Uses of public purpose land: encroachments on the statutory framework?

Let's start in New South Wales.

Some years ago a private university was granted licences in part of the Sydney Harbour National Park to restore at its cost and use a building for a school of business administration and to improve surrounding land as a recreational area. The licences were purportedly granted under the National Parks and Wildlife Act 1974 (NSW). During their relatively short terms the building would be available for others offering educational services or facilities to the public and, at the end of the licences' terms, the building would be open generally to the public as a general conference facility. As urged by the council, the New South Wales Court of Appeal (in Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710) held that licensing powers of the Minister and Director of National Parks and Wildlife under the Act were only to be understood as powers to advance the object of the Act, that being the protection and preservation of national parks. Using the national park for a private university did not promote the enjoyment of the park by the public. In particular, it was irrelevant that the university was to fund the improvement of facilities in the park.

Variations on the circumstances in Woollahra are not uncommon throughout Australia. Entities appointed to manage, or which are responsible for, land granted, dedicated, reserved or set apart for a public or community purpose under an Act (public purpose land), and whether as a statutory trustee or otherwise, often have general powers of use and management and, depending on the particular land and legislation, may authorise third parties to use the land. A land manager's powers are, however, not at large. As President Kirby remarked in Woollahra:

“The casebooks are full of attempted encroachments ... [They] may be long-term or ... short-term. They may be permanent, semi-permanent or ... temporary. They may be well-intentioned or perverse and arrogant. But they are only lawful to the extent that they promote (relevantly) the purposes ... [of the Act].”

Some uses of public purpose land are occasionally thought of as inappropriate even when they are not unlawful. Such uses may occur because an Act is less than ideal in its object or drafting or perhaps because the Act allows those who care enough about their own interests to take advantage of its provisions. In Friends of Pryor Park Inc v Ryde City Council (1996) 91 LGERA 302 Mahoney P lamented that:

“[i]t has … been common experience that land set aside for the benefit of the public generally is, in many cases, used for the benefit of a few. This is not the result of an abuse of power. Public property, like liberty, is most at risk from those who, for good purposes rather than bad, would encroach upon it.

The legislature has ... relied upon the political accountability of the Minister or the council to prevent what was meant for the use of all to be restricted to (a deserving) few. That, as a means of social control, has been less than fully efficient. The very interested minority will frequently attract more attention than the mildly interested majority ...”

Any way a land manager's powers relating to the uses of public purpose land are looked at, the overriding consideration from a lawfulness perspective will be what Parliament intended for governance of the land. Resorting to generalised notions of what ought to be permitted or not permitted, or relying, one way or the other, on popular meanings of terms such as “public reserve” (or similar) or overly beneficial interpretations of case authorities dealing with different legislation, will not often be helpful to deciding what is and is not a lawful use.

The statutory framework is paramount

The "attempted encroachments" to which President Kirby referred in Woollahra have often concerned whether a proposed use is incidental or ancillary to that which clearly is permitted as a use of public purpose land. Related issues can also arise about whether a commercial or exclusive use may be permitted and, where relevant, whether the public may be excluded from the land.

The burdens of managing public purpose land often can be significant, even for a land manager that is a government entity. Land managers not surprisingly look for ways to offset their management costs, including by introducing new uses and rent-paying third parties to the land. Well-meaning managers frequently undertake or authorise uses believing their actions are consistent with or incidental to that which is expressly permitted by an Act. However, a land manager's activities can attract the watchful (and sometimes disdainful) eye, if not of a Minister or government department with a higher form of oversight over the land generally, then of local community interest groups which understandably wish to see that any community values of public purpose land are protected.

Any unenviable dilemmas for the land manager as to how best to manage land in the immediate and long-terms according to law can, in the end, only be resolved by turning to the Act which governs the land and specifically gives the manager its powers of management and use. As Chief Justice Gleeson put it in Woollahra, it "is the use of the land that is to be judged by reference to the objects of the Act, not the motives which lie behind the decision to permit that use". And for a land manager tempted to interpret its statutory powers in an especially expansive manner, it would be wise to at least acknowledge President Kirby's instruction that it "is important to approach the issues … [of the exercise of statutory powers] ... attentive to Parliament’s expressed will to reserve derogation from the use of … [the land] to itself. Unless clearly permitted by statute, conduct which has that effect cannot achieve indirectly that which would not be possible directly without Parliament’s express approval".

Of course, some Acts are, depending on the land concerned and the level of protection considered necessary, more prescriptive than others when referring to uses that are permitted and those which are not. Also, it is not appropriate to adopt a general view that an Act's provisions authorising the exercise of powers of management and use are to be interpreted through an excessively limiting lens. In Coastal Ecology Protection Group Inc v City of Charles Sturt (2017) 227 LGERA 1 Justice Blue said the “evident purpose [of a dedication of Crown land] is to restrict, as long as the dedication remains in force, the lawful use of the land by reference to the dedicated purpose.” That is true, but a dedication (or similar) of land to a public purpose must, according to the relevant legislative scheme, be allowed to do its work. When statutory powers permit a land manager to employ or apply the land for a public purpose, then, for all concerned, it may be more useful to describe those powers as being as broad and as limited as they need to be to facilitate the objective for which the land has been dedicated (or similar) and the object of the relevant Act.

It is these concepts that were generally at play recently in the Victorian Court of Appeal.

Brighton Foreshore Association Inc v Bayside City Council

In Brighton Foreshore Association Inc v Bayside City Council [2021] VSCA 284, the Association sought leave to appeal a decision of a single justice of the Supreme Court dismissing a challenge to a decision of the Victorian Civil and Administrative Tribunal. The Tribunal had decided that a planning permit should be granted pursuant to the Bayside Planning Scheme for the use of components of a redevelopment of an area containing the Brighton Life Saving Club pavilion at Dendy Beach, Brighton. Leave to appeal was refused.

The redevelopment area comprised a relatively small part of an extended area of land used as a foreshore reserve vested in the council. The redevelopment itself generally consisted of a new, two-level clubhouse to be leased to the lifesaving club, including a multifunction space on the second floor; a café area with internal and external areas intended to be leased to a commercial operator; a new car park; new pedestrian, disabled and vehicle access ways to the beach; forecourt terraces; and the replacement of landscaping.

The foreshore reserve was within the Public Park and Recreation Zone in the council's planning scheme. The council was the permit applicant and the authority for granting a permit relating to planning controls. Despite a number of objections, the council decided to issue the permit. The Association and other objectors initiated review proceedings before the Tribunal. Relevantly, the Association challenged the power of the council to grant the permit on the basis of limitations on the use of the foreshore which the Association said arose from an Act of 1877 vesting the land in the council in fee simple as "a place of public resort or recreation".

Specifically, the Association argued that, on a proper construction of the vesting Act, the proposed uses for a lifesaving club and café could not lawfully be undertaken. The Association also contended that the trial judge erred by concluding that the proposed uses might be permissible as ancillary uses to the use of the land as a whole and by failing to have proper regard to whether any monetary profits which would arise from the proposed uses would be devoted to the public purpose contemplated by the vesting Act. (The court found that, as the appeal was, in effect, a challenge to a decision of the Tribunal as an administrative decision-maker concerning the grant of a planning permit, the Tribunal was not required to give effect to the provisions of the vesting Act as a matter of law. Nevertheless, the court entertained the arguments concerning the Tribunal's consideration of that Act.)

General principles and Randwick Corporation v Rutledge

Some general principles which were highly relevant to the reasoning in Brighton Foreshore Association about the effect of the vesting Act can be stated.

• As mentioned, the primary consideration in deciding whether a particular use of public purpose land (whether of a land manager or a third party) is or is not permitted will turn on an interpretation of the relevant statutory framework according to ordinary construction principles because it is that framework which creates a particular legal order for the land (Western Australia v Ward (2002) 213 CLR 1). The relevant framework often is found, in whole or in part, in a Crown lands statute dedicating or setting apart land as a reserve (or similar) but may be in a specific Act vesting land in an entity for a particular purpose.
• However, the nature of the particular dispute needs to be properly understood: what use is relevant to that dispute? Although similar considerations will be relevant, what is in issue may be how land is used rather than how it can be used. For example, is public purpose land as used in a particular way rateable land under rating legislation or is a use appropriate for the limited purpose of a planning permit?
• As such, different tests can apply to assessing a use of public purpose land depending on the particular language of the statute(s) relevant to resolving a dispute. For example, a particular use may be permitted because it is consistent with a dedicated purpose of the land even if it is not incidental or ancillary to that purpose. In another context, it may be relevant to ask whether a use amounts to a dominant use of the land.

In cases concerning the use of public purpose land it is rare not to refer to the separate reasons of Justices Menzies and Windeyer in Randwick Corporation v Rutledge (1959) 102 CLR 54. Those reasons, which were considered in Brighton Foreshore Association, are, however, only an aid to resolving legal contests about uses.

Randwick Corporation was a rating case. According to the relevant rating legislation, land was not rateable if it was vested in trustees and was used for a public reserve. "Public reserve" was defined as a public park and any land dedicated or reserved from sale by the Crown for public health, recreation, enjoyment or other public purpose of the like nature. The court held that the relevant land, although granted to trustees for the "purposes of public recreation" and dedicated so that it could be used at the trustees' discretion as a racecourse, a racecourse training ground, a cricket ground, for rifle shooting or for any other declared public amusement, was not used for a public reserve. The land was used as the Randwick racecourse under a lease to the Australian Jockey Club.

According to Justice Menzies, it was necessary to undertake a "survey of all that happen[ed] upon the land to determine whether it [was] in fact" used for a public reserve. That obviously required the court to know what was intended by a public reserve. And, necessarily, this turned the inquiry towards that which the rating legislation intended to capture as rateable land or land that was exempt from rating. It was not simply a case of concluding that any use as contemplated by the grant (including as a public racecourse) was for public recreation and, therefore, for a public reserve as required by the rating legislation. Justice Windeyer reasoned that, in principle, for land to be used for public recreation and enjoyment so, in some sense, to be akin to a public park, two conditions needed to be fulfilled. One, in a relevant sense, the land had to be open to the public generally; and two, it could not be the source of private profit. The second condition was based on the "underlying theory of rating legislation" that public land is exempt from rating because it does not produce a rent or profits for its owner or occupier.

An incidental or ancillary use

In Randwick Corporation it was recognised in the context there that a use incidental or ancillary to a use of land for the purpose of public recreation or enjoyment could have been considered to be a use for that purpose even though, when viewed in isolation, it would not have been.

Many uses that are incidental or ancillary to the otherwise permitted use of public purpose land – for example, for plant and equipment or toilet facilities – will often be lawful or within the contemplation of using land for its public purpose because they necessarily accompany or are required as a consequence of the primary use (and especially if they only occupy a small part of the land). However, an "incidental or ancillary to" test may not be the right test to be applied and may even be too narrow; it depends what is in issue. In Connolly v Brisbane City Council [2015] QSC 231, it was argued that a trustee of land granted in trust (Council) could only allow a use of the land that was not directly for the relevant public purpose if the use was incidental to that purpose. Justice Flanagan rejected that argument. In providing "the way land granted in trust … is used must not be inconsistent with … a purpose for which it was granted", section 35(1)(a) of the Land Act 1994 (Q) only required that the proposed use of part of the land for a gym not be "incompatible with" the trust land's public purpose of "local government (swimming pool)". An "incidental to" test was too limiting having regard to the ordinary and natural meaning of the word "inconsistent".

Where the public purpose contemplates public use and not merely a public benefit

A distinction needs to be drawn and is often acknowledged by courts (eg. Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379) between public purpose land that contemplates actual public access or enjoyment (eg. a public park) and a purpose that, although providing a public benefit, does not contemplate any actual public use (eg. a reserve for drainage purposes). The contemplation of public access or enjoyment by the purpose obviously becomes a highly relevant consideration in determining whether another use of, or to be introduced to, the land is or is not lawful.

In Randwick Corporation, Justice Windeyer insisted, in principle, on the land's being open to the public because his Honour considered that was what parliament meant by a public reserve for public recreation or enjoyment (as being akin to a public park). Noting that the popular meaning of "public reserve" was inexact, this introduced a consideration relating to the nature and scope of public use or enjoyment of the land which sometimes is said to be exercisable "as of right" (but caution needs to be applied in using such a term). Necessarily, questions were then asked whether and, in what circumstances, the public was or could be excluded from the land. It was not necessary for the public to have access to all parts of the land at all times (eg. when a particular recreation activity was being undertaken or at night) or free of charge. To Justice Windeyer, a recreation ground did not become a public recreation ground because its customers who could generally only enter on race days were numerous.

Where an occupant has exclusive, private use of land

As a related point, the fact of leasing and the lessee's exclusive enjoyment of the leased premises do not of themselves mean that the land cannot be said to be used for a public purpose. Indeed, most statutes in this area will insist that any permitted use under the lease be for, or consistent with, the public purpose. Where relevant, the permitted use may contemplate public access.

However, whether a land manager may grant a lease or some other occupation right at all will depend on whether that is permitted by the legislative scheme or, where relevant, the manager's interest in the land (eg. a manager without an estate in the land may not, without a specific statutory power, be able to lease). Accepting that the manager has the power to lease or grant an occupation right, its exercise will, like any power of management and use, generally be restrained by the purpose for which the power was conferred.

Although a lessee's right of possession must necessarily have an excluding effect on others and leave use of the leased premises generally in the hands of the lessee, the permitted use under the lease will often assume the most significance in determining the lawfulness of any leasing by the land manager. Depending on the relevant legislative scheme (and whether and how the land is expected to be used according to its purpose), the lease might be allowed as being within the land manager's power because its permitted use is not for a private collateral purpose or because it is not contrary to use of the land for the public purpose as a whole; this may especially be the case where the leased premises occupy a relatively small area.

A good example of when third party exclusive use of land might be a problem is (as alluded to in Brighton Foreshore Association) when say, a café is operated on land for public recreation but entry to and exit from the café is only from an adjoining public road so that, in substance, the café has no relationship with the land except its physical location. Its customers do not otherwise need to use or enjoy the land for any purpose. However, a café in the centre of land for public recreation will at least require the public to traverse the land to frequent the café and in doing so members of the public may be said to engage in a recreational pursuit (even if some do not actually enjoy walking the extra distance). Visiting the café need not itself be a recreational activity; rather, the use of the land for a café is incidental to use of the land as a whole for public recreation.

The conclusions in Brighton Foreshore Association

In Brighton Foreshore Association, the court thought the real question was whether it was open to the Tribunal to find that the use of small parts of the vested land for a café and life saving club would be components of the use of the land as a place of public resort or recreation. Although interpretation of the vesting Act of 1877 was a question of law, as the words "a place of public resort of recreation" were ordinary English words, it was a question of whether the proposed uses fell within their meaning as a question of fact. The proper approach, then, was to have regard to the use of the land as a whole and ask whether, in all the circumstances, the elements of use objected to were, in substance, incidental to the use of the land as a whole as a place of public resort or recreation (public resort or recreation suggesting more than a public park).

The court found that it was open to the Tribunal to conclude that the café would be an element of the use of the foreshore because, when open, it would operate as an adjunct to the enjoyment of the foreshore reserve as a whole. Importantly, here, the court adopted the view that neither public resort nor recreation were activities that were fixed by reference to particular behaviours: "they are purposive descriptions into which particular activities may fit and which activities may be expected to change over time". It made no material difference to the character of the café as an incidental element of use of a place of public resort or recreation that the café would be operated by a lessee or by a contractor under a licence or by employees of the council. Also, the fact the café may have been operated at a profit did not deprive it of the quality of use as a component of a place of public resort or recreation.

The lifesaving club would be ancillary in a different sense, namely, that it would assist and promote the use by the public of the foreshore reserve by providing safe swimming conditions. Again, it did not matter that the club would be leased or operated on some other basis such as a shared use supervised by professional lifeguards employed by the council. To the court, the essential nexus between the club use and public resort or recreation was provided by the nature of the activities that would be conducted from the club on the foreshore reserve area available to the public. It did not turn on the question whether the occupation of a small part of the foreshore reserve was subject to a lease.