Posted on September 5, 2025 by Liam Mulligan and Sinead Macauley 4

Further development in the law regarding the meanings of “land and “use”

In previous In Focus articles, we have considered cases dealing with the variable meaning of the word “land” in different statutory contexts.

In the planning context, the word “land” is generally concerned with a physical, three-dimensional tract of the earth’s surface with an emphasis on its geographical characteristics.

However, the word also has an extended meaning which includes a reference to the legal and equitable interest which can exist over land, such as rights of ownership, or lesser interests such as easements, leases and the like.

Questions of what “land” means, and in what sense the law engages with it, continue to surface across a wide range of statutory contexts. A related concept is the “use” of land, and the circumstances in which a person will be deemed to be making “use” of land by for instance, leasing it out to another party.

A decision of the High Court this week deals with these issues.

Background

Facts of the case

In La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32 the High Court considered the scope of an Aboriginal Land Council’s right under s 36 of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) to make a claim on “claimable Crown lands.”

The right is subject to certain statutory limitations. Relevantly, that land is not claimable if it is “lawfully used or occupied” (s 36(1)(b)).

The appellant, La Perouse Local Aboriginal Land Council, lodged a claim over land in Paddington which was vested in the Crown but subject to an unexpired lease at the time of the land claim. The site had formerly been occupied by a bowling club but, at the time of the claim, the land was derelict and had fallen into disrepair. The lease remained on foot, but the premises were not being maintained and the buildings had major structural defects which meant that they were unlikely to ever be capable of being used again.

The lessee of the land, Quarry Street Pty Ltd, opposed the claim on the basis that the existence of the Crown lease constituted lawful “use” of the land within the meaning of s 36(1)(b). It argued that the land was relevantly used due to mere existence of the lease, irrespective of whether any physical occupation or activity occurred on the land itself.

The Minister granted the LALC’s claim and Quarry Street sought judicial review. At first instance, Preston CJ of the Land and Environment Court dismissed Quarry Street’s application but, on appeal, the NSW Court of Appeal overturned that decision and found that the land was “used” due to the existence of the lease.

Issue in the High Court

The principal issue for the Court was whether lands were relevantly “used” by the mere continuation of a lease, or whether some actual physical deployment of the land was required.

Central to consideration of this issue was whether, for the purposes of s 36(1)(b), the word “lands” should be understood as the physical parcel or tract of land vested in the Crown or as extending to the bundle of legal interests attached to it.

Findings of the Court

By majority, the High Court (Gageler CJ, Edelman and Jagot JJ) reversed the Court of Appeal’s decision. The Court held that the Court of Appeal had misconstrued s 36 of the ALR Act by treating the subsistence of a lease as sufficient to establish that land was lawfully used.

The majority found that land is relevantly “used” by some actual or purposive deployment of the land itself. Reliance on the mere existence of a legal instrument was insufficient to demonstrate the “use” of the land. Jagot J observed that land is only “used” if there is ‘an actual use in fact of the physical mass or tract of ground the subject of the claim‘ in more than a merely notional degree, and that the mere existence of an estate or interest in respect of that physical mass or tract of ground does not satisfy that requirement [165].
Gageler CJ summarised the point [9]:

‘Lands vested in the Crown … are not “used” within the meaning of s 36(1)(b) merely by reason of the existence of an unexpired lease of those lands from the Crown.’

In making these findings, the majority accepted that legal interests in land such as leases fall within the inclusive definition of “land” in s 4(1) (which extends to estates or interests in land) but held that use or exploitation of these interests alone – as opposed to physical deployment of the land itself, did not constitute a relevant use of the land. This construction was said to be compelled by the context and purpose of s 36, which is concerned with whether physical land is claimable and available for transfer in fee simple.

The effect of the decision is that land subject to a lease, but lying vacant, may still be “claimable Crown land” under the ALR Act. The statutory purpose of facilitating Aboriginal land claims is not defeated by the Crown’s reliance on bare legal arrangements unaccompanied by current, physical use.

Read the case in full here: La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32. For further consideration of this topic, see our earlier blogs on The Meaning of ‘Land’ and ‘The Dual Meanings of ‘Land‘.

If you have any questions regarding this article, please leave a comment below or contact Liam Mulligan on 02 8235 9715.