks. Both Broadwater and Bundjalung National Parks had been reserved as such in 1980.

73 As I have earlier indicated, ALC 5133 was made on 29 October 1993. At that date, the facts I have recited indicate that while the claimed land remained vacant and unreserved, adjoining Crown land both to the south and to the north was reserved for public recreation, with extensive areas of coastal foreshore lands to the north of Red Rock Reserve R 64746 protected within national parks.

74 As at the date of claim, there is no document tendered that evidences any action on the part of the Department responsible for administration of the Crown Lands Act to assess the claimed land for use of any community or public purpose. Nor is there evidence of any action on the part of the Department of Planning to require the claimed land for coastal protection. The response by the Minister for Planning to the request for the acquisition of the Cratchley land should properly be interpreted as indicating that the latter land was not required by the Department for coastal protection. As the evidence of Professor Short that will later be discussed discloses, the foredune of Red Rock Beach extends into the Cratchley land.

75 While the 7(f1) zoning under the LEP, applicable to both the claimed land and the land immediately adjoining it to the west, imposes restrictions on development, those restrictions do not have the effect of confining land use to public purposes, let alone essential public purposes. Subject to those discretions to be exercised when considering the grant of development consent and the giving of concurrence on the part of the Director of Planning, the permissibility of uses such as dwelling-houses, home industries, extractive industries and mining gainsay any restriction upon use for a public purpose. That proposition is reinforced by the statement in the letter of May 1993 from the Planning Minister to Mrs Cratchley indicating that she seek appropriate town planning advice for the purpose of designing development on her land.

76 How, if at all, do the events that occurred after the date of claim bear upon the likelihood that the claimed land was, at that date, likely to be needed for one or more of the identified essential public purposes? It is to that question that I will now turn. However, in addressing that question it is necessary to bear in mind that the post claim events are relevant only for the purpose of assessing the likely need for an essential public purpose at the date of claim. Facts that merely reflect hindsight cannot be brought to bear upon the determination of a likely need at that date. The relevant principle is, with respect, well summarised in the judgment of Sackville AJA (Basten and Whealey JJA agreeing) in Minister Administering The Crown Lands Act v Ilawarra Local Aboriginal Land Council [2011] NSWCA 127 where his Honour said at [61]:

"In determining whether at the date of the claim it was likely that land would be needed for an essential purpose, it may be permissible for the court to take into account post-claim evidence. However, such evidence is relevant only if it is probative of the objective likelihood assessed in prospect at a particular date of events happening in the future and if the evidence is not used by way of hindsight to determine the events that were likely to occur at the relevant date: Deerubbin (No 2), at [69], [71], per Spigelman CJ, citing Housing Commissioner v Falconer, at 558, per Hope JA."

Post claim events

77 The receipt of ALC 5133 by the Minister was notified by the then Department of Conservation and Land Management to a number of Government departments, instrumentalities and statutory bodies. The National Parks and Wildlife Service, being one such body, responded in May 1994, indicating that the Service had no objection to the granting of the claim (Ex A: p 2).

78 The Department of Planning responded by letter dated 27 June 1994 (Ex 1: p 73). After referring to the 7(f1) zoning of the land under the LEP, the Coastal Policy and the fact that the land claimed had "direct access to the Pacific Ocean", the letter concluded:

"As it is considered the granting of the land claim is likely to have a detrimental effect on the land and its future conservation, the Department objects to Aboriginal Land Claim No. 5137 [sic]. The land has direct frontage to the ocean and is needed for recreational access to the foreshore. This is considered an 'essential public purpose'."

Notwithstanding that statement, the Department of Planning took no further action directed to securing use of the claimed land for the stated purpose.

79 The Director of Environmental Services at Ulmarra Shire Council responded to notification of the Land Claim by letter dated 1 July 1994 (Ex 1: p 75). It reported a resolution of the Council requesting refusal of the Land Claim as the land was considered to be essential for public purposes of coastal management and protection. In addition, public recreation was identified as a basis for refusal as it was "reflected in the land's current land use zoning of 7(f1)".

80 The assertion that public recreation is "reflected" in the 7(f1) zone under the LEP is curious. While "camping grounds", "caravan parks", and "golf courses" would each be expected to be used by members of the public, albeit under licence if lands remained in private ownership, permissible forms of development such as "dwelling-houses", "extractive industries" or "mining" are purposes of development that are the antithesis of land use for public recreation. Moreover, unlike land that is located within Zone 8(b), identified as a proposed National Park Zone, or land reserved for State highway use, the LEP makes no provision for acquisition of land zoned 7(f1), either by the Council or any other statutory body.

81 The Department of Public Works sought to have any determination of ALC 5133 delayed on the basis that there were a number of studies presently being made of Lot 12 to permit consideration of its suitability for the Corindi Sewage Scheme involving dunal disposal of treated effluent. No subsequent communication from the Department of Works concerning either the Land Claim or proposed Corindi Sewage Scheme is in evidence.

82 The Land Claim was the subject of report in a Memorandum from the North Coast Manager of State Land Services within the Department of Conservation and Land Management to the Director-General of that Department on 15 December 1995 (Ex 1: p 79). After addressing the topic of "claimable Crown land" within the meaning of s 36(1) of the Land Rights Act, briefly summarising the responses from other instrumentalities and referring to the Coastal Policy, the Memorandum contained the following recommendation (Ex 1: p 85):

"Claim 5133 shown by red edge by [sic] refused on the basis that when the claim was made the land was lawfully used for public recreation access, and commercial and recreational fishing and was needed, or likely to be needed, for the essential public purposes of Environmental Coastal Protection and Public Recreation."

Notwithstanding the date of that Memorandum, the Minister's determination to refuse the Land Claim did not occur until 17 December 2009.

83 There is no evidence before me indicating what decision, if any, was made either by the Department of Public Works or by Ulmarra Shire Council as to the use of Lot 12 for a sewage treatment plant. Ms Murphy claims a recollection that Ulmarra Shire Council withdrew its support for the proposal, at least so far as it related to Lot 12, following receipt of an archeological and anthropological study of the area commissioned by the Department of Public Works. The fact that an archeological study had been sought, is reflected in the letter from the Department of Public Works of 1 July 1994 to which I have earlier referred. Moreover, the events that I will shortly describe in relation to Lot 12 support an inference that by some date in the second half of 1994, the use of Lot 12 for a sewage treatment plant was no longer in contemplation.

84 In December 1994 consultants acting for the owner of Lot 12 prepared a report in support of a development application made to Ulmarra Shire Council for an "eco-tourism style development" on Lot 12. Detail of the development proposed is unimportant for present purposes. It is sufficient to record that it proposed 25 self-contained timber cabins with other facilities together with provision of tracks giving access to the beach forming part of the claimed land. Some of the work contemplated by the development application seemed to intrude upon that land.

85 The development application was referred to the Department of Conservation and Land Management. It was addressed in a Memorandum from the Grafton office of that Department on 19 December 1995 (Ex A: p 309). The observations made in the Memorandum are directed to "the vacant Crown lands adjoining Lot 12," that is, the claimed land.

86 The Memorandum first notes that no works on the Crown land are permitted as no consent to lodgement of the development application, so far as it affected Crown land, had been given. The Memorandum next refers to the Land Claim in these terms:

"Additionally, the subject Crown land is vacant Crown land which is the subject of Aboriginal land claim no. 5133 lodged by Coffs Harbour and District Local Aboriginal Land Council.

Consent to carry out any works on these lands (including formal access tracks, bird hides, boardwalks or viewing platforms) can not be given until the claim has been resolved or successful negotiations between the Land Council and this Department have been made."

The latter paragraph is relied upon by the Minister as an explanation, at least in part, for the absence of any action under the Crown Lands Act to reserve, dedicate or otherwise deal with the land consistently with the provisions of that Act. I will return to that submission in due course.

87 It will be recalled that under the provisions of the Coastal Policy, vacant Crown land was not to be reserved for a public purpose "until a full assessment has been undertaken to establish the preferred use." That assessment was required under the provisions of Pt 3 of the Crown Lands Act. However, where land was proposed to be dedicated or reserved, assessment under Pt 3 was not required if the Minister was satisfied that it was in the public interest to dedicate the land (s 85(2)(a) or to reserve the land (s 91(2)(b)) without assessment under that Part.

88 On 29 January 1996, the Minister, by his delegate, exercised the power to dispense with land assessment in respect of an area of Crown land in Red Rock adjacent to the Red Rock Reserve R 64746. That vacant area of Crown land was then added to the Red Rock Reserve. In a Minute Paper from the Department of Planning (then known as the Department of Urban Affairs and Planning) dated 16 January 2000, the history of consideration and rejection of proposals to acquire the Cratchley land was recorded. This Minute records a recommendation that the Department agree to commence negotiations to acquire the Cratchley land as its acquisition in whole or in part "would form a useful contribution to the State Reserve System."

89 In reciting the prior consideration given to the acquisition of the land and the rejection of recommendations, it is recorded that a conservation order was proposed under the Heritage Act. That recommendation had been rejected. The Minute Paper continues:

"However, since that time the NPWS has added areas to their reserve system in the area ... some of which was acquired by DUAP."

The author calls for a review of the earlier decision to refuse acquisition.

90 Between January 2000 and February 2003, there is an exchange of memoranda among various officers of the Department of Planning, culminating in a recommendation on 27 February 2003 that the land be acquired and upon acquisition be transferred to the National Parks and Wildlife Service.

91 The date upon which the Cratchley land was ultimately acquired is not clear from the evidence. However, it would seem from a letter dated 15 December 2004 that the land had, by that time, been acquired by the Department and that it was then to be transferred to "the Minister Administering the National Parks and Wildlife Act 1974" (Ex 1: p 218). Ministerial approval by the latter Minister to accept the transfer is recorded as having been given by 9 February 2005.

92 Following this chain of departmental correspondence, it is sufficient to record that the Cratchley land was ultimately transferred to the Minister Administering the National Parks and Wildlife Act and thereafter added to the land within the Yuraygir National Park.

93 In the meantime a new Coastal Policy had been published by the Carr Government in 1997. That Policy was said to fulfil that Government's election commitment "to manage the coast in an ecologically sustainable way". It was a Government ("the Carr Government") that had succeeded the previous Greiner Government, the latter being responsible for the 1990 Coastal Policy. While the 1997 Policy recognises it as being that of the Government of the day, implementation by other agencies is recognised. The 1997 Policy cannot, by its own terms, inform the likely need for one of the identified essential public purposes necessary to be considered in the present case at the date of the Land Claim.

94 There are two further events of relevance that have occurred in relation to the claimed land. First, on 22 August 2006 the Director-General of the Department of Lands supported a recommendation to approve the creation of the Coffs Coast Regional Crown Reserve encompassing about 80 kilometres of coastline from north of Red Rock to Sawtell in the south. The proposed reserve related to all Crown lands within the identified coastline strip, its purpose being "the public purpose of access and public requirements; rural services; tourism purposes; and environmental and heritage conservation". The recommendation includes the "waiver of land assessment under s 91(2)(b) of the Crown Lands Act". Attached to the Memorandum or Minute is a report "for waiving land assessment". Neither that report nor the Minute or Memorandum makes reference, in terms, to either the 1990 or 1997 coastal policies.

95 The recommendation by the Director-General was clearly accepted by the Minister, as the Coffs Coast Regional Crown Reserve was notified as Reserve No 1012190 for the public purposes earlier identified in the Gazette published on 25 August 2006. Land included within that Reserve included the claimed land.

96 Finally, on 29 June 2007 the claimed land was notified in the Gazette as Reserve 752820, a "Parish Reserve - for Future Public Requirements." The reasons for creating this additional Reserve are not revealed by the evidence.

97 The fact that the claimed land is now subject to these Reserves provides no impediment to the Land Claim. The fact that Crown land is reserved is not, of itself, a bar to a land claim: s 36(1)(a) of the Land Rights Act.

98 I have earlier recorded the submission on behalf of the Minister that once ALC 5133 had been made, the Minister was, for reasons unexplained, unable to exercise power under the Crown Lands Act to dedicate or reserve the claimed land for any purpose. Apart from the lapse of time between October 1993 when the claim was made and 2006, the evidence relied upon by the Minister to support that contention is the statement made in the letter from the Department of Conservation and Land Management to Ulmarra Shire Council dated 15 January 1996 that no consent to development to the claimed land, being Crown land, could be given until the Land Claim was resolved (Ex A: p 311).

99 I do not accept this explanation for delay on the part of the Minister. It will be recalled that the statement relied upon was made in the context of development proposed on the adjoining Lot 12 which was privately owned. A perceived constraint in granting consent, as landowner, to permit work associated with development on that adjoining land is irrelevant to the consideration by the Minister of either land dedication or land reservation for a public purpose under Pt 5 of the Crown Lands Act.

100 Perhaps even more telling against the Minister's submission is the fact that no evidence or submission identifies any changed circumstance arising between 1996, when the Department's letter of 15 January was written, and 2006 when the Minister exercised the power available both to waive land assessment under s 91 and to reserve the claimed land, among other lands, as part of the Coffs Coast Reserve R 1012190. When Mr Mantziaris, who appeared for the Minister, was asked to explain what it was that had, in 2006, released the constraint said to be evidenced by the Department's 1996 letter, he candidly acknowledged that there was no explanation he was able to offer.

101 There is one final event that needs to be noticed because it bears upon the availability of evidence that the Minister, in particular, submits offers an explanation for the absence of evidence that was expected to address implementation of the 1990 Coastal Policy. That event was the "abolition" in 2004 of Ulmarra Shire Council. That Council was then amalgamated with adjoining councils with its former functions being transferred to the Clarence Valley Council. However, the area of land that included the claimed land was incorporated into the local government area of Coffs Harbour City Council.

102 Upon enquiry being made of Coffs Harbour City Council in 2010 and early 2011 for documents of the former Ulmarra Shire Council pertaining to the claimed land and its environs, the Crown Solicitor was informed that no such documents were held by the City Council and that they "must be with Clarence Valley Council".

103 Upon enquiry initially being made of Clarence Valley Council, the Crown Solicitor, acting on behalf of the Minister, was informed that as the claimed land was now within the Coffs Harbour City Council area any documents pertaining to it were likely to be held by the City Council. However, subsequent information provided by Clarence Valley Council indicated that documents obtained from the former Ulmarra Shire Council were "housed in a shipping container in a paddock". The contents of the documents within that shipping container were not known. The statement was made on behalf of Clarence Valley Council that it would be "a big job to try and access the shipping container because it is full".

104 In those circumstances, the Minister submits that it was appropriate not to issue a subpoena on the basis that it was likely to be burdensome on the Council and excessive in cost given that the existence of any particular relevant document or documents was unknown.

105 In those circumstances, the Minister submits that it would be inappropriate for the Court to infer Government inaction relating to the claimed land by reason of the absence of land use planning documents relating to the land. There is a difficulty with that submission.

106 First, the delay in determining the Land Claim between the time of its lodgement in October 1993 and the "abolition" of Ulmarra Shire Council in 2004 is unexplained. Nearly 11 years of records, if they existed, were available to the Minister in that time.

107 Secondly, by dint of s 36(7) of the Land Rights Act, the Minister bears the onus of establishing that the land that is the subject of ALC 5133 is not claimable Crown land. Whether that onus is discharged will depend upon the evidence that is led. No inference can be drawn in aid of that onus that among the stored records of Ulmarra Shire Council there may be documents supporting the case that the Minister is required to make. My decision will not be founded upon a choice between guesses as to what documents from Ulmarra Shire Council might have disclosed (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 per Dixon CJ at 304).

The evidence of Professor Andrew Short

108 Professor Short provided evidence of the geomorphology of both the claimed land and the immediately adjoining land to the west. He did so in his original report (Ex 9). Having regard to the outline of written submissions prepared on behalf of the Land Council prior to the hearing, in which objection was foreshadowed to his evidence on the basis that his opinions were expressed as at the date of his report in 2011 and therefore irrelevant to the position that pertained in October 1993, a supplementary report was prepared by him (Ex 10).

109 Professor Short had been working as a geomorphologist and marine scientist since the late 1960's. He had visited the area of the claimed land on several occasions between 1968 and 2011, including a visit specifically for the purpose of his report. In his second report (Ex 10) he concluded for reasons that he states that the "condition, morphology and integrity of the Red Rock foredune in 1993 compared to its condition in 2011 is essentially unchanged, apart from natural vegetation growth and decay, minor variation along active foot and vehicle tracks, with perhaps a few metres of retreat of the seaward face of the foredune, south of the 1.5km mark."

110 I admitted both Exhibits 9 and 10, subject to relevance. I consider that so much of Exhibit 9 as describes the beach and foredune as geomorphological units to be relevant to an understanding of those units or elements at the time the Land Claim was made. That means that sections 1 and 2 (essentially being formal matters) together with sections 3, 4 and 5 of Professor Short's report should be allowed. Exhibit 10 should also be allowed, having regard to the fact that, in essence, those parts of sections 3, 4 and 5 in Exhibit 9 that I consider relevant are related to the date of the Land Claim. The material is relevant to an understanding of the 1990 Coastal Policy although I do not suggest that it determines the meaning of expressions used in that Policy. In particular, it aids but it does not determine the meaning of references in that document to "beaches" and "adjoining Crown land".

111 Professor Short accepted as a reasonable definition of "beach", the deposit of sand, shingle or boulders extending landward from mean low waterline to the line of vegetation or bedrock and which is subjected to the normal wash of waves during the tidal cycle. In the case of Red Rock Beach, he described it as comprising both course and fine sands that sloped upwards from the waterline to the point where vegetation commenced. The average width of beach on the claimed land was 40m, measured from mean high water mark. However, in places it varied in width between 20m and 50m.

112 In some places, but not all, along the length of Red Rock Beach there was a small or low incipient dune, behind which was a foredune. To the rear of the foredune was an area, generally lower in elevation, known as the hind dune. Along Red Rock Beach, including the claimed land, the foredune ranges from 120m to 250m in width with an average width of about 170m. In geomorphological terms, the boundary between the foredune and the hind dune is evidenced by sands having different characteristics supporting different species of vegetation. Apart from the lower grasses, creepers, succulents and small shrubs that grow on the seaward slope and crest of the foredune, the balance of the foredune has predominant vegetation of banksia, eucalyptus and casuarina species.

113 By reference to these "markers", Professor Short determined the extent of the foredune to Red Rock Beach. Those markers enabled him to conclude that the boundary between the foredune and hind dune was located west of the boundary of the claimed land. That is, the foredune area extended into what was the Cratchley land and Lot 12 at the time of the Land Claim. That westerley extension of the foredune is depicted on Exhibit 11. At its widest point it is estimated by Professor Short to be about 400m west of the beach/vegetation interface.

114 These matters are relevant when considering the Coastal Policy of 1990 and steps relevant to its implementation.

The Minister's case

115 The essence of the Minister's case was articulated by Mr Mantziaris in what was referred to as the Minister's syllogism. It was articulated in the manner indicated in the following paragraphs:

(1) First it was contended that the statement in the Coastal Policy that the "beaches and any surrounding Crown land" will be dedicated for the purposes of public recreation, access and environmental protection evidences the likely need for the stated essential public purposes of land which fits that description. It is a likely need expressed at a level of "Executive Government". In support of this first proposition he refers as well to the 1989 Guideline (Ex 2: p 1), the Management Manual, particularly in its reference to "buffer zone", the Tenures Policy, dissemination of the Coastal Policy by the Premier to all Ministers and the provisions of Ulmarra LEP.

(2) Land needed as a buffer zone in order to manage "coastal hazards such as erosion, storm events, rising sea levels and climate change fall within "surrounding Crown land" as referred to in the Coastal Policy. Primary reliance is placed upon the Management Manual.

(3) The claimed land "exclusively comprises land which is beach and surrounding Crown land". It is land that falls within the definition of "buffer zone" in the Management Manual. It is therefore land that was likely to be needed for an essential public purpose.

116 Apart from the principal reliance upon the Coastal Policy and the Management Manual to support the syllogism, the Minister also refers to "local action" prior to the date of the Land Claim. Reference is made to the Corindi Beach Management Plan where reference is made to the Departmental policy statement which I have quoted at [61]. As will be apparent, that policy statement does no more than identify the possibility of maintaining linkages between Crown land holdings. The policy cannot and does not purport to avoid the necessity for assessment in order to determine the manner in which any particular area of Crown land might be utilised or regulated. A statement of policy does not supplant the need to address the provisions of the Crown Lands Act as they apply to the determination of the manner in which or means by which the use of any particular area of Crown land is to be controlled. Certainly, the Corindi Beach Reserve Plan of Management did not seek to impose its provisions upon the manner in which the claimed land might be utilised, other than to "discourage" off-road vehicle access to the beach.

117 It is submitted by the Minister that local action prior to the date of claim manifesting the likely need for the claimed land for protection of "beach" or "dune" is evidenced by the 7(f1) zoning of the land and the provisions of the LEP, particularly cl 19, that imposed limitations upon development.

118 I do not accept that the provisions of the LEP have the effect for which the Minister contends. Fundamentally, the provisions of the LEP did not seek to bring lands within the 7(f1) zone into public ownership. While development controls may have been restrictive and required consideration of impacts upon a beach or dune, the language of the instrument was not expressed in terms of prohibition. Indeed, as I have already indicated, a number of permissible land uses gainsay the proposition that the lands were needed for the essential public purpose of coastal protection. Sand mining or extractive industries, as permissible forms of development with consent, are but two supporting examples of that proposition.

119 The Minister acknowledges a "short period" of inaction between the announcement of the Coastal Policy in September 1990, the making of the LEP and the date of the Land Claim in October 1993. That period of inaction is said not to reduce the likely need for the land demonstrated by propositions (1), (2) and (3) of the Minister's syllogism. Support for the submission is said to arise from the allocation of functions directed to implementation of the 1990 Coastal Policy.

120 Reference is made to the provisions of the Coastal Policy allocating the assessment and reservation or dedication of Crown lands to the Department of Lands. The evidence reveals that at November 1993 the Grafton Office of the Department began a program "to reserve/dedicate all coast - front lands within the offices area of responsibility" (Ex 1: p 84). That program was then suspended as the Department "intended to dedicate all beaches in NSW from Sydney." The evidence does not reveal what steps, if any, the Grafton Office had taken in or after November 1993 nor is there evidence as to when that program was suspended. Importantly, there is no evidence to indicate any assessment of the claimed land with a view to reservation or dedication until 2006 when the Coffs Coast Regional Crown Reserve 1012190 was notified.

121 The second matter relied upon by the Minister as explaining a "short period" of inaction to implement that Coastal Policy was the claim that both the Policy and the Management Manual allocated primary responsibility for Coastal Hazard Management to the Department of Planning and local government. Both entities had a role in the preparation and ultimate making of the Ulmarra LEP in 1992. I have already addressed the provisions of the LEP in the context of the Minister's submissions. No separate action on the part of the Department of Planning between September 1990 and the date of claim is identified by the Minister. However, the response by the Minister for Planning in May 1993 to acquisition of the Cratchley land, identifying its lack of sufficient environmental significance to warrant acquisition and indicating the possibility of appropriate development on the land would, to my mind, offer no support for the Ministers submission.

122 The third matter prayed in aid by the Minister directed to the "short period" of inactivity is the unavailability of documents from Ulmarra Shire Council. For reasons earlier stated, I am not prepared to draw any inference favourable to the Minister in this context from the fact that documents potentially relevant to the issue and, it must be assumed, accessible by the Minister between the date of the Land Claim in October 1993 and 2004 are documents that are not now readily accessible.

123 There are three further matters to which the Minister directs attention and which, although arising by reference to events that occurred after the date of claim, are said to confirm the foresight of likely need for the claimed land for the identified essential public purposes. First, reference is made to the revocation in 1978 of Reserve R 1082 for Roadway and Other Purposes that had applied to the claimed land as well an extensive strip of coastal land in northern New South Wales since 1884. Notwithstanding that revocation, evidence from three sources expressed a mistaken belief in its continued existence. Internal Memoranda and documents prepared by the Department of Planning in 2000 and 2001 addressing the possible acquisition of the Cratchley land referred to the adjoining claimed land as being the subject of a "Reserve", by inference the then revoked Reserve R1082.

124 The second erroneous reference to the continued existence of Reserve R 1082 occurs in plans of subdivision prepared in 1982 and again in 2003 for what has been described as the Cratchley land together with Lot 12 to its south. As I have earlier recorded, each of the registered deposited plans record the existence of Reserve R 1082 as applying to the claimed land.

125 Thirdly, reliance is placed upon correspondence from a local community organisation in which the claimed land is referred to as "the Reserve" (Ex A: p 182). A landcare plan prepared by the Yarrawarra Aboriginal Corporation also referred to a "Reserve" strip from Corindi Beach to Red Rock.

126 The Minister points to these errors as reflecting a "misapprehension" to the reserved status of the claimed land. She submits that they explain the absence of formal action in relation to the claimed land while reservation action or exercise of other powers under the Crown Lands Act was taken in respect of other Crown lands in the vicinity.

127 I do not accept that evidence as leading to the conclusion the Minister seeks to have drawn. First, there is no evidence, either documentary or oral, from the Department of Lands, being the Department primarily responsible for management of lands under the Crown Lands Act, indicating any misapprehension by its staff as to the existence of any reserve that applied to the claimed land at the date of the Land Claim. The Memorandum dated 15 December 1995 reporting upon the Land Claim to the Director-General (Ex 1: p 79) described the land at the date of claim to comprise "unreserved vacant Crown land". Although not having the primary responsibility for management and designation of the land that the Department of Lands had, there is no evidence demonstrating that the Department of Planning refrained from taking any action available to it in respect of the claimed land by reason of "misapprehension" as to the reserve status of that land.

128 The Minister also suggests that inaction in relation to the claimed land, by comparison to action taken in respect of other Crown lands is explainable because the claimed land was "frozen" by the Land Claim made on 29 October 1993. The evidence relied upon to support the "freeze" is the letter from the Department of Conservation and Land Management dated 15 January 1996 directed to Ulmarra Shire Council in relation to the eco-tourism development proposed for Lot 12. That is the letter to which I have earlier referred, indicating that consent would not be given to the carrying out of any works on the claimed land referable to development of Lot 12 until the Land Claim had been resolved.

129 For reasons earlier stated, I do not accept that action under the Crown Lands Act on the part of the Minister was frozen by the Land Claim. The action by the Minister to waive land assessment and reserve the land in 2006, without explanation, demonstrates the absence of any such "freeze".

130 As was made clear by the Minister, the factual premise for his syllogism had as its foundation the 1990 Coastal Policy and actions taken subsequent to the dissemination of that Policy. For reasons that follow, I do not accept that that Policy and actions taken subsequent to it establish that the whole of the claimed land was, at the date of claim, likely to be needed for one or more of the identified essential public purposes. In addressing the Minister's case, it is important to notice that there is no record of any action in relation to the claimed land by the Department of Lands, the Department of Planning or Ulmarra Council between 1990 and the date of claim. That remains the position subsequent to the date of claim until 2006 when the Department of Lands imposed the reservation to which I have earlier referred and then in 2007 incorporated the claimed land into Parish Reserve R 752820 for future public requirements. As I have earlier observed, that delay, particularly on the part of the Department responsible for administration of the Crown Lands Act, is unexplained. I have already rejected the suggested rationale of "misapprehension" or belief that the Land Claim froze actions in respect of the claimed land.

Delay in determination

131 Before turning to consider each of the claimed essential public purposes for which the land was said to be needed, it is necessary to make a further observation in relation to the period that elapsed between the date of claim and date of determination. Delay in determining a land claim is relevant to the consideration of that claim (Maroota per Spigelman CJ at [61]). Any uncertainty arising from difficulty in establishing relevant matters by reason of the passage of time should be resolved in favour of the Land Council (Illawarra at [109] - [114]).

132 These principles are important to be noticed because in the period that passed between the date of claim and the date of determination, events occurred that indicated what might appear to have been a change in Policy. There was a change of Government in 1995 that resulted in the introduction of the 1997 Coastal Policy. The latter was said to fulfil an election commitment "to manage the Coast in an ecologically sustainable way" (Ex 2: p 361). What is described as a central focus of that Policy "is the need to establish an adequate, comprehensive and representative system of protected reserves in the coastal zone" (Ex 2: p 367).

133 The fact that policies and governments changed after the date of claim supports the caution that must be exercised in resorting to materials that are removed in time from that date as evidencing the likelihood of need at the date of claim. Although I had initially understood the Minister's case to rely significantly upon the 2006 Reservation of the claimed land as reflecting direct implementation of the 1990 Coastal Policy, it was subsequently made clear that reliance was placed upon "pre-1993 documents" to make its case. Reference to the 2006 Reservation of Crown land that included the claimed land was said to be identified only to rebut an argument that the Government was not interested in the claimed land for the three identified essential public purposes. The evidence has been assessed on this understanding of the Minister's case.

Coastal lands prior to the 1990 Coastal Policy

134 The Department of Planning had, in the early 1970's, administered a scheme known as the Coastal Lands Protection Scheme. Maps had been prepared for different coastal areas. Relevantly, a map had been prepared under this scheme for the coastline within the area of Ulmarra Shire Council.

135 In October 1974, maps entitled "Protection of Coastal Lands: Ulmarra Shire" were prepared that, so it is understood, amended earlier plans. The 1974 edition of those plans marked the Cratchley land as "protection essential". This was to be distinguished from other markings used on the Plan to indicate other land that was "acquisition essential". The claimed land was not marked in a way indicating protection but its marking was indicated on the legend to be "vacant Crown land and Crown land Reserve for various other purposes". This designation is to be contrasted with that given to other lands coloured on the map which, by reference to the legend, were identified as "Major Parks (National Parks, State Recreation Areas, Nature Reserves and Historic Sites); existing Crown Reserves for recreation and kindred purposes".

136 The Coastal Protection Act 1979 established the Coastal Council as an advisory and policy making body directed to the protection, maintenance and restoration of the environment of the New South Wales coastal zone and its "orderly and balanced utilisation and conservation" (s 28). The claimed land fell within the "coastal zone" identified in the Act.

137 Apart from establishing the Coastal Council, the Coastal Protection Act constrained a public authority, without the concurrence of the Minister, from carrying out development or from granting any person a right of consent so to do if, in the Minister's opinion, the development would impact upon or be impacted by the behaviour of the sea or an arm of the sea or if the development, use or occupation of land in the coastal zone would adversely affect any beach or dune (s 38(1)). The exercise of discretion depended upon an affect of the kind indicated. It did not act as a prohibition upon the use of land in the coastal zone nor, in its terms, did the legislation direct a process by which land was needed for one of the identified essential public purposes. Action under the legislation depended upon a case by case or site by site consideration, no doubt by reference to such policies or other publications that emanated from or through the Minister.

138 There is no evidence tendered that demonstrates consideration given to the claimed land under the Coastal Protection Act beyond its identification on the map to which I have earlier referred and located adjacent to the immediately adjoining land to the west identified for "protection".

139 It is against this background that the Coastal Policy of 1990 needs to be considered.

The 1990 Coastal Policy

140 I have already referred in some detail to the provisions of the Coastal Policy. I do not intend to repeat those provisions. Suffice to note that in understanding the Policy, it is important to focus upon the document as a whole or at least on those parts that address discrete topics rather than select isolated sentences or passages from the document. My reading of the document suggests the following as relevant to the issues to be determined in this case.

141 First, vacant coastal Crown land will be assessed for the purpose of the Policy under the provisions of the Crown Lands Act. Second, no action by way of disposal or reservation for a public purpose will be undertaken until the land is fully assessed under the Act. Third, public ownership of beaches will be achieved by an ongoing program of registering title to beaches within Crown control in the name of the State. Those beaches "and any surrounding Crown land" will be dedicated for the purposes of public recreation, access and environmental protection". Private acquisition of beaches will not be permitted (emphasis added). Fourth, following assessment, land may be reserved or even alienated but if to be alienated leasing is to be preferred to sale.

142 Specific reference is made in the Coastal Policy to the actions to be undertaken by the Lands Department. That action is directed to assessment of Crown land as a priority. Reference is again made to the registration of titled beaches under Crown Control in the name of the State. Neither assessment nor registration occurred until after 2006.

143 Notwithstanding the strength of the statement made in the Policy directed to beaches and their ownership, heavy mineral sand mining was not absolutely prohibited.

144 Of particular significance in the present context are the provisions of the Coastal Policy directed to its implementation. As I have earlier indicated, implementation was directed to various Government departments and instrumentalities. That is as one would expect of a document expressed at a level of a non-statutory policy statement. Aspirational statements were expected to be implemented through the existing statutory processes. General government policies do not of themselves establish the likely need for an essential public purpose to be applied to the claimed land (Bateman's Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800 (Batemans Bay) at [110]).

145 The Land Council has conceded that so much of the claimed land as comprises "beach" is not claimable Crown land on the basis that it was, at the date of claim, likely to be needed for the essential public purpose of public access. Having regard to the provisions of the Coastal Policy I accept that this concession was appropriately made. If there is one thing that is made apparent in that Policy it is that beaches should generally be accessible to the public. Although the Policy does not define the term "beach", a matter to which I will return in due course, it is apparent that the intertidal zone and area immediately proximate to it was likely to be needed for public access. In that regard, however, the Policy, to my mind, distinguishes that area from other areas proximate to the beach and the likelihood that those lands were needed for some essential public purpose. Indeed, the actions on behalf of both the Government and Ulmarra Council speak against the need in relation to Red Rock Beach.

146 If publication of the Coastal Policy had the effect for which the Minister contends as it applies to coastal Crown land, the consequence would be that no such land along the entirety of the New South Wales coastline could be the subject of claim under the Land Rights Act. The Coastal Policy makes no reference to the Land Rights Act, notwithstanding that it was in force at the time. Given that the Land Rights Act is accepted to be beneficial and remedial legislation, I cannot infer that such a consequence was intended. Such a consequence is avoided if, as the Coastal Policy itself requires, its terms are left for implementation under the currently available statutory regime administered by the various departments and instrumentalities identified in section 4 of the Policy.

147 Such an approach is consistent with the principle that the likely need identified in s 36(1)(c) of the Land Rights Act is to be determined by reference to the statutory schemes under which decisions are made or political will manifested on behalf of the Government (Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352; (2009) 171 LGERA 56 at [81]-[82] and [152]; Maroota [at [62]-[64]). In this case the Policy relevantly contemplated statutory action by the Department of Lands in undertaking land assessment. This did not occur - at least until 2006.

148 In short, I do not consider that the concession by the Land Council directed to the beach impinges upon its contention that the surrounding Crown land is not, by the terms of the Coastal Policy, identified as being needed for the essential public purposes for which the Minister contends. The only qualification expressed to that proposition is the need acknowledged by the Land Council to provide access to the beach in order that its public purpose be fulfilled. I take that latter purpose as being the provision of access from the beach above the mean high water mark. Therefore, access to the beach itself must be provided and the Land Council has conceded that access via an existing path from Red Rock Reserve to the northern end of the beach.

From the Coastal Policy to the date of Land Claim

149 The Minister seeks to support his reliance upon the Coastal Policy by referring also to the Management Manual. That Manual assumes the existence of the Policy. The essential provisions of the Manual have earlier been identified by me (at [38] - [45]).

150 For land beyond the "beach", I do not consider that the Manual has the effect for which the Minister contends. Its focus is upon the preparation by local authorities of coastal management plans and their implementation through appropriate planning instruments. There is no evidence of any management plan having been prepared for the claimed land or any land in its vicinity.

151 Moreover, the requirement to consider matters such as coastal processes and buffer zones in the course of either preparing a management plan or drafting planning instruments does not elevate those topics such that they demonstrate a likely need, in the sense of being a requirement for an essential public purpose. Desirability does not translate to such an essential purpose (La Perouse Local Aboriginal Land Council v The Minister (No 2) (1991) 74 LGERA 176 at 182 - 3).

152 Reference in the Management Manual to the provision of buffer zones for planning purposes does not, to my mind, assist the Minister's case. By definition, it is an area that is different from the "beach". Further, in the context of discussing the buffer zone, reference is made to the "foredune" by way of further distinction from the "beach". To the extent to which the Manual is to be read in conjunction with the Coastal Policy, as I believe it is intended, the Manual provides yet a further basis for distinguishing the beach component of Crown land from other areas within the Crown land holding.

153 The other post-Coastal Policy documents relied upon by the Minister are the Tenures Policy of 1991 and the LEP of 1992. In my earlier discussion of the Tenures Policy, I have identified its purpose and the fact that it does not identify coastal land at the tidal interface to be land that necessarily or essentially is required for public access. The Policy does no more than identify the approach to any application for tenure of coastal Crown land and the desire, rather than the certainty, that, where possible, public access be available.

154 The provisions of the LEP have already been discussed at some length. As my discussion of the terms of the instrument indicate, designated land uses and the provisions of the instrument pertaining to development control do not support the proposition that the claimed land was likely to be required for the essential public purposes identified.

155 The manner in which, foredune and hind dune are differentiated, either by name or description in the Coastal Policy and in the post policy documents is important to be noticed. That differentiation is made the more comprehensible, at least in a physical sense, by the evidence of Professor Short to which I have referred.

 

156 In the context of that evidence, the extent to which the foredune extends into the Cratchley land and into Lot 12 is significant. There is no rational basis upon which to conclude that the documents upon which the Minister relies manifested a likely need for an essential public purpose that depended upon title boundaries.

157 The Minister's observation in May 1993 that the Cratchley land "was not sufficiently environmentally significant to warrant acquisition" coupled with the encouragement then given to Mrs Cratchley to seek planning advice for appropriate development of her land "to derive some financial return" (see [55] above) are statements from a member of the executive government that are inconsistent with a contemporaneous perception of the need for the essential purpose of environmental and coastal protection. Moreover, there is no evidence to support a contention that so much of the foreshore as was located in the Cratchley land lacked environmental significance but that that part of the foredune within the claimed land did have that attribute. As Professor Short's evidence demonstrates, the extent of foreshore within the Cratchley land varied throughout the length of land on which there was the common title boundary between the two parcels of land.

158 Countenancing the prospect of a sewage treatment plant on Lot 12 involving dunal dispersal of treated effluent through the claimed land hardly demonstrates a likely need for the foredune in that area of the claimed land for the essential public purpose of environmental protection. Yet, neither of the State instrumentalities whose evidence is available in relation to that proposal, namely the Department of Public Works and the Environment Protection Authority, rejected the proposal on the basis of the claimed essential public purpose. The proponent of the proposal was Ulmarra Shire Council. Its actions certainly do not identify a likely need for that part of the claimed land for environmental protection.

 

The likely need for environmental and coastal protection is not established

159 As I identified at the outset, the case that the Minister sought to make was that the whole of the claimed land was likely to be needed for the essential public purpose of environmental and coastal protection. For the reasons that I have stated, the Minister has not discharged the onus of establishing that likely need at the date of claim. Expressed in the language of s 36(1)(c), the evidence does not establish there to have been a real and not remote chance that the executive government or one or more of its agencies would require the claimed land for that essential public purpose. The fact that the land may have been suitable for or have the capacity to fulfil such a purpose is, of itself, insufficient to satisfy the statutory requirement (Maroota at [73]).

Likely need for public access and recreation not established

160 As will be apparent from my earlier discussion, the Minister has not discharged the onus of establishing that the whole of the claimed land was, at the date of claim, likely to be needed for public access or recreation. I have articulated those reasons at some length and do not repeat them. Some of those reasons are the same as those founding my determination that the likely need for environmental and coastal protection has not been established. In essence, those reasons focus upon:

(i) the absence of any record held by the Department of Lands of action between 1990 and 2006 to assess the claimed land or consider its designation for any purpose under the Crown Lands Act;

(ii) the contrast of this position with evidence of action taken in relation to adjoining and nearby Crown lands reflecting additions to Crown Reserves to the north and south of the claimed land together with activity to include lands within national parks;

(iii) the absence of any documentary record of any other relevant agency directed to an assessment of the claimed land for access or recreation notwithstanding lengthy and adequate opportunity so to do should that purpose of use have been considered appropriate; and

 

(iv) the fact that the one statutory step that was taken, namely the making of the LEP, did not, by the terms of that instrument both in identifying permissible land uses and restrictions on development control, identify the likely need of the claimed land for recreation or public access.

The Land Council's concession: the consequence

161 The concession made by the Land Council that the beach and an access track to it is not claimable Crown land first necessitates consideration of s 36(5) of the Land Rights Act. That concession necessarily results in a determination that part of the claimed land, namely the beach and access to it, is not claimable Crown land. Expressed in the language of s 36(5)(b) I am satisfied that the "beach" and necessary access to it is not claimable Crown land because it is needed for the essential public purpose of access to that beach and intertidal zone.

162 That determination then necessitates consideration of the provisions of s 36(5A). Those provisions have earlier been recited at [13]. The Land Council seeks to invoke the provisions of that subsection by indicating that it accepts, as a condition of the grant of its land claim, the imposition of a condition accommodating public access to and along the beach. The making of an order under subsection (5A) is entirely discretionary.

163 Having determined that part of the land is not claimable Crown land, in order to engage the provisions of subsection (5A) it is necessary to consider whether the essential public purpose of access could be met subject the condition which, in principle, the Land Council accepts. In my opinion it can. The capacity to resort to and gain access to the ocean below mean high water mark by the provision of an ambulatory easement for public access landward of the mean high water mark would adequately secure the State's interests in maintaining public access to the beach. That, so it seems to me, must be the primary focus when considering the exercise of discretion under subsection (5A). Once satisfied that the State interests can be adequately secured, the nature of the Land Rights Act as remedial and beneficial legislation weighs in favour of the exercise of discretion. Although not a primary focus, the significance of the claimed land to Aboriginal people, as discussed in the evidence of Ms Murphy, is not ignored but, having regard to the legislative provisions, is not the primary focus in exercising the discretion available under the subsection.

Framing of appropriate orders

164 For reasons just discussed, I have determined that it is appropriate to make an order allowing the Land Council's appeal and granting its claim subject to the imposition of conditions in accordance with s 36(5A). As I have indicated, the Land Council accepts conditions of the kind that would allow access to and along the beach. The question remains as to how that "beach" should be described. Professor Short accepted as an appropriate definition of "beach" the following:

"a deposit of sand, shingle or boulders extending landward from mean low water line to the line of vegetational bedrock and which is subjected to the normal wash of waves during the tidal cycle."

165 Professor Short also indicated in Exhibit 9 that the "beach" forming part of the claimed land, that is from mean high water mark, varied between 20m and 50m in width but averaged 40m. These dimensions are important when considering the width of the ambulatory easement that should be allowed.

166 In a draft of proposed orders provided on behalf of the Land Council, the ambulatory easement was proposed at a width of 10m landward of the mean high water mark along the eastern boundary of the claimed land with that easement to be created under s 56 of the Crown Lands Act for the benefit of the Crown in right of the State of New South Wales. As I understand the submission provided in support of the draft, it was accepted that the width of 10m could be varied in accordance with the decision of the Court.

167 It seems to me that given the width of the beach as reflected in the evidence of Professor Short, the easement width should exceed 10m so as to allow reasonable public access along the beach. I consider that an appropriate width would be 30m west of the mean high water mark.

168 Public access as proposed by the Land Council from the Red Rock Reserve in the north and across the land that I have determined it to be claimable would, so it seems to me, provide suitable access to the beach. Otherwise, the terms in which the easement for the public access should be framed as proposed by the Land Council would appear to be appropriate. However, it may be that full consideration has not been given to those terms by the parties.

Orders

169 The only order that I will make at present is that the parties be directed to bring in agreed or, if not agreed, competing short minutes of order reflecting my reasons for judgment. In substance, the appeal will be upheld, a transfer of the claimed land ordered but subject to the conditions for easements of the kind that I have identified. It would be appropriate that if there is debate as to the terms of those orders the matter be listed by arrangement with my Associate in the week commencing 3 February 2014.

170 Accordingly, the formal order I make is as follows:

1. Direct that the parties bring in agreed or, if not agreed, competing short minutes of orders consistent with this judgment. In the event of disagreement, the matter is to be listed for argument by arrangement with my Associate in the week commencing 3 February 2014.

2. Exhibits to be returned when final orders are made.

**********

Decision last updated: 29 January 2014