Land and Environment Court New South Wales

• Medium Neutral Citation: Olofsson v Minister for Primary Industries (No 2) [2011] NSWLEC 181
• Hearing dates: 29, 30 and 31 August 2011
• Decision date: 14 October 2011
• Jurisdiction: Class 4
• Before: Preston CJ

Decision

The Court orders:

1. Proceedings nos 40637 of 2011 and 80279 of 2011 are dismissed.

2. In proceedings no 40637 of 2011:

(a) The applicant is to pay the costs of the first and fourth respondents fixed in the total sum of $5,000.

(b) The applicant is to pay the costs of the second and third respondents fixed in the total sum of $5,000.

3. In proceedings no 80279 of 2011, each party is to pay their own costs.

• Catchwords: JUDICIAL REVIEW - revocation of a temporary common, reservation for rural services and grant of licence for access, grazing and site investigation - source of power to revoke temporary common - revocation by implication from later, inconsistent reservation - requirement for revocation to be effected by notice in Gazette - meaning of - whether revocation and reservation complied with statutory requirements - whether revocation and reservation for unauthorised purposes or taking into account irrelevant considerations - validity of licence granted over land
• Legislation Cited: Bill of Rights 1688 (1 Wm & Mary Sess 2 c 2); Commons Management Act 1989, s 3, s 4, s 24, s 61A; Commons Regulation Act 1873; Commons Regulation Act 1898, s 3; Crown Lands Act 1884 (48 Vic No 18), s 4; Crown Lands Act 1989, s 3, s 34, s 78, s 80, s 84, s 87, s 88, s 89, s 90, s 91, Pt 5, Sch 3, 4 and 5; Crown Lands Consolidation Act 1913 s 5; Crown Lands Occupation Act 1861 s 1, s 29; Environmental Planning and Assessment Act 1979, Pt 3A; Imperial Acts Application Act 1969, s 6, Pt 2 Sch 2; Interpretation Act 1987, s 3, s 48; Mining Act 1992, s 265, cl 24(3), Sch 1, Div 4, Pt 2; Statute Law (Miscellaneous Provisions) Act (No 2) 2005, sch 1.5(3)
• Cases Cited: Brown v West (1990) 169 CLR 195; Buresti v Beveridge (1998) 88 FCR 399; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; Edenmead Pty Ltd v Commonwealth (1984) 4 FCR 348; Egan v Willis [1998] HCA 71; (1998) 195 CLR 424; Ex parte Penniment (1891) 12 LR (NSW) 68; Haneef v Minister for Immigration (2007) 161 FCR 40; In re Gleeson (1903) 3 SR (NSW) 470; Johns v Australian Securities Commission (1993) 178 CLR 408; Kable v State of NSW [2000] NSWSC 1173; (2001) Aus Torts Rep 81-587; Lockwood v The Commonwealth (1954) 90 CLR 177; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Lands v Nestrom (1899) 20 LR (NSW) 167; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31; Moore v Attorney-General for the Irish Free State [1935] AC 484; Municipal Council of Sydney v Campbell [1925] AC 338; Nicholson-Brown v Jennings [2007] FCA 634; (2007) 162 FCR 337; Olofsson v Minister for Primary Industries [2011] NSWLEC 137; R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452; Randwick Corporation v Rutledge (1959) 102 CLR 54; Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 56 ALJR 678; Taylor v Minister for Lands (1902) 19 WN (NSW) 178; Thompson v Council of the Municipality of Randwick (1950) 81 CLR 87; Ziade v Randwick City Council [2001] NSWSC 18; (2001) 51 NSWLR 342
• Texts Cited: Andrew G Lang, Crown Land in New South Wales (Butterworths, 1973)
• Category: Principal judgment
• Parties: Deidre Olofsson (Applicant); Minister for Primary Industries (First Respondent); White Mining (NSW) Pty Limited (Second Respondent); Ashton Coal Operations Pty Limited (Third Respondent); Minister for Resources and Energy (Fourth Respondent)
• Representation: Ms R Graycar with Ms L R Sanderson (Applicant); Mr N J Williams SC with Mr H R Sorensen (First and Fourth Respondents); Mr M J Leeming SC with Ms V Brigden (Second and Third Respondents); Environmental Defender's Office (Applicant); Crown Solicitor's Office (First and Fourth Respondents); McCulloch Robertson Lawyers (Second and Third Respondents)
• File Number(s): 40637 of 2011; 80279 of 2011

Judgment

Nature of case and conclusion

1 In 1876, land at Camberwell near Singleton in the Hunter Valley of NSW was devoted to temporary commonage. In 2010, the land was reserved for rural services and revoked as a common and a licence was granted over the land for access, grazing and site investigation.

2 One of the commoners, the applicant in these proceedings, challenges, by way of judicial review, the revocation of the common, the reservation for rural services and the grant of a licence. If the revocation of the common is invalid, the applicant also seeks an order for service of a notice of a mining lease application on the Camberwell Common Trust ("the Trust").

3 The grounds of challenge to the revocation, reservation and grant of licence include non-compliance with certain statutory provisions within the Commons Management Act 1989 and Crown Lands Act 1989, exercise of the powers for unauthorised purposes, taking into account irrelevant matters and the sequence of decision-making.

4 I have concluded that none of the grounds of challenge to the reservation, revocation and grant of licence have been established and that the proceedings should be dismissed.

The facts relevant to the grounds of challenge

5 On 23 February 1876, the Governor of New South Wales directed it to be notified, that in pursuance of the provisions contained in the Regulations under the Crown Lands Occupation Act 1861, the land at Camberwell described in the notification in the New South Wales Government Gazette, No 60, at 817 "shall be devoted to temporary commonage". Because of some perceived error in the first notification, a second notification was published in the New South Wales Government Gazette , No 374, 21 October 1876, at 4257 "in lieu of that dated 23 February 1876". The second notification of 21 October 1876 again stated that the Governor directed it to be notified, that in pursuance of the provisions contained in the Regulations under the Crown Lands Occupation Act 1861, the land at Camberwell described in the notification "shall be devoted to temporary commonage". I will refer to the land as "the Common".

6 Section 29 of the Crown Lands Occupation Act 1861 provided:

"The Governor with the advice aforesaid may proclaim and set apart temporarily any Crown Lands for commonage purposes for the use and benefit of the landholders in any city town or village or other specified locality and may make and proclaim regulations for the management of such commonage".

7 Clause 113 of the Regulations made under the Crown Lands Occupation Act 1861 provided:

"Crown Lands not reserved for or dedicated to any other purpose within the limits within which lands adjacent to any town are not open to pastoral lease under the Act, will ordinarily be devoted to temporary commonage, and placed, with any lands already set apart for that purpose, in the charge of the Trustees (if any) of the permanent Common in the same locality. Temporary commonage may, wholly or in part, at any time be exempted by the Government, for sale, lease, or other purposes; and shall be open to the pasturage of horses and cattle in use by travellers, teamsters, and carriers, for three days at any one time, or for such longer period as floods for other unforeseen natural causes may render unavoidable."

8 Land devoted to temporary commonage was included by the Commons Regulation Act 1898 as a common. Section 3 of that Act defined "Common" to include:

"any portion of land which, at the time of the passing of the Commons Regulation Act of 1873, had been by any instrument under the hand of the Governor, whether with or without the advice of the Executive Council, allotted as a common for the use of the inhabitants of the towns, or the cultivators and small farmers in the district or locality in which such common is situated, and any common, whether permanent, temporary, or for pasturage, heretofore or hereafter granted, notified, reserved, or dedicated by the Governor."

9 The Common was managed by a Trust which was created under the Commons Regulation Act 1873. The Commons Regulation Act 1898 repealed and replaced the Commons Regulation Act 1873 but continued the trusts for commons already established. In turn, the Commons Management Act 1989 repealed and replaced the Commons Regulation Act 1898.

10 Pursuant to s 4(1)(b) of the Commons Management Act 1989, by notice published in the New South Wales Government Gazette , No 65, 25 June 1993, at 3200, the Minister assigned the corporate name of Camberwell Common Trust to the body corporate in respect of the trust for the Common.

11 In 1953, part of the land devoted to temporary commonage, in proximity to Camberwell Village, was reserved for public recreation and children's playground by notification published in the New South Wales Government Gazette , No 179, 9 October 1953, at 3401.

12 The remainder of the Common was given by the Department of Lands the identifier "Reserve 170176". The remaining Common became Lot 7004 in DP 93630 and Lot 7300 in DP 1121685.

13 On 22 May 2001, an Exploration Licence EL 5860 was granted to White Mining Limited and renewed from time to time including, most recently, on 17 December 2009 for a further term until 21 May 2012 in the names of White Mining (NSW) Pty Limited, ICRA Ashton Pty Ltd and Austral-Asia Coal Holdings Pty Ltd. EL5860 related to an area originally of 283 ha to the south of Camberwell Village, including the Common. The renewal was over an area of 272 ha (in two parts) and still included the Common.

14 On 11 October 2002, development consent DA 309-11-2001 was granted for the Ashton Coal Project. The Ashton Coal Project consists of the development of an open cut coal mine directly to the north of Camberwell Village, an underground coal mine directly to the west of Camberwell Village, and construction and operation of associated surface facilities. The development consent was modified in 2003, 2005 and 2007.

15 On 26 February 2003, a Mining Lease ML 1533 was granted to White Mining Ltd, White Mining (NSW) Pty Ltd and ICRA Ashton Pty Ltd for a period until 25 February 2024 over land that includes part of the then Common, a Travelling Stock Reserve (TSR-66768) and a Rubbish Depot Reserve (R-89555).

16 On 4 August 2003, White Mining Ltd, Camberwell Common Trust ("the Trust"), Hunter Rural Lands Protection Board ("HRLPB") and the Minister Administering the Crown Lands Act 1989 ("the Minister") entered into an agreement, being a compensation agreement, for the purposes of s 265 of the Mining Act 1992, whereby, in compensation for the Trust, HRLPB and the Minister consenting to mining on part of the Common, the Travelling Stock Reserve and the Rubbish Depot Reserve, White Mining Ltd provided alternative sites for the Trust to use as a common and the HRLPB to use as a travelling stock route.

17 On 11 December 2007, Ms Lisa Richards, the Environment and Community Relations Manager of Ashton Coal Operations Pty Ltd ("Ashton Coal"), made a request to the secretary of the Trust, the applicant in these proceedings, Mrs Olofsson, for Ashton Coal's flora and fauna consultants to access the Common to undertake flora and fauna survey works. Ms Richards was told that Ashton Coal would have to wait until the next meeting of the Trust, at a time which was yet to be determined.

18 On 11 March 2008, Mrs Olofsson verbally notified Ms Richards that the Trust at its meeting had refused to give Ashton Coal access to the Common to undertake the flora and fauna survey works. Mrs Olofsson also advised that the Trust was aware that the works were potentially for an open cut coal mine being considered for the area and the Trust did not support the idea of an open cut mine.

19 On 28 March and 23 April 2008, Ms Richards emailed Mr Peter Allen at the Department of Lands advising of Ashton Coal's request for and the Trust's refusal of access to the Common and seeking consideration by the Department of Lands to allow Ashton Coal's flora and fauna consultants to gain access to the Common area to undertake flora and fauna survey works.

20 On 3 June 2008, Ms Richards of Ashton Coal wrote a letter to the Trust (attention Mrs Olofsson) proposing an access agreement to establish access requirements for the Common. On 22 September 2008, Ms Richards wrote again to the Trust (attention Mrs Olofsson) enclosing a revised access agreement incorporating changes that had been requested by the Trust.

21 On 1 October 2008, Ms Richards of Ashton Coal emailed Mr Allen at the Department of Lands reporting that Ashton Coal had been consulting with the Trust with a view to gaining access to undertake environmental assessment work, supporting an application for project approval for mining under Part 3A of the Environmental Planning and Assessment Act 1979 ("EPA Act"), including submitting an access agreement to the Trust, but it had been unsuccessful to date. Ms Richards advised that Ashton Coal now considers it is not possible to reach an agreement with the Trust. Ms Richards requested the Department of Lands, as the relevant landholder for the Common under the Mining Act 1992, to grant access to the Common to Ashton Coal and its consultants to undertake environmental assessment works.

22 On 15 October 2008, the Department of Lands sent a letter to the Trust (attention Mrs Olofsson), with a copy to Ms Richards of Ashton Coal, advising that Ashton Coal requires access to parts of the Common over a nine month period commencing on 20 October 2008 in order to undertake environmental assessment to support an application for project approval under Pt 3A of the EPA Act. The Department of Lands requested that the Trust, upon receiving 24 hours notice, make the Common accessible to Ashton Coal to undertake the environmental assessment works. The letter erroneously referred to the environmental assessment works being required as part of a mining lease granted under the Mining Act 1992.

23 On 17 October 2008, the Department of Lands wrote again to the Trust (attention Mrs Olofsson) correcting the erroneous reference to a mining lease having being granted over the Common and stating that the reference should have been to an Exploration Licence.

24 On 17 October 2008, Ms Richards of Ashton Coal wrote to the Trust (c/- Mrs Olofsson) advising that, in accordance with the letter of the Department of Lands of 15 October 2008, Ashton Coal will be requiring access to the Common for a two week period commencing on 20 October 2008.

25 On 3 November 2008, Sparke Helmore, solicitors for Ashton Coal, wrote to the Director General of the Department of Lands seeking access to the Common to undertake environmental assessment in support of an application for project approval under Pt 3A of the EPA Act for the Ashton South East Open Cut Project. The letter sought an access arrangement with the Department of Lands, rather than continuing to try and reach agreement with the Trust with whom Ashton Coal had had no success.

26 On 11 November 2008, Ms Richards of Ashton Coal wrote to the Trust (c/- Mrs Olofsson) advising that Ashton Coal would be requiring access to the Common on 13 and 14 November 2008.

27 On 12 November 2008, Mrs Olofsson of the Trust emailed Mr Allen of the Department of Lands concerning the letter of 11 November 2008 from Ms Richards requesting access to the Common.

28 On 11 December 2008, Ms Richards of Ashton Coal wrote to the Trust (c/- Mrs Olofsson) advising that the Trust that Ashton Coal will require access to the Common on 15-19 December 2008.

29 On 12 February 2009, Ms Richards of Ashton Coal emailed Mr Allen of the Department of Lands seeking a meeting to discuss Ashton Coal's new open cut proposal and potential Crown land purchases within the Camberwell area. A meeting was later arranged for 9 March 2009.

30 On 11 March 2009, Ashton Coal lodged project application 08_0182 seeking approval under Pt 3A of the EPA Act for the construction of a further open cut mine directly to the south of Camberwell Village known as the South East Open Cut project ("SEOC"). The SEOC and associated facilities are to be located to the south of Camberwell Village and will impact on the remains of the Common and the adjoining Crown lands.

31 On 11 May 2009, Ms Richards of Ashton Coal wrote to the Trust (c/- Mrs Olofsson) advising that Ashton Coal will require access to the Common on 14-16 May 2009 to undertake a European heritage survey.

32 On 21 and 23 October 2009, Ms Richards of Ashton Coal emailed Mr Allen of the Department of Lands seeking access to the Common to undertake some further flora and fauna work on 23 October 2009, and seeking to finalise the land exchange agreed in the compensation agreement in 2003.

33 In November 2009, an issue was raised as to cracking in the road and adjoining common which led to various meetings and correspondence concerning rectification and compensation.

34 Around 13 November 2009, representatives of Ashton Coal met with representatives of the Department of Lands to discuss general matters regarding the Common and a potential land purchase strategy in association with the SEOC.

35 On 10 December 2009, Ms Richards of Ashton Coal wrote to the Trust (c/- Mrs Olofsson) referring to Ashton Coal's project application for approval to construct and operate the SEOC which covers the Common and seeking to arrange a meeting with representatives of the Trust to discuss the potential impacts of the SEOC on the Common and future management strategies.

36 On 18 December 2009, Ms Wendy Menz of the Land and Property Management Authority ("LPMA") (formerly the Department of Lands) wrote to the Trust (attention Mrs Olofsson) advising that LPMA has provided approval to Ashton Coal to access the Common to undertake remediation work for cracking in the Common and any follow-up monitoring as required. The approval to access was effective from 16 December 2009.

37 On 21 December 2009, Mrs Olofsson on behalf of the Trust replied in writing to Ms Richards' letter of 10 December 2009 about a meeting with the Trust on the second open cut application and impacts on the Common. Mrs Olofsson said that due to Christmas and school holidays, the Trustees would be unable to meet with Ashton Coal until February 2010.

38 On 21 December 2009, Mr Peter Barton, the General Manager of Ashton Coal, wrote to Mrs Olofsson on behalf for the Trust enclosing a copy of the report detailing the remediation works undertaken to the cracks that occurred in the Common and advising that Ashton Coal will continue to require access to this portion of the Common to the end of 2010 for the purpose of inspections and survey.

39 On 22 January 2010, Ms Richards of Ashton Coal wrote to Mr Allen of LPMA in relation to Ashton Coal's potential land purchase strategy for the currently proposed SEOC and Ashton Coal's proposal to purchase various parcels of Crown land in and around Camberwell as well as the Common for the SEOC operations.

40 On 5 February 2010, Ms Richards of Ashton Coal wrote to the Trust (c/- Mrs Olofsson) following up Ms Richards' earlier letter to the Trust dated 10 December 2009 and Mrs Olofsson's response dated 21 December 2009 indicating the Trustees would be unable to meet until February 2010. Ms Richards asked for this meeting to now be arranged and for Mrs Olofsson to advise of a suitable date.

41 On 16 February 2010, Ms Richards of Ashton Coal received a telephone call from Ms Thelma De Jong on behalf of Mrs Olofsson indicating that the Trustees would be able to meet Ashton Coal sometime within the next two weeks and Ms Richards confirmed that Ashton Coal would be available at a time convenient for the Trust and would wait to hear from the Trust as to the date of the meeting.

42 On 15 March 2010, Ms Richards of Ashton Coal emailed Mr Allen of LPMA stating the history of trying to arrange a meeting with the Trust and advising that, as of 15 March 2010, Ashton Coal was still waiting to hear from the Trust as to a suitable date for the meeting. Ms Richards stated that she believed that Ashton Coal had made every reasonable effort to undertake consultation with the Trust and requested that LPMA as the landowner take carriage of the matter. She referred to the fact that the SEOC has been declared a State significant major project for which Ashton Coal is seeking approval under Pt 3A of the EPA Act and that they would soon be lodging a mining lease application relating to the area including the Common.

43 On 17 March 2010, Ms Richards of Ashton Coal received a phone message from Mrs Olofsson on behalf of the Trust indicating that she and another person would be available for a meeting on 9 April 2010. Also on 17 March 2010, Mr Barton of Ashton Coal had a telephone conversation with Ms Menz of LPMA suggesting a meeting with LPMA, the Trust and Ashton Coal at LPMA's offices in Maitland.

44 On 19 March 2010, Ms Richards of Ashton Coal emailed Mr Allen and Ms Menz of LPMA reporting on her attempts to organise a meeting with the Trustees including telephoning Mrs Olofsson's residence on 19 March 2010 but being unable to do so by reason of an abusive response. Ms Richards requested LPMA to take responsibility for making arrangements to meet with the Trust and advising that Ashton Coal's employees were no longer willing to accept the type of treatment they receive when they deal with representatives of the Trust. Ms Richards said that it had now been over four months since Ashton Coal's first letter requesting the meeting and that they had made every reasonable step to undertake consultation with the Trust. Ms Richards requested again that LPMA as the landowner take carriage of the matter.

45 On 19 March 2010, by notice published in the New South Wales Government Gazette , No 41, at 1300 and pursuant to the 2003 compensation agreement, part of the Common was revoked as a common and the adjoining Rubbish Depot Reserve and Travelling Stock Reserve were also revoked. These three parcels of land were exchanged for other land as had been agreed in the 2003 compensation agreement and became under freehold title to Ashton Coal Mines Limited.

46 On 20 March 2010, Mrs Olofsson on behalf for the Trust wrote to Ms Richards of Ashton Coal stating that the Trust would be available to meet with Ashton Coal on 9 April at 10.00am at the Common. On 22 March 2010, Ms Menz of LPMA emailed Ms Richards and Mr Barton of Ashton Coal advising that, in Ms Menz's conversation with Mrs Olofsson, Mrs Olofsson indicated 9 April 2010 was the first available time that the Trustees were able to meet and that LPMA would try to formalise the venue and the date and would advise both parties accordingly.

47 On 26 March 2010, Mrs Olofsson on behalf of the Trust emailed Mr Allen and Ms Menz of LPMA concerning the proposed meeting at which the Trust would be available on 9 April 2010.

48 On 31 March 2010, Mr Barton of Ashton Coal emailed Ms Menz of LPMA requesting that LPMA attend the meeting on 9 April 2010 and therefore suggested the venue be at LPMA's offices at Maitland.

49 On 1 April 2010, the Trust emailed LPMA advising that the meeting date on 9 April 2010 was unacceptable to the Trust as the Secretary (Mrs Olofsson) had an urgent medical appointment. The Trust also requested that an agenda for any meeting be provided.

50 On 7 April 2010, Mrs Olofsson on behalf of the Trust emailed Mr Allen of LPMA stating that it came as a shock to be told the meeting was to be held at LPMA's office at Maitland rather than on the Common at Camberwell. Mrs Olofsson said that if the Department wants to have a meeting, an agenda should be provided and also the next available date would be in the first week in the school holidays in July 2010.

51 As a consequence, the meeting between Ashton Coal, the Trust and LPMA did not proceed on 9 April 2010.

52 Sometime between 1 April and 14 April 2010, LPMA prepared a briefing note on the "Current status of the affairs of Camberwell Common". The briefing note discussed the issues and tension between Ashton Coal and the Trust relating to mining activities near the Common and access to the Common by Ashton Coal.

53 On 14 April 2010, a briefing note, with the reference "DOC10/25743", was prepared and submitted to the Regional Manager, Central Coast/Hunter of LPMA. The briefing note dealt with and recommended approval for the revocation of the Common, the reservation for the public purpose of rural services and the grant of a licence over the land comprising the Common being Lot 7004 DP 93630 and Lot 7300 DP 1121685. As this document is later identified as containing the matters the decision-maker took into account in making, and the reasons for making, the decisions of revocation, reservation and grant of licence, the terms of the briefing note warrant setting out in full:

" 1. Issue

1.1 Waiver of land assessment required to facilitate the reservation of Lot 7004 DP 93630 & Lot 7300 DP 1121685 for Rural Services and approval required for the revocation of Camberwell Common.

2. Background

2.1. Camberwell Common (170176) was notified 21st October 1876 for Temporary Commonage and originally comprised Lot 7004 DP 93630 Lot 7300 DP 1121685 & Lot 2 DP 1056200.

2.2. Ashton Coal Operations Pty Ltd (ACOL) operates the Ashton Coal Project (ACP) in the Camberwell district. Development consent was granted for the ACP in 2002. The approval was subsequently modified in 2003, 2005 and 2007. As a result of the mining development, a land exchange was agreed to in 2003 between Ashton Coal/White Mining and the Camberwell Common Trust, the Hunter Rural Lands Protection Board (HRLPB) and Singleton Council.

2.3. To formalise the terms of the land exchange, the LPMA and the mining lessee drafted a Compensation Agreement. This document was executed by HRLPB, Camberwell Common Trust and White Mining/Ashton Coal in August 2003.

2.4. Ashton Coal Operations [Pty] Limited is expanding its operation at Camberwell and has recently lodged a Part 3A Major Project application with Planning NSW being the South East Open Cut Project (SEOC). The SEOC and associated facilities are to be located immediately south of Camberwell Village and will impact on the remains of Camberwell Common and adjoining Crown Parcels.

2.5. By Gazette on 19 th March 2010 (folio 1300) and as per the 2003 land exchange agreement:

• Lot 2 DP 1056200 was revoked out of Camberwell Common; and
• Two adjoining reserves, being R89555 for Rubbish Depot and R66768 for Travelling Stock were revoked;
• These parcels were exchanged and are now under freehold title to Ashton Coal Mines Limited.

2.6. Ongoing management issues associated with the co-existence of active common and mining activities resulted in heightened tensions between the Common Trust and the Mining Company. Both parties are allegedly guilty of breaches of their relevant conditions of approval. Recent attempts by the Maitland LPMA Office to arrange meetings between the parties to resolve the issues have been unsuccessful.

3. Current Situation

3.1. There are ongoing issues relating to management of the Camberwell Common and increasing pressure from the mining sector. The current proposal by ACOL will have significant impacts on Crown land in the area, including the Common, and it is considered appropriate that the Common be revoked and the land reserved for the Public Purpose of Rural Services.

3.2. The Compensation Agreement, as approved by the Minister in August 2003, states that the exchanged freehold parcels are to be part reserved for Commons and part reserved for Travelling Stock purposes. Both exchanged parcels are now held by the State of New South Wales and can be dealt with under the Crown Lands Act 1989 (the Act). Under the Act the Public Purpose of Rural Services covers purposes notified under former legislation including "Commonage", "Temporary Common" and "Temporary Commonage".

Recommendation

It is recommended that:

1. The Regional Manager, Central Coast/Hunter Region;

i. by delegation 29D.1.37 under Section 61A of the Commons Management Act 1989 authorise the revocation of the whole of Camberwell Common, being Lot 7004 DP 93630 and Lot 7300 DP 1121685; and

ii. by delegation 30D.1.2 under Section 87 of the Crown Lands Act 1989 authorise the reservation for the public purpose of Rural Services in regards to Lot 7004 DP 93630 and Lot 7300 DP 1121685, being the Crown land described in the attached Land Assessment Waiver Report (Annexure "A") subject to;

a) approval to waive the requirement for land assessment under Section 91(2) of the Act being provided by the Director Land Management;

and;

authorise a temporary licence for Access and Grazing over Lot 7004 DP 93630 and Lot 7300 DP 1121685 to Ashton Coal to allow access to the Crown land to facilitate necessary works associated with their investigation of the site and to accommodate short term grazing; and

iv. authorise a temporary licence over Lot 1 & 2 DP 1114623 to the (former) Trustees of Camberwell Common Trust allowing grazing activities to continue for the persons who used the Common until such times as a Community Trust Board, or similar management body, is established to manage the affairs of the lands - subject to concurrence from the Mid Coast Livestock Health and Pest Authority for Lot 2 DP 1114623;

2. The Director, Land Management, Crown Lands Division approve the attached Waiver of Land Assessment Report (Annexure "A"), for the reservation for the public purpose of Rural Services in regards to Lot 7004 DP 93630 and Lot 7300 DP 1121685 at Camberwell, the reservation of Rural Services for Lot 1 DP 1114623, and the reservation for Travelling Stock and Rural Services for Lot 2 DP 1114623."

54 Annexure A to the briefing note is entitled "Report on the Waiver of the Need for a Land Assessment". The report is divided into five parts and finishes with a recommendation. Part A sets out the "Details of the Proposal", including a description of proposed action, use or development, which is in part as follows:

"Lot 7004 DP 93630 & Lot 7300 DP 1121685 - Reservation for Rural Services following revocation of existing reserve. The reservation action is being undertaken to facilitate the ongoing works associated with a Part 3A Major Project being the Ashton Coal Project - South East Open Cut (SEOC)."

55 The description of the proposed tenure included "Reserve for Rural Services and issue of Temporary Licence to Ashton Coal over Lot 7004 DP 93630 and Lot 7300 of DP 1121685".

56 Part B contained "Planning Assessment Details". Item 5 asked "Will an assessment of environmental effect be required?" and the answer given was "No - full Environmental Assessment completed as part of Director Generals Requirements under Part 3A provisions of EP&A Act."

57 Part C concerned "Consultation within Department of Lands". Paragraph (b) asked "Does the proposal accord with all relevant Dept policies?" to which the answer given was "yes" and specified "principles of Crown land management in the Crown Lands Act 1989 ".

58 Part D addressed the "Public Interest" and asked "Whether it is in the public interest to waive the need for a Land Assessment." The answer given was "yes" and two reasons were given: first, that it was "Best Practice in terms of efficiency of process and the minimisation of administration costs" and, secondly, that "[t]he public has had an opportunity to comment on the proposed use of the land through similar land use study processes." Particulars were given for each of these two reasons:

" 1. Best Practice in terms of efficiency of process and the minimisation of administration costs.

(a) Circumstances:

A full land assessment will not add value to the assessment process.

(b) Details:

The proposal is being assessed by the Department of Planning and the applicant had lodged a full Environmental Assessment as part of this process.

2. The public has had an opportunity to comment on the proposed use of the land through similar land use study processes.

(a) Circumstances:

The community has been given adequate opportunity to comment on the proposal.

(b) Details:

The Part 3A assessment process involves comprehensive community consultation and opportunity to comment including the formation of a Community Consultation Committee, media adverts, 'one on one' consultation with stakeholders and affected landholders, community information sessions and community surveys. The Environmental Assessment has also been placed on public exhibition."

59 Part E addressed the "Principles of Crown Land Management" and asked "Whether any waiver of the need for a Land Assessment would be consistent with the principles of Crown land management". The answer given was "yes". Each of the principles of Crown land management was then discussed and reasons were given for the conclusion that a waiver of the need for land assessment would be consistent with that principle:

a)  That environmental protection principles be observed in relation to the management and administration of Crown land;	The proposed change in reserve purpose will allow ACOL to manage the site. According to the Part 3A assessment ACOL is committed to:   ·       Positioning of facilities to avoid clearing ·       Developing a management and mitigation strategy to minimise impact to flora and fauna ·       Enhancing, managing and implementing a vegetation offset strategy ·       Enhancing existing habitat and connectivity through the area
b)  That the natural resources of Crown land (including water, soil, flora, fauna and scenic quality) be conserved wherever possible;	The proposed change in reserve purpose will not affect the natural resources of the site in the short term.  The proposed coal mining operation will be authorised later under a Mining Tenure and ACOL has stated that it will conserve natural resources such as:   ·       Providing adequate standoffs from Glennies Ck to conserve hydrological values, riparian vegetation and associated alluviums   ·       Implementing an offset strategy for flora and fauna impacted by the SEOC ·       Modifying impacts of mining and operations to minimise clearing and proximity to waterways
c)  That public use and enjoyment of appropriate Crown land be encouraged;	Activities associated with the mining operations are not considered to be compatible with public use however the reservation of the land for Rural Services and temporary licensing of the land for grazing will allow for the current uses to remain, ie. grazing stock. The proponent has also stated that they are working with the Camberwell community to develop plans aimed at sustaining Camberwell village beyond the short term predicted mining.  ACOL propose the use of certain existing Crown lands for public purposes in order to improve the Camberwell community's facilities.
d)  That where appropriate, multiple use of Crown land be encouraged;	See above.
e)  That where appropriate, Crown land should be used and managed in such a way that both the land and its resources are sustained in perpetuity;	In its Part 3A Environmental Assessment report ACOL states that it has applied Ecologically Sustainable Development principles in relation to the SEOC.  It includes environmental management plans, environmental monitoring programs, rehabilitation, and offset strategies.  The project will not have a significant effect on biological diversity and will have ‘a net community benefit of $368 million’.
f)   That Crown land be occupied, used, sold, leased, licensed or otherwise dealt with in the best interests of the State consistent with the above principles.	In the short term this reservation will allow ACOL to investigate and conduct preliminary works on what is planned to become a coal mine.  The proposed licensing will also allow grazing similar to that being conducted under the current Temporary Commons.  In the medium term the project will maintain employment for the 160 people employed at the ACP open cut operations.  It will provide significant economic benefits to the local community and the State of NSW.  The longer term will see benefits via biodiversity offsets, rehabilitated land and community infrastructure and recreation opportunities at Camberwell.  Formalising the management of the subject land streamlines processes and in this case would allow for management of these two parcels of land in the best interests of the State.”

 

60 Annexure A concluded with a "Recommendation" in the following terms:

"It is recommended that the Director Land Management agree to exercise delegation under Section 91(2) of the Crown Lands Act 1989 to waive the requirement for land assessment in respect of proposed reservation of Crown land for the purpose of Rural Services over Lot 7004 DP 93630, Lot 7300 DP 1121685, & Lot 1 DP 1114623 and for Travelling Stock and Rural Services over Lot 2 DP 1114623 and in doing so is satisfied that it is in the public interest to do so, and that due regards [sic] has been made to the Principle [sic] of Crown Land Management."

61 On 14 April 2010, Mr Brett Phillips, the Regional Manager, Central Coast/Hunter approved the recommendation in the briefing note and in Annexure A and signed each document. On the same day, Mr Adrian Harte, the Director Land Management, also signed Annexure A exercising delegation under s 91(2) of the Crown Lands Act waiving the requirement for land assessment.

62 On 16 April 2010, the Minister published a notification in the New South Wales Government Gazette , No 54, at 1887. The notification was in part as follows:

" RESERVATION OF CROWN LAND

PURSUANT to section 87 of the Crown Lands Act 1989, the Crown Land specified in Column 1 of the Schedule hereunder, is reserved as specified opposite thereto in Column 2 of the Schedule.

TONY KELLY, M.L.C.,

Minister for Lands"

63 Underneath this statement were two Schedules, Schedule 1 and Schedule 2. Schedule 1 referred to land reserved as a Travelling Stock Reserve. Schedule 2 referred, in Column 1, to the Common (being Lot 7004 DP 93630 and Lot 7300 DP 1121685) and specified, in Column 2, that such land was reserved as:

"Reserve No: 1027028

Public Purpose: Rural Services."

64 Immediately below Schedule 2 was a note which stated:

"Note: Reserve 170176 is hereby auto revoked by this notification."

65 As noted previously, Reserve 170176 was the identifier given by the Department of Lands to the Common.

66 On the same day, 16 April 2010, the Minister for Lands, being the Minister Administering the Crown Lands Act, granted a licence to Ashton Coal Operations Pty Ltd pursuant to s 34 of the Crown Lands Act in respect of the land comprising the Common, being Lot 7004 DP 93630 and Lot 7300 DP 1121685. The licence conferred on Ashton Coal a right to occupy the land for the purpose specified in Schedule 1, being "Access, Grazing, Site Investigation".

67 On 30 April 2010, the Minister published a further notification by way of "Erratum" in the New South Wales Government Gazette , No 58, at 2013. The notification stated as follows:

" ERRATUM

IN the notice which appeared in the New South Wales Government Gazette No. 54 of the 16 April 2010, Folio 1887 under the heading 'RESERVATION OF CROWN LAND', the heading should have read 'RESERVATION OF LAND WHICH MAY BE DEALT WITH AS IF IT WERE CROWN LAND SUBJECT TO THE CROWN LANDS ACT'. The note 'Note: Reserve 170176 is hereby auto revoked by this notification' should have read 'Note: Common 170176 is hereby revoked pursuant to s 61A of the Commons Management Act 1989'. File reference: MD95R5.

TONY KELLY, M.L.C.,

Minister for Lands"

68 On 28 May 2010, White Mining (NSW) Pty Ltd, ICRA Ashton Pty Ltd and Austral-Asia Coal Holdings Pty Ltd lodged an application for a Mining Lease (MLA 351) over an area of 215 ha including the land formerly comprising the Common.

69 On 18 June 2010, notice was published in a local newspaper, the Singleton Argus, pursuant to cl 24(3) of Schedule 1 of the Mining Act, that those three companies have lodged an application for a mining lease over an area applied of about 215 ha.

70 On 22 July 2011, pursuant to orders made by the Court on 28 June 2011, the Minister Administering the Crown Lands Act and the Commons Management Act, by his solicitor at the Crown Solicitor's Office, stated that the decision-maker's reasons for revocation of the Common and for reservation of the land for rural services are set out in DOC 10/25743 and Annexure A and the decision-maker only had regard to the matters in those documents when making the respective decisions. As noted earlier, DOC 10/25743 was the briefing note with the recommendations for revocation, reservation and grant of licence and Annexure A was the report on the waiver of the need for a land assessment.

71 On 24 August 2011, the Minister, by the Crown Solicitor's Office, stated that the reason for granting the licence "was to permit access over Lot 7004 in DP 93630 and Lot 7300 in DP 1121685 by way of facilitation of the Agreement of 4 August 2003, the freehold land having already been transferred to the Minister Administering the Crown Lands Act 1989 under the land exchange agreed to in that Agreement by the parties (White Mining Ltd, the Camberwell Common Trust, Hunter Rural Lands Protection Board and the Minister Administering the Crown Lands Act - refer to DOC 10/24781 (Tab 65 Tender Bundle), DOC 10/25743 (Tab 66 - Tender Bundle))."

The parties' competing positions on the grounds of challenge

72 The applicant claims in the Amended Points of Claim filed 29 August 2011, that the revocation of the setting aside of the land as a common was invalid because:

(a) the revocation of the setting aside of the land as a common can only be effected by notice published in the Gazette in accordance with s 61A of the Commons Management Act, but the notices published in the Gazette on 16 and 30 April 2010 in this case did not comply with s 61A of the Commons Management Act and hence did not effect the setting aside of the land as a common (Ground 1 of the Amended Points of Claim);

(b) the decision to revoke the setting aside of the land as a common was made for unauthorised purposes, being the reasons given in paragraphs 2.4, 2.6 and 3.1 of the document DOC 10/25743 and a further reason referred to by the Minister in Parliament (Ground 2 of the Amended Points of Claim);

(c) the decision to revoke the setting aside of the land as a common was made taking into account irrelevant considerations, being the same matters raised as being unauthorised purposes (Ground 3 of the Amended Points of Claim).

73 The second and third respondents, the mining companies who have applied for a mining lease over the lands, and the first and fourth respondents, the relevant Ministers, defend the revocation of the setting aside of the land as a common because:

(a) the revocation of the setting aside of the land as a common was a result of the exercise of power under s 87 of the Crown Lands Act to reserve the land for rural services: on publication of the notices of reservation of the land for rural services in the Gazette on 16 and 30 April 2010, the prior reservation as a common was revoked by operation of s 89(2) of the Crown Lands Act;

(b) alternatively, the notices published in the Gazette on 16 and 30 April 2010 in this case did comply with s 61A of the Commons Management Act and effected a revocation of the setting aside of the land as a common;

(c) the reasons given for the decision to revoke the setting aside of the land as a common were not unauthorised purposes;

(d) the reasons given for the decision to revoke the setting aside of the land as a common were not irrelevant considerations.

74 The applicant claims the reservation of the land under s 87 of the Crown Lands Act was invalid because:

(a) there was no valid, prior revocation of the setting aside of the land as a common and no reservation can be made under s 87 of the Crown Lands Act without the land first having being revoked as a common (Ground 4 of the Amended Points of Claim);

(b) the Minister did not comply with s 91 of the Crown Lands Act in that he reserved the land without the land being assessed under Part 3 of the Crown Lands Act (Ground 5 of the Amended Points of Claim);

(c) the decision to reserve the land was made for unauthorised purposes, being the reasons for decision challenged in relation to the revocation of the Common given earlier (Ground 6 of the Amended Points of Claim);

(d) the decision to reserve the land was made taking into account irrelevant considerations being the same reasons for decision given earlier (Ground 7 of the Amended Points of Claim).

75 The respondents defend the reservation of the land because:

(a) the reservation of the land under s 87 of the Crown Lands Act revoked the prior reservation of the land as temporary commonage and hence there was no requirement for a prior revocation before a reservation of the land could be made;

(b) alternatively, the notices published in the Gazette on 16 and 30 April 2010 achieved both revocation as a common and reservation of the land and there was no need for consecutive notices to be published;

(c) the reasons for the decision to reserve the land were not unauthorised purposes;

(d) the reasons for the decision to reserve the land were not irrelevant considerations.

76 The applicant claims the licence granted under s 34 of the Crown Lands Act was invalid because, without a valid revocation of the setting aside of the land as a common, the land was not Crown land and hence the Minister could not grant a licence in respect of the land (Ground 4A of the Amended Points of Claim).

77 The respondents defend the grant of the licence on the basis that there was a valid revocation of the setting aside of the land as a common (under s 87 of the Crown Lands Act or s 61A of the Commons Management Act), upon revocation the Minister could deal with the land as if it were Crown land (s 61A(3) of the Commons Management Act) and hence the Minister could grant a licence in respect of the land under s 34 of the Crown Lands Act.

78 The applicant claims that, if the revocation of the setting aside of the land as a common is declared invalid, and hence the Trust will not have been dissolved, the applicants for mining lease application MLA 351 are required to serve notice on the Trust as "landholder" in respect of the Common under Division 4 of Part 2 of Schedule 1 of the Mining Act (Ground 8 of the Amended Points of Claim).

79 The respondents contest that the Trust is a "landholder" in respect of the Common for the purposes of Division 4 of Part 2 of Schedule 1 of the Mining Act and submit that the State of New South Wales as the registered owner, is the landholder.

Revocation

Non-compliance with s 61A of the Commons Management Act

80 Ground 1 of the applicant's challenge to the revocation of the setting aside of the land as a common turns on two critical questions: first, what is the source of the power exercised to revoke the setting aside of the land as a common and, secondly, did the notice (or notices) comply with s 61A of the Commons Management Act?

81 As to the first question, I find that there was power under s 87(1) of the Crown Lands Act to reserve the land previously devoted to temporary commonage for a different purpose and that inconsistent reservation impliedly revoked the previous devoting of the land to temporary commonage. The reservation was required to be by notification in the Gazette (s 87(1) of the Crown Lands Act) and took effect on publication of the notification (s 87(2) of the Crown Lands Act). Thereupon, revocation by implication was effected by the same notification published in the Gazette, as required by s 61A(1) of the Commons Management Act. I will explain my reasons for so concluding.

82 In 1876, when the land was devoted to temporary commonage under the Crown Lands Occupation Act 1861, the land remained Crown land. "Crown Lands" were defined in s 1 of the Crown Lands Occupation Act 1861 as "All lands vested in Her Majesty which have not been dedicated to any public purpose or which have not been granted or lawfully contracted to be granted to any person in fee simple."

83 The devoting of lands to temporary commonage did not "dedicate" land to a public purpose. Dedication involves a grant by the Crown of land for a public purpose. Dedication involves more formality and permanency than mere reservation. Land dedicated for a public purpose is removed from the control of the Crown; it ceases to be Crown land because of the definition of "Crown lands". It could therefore not be dealt with or disposed of, such as being leased or sold. However, this immutability and perpetuity yields to a statute. Hence, Crown lands legislation prescribed a formal procedure for revocation of earlier dedications, including laying the proposal for revocation of the dedication before both Houses of Parliament: Randwick Corporation v Rutledge (1959) 102 CLR 54 at 74-77; Andrew G Lang, Crown Land in New South Wales (1973) Butterworths at 77-78, 80-82; and see now s 84 of the Crown Lands Act.

84 Reservations of Crown land, including devoting land to temporary commonage, were temporary reservations of the land from certain uses or transactions, such as from sale or lease, for any public purpose. Reservations could be revoked by the Governor or by subsequent reservation inconsistent with the prior reservation: see Randwick Corporation v Rutledge at 74-77; and Lang, Crown Land in New South Wales at 83, 89-90.

85 Reservations did not remove Crown land from the control of the Crown: the reserved land remained Crown land. In other words, the mere reservation of Crown land did not constitute a dedication of the land, dedication being a separate process: Ex parte Penniment (1891) 12 LR (NSW) 68 at 69-71; Randwick Corporation v Rutledge at 74, 77; and Lang, Crown Land in New South Wales at 84-85.

86 This distinction between dedication and reservation continues to date, with the current power to dedicate land being s 80 of the Crown Lands Act while the power to reserve land is s 87 of the Crown Lands Act.

87 The status of the land devoted to temporary commonage in this case as Crown land was not altered by subsequent Crown land legislation. The definition of "Crown lands" under s 4 of the Crown Lands Act 1884 (48 Vic No 18) and s 5 of the Crown Lands Consolidation Act 1913 was slightly different to the definition of "Crown lands" in s 1 of the Crown Lands Occupation Act 1861 in that it referred to lands which had not been "permanently dedicated". Crown lands meant "lands vested in His Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee simple". However, this had no effect on the land in this case as the devoting of the land to temporary commonage neither "dedicated" nor "permanently dedicated" the land for public purpose.

88 The definition of "Crown land" in s 3(1) of the Crowns Lands Act 1989 reverted to the terminology of the 1861 Act of excluding "land dedicated for a public purpose" without reference to permanent dedication. "Crown land" is defined in s 3(1) of the Crown Lands Act to mean "land that is vested in the Crown or was acquired under the Closer Settlement Acts as in force before their repeal, not in either case being:

(a) land dedicated for a public purpose, or

(b) land that has been sold or lawfully contracted to be sold and in respect of which the purchase price or other consideration for the sale has been received by the Crown."

89 The land in this case was vested in the Crown and has not been "dedicated for a public purpose", because the devoting of the land to temporary commonage did not constitute dedication. The land therefore continued to be Crown land.

90 A reservation of land can be revoked either by exercise of an express power of revocation of a reservation of land or by implication by reservation of the land, which reservation is inconsistent in its intended effect on the land, such as reserving it for a different public purpose, to the prior reservation of the land: Minister for Lands v Nestrom (1899) 20 LR (NSW) 167 at 168; Taylor v Minister for Lands (1902) 19 WN (NSW) 178 at 179; In re Gleeson (1903) 3 SR (NSW) 470 at 472-473, 474; and Lang, Crown Land in New South Wales at 90.

91 Under the current Crown Lands Act, the express power to revoke a reservation is s 90, but revocation by implication can occur by exercise of the power to reserve land or add land to a reservation under ss 87 and 88 respectively and, upon publication of a notification of reservation or addition to a reservation, any other reservation applying to the land is revoked, unless the notification expressly provides otherwise: s 89(2) of the Crown Lands Act.

92 The applicant submits, however, that the power to reserve land under s 87 of the Crown Lands Act, and hence the power of revocation by implication, is not available for two reasons. The first reason is that the land was not "Crown land" and hence s 87, which empowers the Minister to reserve Crown land, was not applicable. This submission was originally based on s 24 of the Commons Management Act, which provides that, upon the revocation of the setting aside of a common, the trust established for that common is dissolved and the Minister may deal with any property of the trust as if it were Crown land. The applicant submitted that this showed that the land set aside as a common in this case was not Crown land and could not be dealt with as if it were Crown land until the setting aside of the land as a common was revoked or otherwise terminated. Hence, the land which had been set aside as a common could only be revoked expressly and not by implication because the power of reservation for an inconsistent public purpose (and hence revocation by implication) was not available.

93 This submission fails to recognise that the notification published in 1876 devoting the land to temporary commonage did not remove the land from being Crown land; the land remained Crown land ( Ex parte Penniment (1891) 12 LR (NSW) 68 at 69-71) and hence able to be reserved under s 87 of the Crown Lands Act.

94 The second reason was that the verb "reserve" in s 87 of the Crown Lands Act had the same meaning as the definition for the noun "reserve" in s 78 which excludes a common within the meaning of the Commons Management Act. That section defines "reserve" to mean:

"land which is dedicated or reserved under this Act or which immediately before the commencement of this section was a reserve within the meaning of Part 3B of the Crown Lands Consolidation Act 1913 , not in either case being:

(a) a common within the meaning of the Commons Management Act 1989 ,

(b) land within the meaning of the Trustees of Schools of Arts Enabling Act 1902 , or

(c) land, or land of a class, in respect of which an order under section 79 is in force."

95 Hence, the applicant submits, the Minister did not have power under s 87 of the Crown Lands Act to reserve land that was a common within the meaning of the Commons Management Act. The land in this case, being devoted to temporary commonage, was a common within the meaning of that word in s 3(1) of the Commons Management Act.

96 The respondents submit that the verb "reserve" in s 87 of the Crown Lands Act does not bear the meaning of the noun "reserve" in s 78 of the Crown Lands Act because, first, as a matter of construction, the defined word "reserve" only applies to the noun "reserve" where it occurs in Part 5 and Schedules 3, 4 and 5 of the Crown Lands Act and not to the verb "reserve" where it occurs in Part 5 and Schedules 3, 4 and 5 and, secondly, a definition always only applies unless the contrary intention appears: Buresti v Beveridge (1998) 88 FCR 399 at 401; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at 389.

97 I agree with the respondent's submissions. The definition of "reserve" in s 78 of the Crown Lands Act only applies if the word "reserve" is used as a noun or an adjective describing a noun (such as in Divisions 4-8 of Part 5 and Schedules 3, 4 and 5) and not where the word "reserve" is used as a verb (such as in Division 3 of Part 5). Indeed, if this were not to be so, there would be no power to reserve land as a common under s 87 of the Crown Lands Act and there is no other power to reserve land as a common under the Crown Lands Act or under the Commons Management Act.

98 The provisions of Division 3 of Part 5 of the Crown Lands Act govern the process of reservation of land. The provisions of Divisions 4-8 of Part 5 then apply to land that has been reserved by this process (or the process under former Crown lands legislation) and thereby has become a reserve, except for certain types of reserve, and govern the management of the reserve. The definition of "reserve" in s 78 specifies these excluded types of reserve, one of which is a common with the meaning of the Commons Management Act. The management of these excluded types of reserves is dealt with under other legislation referred to in the definition, including for a common, the Commons Management Act.

99 Hence, the definition of "reserve" in s 78 of the Crown Lands Act has no application to the word "reserve" in s 87(1) and "reservation" in s 87(2) of the Crown Lands Act.

100 For these reasons, the Minister did have power under s 87(1), by notification in the Gazette, to reserve the land in this case, which had been devoted to temporary commonage, for future public requirements or other public purpose.

101 As a matter of fact, the Minister stated by the notifications published in the Gazette on 16 April 2010 with the Erratum published in the Gazette on 30 April 2010 that he exercised the power under s 87 to reserve the land for the public purpose of rural services.

102 The second question is whether the notifications published in the Gazette on 16 and 30 April 2010 were effective to reserve the land (and hence impliedly revoke the prior setting aside of the land as a common).

103 The applicant submits that s 61A of the Commons Management Act is an example of a statutory provision where the publication of the notice in the Gazette is the very act by which the power to revoke the setting aside of land as a common is exercised and is distinguishable from a statutory provision which confers a power to make a decision, evidence of which is to be published by notification in the Gazette: Edenmead Pty Ltd v Commonwealth (1984) 4 FCR 348 at 353; Nicholson-Brown v Jennings [2007] FCA 634; (2007) 162 FCR 337 at [26]-[27]. Hence, the applicant submits, the validity of the purported revocation in this case depends on the adequacy of the notices published in the Gazette on 16 and 30 April 2010.

104 The applicant then submits that neither of the notices published on 16 and 30 April 2010 could be said to be a notice under s 61A of the Commons Management Act. The notice published in the Gazette on 16 April 2010 was not a notice under s 61A because it:

"ʉۢ makes no reference to the revocation of the setting aside of any land as common;

• makes no reference to a common;

• does not purport to be a notice under the CM Act;

• makes no reference to the CM Act;

• purports to give notice of the reservation of Crown land;

• purports to deal with Crown land;

• represents that the land in Column 1 of the Schedule to the Reservation Notice is Crown land; and

• purports to give notice of the exercise of powers under s 87 of the Crown Lands Act." (para 28 of Applicant's Outline of Submissions).

105 The applicant submits the note to Schedule 2 ("Note: Reserve 170176 is hereby auto revoked by this notification") appears to be a reference to the effect of s 89(2) of the Crown Lands Act. However, the applicant submits, because the Minister could not reserve the land under s 87 of the Crown Lands Act, no other reservation applying to the land could be revoked by the operation of s 89(2) of the Crown Lands Act.

106 The applicant submits that the Erratum notice published on 30 April 2010 is not itself a notice under s 61A of the Commons Management Act and also does not effect any alteration to the notice of 16 April 2010 but rather simply gives notice of the errors the earlier notice contained.

107 Furthermore, the applicant submits that the correction made by the Erratum notice to the note in Schedule 2, so that it read "Note: Common 170176 is hereby revoked pursuant to s 61A of the Commons Management Act 1989", was not effective because there was no indication that the note to Schedule 2 was intended to operate independently of Schedule 2 and hence, when the balance of Schedule 2 fails, the note must fail with it.

108 I reject the applicant's submissions that the notices published in the Gazette on 16 and 30 April 2010 do not effect revocation of the setting aside of the land as a common for three reasons: first, s 61A(1) of the Commons Management Act is not the only source of power to revoke the setting aside of land as a common; secondly, the notice published in the Gazette on 16 April 2010 was effective under ss 87 and 89 of the Crown Lands Act to reserve the land and revoke by implication the setting aside of the land as a common; and thirdly, the notice published in the Gazette on 16 April 2010 as amended by the Erratum notice published in the Gazette on 30 April 2010 was effective under s 61A of the Commons Management Act to revoke the setting aside of the land as a common. I will deal with each reason.

109 First, the applicant's submissions are founded upon s 61A(1) of the Commons Management Act being the only source of power to revoke the setting aside of the land as a common and that ss 87(1) and 89(2) of the Crown Lands Act are inapplicable. For reasons I have provided earlier, this is incorrect. There is power under s 90(1) of the Crown Lands Act to expressly revoke a reservation of the land (although this power was not exercised in this case). There is also power under s 87(1) of the Crown Lands Act to reserve land for a different public purpose, such as rural services, and the exercise of that power to reserve the land for a purpose inconsistent with the prior reservation of the land, such as devoting land to temporary commonage, by implication revokes the prior reservation of the land by operation of s 89(2) of the Crown Lands Act.

110 The reservation of the land was required to be effected by notification in the Gazette (s 87(1) of the Crown Lands Act) and the reservation took effect on publication of the notification in the Gazette of that reservation (s 87(2) of the Crown Lands Act). Revocation of any other reservation of the land also took effect on publication of the notification of reservation (s 89(2) of the Crown Lands Act). These requirements for notification and taking effect of the reservation of land and the revocation of any prior reservation are coterminous with the requirements of s 61A(1) of the Commons Management Act that revocation is to be effected by notice published in the Gazette.

111 Hence, the publication of notification in the Gazette of the reservation of the land can have two simultaneous effects: first, the reservation of the land for the specified public purpose (by operation of s 87(2) of the Crown Lands Act) and, secondly, the revocation by implication from that reservation of any prior reservation of the land (by operation of s 89(2) of the Crown Lands Act).

112 Once it is recognised that there is power in the Crown Lands Act to revoke a prior reservation of land, both expressly and by implication from an inconsistent subsequent reservation, the applicant's argument that publication of a notice under s 61A(1) of the Commons Management Act is the very act by which the power to revoke the setting aside of land as a common is exercised can be seen to be incorrect. Undoubtedly, s 61A(1) does require notice of any revocation of the setting aside of land as a common to be published in the Gazette. But this requirement does not make s 61A the only source of power of revocation of the setting aside of land as a common or the publication of the notice the act by which such power is exercised. As the respondents submit correctly, the decision in Edenmead Pty Ltd v Commonwealth is distinguishable both in terms of the legislative provision and scheme there involved, compared to the legislative provisions and schemes involved here, and in terms of the reasoning employed.

113 Secondly, the notice published in the Gazette on 16 April 2010 was effective under ss 87(1) and 89(2) of the Crown Lands Act. The notice described the two effects of reservation and implied revocation: first, the notice described the land affected (relevantly the land described in Column 1 of Schedule 2), the manner in which it was affected (reservation for the public purpose of rural services as specified in Column 2 of Schedule 2) and the statutory authority under which the Minister was acting (s 87 of the Crown Lands Act) and, secondly, the notice stated that such reservation of the land revoked the prior reservation applying to the land (by the note to Schedule 2 stating that "Reserve 170176 is hereby auto revoked by this notification").

114 The note to Schedule 2 was a fair description of the operation and effect of s 89(2) of the Crown Lands Act which provides that, on publication of a notification of reservation, any other reservation applying to the land is revoked. The reference to "Reserve 170176" was the identifier given to the land described in Column 1 of Schedule 2 which had been devoted to temporary commonage. I do not consider that the provisions of s 89(2) of the Crown Lands Act require, as a condition of validity of the notification of reservation and the consequential operation of s 89(2) to revoke any prior reservation, that the notification of reservation expressly specify the terms of any other reservation of the land. Indeed, s 89(2) of the Crown Lands Act operates to the contrary so as to revoke any other reservation of the land unless the notification expressly provides otherwise. The section, therefore, requires express provision of what is not to be revoked not what is to be revoked.

115 It is sufficient in this case that the notification of reservation identified that there was a prior reservation of the lands described in Column 1 of Schedule 2 ("Reserve 170176") and that the effect of publication of the notification of reservation of the land for a different purpose was that the prior reservation was revoked ("is hereby auto revoked by this notification").

116 The notification published in the Gazette on 16 April 2010 did, therefore, satisfy the statutory requirements in s 87(2) of the Crown Lands Act and effect both the reservation of the land for the public purpose of rural services under s 87(1) of the Crown Lands Act and the revocation of the prior setting aside of the land as a common under s 89(2) of the Crown Lands Act.

117 Thirdly, the notification published in the Gazette on 16 April 2010 as amended by the Erratum notice published in the Gazette on 30 April 2010 also satisfied the requirements of s 61A(1) of the Commons Management Act.

118 On one construction of s 61A(1) of the Commons Management Act, the notification published in the Gazette on 16 April 2010 did what was required by s 61A(1): it was a "notice published in the Gazette" and by operation of s 87(1) and (2) and s 89(2) of the Crown Lands Act, the notice effected the revocation of the setting aside of the land as a common. Hence, in the terms of s 61A(1) of the Commons Management Act, the revocation of the setting aside of land as a common was effected by the Minister by notice in the Gazette. On this construction, it is not necessary that the notice be specified expressly to be a notice under s 61A(1) of the Commons Management Act; it is sufficient if it is a notice published in the Gazette under any applicable statutory provision which effects the revocation of the setting aside of land as a common (which could be, but would not have to be, s 61A(1) of the Commons Management Act but could also be s 87(1) or s 90(1) of the Crown Lands Act which all provide for notification in the Gazette).

119 This is not such a strange construction given that s 61A was only inserted in 2005 (by Schedule 1.5(3) of the Statute Law (Miscellaneous Provisions) Act (No 2) 2005). Prior to that, from the date of commencement on 1 September 1991, the Commons Management Act had no requirement for publication of a notice of revocation of the setting aside of land as a common. Yet, there were other provisions which dealt with the consequences of revocation of a common (such as s 24 of the Commons Management Act). The powers to revoke the setting aside of a common lay outside the Commons Management Act and were in the Crown Lands Act. These powers included the express power to revoke a reservation of land under s 90(1) as well as the power to reserve land or add land to reserved land under ss 87(1) and 88(1), which reservation or addition to a reservation revoked any other reservation applying to the land (s 89(2) of the Crown Lands Act). The requirements for publication of a notification that expressly or impliedly effected a revocation of a reservation also lay outside the Commons Management Act and were in the Crown Lands Act (s 90(3) for express revocation and ss 87(2), 88(2) and 89(2) for implied revocation). One cannot conceive that it was the legislature's intention, by inserting s 61A into the Commons Management Act, to render these provisions ineffective.

120 Nevertheless, the provision in s 61A must be given some work to do. I consider the provision can be given work to do by construing it as providing a requirement for notification supplementary to the requirements for notification which otherwise apply under the Crown Lands Act where the nature of the prior reservation of Crown land being revoked is of the setting aside of Crown land as a common. It is to be remembered that Crown land can be reserved in different ways; it can be reserved from sale, lease or licence or for future public requirements or other public purpose. The setting aside of Crown land as a common is but one of the ways Crown land can be reserved. Whilst the provisions in the Crown Lands Act for notification of revocation, either expressly or by implication from later reservation, apply generally, where the reservation being revoked either expressly or by implication from later reservation is of the setting aside as a common, notification must also be given under s 61A(1) of the Commons Management Act. Hence, where there is proposed to be revocation of a reservation of the land as a common by implication from a later reservation under s 87(1) of the Crown Lands Act, the notification required must also satisfy the requirements of s 61A(1) of the Commons Management Act.

121 There is no statutory requirement as to the content of a notice under s 61A(1) of the Commons Management Act. Nevertheless, the applicant submits that s 61A(1) requires, at a minimum, that the notice: identify the relevant land; give notice that the setting aside of the land as a common is revoked; and identify the source of power which is being exercised. The applicant submits that the notice published in the Gazette on 16 April 2010 does not satisfy the second and third requirements and the Erratum notice published in the Gazette on 30 April 2010 did not cure these deficiencies.

122 The respondents submit that none of these requirements are found in the wording of s 61A. The respondents further submit, in relation to the third requirement, that it would be contrary to a long line of authority commencing with Moore v Attorney-General for the Irish Free State [1935] AC 484 at 498 to imply a requirement that an exercise of power is valid only if the statutory source of power is correctly identified: see R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 487; Lockwood v The Commonwealth (1954) 90 CLR 177 at 184; Brown v West (1990) 169 CLR 195 at 203; Johns v Australian Securities Commission (1993) 178 CLR 408 at 426; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 85-89; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [124].

123 The respondents submit that the notice published on 16 April 2010 met the first and second requirements but even if it did not, the Erratum notice altered the first notice so that the two notices, read together, complied with the first and second requirements. The third requirement was not a requirement at law and did not need to be satisfied.

124 I consider that, if s 61A(1) is to be construed as imposing supplementary requirements for notice where the revocation is of the setting aside of land as a common, then s 61A(1) should be construed as requiring the notice published in the Gazette to identify the land affected, that the land has been set aside as a common, and that by the notice the setting aside of that land as a common is revoked. I do not consider it is a requirement to identify the source of the power of revocation being exercised by the Minister. One reason is that the power of revocation being exercised by the Minister may not be s 61A of the Commons Management Act but may be under the Crown Lands Act. Another reason is the submission by the respondent that it would be contrary to the authorities, that a mistake as to the source of power works no invalidity, to imply a requirement that the notice must correctly identify the source of power in order to be valid.

125 By reference to these requirements of s 61A(1), the notice published in the Gazette on 16 April 2010 is deficient. The notice does identify the land affected by the notice (being, the land identified in Column 1 of Schedule 2) as a common but does not state that such land has been set aside as a common or that such setting aside as a common has been revoked. The reference to "Reserve 170176" does not disclose that such a reserve is a common and hence the statement that "Reserve 170176 is hereby auto revoked by this notification" does not disclose that it is the setting aside of the land as a common that is being auto revoked by the notification.

126 The Erratum notice published in the Gazette on 30 April 2010, however, corrects these deficiencies by the substituted note to Schedule 2. The Erratum provides that the land identified in Column 1 of Schedule 2 which was described in the former note in the 16 April 2010 notice as "Reserve 170176" should have been described as "Common 170176" and that it is the common that is "hereby revoked" by the notice published in the Gazette. The note substituted by the Erratum goes further to identify that Common 170176 is revoked "pursuant to s 61A of the Commons Management Act 1989". Express reference in the notice to s 61A may not be a requirement of s 61A(1) but the inclusion of the reference to that section (which deals with revocation of the setting aside of land as a common) makes it clear that it is the setting aside of the land identified as Common 170176 that is revoked by the notice published in the Gazette.

127 I agree with the respondents' submissions that there is power to publish an erratum which effects an alteration of the original notice. The respondents referred to ss 3(2) and 48 of the Interpretation Act 1987 and Edenmead Pty Ltd v Commonwealth at 353-354. In this case, the Erratum notice effected an alteration of the original notice. The two notices are, therefore, to be read together.

128 I reject the applicant's submission that the Erratum notice is ineffective to cure the deficiencies in the original notice. It is true that the Erratum notice is not by itself a notice that complies with s 87(1) of the Crown Lands Act or s 61A(1) of the Commons Management Act, but it was not intended to be. Rather, the Erratum notice corrected the errors perceived to exist in the original notice. Although the Erratum notice uses the words "should have read" rather than more imperative words such as "is to read", the intent of the Erratum is plain enough: the original notice is to be corrected by omitting the identified, erroneous words and inserting instead the specified, substitute words. Relevantly, as to the note to Schedule 2, the Erratum notice was intended to have the effect of omitting the former note "Note: Reserve 170176 is hereby auto revoked by this notification" and inserting instead a new note "Note: Common 170176 is hereby auto revoked pursuant to s 61A of the Commons Management Act 1989." I consider that the Erratum notice should be construed as actually having this effect.

129 On this basis, the notice published in the Gazette on 16 April 2010, as altered by the Erratum notice published in the Gazette on 30 April 2010, satisfied the statutory requirements of s 61A(1) of the Commons Management Act and effected the revocation of the setting aside of the land as a common.

130 For these reasons, I reject the applicant's challenge in Ground 1 of the Amended Points of Claim.

Unauthorised purposes

131 Ground 2 of the applicant's challenge to the revocation of the setting aside of the land as a common is that the Minister, by his delegate, exercised the power of revocation for unauthorised purposes, being purposes other than those set out in the Commons Management Act: see Municipal Council of Sydney v Campbell [1925] AC 338 at 343; Thompson v Council of the Municipality of Randwick (1950) 81 CLR 87 at 105-106; Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 56 ALJR 678 at 679-680; (1982) 41 ALR 467 at 468-469; Ziade v Randwick City Council [2001] NSWSC 18; (2001) 51 NSWLR 342 at [126], [137]-[139]; Haneef v Minister for Immigration (2007) 161 FCR 40 at [287]-[293]. The applicant submits that the revocation of the setting aside of land as a common must be for a purpose authorised having regard to the purposes of the Commons Management Act. The applicant referred to the second reading speech on the introduction of the Commons Management Act into Parliament in 1989 and Divisions 4 and 5 of Part 2 of the Commons Management Act. In essence, the applicant submitted the purposes for which the powers are to be exercised need to be consistent with the ongoing management of the Common.

132 The applicant contrasted the authorised purposes, disclosed by these materials, with the purposes for which the Minister purported to exercise the power under s 61A of the Commons Management Act. These purposes, the applicant submitted, emerged from the reasons for decision provided pursuant to a direction of the Court and set out in DOC 10/25743. The applicant submits three of these reasons disclose unauthorised purposes:

• "Ashton Coal Operations Limited is expanding its operation at Camberwell and has recently lodged a Part 3A Major Project application with Planning NSW being the South East Open Cut Project ("SEOC") (para 2.4);"

• "Ongoing management issues associated with the co-existence of active common and mining activities resulted in heightened tensions between the Common Trust and the Mining Company (para 2.6);"

• "There is 'increasing pressure from the mining sector ... and it is considered appropriate that the Common be revoked and the land reserved for the Public Purpose of Rural Services' (para 3.1)."

133 These reasons for decision were particularised as unauthorised purposes in Ground 2 of the applicant's APC.

134 At the hearing, however, the applicant also sought to add a further unauthorised purpose relying on a statement made by the Minister in answer to a question asked in Parliament and to tender an extract from Hansard containing the question and answer of the Minister. The respondents opposed this course on two grounds: first, it goes beyond the case particularised by the applicant and leave to amend should not be granted and, secondly, the applicant's reliance on the statement in Parliament is contrary to Article 9 of the Bill of Rights 1688 (1 Wm & Mary Sess 2 c 2) which provides "That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament". The Bill of Rights is one of the Imperial Acts dealt with in the Imperial Acts Application Act 1969 (s 6 and Part 2 of Schedule 2) which applies and continues in force these Imperial Acts: see Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 at [22]-[23]; and Kable v State of New South Wales [2000] NSWSC 1173; (2001) Aus Torts Rep 81-587 at [14]-[16].

135 At the hearing, I reserved the question as to whether the applicant should be permitted to amend its claim to add as an additional unauthorised purpose the statement made by the Minister in Parliament as well as the admissibility of the extract of Parliament containing the Minister's statement. I now rule that the applicant should not be granted leave to amend to add this statement as disclosing an unauthorised purpose for which the powers of revocation and reservation were exercised and I also reject the admission into evidence of the extract from Parliament containing the Minister's statement. My reasons are threefold.

136 First, the decision to reserve the land and revoke the setting aside of the land as a common were made by the Minister's delegate not the Minister. The delegate has identified his reasons for making these decisions to revoke and reserve and the matters to which he had regard in making these decisions, in response to a direction by the Court. The applicant has not challenged the sufficiency of these reasons or the statement of matters considered. These reasons or matters considered do not include the statement of the Minister in Parliament. Hence, the Minister's statement is not probative of the reasons or matters considered by the delegate in making the decisions to reserve and revoke. Secondly, the amendment was raised at a late stage in the proceedings and, if allowed, may have required the respondents to gather and tender evidence in order to respond, including clarifying what the Minister meant. Thirdly, the examination of the Minister's statement does involve questioning what was said in Parliament, contrary to Article 9 of the Bill of Rights.

137 I return, therefore, to the three previously particularised purposes. I find that none of the matters raised in the three reasons are unauthorised purposes.

138 As with the previous ground of challenge, the applicant's submission that these reasons are for unauthorised purposes is founded on s 61A(1) of the Commons Management Act being the only source of power to revoke the setting aside of land as a common and ss 87(1) and 89(2) of the Crown Lands Act being inapplicable. This is incorrect. For reasons I have given earlier, the setting aside of land as a common can be revoked expressly or by implication by reservation for another public purpose under the Crown Lands Act.

139 Further, the power of revocation of the setting aside of land as a common is antithetical to the continuation of the common. Hence, the applicant's recourse to the second reading speech on the introduction of the legislation for management of commons which have already been set aside and the provisions of that legislation dealing with the management and continuation of a common already set aside, was misplaced: these do not assist in understanding the purposes for which powers to revoke the setting aside as a common may be exercised.

140 The revocation of the setting aside of Crown land as a common and the reservation of that Crown land for a different purpose necessarily must involve consideration of the competing uses for the Crown land. It cannot be an unauthorised purpose to exercise the power of revocation of a common in order to achieve a purpose different to the continuation of the land as a common.

141 The applicant has selected only certain sentences from paragraphs 2.4, 2.6 and 3.1 of the reasons for decision by the Minister's delegate. The full statement of the reasons, quoted earlier in this judgment, put the sentences selected by the applicant into context and reveal the evaluative assessment undertaken by the Minister's delegate in determining competing claims for use of the same Crown land. Each of the statements in the reasons for decision also has an evidentiary basis in the factual history summarised earlier in the judgment.

142 The sentence from paragraph 2.4 of the reasons for decision is part of a larger discussion concerning a potential competing use of the land devoted to temporary commonage, namely, the potential expansion by Ashton Coal of the existing coal mine into the Common and other adjoining Crown lands (the SEOC). If the SEOC were to be approved under Part 3A of the EPA Act and a mining lease were to be granted under the Mining Act, the SEOC and associated facilities would impact on the Common and other adjoining Crown land. The evaluation of the potential competing uses of the land devoted to temporary commonage cannot be said to be either an irrelevant consideration to the decision whether to revoke the setting aside of the Common or an unauthorised purpose for which the power of revocation might be exercised.

143 The sentences from paragraphs 2.6 and 3.1 of the reasons for decision refer to the issues that Ashton Coal and the Trust have had with each other, and the tension between each other, over a number of years, particularly concerning Ashton Coal's endeavours to gain access to the Common to undertake environmental assessments under its Exploration Licence and for its applications for approval under Part 3A of the EPA Act and for a mining lease. The evidentiary basis for these issues and tension between the parties was summarised earlier in the judgment.

144 If the potential competing use of a coal mine on land devoted to temporary commonage is not an irrelevant matter to consider in the exercise of the power of the revocation or an unauthorised purpose for which the power of revocation might be exercised, then logically the issues and tension between the two parties wishing to pursue those competing uses, namely the proponents of the coal mine and the Trust of the Common, are also not irrelevant matters or unauthorised purposes.

145 I therefore reject Ground 2 of the applicant's claim in the APC that the revocation of the setting aside of the land as a common was for unauthorised purposes.

Irrelevant considerations

146 Ground 3 of the applicant's challenge to the revocation is that the Minister, by his delegate, took into account irrelevant considerations. An irrelevant consideration is one which the decision-maker is bound to ignore. The matters a decision-maker is bound to ignore are to be determined by construction of the statute. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40, Mason J summarised the correct approach as follows:

"In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see R v Australian Broadcasting Tribunal ; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49-50, adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 757-758, and Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505."

147 The applicant relies on the same three matters which were said to be unauthorised purposes. However, for the reasons I have given with regard to the challenge on the ground of unauthorised purposes, these three matters cannot be said to be irrelevant considerations. Neither the Crown Lands Act nor the Commons Management Act expressly state that these three matters are not to be considered in the exercise of power to revoke the setting aside of land as a common. Similarly, there cannot be found in the subject matter, scope and purpose of these statutes an implied limitation on the consideration of these matters. Consideration of competing uses of the same Crown land is necessarily involved in making the decisions as to whether to revoke the setting aside of the land as a common and reserve it for other purposes.

148 I therefore reject Ground 3 of the applicant's claim in the Amended Points of Claim.

Reservation

Reservation before revocation

149 Ground 4 of the applicant's claim is that the reservation of the land for the public purpose of rural services could not be made under s 87 of the Crown Lands Act without a valid, prior revocation of the setting aside of the land as a common.

150 For the reasons I have given in relation to Ground 1 of the applicant's claim challenging the revocation, the power under s 87 of the Crown Lands Act to reserve the land was available to be exercised without a prior revocation. The land was Crown land, notwithstanding the 1876 notification devoting the land to temporary commonage. The word "reserve" in s 87 does not bear the restricted meaning of the definition of "reserve" in s 78 of the Crown Lands Act. Revocation was not necessary to cause the land to become Crown land eligible to be reserved under s 87 of the Crown Lands Act.

151 I therefore reject Ground 4 of the applicant's claim in the Amended Points of Claim.

Compliance with s 91 of the Crown Lands Act

152 Ground 5 of the applicant's claim is that the Minister failed to comply with s 91 of the Crown Lands Act in reserving the land. Section 91 provides:

"(1) Land shall not be reserved unless the Minister is satisfied that the land has been assessed under Part 3.

(2) No assessment is required if:

(a) the reservation is from sale or for future public requirements, or

(b) the Minister is satisfied that it is in the public interest to reserve the land without assessing the land under Part 3 and, in reserving the land, has had due regard to the principles of Crown land management."

153 An assessment of Crown land under Part 3 of the Crown Lands Act consists of the preparation of an inventory of Crown land, an assessment of the capabilities of the land and the identification of suitable uses for the land and, where practicable, the preferred use or uses (s 30(2) of the Crown Lands Act). The inventory of Crown land is required to contain particulars of such physical characteristics of the land and such other matters affecting the land as the Minister considers necessary to assess the capabilities of the land (s 31(1) of the Crown Lands Act). The particulars relating to land as contained in the inventory are to be assessed by the Department to determine the land's capabilities, having regard to prescribed land evaluation criteria (s 32(1) of the Crown Lands Act). Assessment of the capabilities of land includes assessment of the land's use for community or public purposes, grazing, or mining, amongst other purposes (s 32(2) of the Crown Lands Act). In identifying suitable uses for land and, where practicable, the preferred use or uses, regard is to be had to the particulars relating to the land as contained in the inventory, the assessment of the land's capabilities, the principles of Crown land management and any current policies relating to the land approved by the Minister, and the views of any government department, administrative office or public authority which has expressed an interest in the land (s 33(1) of the Crown Lands Act).

154 The Minister, by his delegate, approved the waiver of the requirement in s 91(1) for an assessment of the land under Part 3 of the Crown Lands Act, by approval of the Report on the Waiver of the Need for a Land Assessment ("the Waiver Report") on 14 April 2010. The Waiver Report was Annexure A to the briefing note (DOC 10/25743) which recommended reservation under s 87 of the Crown Lands Act of the land for the public purpose of rural services, subject to approval to waive the requirement for land assessment under s 91(2) of the Crown Lands Act.

155 The applicant submits that the Minister's approval to waive the requirement for assessment of the land under Part 3 of the Crown Lands Act miscarried because the Minister, first, could not have been satisfied that it was in the public interest to reserve the land without assessing it under Part 3 of the Crown Lands Act as the Waiver Report primarily considered the SEOC and not the proposal to reserve the land and, secondly, did not have due regard to the principles of Crown land management in reserving the land for the public purpose of rural services.

156 The applicant's first submission challenges the Minister's satisfaction under s 91(2)(b) of the Crown Lands Act that it was in the public interest to reserve the land without assessing the land under Part 3 of the Crown Lands Act. The Waiver Report recommended, and the Minster's delegate approved the recommendation, that it was in the public interest to reserve the land without assessing the land under Part 3. The applicant seeks to challenge that opinion of satisfaction on the basis that the Waiver Report is primarily concerned with the SEOC and did not consider the proposal to reserve the Common. In so far as this challenges the factual correctness or soundness of the analysis and reasoning for the formation of the opinion of satisfaction, the challenge impermissibly strays from the proper province of judicial review into the merits. If the challenge is that the Waiver Report, and hence the opinion of satisfaction based upon the recommendation in the Waiver Report, involves misdirection as to the statutory question to be asked and applied, this would be a legitimate ground of judicial review but is not made out on the facts in this case.

157 The briefing note DOC 10/25743 noted that the proposed reservation was for the public purpose of rural services and that rural services covers purposes notified under former legislation including "commonage", "temporary common" and "temporary commonage" (para 3.2 of the Report).

158 The Waiver Report noted that the proposed SEOC would be subject to assessment and approval under legislation other than the Crown Lands Act, namely the provisions governing an approval under Part 3A of the EPA Act and a "Mining Tenure" under the Mining Act. The reservation of the land for rural services and revocation of the land as temporary commonage did not legally affect the assessment and approval processes under the EPA Act and Mining Act. The merits of the proposed SEOC would be determined by those processes.

159 It is in this context that the reasons given in the Waiver Report for the conclusion that it is in the public interest to reserve the land without assessment under Part 3 of the Crown Lands Act need to be assessed. The Waiver Report gave two reasons. The first reason was that waiver of land assessment accorded with best practice in terms of efficiency of process and the minimisation of administrative costs. The Waiver Report noted that the SEOC is being assessed by the Department of Planning and Ashton Coal had lodged a full environmental assessment as part of this process. The Waiver Report stated that a land assessment would not add value to the assessment process.

160 The second reason given in the Waiver Report for the conclusion that it was in the public interest to waive a land assessment was that the public have had an opportunity to comment on the proposed use of the land through similar land use study processes. The Waiver Report noted that "the Part 3A assessment process involves comprehensive community consultation and opportunity to comment including the formation of a community consultation committee, media adverts, 'one on one' consultation with stakeholders and affected landholders, community information sessions and community surveys. The Environmental Assessment has also been placed on public exhibition." The Waiver Report concluded that the community has been given adequate opportunity to comment on the proposal.

161 Hence, the view was taken in the Waiver Report, and accepted by the Minister's delegate, that because the assessment and approval processes under Part 3A of the EPA Act involve similar land use study processes and environmental assessment as would be undertaken by a land assessment under Part 3 of the Crown Lands Act, there would be no added value in assessing the land under Part 3 of the Crown Lands Act.

162 The applicant is, therefore, not correct in characterising this analysis and reasoning as being primarily concerned with the SEOC and not the proposal to reserve the land. Rather, the analysis and reasoning was directed to explaining why a land assessment for the proposal to reserve the land could be waived in these circumstances.

163 The applicant's second submission challenges whether the Minister, by his delegate, had due regard to the principles of Crown land management. Again, this submission risks impermissibly challenging the factual correctness or soundness of the consideration of the principles of Crown land management in the Waiver Report and adopted by the Minister's delegate. The Waiver Report clearly sets out the principles of Crown land management and analyses each in the context of the proposal: see Part C(b) and the whole of Part E of the Waiver Report. The analysis for each principle of Crown land management addresses the proposed change in the reserve purpose from temporary commonage to rural services. The recommendation in the Waiver Report to waive the requirement for land assessment in respect of the proposed reservation of the land for rural services concluded with the statement that due regard has been made to the principles of Crown land management. Hence, as a matter of fact, due regard was had to the principles of Crown land management in reserving the land.

164 I therefore reject Ground 5 of the applicant's claim in the Amended Points of Claim that the Minister failed to comply with the provisions of s 91 of the Crown Lands Act.

Unauthorised purposes and irrelevant considerations

165 Grounds 6 and 7 of the applicant's claim are that the Minister exercised the power under s 87 of the Crown Lands Act to reserve the land for the public purpose of rural services for unauthorised purposes or by taking into account irrelevant matters. The unauthorised purposes and irrelevant matters are the same three matters referred to in Grounds 2 and 3 of the APC in relation to the revocation of the setting aside of the land as temporary commonage. For the same reasons I have given in relation to those ground of challenge, the applicant has not established that those three purposes are unauthorised purposes for which the power of reservation under s 87 can be exercised or irrelevant matters that the Minister was bound to ignore in the exercise of the power of reservation under s 87.

166 The applicant submits that the factors relevant to consideration of the SEOC are not relevant to the proposal to reserve the land and that the SEOC does not affect all of the land set aside as temporary commonage. The first submission is factually contestable having regard to the briefing note DOC 10/25743 and the Waiver Report which suggest that the proposed change in reserve purpose will facilitate investigation, the conducting of preliminary works and the management of the site for the proposed SEOC. But more importantly, the applicant's submission does not apply the correct legal test. It is not sufficient for the applicant to show that the asserted matters are not relevant in the sense of being not related to the proposal to reserve the land; the applicant must go further and establish that the Crown Lands Act, either expressly or by implication from its subject matter, scope and purpose, obliges the Minister to ignore the asserted matters in the exercise of the power under s 87 of the Crown Lands Act. This has not been done.

167 I therefore reject Grounds 6 and 7 of the applicant's claim in the Amended Points of Claim.

Licence

168 Ground 4A of the applicant's claim is that without a valid revocation of the setting aside of the land as a common, the Minister had no power under s 34 of the Crown Lands Act to grant the licence for access and grazing over the land. This claim is founded on the assertion that the land, whilst set aside for temporary commonage, is not Crown land. For the reasons I have given in relation to Ground 1 of the applicant's claim, this assertion is incorrect. The land remained Crown land notwithstanding being devoted to temporary commonage.

169 Furthermore, there has been a valid revocation of the setting aside of the land as temporary commonage. I have found that the revocation was effected under s 61A of the Commons Management Act by the notices published in the Gazette on 16 and 30 April 2010. The Erratum notice on 30 April 2010 cured the deficiencies in the original notice of 16 April 2010: it had a constitutive and retrospective effect so as to make valid the notice of 16 April 2010. The licence was granted on 16 April 2010 after the revocation took effect.

170 I therefore reject Ground 4A of the applicant's claim in the Amended Points of Claim that the licence is invalid.

Notice under the Mining Act

171 Ground 8 of the applicant's claim is that the applicant for Mining Lease Application MLA 351 had not served notice on the Trust as a "landholder" of the land set aside for temporary commonage, as required under Division 4 of Part 2 of Schedule 1 to the Mining Act, and, as a result, the fourth respondent may not grant a mining lease in respect of MLA 351 under s 63 of the Mining Act.

172 This claim is contingent on the applicant succeeding in obtaining a declaration that the revocation of the setting aside of the land as temporary commonage is invalid. As I have held that the applicant's challenge to the revocation has not succeeded, then the revocation of the setting aside of the land as temporary commonage dissolved the Trust established for that temporary commonage pursuant to s 24 of the Commons Management Act. This removes the basis of the applicant's claim that the Trust is a landholder entitled to receive a notice under Division 4 of Part 2 of Schedule 1 of the Mining Act. It is, therefore, unnecessary to rule on whether the Trust would have been a landholder if the Trust had not been dissolved.

Conclusion and orders

173 Each of the applicant's claims have not been established and the proceedings should be dismissed. Costs should follow the event, although the applicant is entitled to the benefit of the maximum costs order made by Pain J in Olofsson v Minister for Primary Industries [2011] NSWLEC 137 (11 August 2011).

174 The orders of the Court are:

1. Proceedings nos 40637 of 2011 and 80279 of 2011 are dismissed.

2. In proceedings no 40637 of 2011:

(a) The applicant is to pay the costs of the first and fourth respondents fixed in the total sum of $5,000.

(b) The applicant is to pay the costs of the second and third respondents fixed in the total sum of $5,000.

3. In proceedings no 80279 of 2011, each party is to pay their own costs.

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Decision last updated: 15 October 2011