Posted on December 22, 2016 by Frances Tse

Statutory Notices – Essential Preconditions to Exercise of Power

The Land and Environment Court has once again emphasised the importance of compliance with statutory requirements for public notices by invalidating a contract for sale as a result of a failure by a Minister to publish a proper statutory notification prior to revoking the reservation of the land under the Crown Lands Act 1989 (‘CL Act‘).

In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] NSWLEC 157 the Land and Environment Court had to consider whether compliance with a statutory notification requirement under s90(2) of the CL Act was an essential precondition to the Minister’s exercise of power to revoke the reserve status of a parcel of land.

Relevantly, s90 of the CL Act provides that:

(1)  The Minister may, by notification in the Gazette, revoke the whole or part of a reservation of land under this Act.

(2)  The Minister may not publish a notification under subsection (1) unless at least 14 days have elapsed after notice of intention to publish the notification has been published in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State.

The Minister did not publish the notice of intention as required by s90(2) before it notified the revocation in the Gazette of the reservation of the land under the CL Act.

The Minister had entered into a contract for the sale of the relevant parcel of land. It was argued by the New South Wales Aboriginal Land Council that the notice under s90(2) of the CL Act was an essential precondition to the publication of the notice in the Gazette such that the revocation of the reservation was ineffective, the land remained reserved under the CL Act, and the contract was therefore invalid, as reserved land cannot be sold under the CL Act.

Consistently with the Court’s views in respect of strict compliance with statutory notification requirements under other legislation such as the Environmental Planning and Assessment Act 1979 (‘EPA Act‘), the Court held that the requirement under s90(2) for the Minister to publicly notify his or her intention to revoke a reservation of land was an essential precondition to exercising the power to revoke a reservation.

One of the reasons why the Courts require strict compliance with statutory notification requirements in the EPA Act is because public participation is an object of the EPA Act, the public is expressly entitled to make submissions, and those submissions must be considered by the decision maker. Compliance with the notice requirements ensures public participation and affords a form of procedural fairness to those who have an interest in or may be affected by the relevant decision.

There is no express provision in the CL Act stating that public submissions could be made and must be considered in response to the giving of the notice under s90(2). However the Court considered that despite that, the purpose of the notice was to facilitate public participation in dealings with Crown land by allowing the public to make representations to the Minister and presumably allowing the Minister to then consider submissions prior to determining whether to revoke the reservation. The advanced notice would also allow the public to approach the courts to obtain appropriate interlocutory relief.

The fact that the advance notice was not given in this case meant that no procedural fairness was afforded.

The Court concluded that the failure to give the required notice lead to invalidity of the Gazette notice, and the land was therefore still subject to the reservation under the CL Act. This meant that the contract for sale was unlawful, as reserved land cannot be sold under the CL Act, and therefore the contract for sale was also invalid.

By the time the Court heard this case the land in question had already been transferred to the purchaser under the contract for sale. The Court did not have to determine what would happen in respect of the land. I expect there will be more litigation in that respect, particularly as the purpose of the case was to appeal against a decision by the Minister regarding whether the land was ‘claimable Crown land‘ under the Aboriginal Land Rights Act 1983.

This case is a reminder to decision makers such as local councils and statutory authorities to strictly comply with any statutory public notification requirements which are required before a decision is made. The consequences of not doing so will generally be that subsequent decisions are invalid, and this can have dramatic consequences as indicated by this case, and the litigation which will presumably follow.