The High Court recently set aside a decision of the NSW Court of Appeal, ruling that the Paddington Bowling Club, Sydney, was not being ‘lawfully used’ per s 36(1)(b) of the Aboriginal Land Rights Act 1983 (NSW) and was ‘claimable Crown land’ as the lessee had not undertaken a purposeful activity on the land. 

Background and facts

On 19 December 2016, the NSW Local Aboriginal Land Council (LALC) lodged a bulk Aboriginal Land Claim (ALC) pursuant to s 36 of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) for all reserves within the meaning of s 78 of the Crown Lands Act 1989 (NSW) within the boundary of the La Perouse LALC (except for three specified areas), extending from northern Wollongong to North Head. Covered by that ALC was the Paddington Bowling Club (Land). At the date of the ALC, the Land was subject to a reserve for community and sporting facilities, and tourist facilities and services. From 19 May 1962 to 1 December 2010, the Land was subject to a special lease for recreation (bowling greens) and the erection of buildings (club house). 

From 1 December 2010, a new registered Crown lease replaced the special lease, and was assigned in the name of Paddington Bowling Club for a period of 50 years (CrownLease). On 30 December 2011, the Crown Lease was assigned by Paddington Bowling Club to CSKS Holdings Pty Ltd (CSKS). 

However, by 15 October 2015, the Paddington Bowling Club was no longer being used for its permitted use under the Lease, described as a “forgotten wasteland.”^[1]

On 10 April 2016, a letter from the Department of Primary Industries was sent to CSKS alleging that CSKS was in breach of the Crown Lease. CSKS disputed the allegations made in the letter, but did undertake certain remediation works on the Land. On 1 February 2018, CSKS then assigned the Crown Lease to Quarry Street.

On 10 December 2021, the Minister for Planning and Public Spaces (Minister) approved in part the ALC, determining that the Land was claimable under s 36(1) of the ALR Act and was to be transferred into the ownership of La Perouse LALC.

On 8 March 2022, Quarry Street commenced Class 4 proceedings in the Land and Environment Court (LEC) seeking judicial review of the Minister’s decision. Quarry Street sought orders to prevent the transfer of the Land to La Perouse LALC and NSW LALC, and a declaration that the Land was lawfully used or occupied. Chief Judge Preston dismissed all three grounds of appeal and ordered Quarry Street to pay the Minister’s, La Perouse LALC’s and NSW LALC’s costs for the proceedings.

Quarry Street then appealed the decision of the LEC to the NSW Court of Appeal (NSWCA). The question on appeal was whether the primary judge had erred in failing to find jurisdictional error in the Minister's decision to partially grant the ALC where the Land was subject to a Crown lease. 

On 10 May 2024, the NSWCA upheld the appeal, setting aside the orders of the LEC and quashing the Minister’s decision that the land was claimable Crown land. The NSWCA also compelled the Minister to refuse the land claim made by La Perouse LALC.

La Perouse LALC then appealed the decision of the NSWCA to the High Court of Australia. 

Key Issues on appeal

The key issue on appeal was whether the Land was in fact ‘claimable Crown land’ as defined in s 36(1) of the ALR Act.^[2] At the centre of the appeal was the interpretation of the word ‘used’ in s 36(1)(b), and whether leasing the abandoned Land alone, without using the Land for any other specific physical use, could be classified as a valid ‘use.’^[3]

Findings

The High Court allowed the appeal and set aside the orders of the NSWCA, meaning that the Land could be claimed by La Perouse LALC. 

The High Court bench was split 3:2, with Gageler CJ, Edelman J and Jagot J in the majority and Gordon and Steward JJ in dissent.

Majority judgement 

Chief Justice Gageler argued that in order for Crown land to remain unclaimable under s 36(1)(b), the land must be used for an actual physical purpose and that lawful ‘use’ does not extend to unused land which simply has an unexpired lease existing over it. 

His Honour reinforced Jagot J’s reasoning that once the definition of the word ‘land’ was limited to physical land, the definition of ‘used’ or ‘occupied’ must also be limited to physical use or occupation. His Honour referred to case law which affirmed that ‘used’ means land which is “actually’ used in the sense of being used in fact and to more than a merely notional degree.’^[4]

Justice Jagot found that the NSWCA had conflated the definition of ‘used’ and did not consider the difference between a passive use of land and a constructive or nominal use of land. Use of land under s 36(1)(b) does not require the physical undertaking of an activity on the land, but can include using land passively for a specific purpose. Land that is just the subject of a lease at the date of a claim is a nominal use of land.^[5]

Justice Edelman agreed with Justice Jagot. He affirmed that a valid ‘use’ of land as per s 36(1)(b) does not actually require taking physical action of land. For example, land could remain in its natural state and still be used for a special purpose, such as land on an island being used for the purpose of a bird sanctuary.^[6] His Honour found that Quarry Street were using their rights to the Land, such as by receiving rent from CSKS, but were not purposefully interacting with the physical area of the Land as required under s 36(1)(b).^[7]

Implications

The narrowing of what constitutes ‘use’ for the purposes of the ALR Act has implications for current and future land claims made by Local Aboriginal Land Councils. 

In particular, merely maintaining a lease to avoid forfeiting the lease, or where the leaseholder is considering the future use or potential future use the land may hold, even where there may be a future transfer of the lease, is insufficient to constitute ‘use’ as per the ALR Act. 

As such, simply relying on a right or interest held over Crown land which is not being used for any particular purpose, is not sufficient to demonstrate that land is not claimable Crown land. Rather, land is ‘used’ as per the ALC Act only if there is purposeful interaction with the physical area of the land claimed. 
 

_{[1] La Perouse Local Aboriginal Land Council & Anor v Quarry Street Pty Ltd [2025] HCA 32 [48] (Gordon and Stewart JJ) (La Perouse LALC v Quarry Street).}

_{[2] Ibid [8] (Gageler CJ).}

_{[3] Ibid [100] (Gageler CJ).} 

_{[4] Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140, 164.} 

_{[5] La Perouse LALC v Quarry Street (n1) [254] (Jagot J).}